R v Moore[2022] QSC 35

SUPREME COURT OF QUEENSLAND

INDEX

Paragraph

The Issues 3

General Directions 17

The Evidence 21

1. (a)
   The relationship between Tracey and the deceased
   21
2. (b)
   The relationship between Moore and

   Tracey29

3. (c)
   The relationship between Moore and the deceased
   36
4. (d)
   The meeting between Moore and Tracey on 20 January 2018
   38
5. (e)
   Moore’s Facebook message of 20 January 2018 to Mr Cain
   40
6. (f)
   The conduct of the deceased leading to 6 February 2018
   46
7. (g)
   The SMS exchanges up to and including 6 February 2018
   53
8. (h)
   The deceased was security conscious
   86
9. (i)
   The events of 6 February 2018
   89
10. (j)
    Moore’s evidence as to what happened that night
    91
11. (k)
    Tracey’s evidence as to what happened that night
    109

(l) Crime scene evidence 133

(m) Dr Ong’s evidence 137

(n) Events following Moore and Tracey leaving the deceased’s

unit145

The Case in relation to Moore 165

1. (a)
   Self-defence – s 271(2) of the Criminal Code
   169
2. (b)
   Self-defence – s 272 of the Criminal Code
   179

3. (c)
   The fourth element
   187

4. (d)
   The excuse of accident
   202
5. (e)
   Moore intended to kill or do grievous bodily harm to

   the deceased Tracey218

6. (f)
   The partial defence of provocation
   248

The Case in relation to Tracey 256

1. (a)
   Directions – section 7(1)(b) and (c) of the Criminal Code
   256
2. (b)
   The prosecution’s submissions
   268

3. (c)
   Tracey’s submissions
   274

4. (d)
   Did Tracey enable, aid or encourage Moore to cause the death of the deceased

knowing that Moore intended to cause either death or grievous

bodily harm?282

1. [1]
   The defendants are charged with the following offence:

“That on or about sixth day of February, 2018 at Wynnum West in the State of Queensland, Paul Mathew Moore and Emily Jane Tracey murdered James Andrew Switez-Glowacz.”

2. [2]
   Both defendants pleaded not guilty.

The issues

3. [3]
   At about 16:00 on 8 February 2018 the body of the deceased was discovered by his father, Albert Switez-Glowacz, at his son’s townhouse, unit 2/10 Florabelle Court, Wynnum West.

4. [4]
   The deceased was on the floor near the front corner of the living room in a kneeling face-down position, with his knees under his body. His shirt was pulled halfway over his head with a large pool of blood around his head which rested against the floor. Although the deceased was discovered by his father on 8 February, he had been killed two days earlier on 6 February 2018.

5. [5]
   An autopsy conducted on 13 February 2018 by Dr Ong, a forensic pathologist, identified one incised wound and eight stab wounds; four to the back of the head and four to the back of the torso. The wounds to the head also included the incised wound. Dr Ong attributed the death to haemorrhage from the eight stab wounds and the incised wound in combination.

6. [6]
   Both defendants admitted pursuant to s 644(1) of the Criminal Code (Qld) that:

“On 6 February 2018 at 2/10 Florabelle Court, Wynnum West, Paul Mathew Moore stabbed the deceased, James Andrew Switez-Glowacz (Date of birth: 7 November 1981), with a knife which caused the incised wound and eight stab wounds identified at autopsy.” (exhibit 1).

7. [7]
   Section 644(1) relevantly provides that, “An accused person may by himself, herself or the person’s counsel admit on the trial any fact alleged against the person, and such admission is sufficient proof of the fact without other evidence.” It may therefore be accepted that it was Moore who stabbed the deceased.

8. [8]
   Section 300 of the Criminal Code provides that:

“Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case.”

9. [9]
   Section 302 sets out the circumstances in which an unlawful killing will constitute murder. Those circumstances include s 302(1)(a) where the defendant intended to cause death or grievous bodily harm to the deceased.

10. [10]
    In relation to the defendant Moore, in order for the prosecution to prove murder founded upon an intention to kill or do grievous bodily harm, it must prove all of the following elements beyond a reasonable doubt that:

    1. James Andrew Switez-Glowacz is dead;

2. Moore caused James Andrew Switez-Glowacz’s death;
3. Moore did so unlawfully; and
4. Moore intended to kill or do grievous bodily harm to James Andrew Switez- Glowacz.

11. [11]
    In light of the admission, there is no dispute that James Andrew Switez-Glowacz is dead nor that the defendant Moore caused his death. It is in issue as to whether the prosecution has proved beyond reasonable doubt that the killing of the deceased was unlawful. More specifically, whether the prosecution has excluded beyond reasonable doubt that the killing of the deceased by Moore was either self-defence against an unprovoked assault (s 271(2) of the Criminal Code) or self-defence against a provoked assault when there is death or grievous bodily harm (s 272 of the Criminal Code).

12. [12]
    It is also in issue whether Moore intended to kill or do grievous bodily harm to the deceased and whether the prosecution has excluded beyond reasonable doubt the excuse of accident under s 23(1)(b) of the Criminal Code.

13. [13]
    A further issue in relation to Moore is the partial defence of provocation under s 304 of the Criminal Code.

14. [14]
    The prosecution’s case in relation to Moore is particularised as follows:

“Paul Moore is liable for the murder (s 302(1)(a)) of James Switez-Glowacz because he caused the death of James Switez-Glowacz by inflicting wounds to him with a knife, and with an intent to cause either death or grievous bodily harm (s 7(1)(a)).” (exhibit 2).

15. [15]
    The prosecution case as particularised in relation to the defendant Tracey relies on the party provisions of the Criminal Code, namely s 7(1)(b) and (c) and s 8:

“Emily Tracey is liable for the murder (s 302(1)(a)) of James Switez-Glowacz because she either:

1. enabled, aided or encouraged Paul Moore to cause the death of James Switez-Glowacz, knowing that Paul Moore intended to cause either death or grievous bodily harm (s 7(1)(b) and/or 7(1)(c)) by doing any one, or all, or any combination of the following acts:
   1. (a)
      encouraging Paul Moore by words;
   2. (b)
      driving and/or directing and/or travelling with Paul Moore to James Switez-Glowacz’s unit;
   3. (c)
      persuading or causing James Switez-Glowacz to open the door of his unit;
   4. (d)
      being deliberately present at James Switez-Glowacz’s unit; or
2. formed a common intention with Paul Moore to prosecute an unlawful  purpose  together  to  seriously  assault  James Switez-Glowacz, and that in the course of carrying out that purpose James Switez-Glowacz was murdered, which was a probable consequence of carrying out that purpose (s 8).”

16. [16]
    Mr Hoare, counsel for Tracey, in his opening statement identified the issue as to the application of these party provisions:

“The issue in this trial will not be whether or not Emily Tracey was present when James died. The issue will be the purpose of her presence and whether she was present with the requisite intent, that is whether she was present aiding Paul Moore with the actual knowledge that Paul Moore had a specific intent to cause grievous bodily harm or death, or whether the death was a probable consequence of a common intention to seriously assault James.”

General directions

17. [17]
    The prosecution called 32 witnesses. Both defendants gave evidence. The defendants made seven admissions pursuant to s 644(1) of the Criminal Code. Those admissions are sufficient proof of those facts without other evidence. The prosecution made one admission pursuant to s 644(2), which is also sufficient proof of that fact without other evidence. I deal with relevant admissions below. Certain evidence adduced by the prosecution requires specific directions. These directions relate to two expert witnesses giving evidence by telephone, the pre-recorded evidence of a daughter of Moore (“BDH”) and the pre-recorded evidence of Albert Switez-Glowacz, who is now deceased. Orders were also made for Ursula Lyne and Kristina Ibbotson to give their evidence by audio link.

18. [18]
    The evidence tendered by the prosecution included two statements of Tracey dated 13 and 17 February 2018 and discs of two police interviews conducted on 21 and 22 February 2018.  The prosecution also tendered a statement of Moore dated 17 February 2018 and three discs of a police interview conducted on 21 February 2018 and one disc of a police interview conducted on 22 February 2018. In the course of the second interview Moore declined to be further interviewed. This refusal requires a direction. I will also need to direct myself that although the defendants are being tried together on the charge of murder, I must give the cases against and for each of them separate consideration.

19. [19]
    Another important direction is to ensure that in giving this separate consideration I only have regard to the evidence admissible against Moore and the evidence admissible against Tracey. To assist in this process the prosecution and the defendants have agreed on a document entitled “Witness list” (exhibit 10), which seeks to identify the evidence (including exhibits) in the case of Moore only and the evidence in the case of Tracey only. The only exception to this is the evidence of Christopher Lafferty, a police officer who had involvement with both defendants. The application of exhibit 10 makes it clear, for example, that the statements made by Moore in his statement and interviews are not admissible against Tracey and similarly, the statements of Tracey in her statements and interviews are not admissible against Moore.

20. [20]
    I direct myself as follows:

1. (a)
   The burden rests on the prosecution to prove the guilt of each of the defendants. There is no burden on either defendant to establish his or her innocence. They are presumed to be innocent. The defendants may be convicted only if the prosecution establishes that they are guilty of the offence charged or some other offence of which they may be convicted on the indictment.
2. (b)
   For the prosecution to discharge its burden of proving the guilt of the defendants, it is required to prove beyond reasonable doubt that they are guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. If I am left with a reasonable doubt about the guilt of the defendants, my duty is to acquit; that is, to find them not guilty. If I am not left with any such doubt, my duty is to convict; that is, to find the defendants guilty. Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities. That is, the case must be proved to be more likely than not. In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt.
3. (c)
   The offence of murder requires proof by the prosecution beyond reasonable doubt of an intention to kill or do grievous bodily harm. “Intent” and “intention” are familiar words. In this legal context, they carry their ordinary meaning. In ascertaining the defendants’ intention I am drawing an inference from the facts which I find established by the evidence concerning the state of mind of each of the defendants. Intention may be inferred or deduced from the circumstances in which the death of the deceased eventuated and from the conduct of the defendants before, at the time of, or after Moore did the specific acts which caused the death. Whatever Moore said about his intention may be looked at for the purpose of deciding what that intention was at the relevant time. Similarly for Tracey, what she said about her intention may be looked at for the purpose of deciding that intention at the relevant time. In respect of the offence of murder, proof of intention to produce a particular result, namely to kill or do grievous bodily harm, is an element of the offence. Accordingly, the prosecution must prove beyond reasonable doubt that each of the defendants meant to produce that result by his or her conduct.
4. (d)
   I must dismiss all feelings of sympathy or prejudice, whether it be sympathy for or prejudice against either of the defendants or anyone else. No such emotion has any part to play in my decision. I must approach my duty dispassionately, deciding the facts upon the whole of the evidence.
5. (e)
   I must decide the case on the evidence presented to me in Court and only that evidence. I must not take into account any outside information or other outside influence. I must not make my own enquiries or investigations about the case or anyone connected with the case.
6. (f)
   I may accept evidence in whole or in part. It is for me to decide whether I accept the whole of what a witness says or only part of it or none of it. I may accept or reject such parts of the evidence as I think fit. It is for me to decide whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.

7. (g)
   In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance it should have.^[1]
8. (h)
   No adverse inference can be drawn either because the defendants have been charged with murder and are in custody on remand. Nor can any adverse inference be drawn from the fact that the defendants were guarded by Corrective Services officers while in the dock and giving evidence from the witness box. This is a daily occurrence in a criminal court and I draw no adverse inference from such occurrence.
9. (i)
   The defendants do not have to give evidence or call other people to give evidence on their behalf or otherwise produce evidence. The fact that Moore and Tracey have given evidence does not mean that either of them assumed a responsibility of proving his or her innocence. The burden of proof has not shifted to either of them. Their evidence is added to the evidence called by the prosecution. The prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendants may be convicted. It is not a question of me making a choice between the evidence of the prosecution’s principal witnesses and the evidence of each defendant. The proper approach is to understand that the prosecution case depends on me accepting that the evidence of the prosecution’s principal witnesses was true and accurate beyond reasonable doubt despite the sworn evidence by each of the defendants; so I do not have to believe that the defendants are telling the truth before they are entitled to be found not guilty. In circumstances where the defendants have given evidence, there are one of three possible results which will follow:

   1. I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so my verdict would be not guilty; or
   2. I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was, if so my verdict will be not guilty; or
   3. I may think the defence evidence should not be accepted. However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt. If I find the defence evidence unconvincing, I am to set it to one side, go back to the rest of the evidence and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence.
10. (j)
    What the defendants have said while giving evidence may be used not only for or against him or her, but also for or against each other. However, to the extent to which that evidence implicates either of the defendants in the offence, it is necessary to scrutinise it carefully. There is a danger that in implicating each other either defendant may have been concerned to shift the blame. This warning is restricted to those parts of the evidence of Moore which inculpate Tracey in the offence and those parts of the evidence of Tracey which inculpate Moore in the offence; it does not apply to the evidence as it relates to Moore’s own case or Tracey’s own case.

11. (k)
    Moore’s refusal to be interviewed by police on 22 February 2018 does not constitute evidence against him. Indeed, the warning given by the police to Moore expressly advised him that he was entitled to remain silent. It would be quite wrong to reason that because Moore was silent or refused to answer questions, that he must have something to hide or be guilty of some offence. Therefore I cannot use against him the fact that he took notice of the police caution and chose to remain silent.
12. (l)
    Although the defendants are being tried together, I must give the cases against and for each of them separate consideration. I must separately consider the evidence admitted in relation to Moore and I must separately consider the evidence admitted in relation to Tracey. I must return separate verdicts in respect of each defendant.
13. (m)
    From the cross-examination of a number of prosecution witnesses it was evident that witnesses have given evidence at a previous trial. The fact that there may have been a previous trial is irrelevant and I must not draw any inference adverse to the defendants because of this, nor should I speculate as why any previous trial did not conclude.
14. (n)
    The prosecution relies on answers said to have been given by the defendants in interviews with police as supporting its case against both defendants. In order to rely on that evidence I must be satisfied that each of the defendants gave the relevant answers that are attributed to them and that they were true. As to the electronically recorded interviews, I was given transcripts to look at while the discs were played. Those transcripts are really nothing more than someone else’s opinion of what was said by the police officers and Moore or Tracey and, although they might have been of some help, it is for me to determine what I have heard and saw. If my view of any part of the conversation differs from what the transcript shows, it is my view which must prevail.
15. (o)
    The video-recording of the police interview with the defendant Moore on 21 February 2018 has been edited in some respects. That has been done to remove parts of the video-recording that are irrelevant to the issues I must decide. It is very common for video-recordings to require editing in this way before they are used in a trial. I direct myself that I am not to speculate about the parts that have been edited out. I also direct myself not to draw any inference adverse to Moore merely because irrelevant material has not been placed before me. To do so would not only be wrong, it would be utterly unfair. I must also be satisfied that the statements made by Moore or Tracey in the course of the interviews that the prosecution relies on as indicating guilt are true and accurate. I must decide whether I am satisfied that those things said by Moore or Tracey which would tend to indicate that they were guilty of the offence were true, because if I am not satisfied I cannot rely on them as going to prove their guilt. If I accept those statements made by either Moore or Tracey as true, it is up to me to decide what weight I give them and what I think they prove. I am also entitled to have regard to answers which I might view asindicating the innocence of Moore or Tracey. If I accept the truth of those answers, I am entitled to give whatever weight I think appropriate.

16. (p)
    In order to bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is my duty to find the defendants not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.
17. (q)
    The evidence of Albert Switez-Glowacz was taken on 3 December 2019. He is now deceased. An order of the Court permitted his evidence to be taken in the way it was. It is not uncommon for evidence to be given in this way. His evidence was recorded as it was given and it is that recording that was played to me. There was also an order made for the evidence of Ursula Lyne to be given by audio link. I direct myself that I must not draw any inference as to either of the defendant’s guilt from these orders. The probative value of the evidence Albert Switez-Glowacz and Ursula Lyne gave is not increased or decreased because of the relevant order. Their evidence is not to be given any greater or lesser weight because of the orders.
18. (r)
    The evidence of Moore’s daughter, BDH, who was a child at the time, consists of a statement taken by police on 17 February 2018, a recorded interview conducted on 21 February 2018, a further recorded interview conducted on 1 March 2018 and pre-recorded evidence taken on 20 April 2020. The recordings of the two interviews have been played as well as the pre-recorded evidence. In relation to each of the police interviews of BDH, the presenting of the child’s evidence in this way comprises the routine practice of the Court. This measure is adopted in every case involving children such as BDH. There is, however, a risk that BDH’s testimony is not a reliable account of what actually happened. Any statements of either defendant made to BDH reached the Court through the perceptions, interpretations and recollections of BDH, not through the recollections of either of the defendants. A witness who tells of what someone else said may have misheard or misinterpreted what was said. Or the witness might not recall things accurately because of faulty memory. Also the statements said to have been made by either of the defendants to BDH were not on oath. In making statements to BDH neither defendant was under the same imperative to speak truthfully as if in Court testifying on oath. What the defendants may have told BDH is untested and untestable: that is, what the defendants said cannot be examined to ascertain its reliability by the usual means of testing the honesty and reliability of witnesses: cross-examination. There is therefore a need for caution in deciding whether to accept as reliable the things relayed to the Court as hearsay and, if I accept any of it, in forming a view about the weight that ought to be given to this information.

As to the pre-recorded evidence on 20 April 2020, at the time BDH gave evidence she was in a room separate from the courtroom. The evidence was given by use of an audio-visual link between the room in which BDH was seated and the courtroom. At the time BDH gave evidence there was a support person sitting in the room with her and no other person. Whilst BDH gave evidence all non-essential persons were excluded from the courtroom. At the time the defendants were present in the courtroom but were so positioned that BDH could not see them on the monitor or at all. BDH’s evidence was recorded as it was given and that is the recording that was played to the Court. I direct myself that all of the measures which I have outlined used for the taking and showing of BDH’s evidence are the routine practices of the Court for taking and showing evidence of children such as BDH. I must not draw any inferences to either defendant’s guilt because these measures were used. The probative value of the evidence of BDH is not increased or decreased because these measures were used. The evidence is not to be given any greater or lesser weight because these routine measures were used.

19. (s)
    A number of expert witnesses were called to give evidence including Dr Ong, a forensic pathologist, two general practitioners, Sergeant Kane Gordon, an expert in blood spatter, and Adam Riley, an expert in relation to digital telecommunications. The ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise. The fact that such witnesses are referred to as experts does not mean that their evidence has automatically to be accepted. I am the sole judge of the facts and I am entitled to assess and accept and reject any such opinion evidence as I see fit. It is up to me to give such weight to the opinions of expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness and whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved. It is up to me to decide what weight or importance I give to their opinions or indeed whether I accept their opinions at all. It is important to remember that an expert’s opinion is based on what the expert witness has been told of the facts. If those facts have not been established to my satisfaction the expert’s opinion may be of little value.
20. (t)
    The evidence of two expert witnesses was given by telephone. Dr David Smith was the general practitioner for the defendant Moore and Dr Dale Lee was the general practitioner for the deceased. I direct myself in accordance with s 39PB of the Evidence Act that I must not give the evidence of either Dr Smith or Dr Lee any more or less weight or draw any adverse inferences against either of the defendants only because these experts gave the evidence by telephone.
21. (u)
    All counsel agree to the Court having access to the following material:

    1. the transcript of the pre-recorded evidence of Albert Switez-Glowacz made 3 December 2019;
    2. the statement of BDH made 17 February 2018;
    3. the disc of video evidence and transcript of the police interview with BDH conducted on 21 February 2018;
    4. the disc of the recording of BDH’s interview with police conducted on 1 March 2018 together with the transcript;
    5. the transcript of the pre-recorded evidence of BDH given on 20 April 2020;
    6. the transcript of the police interview with the defendant Tracey dated 21 February 2018;

7. (vii)
   transcript of police interview with the defendant Tracey dated 22 February 2018;
8. (viii)
   transcript of police interview with the defendant Moore dated 21 February 2018;
9. (ix)
   transcript of interview with the defendant Moore dated 22 February 2018.

I direct myself that in relation to each of the transcripts, it is someone else’s impression of what was said. The transcripts are not evidence and were made available to me as an aid only. It is what I hear on the recordings that matters, not what is in the transcripts. In relation to the evidence of BDH I must be careful not to place undue weight on her evidence because I am able to hear and read it on a number of occasions.

22. (v)
    The DNA evidence led by the prosecution was the subject of an admission (exhibit 35). Tape lift samples were taken from the shirt worn by the deceased. DNA samples were obtained from the deceased and Moore and a comparison was done with the samples obtained from the shirt. From the first sample it was estimated that the mixed DNA profile obtained is approximately 320,000 times more likely to have occurred had Moore contributed DNA along with the deceased rather than if he had not. For the second sample it is estimated that the mixed DNA profile is approximately 2,500 times more likely to have occurred had Moore contributed DNA along with the deceased rather than if he had not. A DNA profile was also done in relation to swabs taken from bloodstains within the unit. It was estimated that the DNA profile obtained is greater than 100 billion times more likely to have occurred had the deceased contributed DNA rather than if he had not. The process of identification by DNA profiling is based on the testing of DNA molecules in bodily tissues and bodily fluids such as blood, saliva and semen. From measurements taken at selected locations a DNA profile for a sample of bodily tissue or fluid of unknown origin may be obtained and compared with the DNA profile obtained from a sample of bodily tissue or fluid of known origin. If the profiling tests are done correctly it may be possible to provide an estimate of the likelihood that DNA from a person such as the defendant Moore contributed to DNA found in a crime scene sample. The evidence in relation to the two tape lift samples does not prove that DNA from Moore actually contributed to the samples; rather, it is evidence as to the likelihood that this occurred. It is not absolute proof. Furthermore, the reliability of this evidence depends on the accuracy and reliability of the profiling test carried out with respect to both the sample obtained from Moore and the crime scene sample. The results of that testing will not be reliable where there has, for example, been contamination of one or both of the samples to which I have referred. Similarly with the swales taken from bloodstains. The evidence does not prove that DNA from the deceased actually contributed to the swabs of the bloodstains; rather it is evidence as to the likelihood this occurred. It is not absolute proof.
23. (w)
    The prosecution relies on evidence of both Moore and Tracey to prove that each of them had a motive to murder the deceased. I direct myself that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility. If in fact I decide that the evidence is not evidence of motive, that does not necessarily mean that the prosecution has failed to prove guilt because of lack of motive. In that event, I would have to base my verdicts on the evidence that I do accept. However, the existence of motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks the Court to infer guilt (or infer that an act was done intentionally). If there is motive, then what might otherwise be inexplicable becomes explicable. I must bear in mind that the existence of motive without any more would not be sufficient to found a finding of guilt.

24. (x)
    In the course of cross-examination by Mr Boyle of both Moore and Tracey, it was either expressly or implicitly suggested that they were telling lies. If I conclude that either defendant deliberately told lies, that is relevant only to his or her credibility. It is for me to decide whether those suggested lies affect their credibility. I should not follow a process of reasonings to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.

TheEvidence

1. (a)
   The relationship between Tracey and the deceased

21. [21]
    When Tracey was 16 years of age she was in an on-and-off-again relationship with the deceased. This relationship lasted approximately 12 months. She then had an 11 year relationship with another person to whom she had three sons. When that relationship ended, she commenced living with the deceased again in 2010 and married him in November 2011. Their daughter (CWX) was born in early 2012. The relationship deteriorated. The deceased would abuse both alcohol and drugs. Tracey described him as a heavy drug user. He was also verbally and physically abusive to Tracey. The deceased also had mental health issues and had a diagnosis of paranoid schizophrenia.

22. [22]
    A domestic violence order was obtained against the deceased. He moved out from Tracey’s house. In 2011 there were also episodes of the deceased self-harming, which required hospitalisation. This included an attempted overdose, as well as the deceased cutting his arm.

23. [23]
    Tracey and the deceased divorced in late 2012 or early 2013. The deceased then entered into a relationship with Lisa Ikanivere. Their relationship commenced in 2014 and ended in June of 2016. Ms Ikanivere stated that during this relationship the deceased would go on drug binges which could last up to five or six days at a time. There were occasions when he would steal money from her. She also recounted that, whilst there were good times in the relationship, the deceased would sometimes become violent. On one occasion he produced a knife and held it against her neck (admissions document 7, exhibit 37). On other occasions he would use his fist to hit her. The deceased was involved in a serious assault on a person named Adam Beatty, who was intellectually impaired. The allegation was that Mr Beatty had made a threat to harm the child of Tracey and the deceased, CWX. As a result of this assault the deceased was sentenced to imprisonment.

24. [24]
    Tracey and the deceased recommenced their relationship in July 2017. Tracey was living on Russell Island in a house with CWX and twin girls who she had had with Moore. The deceased was residing at Florabelle Court, Wynnum West. In her first statement to police (exhibit 12), Tracey stated that she and the deceased would visit each other and have sleepovers with the children. She believed that the deceased was not taking drugs at this time. The deceased started slowly moving his belongings into Tracey’s house around August or October 2017.

25. [25]
    In the months prior to his death, members of the deceased’s family noticed an improvement in his condition. His father, Albert, noticed that he was looking the best that he had ever looked and was enjoying his time being a father to CWX. The deceased had also gained some weight. His mother, Debbie Goodlet, who also had regular contact with the deceased, considered that he was a different person prior to his death. He wanted to spend time with his daughter, CWX, as well as with Ms Goodlet and his sister. The deceased’s sister, Courtney Goodlet, last saw him on 19 January 2018. She considered that the deceased was the best that she had ever seen him and he appeared to be happy and positive. She accepted, however, that the deceased was a different person when he was using drugs and alcohol.

26. [26]
    Dr Dale Lee was the general practitioner for the deceased.  He noted that on 29 October 2017 the deceased was considering a referral to a psychiatrist. Dr Lee saw the deceased on 10 January 2018 for a review and scripts. He noted that the deceased was feeling reasonably well but did not wish to pursue the referral to a psychiatrist. The deceased was on Diazepam for anxiety, Pristiq for depression and Seroquel for schizophrenia. On 10 January 2018 as well as issuing these scripts, Dr Lee did not identify that the deceased was suffering from any psychotic symptoms or any signs of being unwell. Dr Lee accepted that the use of illicit drugs, such as cannabis and ice, could have an adverse effect on the defendant’s mental condition.

27. [27]
    Tracey noticed that the deceased started to drink again in November 2017. He was also taking excessive amounts of codeine and Valium. A couple of weeks before school went back in January 2018, Tracey caught the deceased stealing her own Diazepam. This was the last straw for her and she broke up with the deceased again. Four or five days after the breakup she drove the deceased, together with his belongings, to his unit at Wynnum West.

28. [28]
    In her second statement to police (exhibit 13), Tracey stated that when the deceased was drunk he was violent. Prior to Christmas 2017 the deceased had been violent towards her. This included picking her up and throwing her on the floor and choking her. Tracey stated that the deceased gave her two black eyes. She did not tell anyone because she did not wish the deceased to go back to jail. In her first recorded interview with police she described it as the one incident where the deceased was drunk and punched her three or four times. She thought the incident occurred in October 2017. She described the deceased as being a “good dad” who had never hurt any of the children.

2. (b)
   The relationship between Moore and Tracey

29. [29]
    Moore and Tracey became friends when they were children aged around 10. They had a brief relationship for three months when Tracey was 15 years of age. Moore was subsequently in a relationship with Tracey commencing in 2011/2012 until mid-2017. This relationship developed after Tracey divorced the deceased. At that time, Tracey had three boys from a previous relationship and CWX from her relationship with the deceased.

30. [30]
    Initially Moore and Tracey lived together at Nerang and then moved to Russell Island. Whilst in the relationship they had twin girls who were born in early 2013. Moore was kicked out of the house by Tracey in September 2017.

31. [31]
    Moore had been, and continued to be, devoted to Tracey. While they were in a relationship he had her name “Emily” tattooed on the side of his face (exhibit 26). Moore’s love for Tracey is also reflected in text messages he sent her (exhibit 38, items 21, 24, 34 and 37). In these text messages Moore tells Tracey that he loves her “to the moon and back”; “I love you baby girl I’m on my knees pleading to you bub I know you love me somewhere in your beautiful heart”; “God bub I bloody love you” and “I know that’s what I want to do bub face to face. I need you to see the love in my eyes”. Moore not only wished to re-establish his relationship with Tracey, he wanted to marry her.

32. [32]
    In his statement to police (exhibit 22) Moore explained that he had become addicted to prescription drugs which had put a stress on his relationship with Tracey. After their separation, he understood that Tracey returned to her relationship with the deceased.

33. [33]
    In his first interview with police on 21 February 2018 (exhibit 23) he told police that he “didn’t care one, one bit” that, after their breakup, Tracey was seeing the deceased. Moore had not seen his twin daughters for approximately four months after the breakup. He sent a Facebook message to the deceased, requesting that Tracey contact him. Moore had become aware through looking at the deceased’s Facebook posts that he and Tracey had reconnected.

34. [34]
    Tracey rang Moore and they arranged for him to see his twin daughters at the Redland Bay park. This meeting occurred on 20 January 2018. I deal with this meeting in more detail below. Tracey informed Moore that she was ending her relationship with the deceased.

35. [35]
    Tracey, in her first interview, acknowledged that she had twice left Moore for the deceased. In evidence she acknowledged that Moore wanted more from the relationship with her than she was prepared to give and that he wanted to resume a relationship with her. Tracey, however, was not interested in renewing her relationship and wished to remain single.

3. (c)
   The relationship between Moore and the deceased

36. [36]
    Moore and the deceased had little contact. Tracey recalled Moore being present when she met with the deceased in a McDonald’s carpark in or about 2012 and subsequently at a watchhouse in about 2013. About 10 months prior to the death of the deceased Moore had dropped off a washing machine and a bed for CWX at the deceased’s unit. Tracey was not present on this occasion. On the previous two occasions, however, Tracey observed that the interactions between Moore and the deceased were civil. There was no history of violence between Moore and the deceased.

37. [37]
    Moore gave evidence of two occasions when he spoke to the deceased about his behaviour towards Tracey. This was in about 2012. No threats of violence were made. Moore’s evidence was that the deceased told him he would try to improve his behaviour towards Tracey.

4. (d)
   The meeting between Moore and Tracey on 20 January 2018

38. [38]
    This meeting occurred at the Redland Bay park. Tracey told police in her second interview (exhibit 21) that she had a breakdown at the park and told Moore what the deceased had done to her. In her oral evidence she stated that she told Moore about the extent of the deceased’s violence, including giving her black eyes. She also told Moore that she was concerned that the deceased may become violent towards Moore and Tracey’s twin daughters. Tracey’s evidence was that she received the black eyes from the deceased in or about October 2017. She was wearing sunglasses at the time of the meeting with Moore but does not recall having black eyes on 20 January 2018.

39. [39]
    Moore, in his first interview, stated that Tracey told him that she and the deceased were constantly arguing. They also talked about Tracey’s father who was dying from terminal cancer. Later in the interview, Moore told police that Tracey said that the deceased had pushed her into the ground and given her a couple of black eyes so she had to wear sunglasses for a week or so. He could not recall when this incident occurred. He did not recall Tracey having black eyes when he met her at the park. In his evidence-in-chief however, Moore stated that he noticed on 20 January 2018 that Tracey had black eyes. I do not accept this evidence. First, it is inconsistent with what Moore told police in his interview. Secondly, it is inconsistent with the evidence of Tracey as to when she received the black eyes, namely in or about October 2017. Thirdly, while Tracey accepts that she wore sunglasses to the Redland Bay meeting, she does not recall having black eyes at the time. It may be accepted, however, that Tracey did tell Moore of the assaults committed by the deceased and of the potential of the deceased doing violence to their twin daughters.

5. (e)
   Moore’s Facebook message of 20 January 2018 to John Cain

40. [40]
    In January 2018 John Cain was in a relationship with Juaunita Moore, Moore’s sister. Mr Cain had been in that relationship since 2014. He would generally stay in contact with Moore by Facebook.

41. [41]
    On 20 January 2018 Mr Cain and Moore sent messages on Facebook (exhibit 9):

MOORE: James Emily ex

MR CAIN: Oh god I thought they were happy

MOORE: Nope

MR CAIN: What so emily sucking up yo ass now

MOORE: No

MR CAIN: Hmmmm why dont she call the pigs

MOORE: He has given Emily black eyes and a broken nose

She is scared

Please help bro

I’ll take all the blame

MR CAIN: Well shes fucken stupid then hey

MOORE: Yeah

MR CAIN: The way she treated you idgaf about emily hey

MOORE: I give a Fuck about my girls

MR CAIN: Well obviously the girls but not her

MOORE: If you can’t help I’ll do it myself

MR CAIN: Just call the cops so he goes back to jail

MOORE: Nah

MR CAIN: I gotta stay outta trouble bro cause im suing

MOORE: I want to make him pay for why he did in pain

MR CAIN: Im sure he will get bump raped

MOORE:I’m going to take him Bush tie him to a tree and belt the living Shit out of him then stab the count straight through the Neck

MR CAIN: Have you told nita

MOORE: No

It’s a man’s job

MR CAIN: Tell nita whays been going on

MOORE: Your the only one who knows

MR CAIN: Yeah but let nita know about what hes done

MOORE: Bo

Bo

No

MR CAIN: Lol

Boo

MOORE: Bo

You just scared me

MR CAIN: If i could help i would bro but i got nita and the kids to think of

MOORE: Less people who know the better

And please delete these messages

MR CAIN: Will do

Sorry i cant help us on this one bro

MOORE: I’ll find someone

42. [42]
    In his first interview conducted on 21 February 2018 (exhibit 23) Moore told police that he did not have any issues or problems with the deceased. In his statement to police (exhibit 22) Moore made no mention of this Facebook exchange with Mr Cain.

43. [43]
    Police showed this Facebook exchange to Moore. He sought to explain it away by saying: “Well, just because I say it, doesn’t mean I’d do it. Honestly.” He explained that he had this Facebook conversation with Mr Cain because the deceased was bashing Tracey and hurting the children. In evidence Moore stated that he was angry when he sent the Facebook messages but he did not have any intention of carrying out the threats contained within those messages. He made no further approaches to Mr Cain for assistance. Moore referred to the Facebook messages as being “shit- talk”. Mr Cain agreed in cross-examination that Moore is “often … all talk and no action”.

44. [44]
    In cross-examination, Moore suggested that he only contacted Mr Cain “to let the frustration out”. The purpose of seeking Mr Cain’s assistance was to go and talk to the deceased. He had no intention of assaulting the deceased. The reference in the Facebook messages of Moore “taking the blame” was according to him, “Just in case something bad happened”. This possibility arose because it was unpredictable dealing with the deceased who, according to Moore, was a violent person. Moore described the words “I want to make him pay for why he did in pain” as simply being “shit-talk”. When asked what he meant when he typed these words he replied, “Exactly what it says, I guess”. He also described as “shit-talk” the statement “I’m going to take him bush. Tie him to a tree and belt the living shit out of him then stab the count straight through the neck.”

45. [45]
    Moore accepted that 16 days later he did in fact stab the deceased but according to him, “Not on purpose”. It was simply a coincidence that Moore, in the Facebook messages, had referred to stabbing the deceased. Moore could not recall why he requested Mr Cain to delete the Facebook messages.

6. (f)
   The conduct of the deceased leading to 6 February 2018

46. [46]
    On Friday 2 February 2018, Tracey dropped CWX to the deceased’s unit. She was accompanied by her Uncle “Buster”, who did not enter the unit. CWX stayed every second weekend with her father. The deceased had a specially set up bedroom for his daughter (exhibit 4, photos 14–16), which was described by his mother as being like a “toy store”. At around 9:39 on Sunday 4 February 2018, the deceased telephoned Tracey (exhibit 38, item 467). According to Tracey’s first statement to police (exhibit 12), the deceased requested sleeping tablets and fly spray. When she arrived at his unit at around midday she believed the deceased had been drinking. She stayed at his unit for around half an hour. The deceased talked about how he was struggling mentally throughout this time. When the deceased walked her out to the car he gave her “the tightest cuddle he has ever given me”. In her second statement to police (exhibit 13), when she saw the deceased on 4 February she also spoke to the deceased about her father, who was not doing well. Tracey’s father had been transferred from the Redland Hospital to the Blue Care Palliative Care Unit in Sibley Road, Wynnum West, which was just around the corner from the deceased’s unit at Florabelle Court (exhibit 11).

47. [47]
    Tracey and the deceased did not argue on this occasion. The deceased admitted to Tracey that he was drinking again and had not taken his prescribed medication for a couple of days.

48. [48]
    Later that afternoon the deceased commenced to telephone Tracey continuously. This is evident from items 511–517, 520–526 and 534–539 of exhibit 38. The first conversation, according to Tracey, involved the deceased asking to borrow her tattoo gun to cover up a tattoo he had on his leg. The deceased wanted it done then and there. It became obvious to Tracey that the deceased had been drinking. Tracey did not answer every phone call from the deceased because he was becoming abusive. This abuse included calling Tracey a selfish bitch because she would not let him have the tattoo gun. The deceased was saying things such as that CWX loved him more than Tracey and that he was a better parent. The deceased also threatened Tracey that he was going to make her life a living hell. At 20:05 the deceased sent a text message to Tracey: “All you had to do was put an effort into our relationship. Now reap the whirlwind.” (exhibit 38, item 527). This according to Tracey was a phrase that the deceased had used before. At 20:08 Tracey sent the following text to the deceased: “Don’t threaten me James … you can’t make someone be in a relationship … /and our little girl doesn’t need his fighting. And she isn’t a weapon to hurt.” (exhibit 38, item 529). Tracey gave evidence that the deceased was making threats about taking CWX away from her, stating that CWX was better off with him and that he was a better parent. He was making other threats as well. At 21:40 the deceased sent Tracey the following text: “I’m sorry Em. Just wish you’d turn your hate into love babe.” According to Tracey the deceased would often apologise after he had been abusive.

49. [49]
    The fact that the deceased had been drinking heavily on the night of 4 February 2018 is supported by the evidence of Ursula Lyne. Ms Lyne was the neighbour of the deceased, residing at unit 3/10 Florabelle Court, Wynnum West. She had resided there for approximately six months. The deceased was already living there when she moved into her unit. She would see Tracey visit the deceased on a number of occasions. She would hear very loud verbal arguments in which Tracey’s voice was more prominent. On occasions Ms Lyne would sit with the deceased on his patio and they would have a beer together. She noticed that the deceased would not come out of his unit for days on end but on pay day he would have a beer at the back of his house and quite often she would join him. His disposition appeared to be happy.

50. [50]
    However, when she visited him on Sunday night, 4 February 2018, the deceased answered the door with a lighter in his hand in the shape of a gun. Initially this took Ms Lyne by surprise until she recognised that it was a lighter. The deceased thought this was funny. Ms Lyne thought the deceased was quite different. He had been drinking. There was a near empty bottle of rum and two empty bottles of beer. He offered her a rum which she accepted but did not like. The deceased handed her a knife with a black and red handle with an Asian designed dragon. He handed the knife to her by the handle but she was not at all amused. The deceased then took the knife and stabbed it into a side table. Ms Lyne did not feel comfortable and soon left.

51. [51]
    In relation to the lighter in the shape of a gun, Ms Lyne recalled that when he answered the door the deceased was pointing the gun at her with a serious look on his face and said words to the effect, “Who the fuck is this?” The deceased was not wearing a shirt at the time and had three long cuts from his collarbone to his pants. The cuts appeared to be deep but were not bleeding. The deceased’s behaviour made Ms Lyne somewhat scared. The strange behaviour of the deceased included him saying to Ms Lyne, “You’re blushing; you must like me?” Ms Lyne was aware that the deceased had been sending text messages to Tracey and that he was intending to obtain custody of CWX.

52. [52]
    The deceased also had a phone call with his father Albert on the night of 4 February 2018. His father described the deceased as being quite agitated. He told his father that he had just got off the phone to Tracey and had a disagreement with her. The following day the deceased rang his father to apologise for the telephone call.

7. (g)
   The SMS exchanges up to and including 6 February 2018

53. [53]
    Adam Wayne Riley is an expert in digital telecommunications investigations. In February 2018 he was a detective sergeant at Queensland Police Service and he now works for a company called Cellebrite. He conducted a review and an extraction of data from the mobile phones of Moore, Tracey and the deceased. This involved looking at telecommunications data and the interpretation of digital evidence.

54. [54]
    Exhibit 38 relates to communications between three mobile phones: those of Moore, Tracey and the deceased. Exhibit 38 identifies: the phone from which the data is recovered; the content of some of the messages; whether the relevant message had been deleted or was intact; the date and time of the message; and, in relation to phone calls, their length.

55. [55]
    Exhibit 38 records that from 26 January 2018 until 22:10, 6 February 2018, all SMS exchanges between Moore and Tracey were deleted on Moore’s phone. It further records that SMS exchanges between Tracey and the deceased, recovered from the mobile of the deceased, were intact.

56. [56]
    From an examination of Tracey’s phone it was discovered that it had been reset at 15:44 on 6 February 2018 (exhibit 39, page 17, 7^th entry). This was a factory reset of Tracey’s phone. Such a reset is contained under settings. The reset erases all data on the phone. Once the device is re-booted it will reset its baseline operating system. After a factory reset of a mobile phone no data can be recovered from that device. The first SMS that was able to be recovered from Tracey’s phone was on 6 February 2018 at 22:10, which was after the deceased had been killed.

57. [57]
    Both defendants gave a number of explanations to police both in their statements and their interviews as to why SMS exchanges could not be found on their respective mobile phones.

58. [58]
    Moore gave the following explanation in his statement (exhibit 22, paragraph 32):

“I have looked at my mobile and I have no communication before Tuesday 6 February. The reason is that I broke my previous phone on Monday 5^th and placed the Simcard into another phone which I had. This is the white Huawei phone I am currently using. I only contact Emily by text messages.”

59. [59]
    In his statement Moore refers to a number of text messages received after the deceased was killed. His statement makes no reference to him deleting text messages himself, nor to resetting Tracey’s phone.

60. [60]
    In his interview of 21 February 2018 (exhibit 23) Moore denied clearing call histories on his phone. He denied sending text messages to Tracey prior to 6 February 2018. He stated that, “We talked over Facebook”. He denied receiving any text messages from Tracey on his Huawei phone because he was talking to her on Facebook. Moore could not explain why from 6 February 2018 he stopped communicating with Tracey by Facebook and started sending text messages by phone. This was in circumstances where he had obtained Tracey’s phone number at their meeting at the Redland Bay park on 20 January 2018. Moore told police that he was surprised to receive a text message from Tracey on 6 February 2018 because “I thought it was gunna Facebook”.

61. [61]
    In his evidence-in-chief, Moore accepted that he did delete text messages to and from Tracey from his Huawei phone. His explanation for doing so was that he was trying to protect Tracey. In cross-examination Moore explained that he deleted the messages on his phone by pushing delete. He did not have to go through each message as he was able to delete “threads”. This permits a person to delete a series of messages sent from the one person. He could not recall whether he deleted the text messages between himself and Tracey prior to or after killing the deceased. He could not state what he was seeking to protect Tracey from in deleting the messages. Moore accepted that it did occur to him that police might get hold of the text messages and it was a good idea to delete them. This idea occurred to Moore prior to going to the deceased’s unit. His purpose in deleting the messages was that “I didn’t want Emily or myself getting into trouble”.

62. [62]
    Under cross-examination from Mr Hoare, Moore accepted that he reset Tracey’s phone. He denied that he reset Tracey’s phone because of some plan to harm the deceased. He stated that she had been complaining to him about her phone not working.

63. [63]
    In her second statement to police (exhibit 12) no mention is made by Tracey that Moore reset her phone at 15:44 on 6 February. In the statement, Tracey referred to a text message she received from the deceased on 4 February 2018 and a message she sent to him on the night of 6 February 2018. In her second statement (exhibit 13) Tracey once again referred to text messages exchanged between herself and the deceased on both 4 and 6 February 2018. She makes no reference in this statement however, to Moore resetting her phone. In her interview of 22 February 2018 the following exchange occurred:

SGT KITE: Yep. What discussions were had between you and Paul about messages you’ve sent each other?

TRACEY: What do you mean?

SGT KITE: We’re able to show, through these downloads, that there are deleted messages between you and Paul on certain dates, whilst other messages to other people remain. Is there a reason why you deleted messages between you and Paul?

TRACEY: ‘Cause I always delete messages from him.

SGT KITE: Well, there are messages there from Paul that aren’t deleted. There are a select number of messages that are deleted.

TRACEY: What do you mean?

SGT KITE: Well, not all the messages between you and Paul are deleted, only some.

TRACEY: Yeah, because I deleted them, and obviously I haven’t deleted the others.

SGT KITE: But there are some that are older than others and they’re not deleted.

TRACEY: They should be all deleted.

SGT KITE: Well, they’re not.

TRACEY: They should be all deleted ‘cause I delete all my messages.

64. [64]
    Later in the interview Tracey repeated that she always deleted messages from Moore. There is no mention by Tracey in this interview to Moore resetting her phone.

65. [65]
    In her evidence Tracey stated that on 6 February her phone was freezing and nothing would happen when she tapped a message. She was also finding it difficult at times to swipe to answer the phone. According to Tracey, Moore stated that he could fix her phone. Mr Riley could not exclude there being a software issue with Tracey’s phone which may have necessitated a manual reset.

66. [66]
    In cross-examination Tracey did not accept the reason the phone was reset was to delete the messages which suggested some violence towards the deceased. The reset, according to Tracey, was because her phone was playing up. She accepted that the reset occurred approximately four and a-quarter hours before she and Moore drove to the deceased’s unit. She did not accept that there was any coincidence between her phone being reset by Moore and them travelling to the unit. She rejected that she was trying to delete messages or any data from her phone because police may seek access. She further rejected any suggestion that there was any plan between Moore and her to delete incriminatory messages.

67. [67]
    The prosecution relies on the content of a number of the text messages contained in exhibit 38 as evidencing an intention of both defendants to kill or do grievous bodily harm to the deceased. It is therefore necessary to set out the relevant text message exchanges and the explanation of each defendant as to their meaning. I do not use the evidence of one defendant to definitively determine the meaning of another’s text, but I use their respective evidence about what they thought the other meant as evidence of their own intention.

68. [68]
    In an extraction, material relevant to an SMS may or may not be recovered. Mr Riley accepted that not all SMS messages that had been deleted by Moore, for example, could be recovered. It is also possible that within text messages themselves, there could be missing words. Caution should therefore be exercised in considering the text messages both as to content and context.

69. [69]
    In evidence-in-chief Moore accepted that he sent the text messages to Tracey and those message accurately reflect what he sent in those messages. He was angry and stressed at the time that he sent the messages. He did not, however, intend to carry out any of the threats contained in those messages and did not intend to either kill or hurt the deceased. Moore generally categorised the messages sent to Tracey as seeking to make her feel safe. He wished to appear tough. His only intention was to talk to the deceased and to tell him to “cut it out”.

70. [70]
    On 27 January 2018 at 13:32 Moore sent Tracey a lengthy text message (exhibit 38, item 24). In this text message he referred to the deceased as a “dirty dog” who took control of Tracey’s life. He refers to Tracey talking about the deceased beating and controlling her. Moore stated that he had fast growing incurable stomach and pancreatic cancer which would be through his whole body in seven to eight months. This was untrue. The message refers to Moore “taking two people with me the mutt JAMES for disrespecting my true love putting the kids and you through hell”. Under cross-examination Moore accepted that he was angry at the deceased when he sent this message. His reference to taking two people with him was to make Tracey feel safe. He described the message as him simply talking tough and seeking to impress Tracey. He rejected that the words were framed so as to suggest that he wished to kill the deceased. He considered that the message was simply him “talking stupid”.

71. [71]
    On 5 February 2018, between 9:30 and 9:43 Moore and Tracey exchanged the following text messages (exhibit 38, items 551–557):

MOORE: When your ready i will end it but make sure you come bring the girls to jail to visit me and it would be mice if you waited fo

TRACEY: And because of it. I miss out on seeing dad … so not fuken fair …

MOORE: Drop girls here bub i’ll watch them that’s no problem at all

TRACEY: What do you mean by last text

MOORE: I’ll take him out. I’ll take him out and if get caught I’ll so jail time

TRACEY: Of course I’ll bring the girls to come see you … no matter what sweetheart …

TRACEY: I’m ready NOW …

72. [72]
    Under cross-examination from Mr Hoare, Moore explained that the reference to him going to jail was in the context that if he “punched” the deceased he would go to jail. He denied having any intention of harming the deceased. When Moore talked of going to jail he meant only for a few months and not being jailed for either seriously injuring or killing the deceased. In cross-examination by Mr Boyle for the prosecution Moore explained that the words he used “I will end it” meant that he would have a stern talking to the deceased in order to get him to stop. Moore was then cross-examined as to why a stern talking to the deceased would result in Moore being sent to prison:

“And why would that bring on the fact that you’d be sent to prison?--

- I don’t know. I honestly don’t know.

Well, you typed it, Mr Moore?--- I know.

So this is your big chance to explain what you meant by those

words?--- If something would’ve happened out of it. Yes.

Sorry?--- If I – if I did end up assaulting him. Yes.

Assaulting?--- Yes.

Is that as high as you’re going to put it?--- Yes.”

73. [73]
    Moore explained that the words he wrote, “I’ll take him out and if get caught I’ll – so jail time” was simply him talking tough. Moore’s evidence was that the words meant that he would go and have a long talk to the deceased and if it escalated to violence he would get into trouble for it. The interpretation Moore placed on the words “I’ll take him out” was therefore that he would go and have a chat with the deceased and if things got out of hand and he assaulted the deceased, Moore would go to jail. Moore did not know and could not say what meaning he ascribed to Tracey’s text “I’m ready. NOW”.

74. [74]
    In her evidence-in-chief Tracey explained the words “I’m ready. NOW” as her telling Moore that she was ready now for him to talk to the deceased. She stated that there had been discussions between her and Moore about talking to the deceased over the years but there had been no decision made as at the time of the text message being exchanged that Moore would see the deceased face-to-face.

75. [75]
    In cross-examination by Mr Boyle, Tracey explained the meaning she attached to Moore’s text “I’ll take him out and if I get caught, I’ll – so jail time”:

“So what did that mean to you at the time?--- Punch in the face. Take him out of my life. We’ve discussed it many occasions where I was dealing with James with arguments. And Paul wanted to intervene and I would say, ‘No. I’m dealing with him”. And because of that message, ‘I’m ready NOW.’ I’m just like, ‘You know what, fuck it. You can deal with him now. You can talk to him.”

76. [76]
    Tracey had never seen Moore be violent with the deceased. She accepted that the reference to “jail time” suggested that Moore would commit some offence against the deceased. She accepted that there was no other way to interpret the text message. Tracey was questioned as to how a “punch” would make the problem go away:

“If he punches James, won’t that make – create difficulties with you and [CWX]?--- Well I don’t know. In the past he’s spoken to James and nothing’s happened and it’s actually fixed the problem.”

That was a reference to previous conversations between Moore and the deceased around 2012/2013. Tracey could not explain why she told Moore that she would bring the girls to visit him in jail. “I can’t answer that. He asked a question and I said yes.” As to her words “I’m ready NOW …” the meaning ascribed to those words by Tracey was that “I’m ready now. You can take over. Just deal with him. I’m exhausted fighting with him.” She denied that she was suggesting that she was ready for Moore to take out the deceased. The words did not mean that she wished Moore to carry out any violence against the deceased or to kill him.

77. [77]
    Exhibit 38, items 558–574 record text messages being exchanged between Moore and Tracey from 9:42 to 9:57 on 5 February 2018. The data for the content of these text messages was not able to be recovered. Tracey, while not 100 per cent certain, recalled that she was telling Moore that she was going to see the deceased on her own. Tracey’s recollection is consistent with a text sent by Moore to her on 5 February 2018 at 9:59: “Or can I come with you baby” (exhibit 38, item 578). At 10:01 Tracey sent a text to Moore, “You can only keep me safe for so long sweetheart …” (exhibit 38, item 580). The meaning given to these words by Tracey was that if Moore was to come with her to speak to the deceased, he could only keep her safe for that visit and not for any other visit. She denied that she was suggesting that, as she was under constant threat, one way to deal with the deceased was in effect to get him out of the way.

78. [78]
    Between 10:11 and 10:17 on 5 February 2018, Tracey and Moore exchanged the following text messages (exhibit 38, items 58–94):

MOORE: You’re not running you have a lot to deal with here bub.

TRACEY: I know … I know … but I have no fucken choice … I have to keep my kids safe and me safe … he will never stop …

TRACEY: I miss out on seeing dad today … because he would be watching … he only lives two streets away where they put dad …:

TRACEY: My life is fucked … i can’t do anything …

MOORE: Drop 3 girls here and go see dad please.

TRACEY: I CAN’T …

MOORE: I’m calling you is that ok.

Exhibit 38, item 596 then records a telephone call between Moore and Tracey which lasted 18 minutes and 50 seconds. Moore could not recall what was said in that telephone conversation but denied that he and Tracey discussed anything concerning the deceased. When further cross-examined Moore did concede that they may have discussed the deceased in the course of the telephone conversation. Tracey’s evidence was that when she referred to her life being “fucked” and that she was “just venting”. As to the telephone conversation of 18 minutes and 50 seconds, her recollection was that Moore was trying to calm her down and that he also spoke to the children. When asked whether there was any discussion about doing violence to the deceased, Tracey recalled that Moore said that it was not a good idea for her to go and see the deceased by herself. When asked whether Moore talked at all about going around and doing some violence to the deceased Tracey replied, “Not in that phone call, no.”

79. [79]
    The exchange commences with Moore stating to Tracey, “You’re not running. You have a lot to deal with here bub”. Tracey’s evidence-in-chief was that she told Moore she was going to drop the twins at his place, say goodbye to her three boys and run away with CWX. In cross-examination from Mr Boyle Tracey accepted that at the time she was contemplating just leaving with CWX her father was terminally ill at the palliative care unit. She was unable to say where she intended to go if she ran away but she wished to “just get away from James and from his abusiveness”. She appreciated that she shared custody of CWX with the deceased. She only wished “to hide out for a bit”.

80. [80]
    At 10:41 on 5 February 2018 the deceased had a four minute and 31 second telephone conversation with Tracey (exhibit 38, item 599). According to Tracey the deceased rang to apologise for his behaviour on the previous night. He told Tracey that he had been drinking that night. From 11:08 to 19:30 on 5 February 2018 the following text messages were exchanged between Moore and Tracey (exhibit 38, items 600–633).

MOORE: What going on baby girl

TRACEY: Same shit..

He called to say sorry.. he said he was drunk he had a full bottle of rum… and then after he said sorry he started to carry on at me….

Saying that i have all my family members around me. I don’t care about anyone else.. and i have my family at my becking call at anytime… he he has no one…. And then he hung up…

MOORE: Ok I’m still going to get him.

TRACEY: This will never stop… he will never stop….

Apparently he abused his dad last night too…

I said to him you cant say sorry and think everyone will be ok…

And i said you can’t say sorry and then start to abuse them again in the same fucken minute…

MOORE: He is a waist of space I’ll deal with him bub

TRACEY: He needs to go…. NOW.

MOORE: Ok I’ll organize something

MOORE: I need his number

TRACEY: He is pissed off because i have all my family around me….

Fuck me…

TRACEY: I told you…. If you call him it will make it worse.. pls listen.

MOORE: I won’t call till I’m there

TRACEY: He won’t answer the door then…

You’ll be lucky if he does open up the door and not run out the back

MOORE: People will be waiting at the back waiting

TRACEY: That’s a good idea.

But if anyone calls him or contacts him in anyway it will make so much WORSE for me and the kids…

I can’t live like this any longer…

TRACEY: I’m going to have a nap with the kids babe . it’s probably the only rest I’ll get.. I’m on edge because of him…

MOORE: Ok baby sleep tight and don’t fear him he is nothing he is a walking dead

MOORE: Text me when you wake bub

MOORE:

TRACEY:

TRACEY:

MOORE: No your not going alone

TRACEY:

MOORE: I love you baby girl

TRACEY: Love you too… xxooxxooo

MOORE: Can you please bring me some tobacco tomorrow and we will go pay him a visit

TRACEY: Yes i can… and who is we?:

MOORE: You and me he will open the door to you then I’ll walk around the corner and I’ll teach him a very big lesson”

TRACEY: He isn’t going to learn from a lesson.. he will continue to do what he is doing.. and he will then take my daughter….”

TRACEY: And if we both go… what about the 3 girls...

MOORE: [BDH] will watch them bub

TRACEY: Thats not a good idea…

TRACEY:

TRACEY: I don’t think it’s a good idea we both go… i have to think about the kids… they nees us… but I need to keep the safe.

I cant live like this anymore sweetheart…

81. [81]
    The meaning ascribed by Moore to the words “I’m still going to get him” was that he was going to talk to the deceased and get him to stop. Moore also suggested there could be some words missing from that text message and that he would have said, “I’m going to get him to stop”. Similarly with his words “He is a waist of space. I’ll deal with him, bub” was that he would tell the deceased to stop. Moore could not say how he interpreted Tracey’s words “He needs to go … NOW”. When Moore used the words “I’ll organise something” this meant that he would send friends around to the deceased’s house to get him to stop by means of threats. He referred to organising friends as being “all talk”. He believed that Tracey would have been anxious about the suggestion by the deceased that he would try to get custody of CWX. He understood Tracey’s message “You’ll be lucky if he does open up the door and not run out the back” to mean that the deceased would not open the door to him. When he referred to, “People will be waiting at the back waiting” this was just him “talking crap”, “talking tough” or “big noting”. Moore knew that Tracey was anxious about her predicament and he wished to help her. He denied that when he referred to the deceased as “a walking dead” that he was suggesting he was going to kill the deceased. In interpreting the phrase “a walking dead” Moore referred to the fact that he watches a lot of zombie movies and that it was simply him “talking tough”. He could not explain what “walking dead” actually means. Moore explained the words “You and me he will open the door to you then I’ll walk around the corner and I’ll teach him a very big lesson” as being nothing more than “shit talk” and him “talking tough again”. He could not explain what “I’ll teach him a very big lesson” meant. It was just him talking tough in order to make Tracey feel safe.

82. [82]
    Tracey’s evidence in relation to this exchange is that she was suggesting that Moore would look after the children while she visited the deceased alone. When Moore text her “I’m still going to get him” she interpreted this as “boy talk”. When she told Moore about what the deceased had said to her, she was “venting”. She had no-one else to talk to apart from Moore. Rather than being angry at this stage she was both scared and terrified.  Tracey clarified what she was scared or terrified of as at 5 February 2018:

“So what were you scared of or terrified of as at that time?--- Well, from the night before on the 4^th. How aggressive James was towards me and how I knew what he was capable of. I was completely terrified at that point.

But what was going through your mind, scared of what was going to happen?--- I actually thought James was coming over to my house, as he said, ‘I’m coming over.’ And I thought he was coming over to bash me again.

So you were trying to get Paul fired up against James, weren’t you?--

- No, I was not. I was venting to Paul because I had no one else to talk to.

You were manipulating Paul?--- No, I was not.”

83. [83]
    She referred to Moore’s text “He is a waist of space I’ll deal with him bub” as being “boys talk”. She further referred to her other text messages as her “venting”. The meaning ascribed by Tracey to her words “He needs to go … NOW” was that the deceased needed to go away and leave her alone. She was not suggesting to Moore that the deceased should be killed. Tracey had no idea what Moore meant by “I’ll organise something. I need his number.” Tracey refused to give Moore the phone number of the deceased, believing that if Moore spoke to him it would make matters worse and the deceased would become aggressive towards her.

84. [84]
    As to the text messages suggesting that Moore would go around to the deceased by himself, Tracey ascribed no meaning to these texts. She stated that Moore did not know where the deceased lived and Tracey would not give him the address. Tracey did not want Moore going on his own nor was she initially happy with Moore coming with her. Her evidence was that she wanted to speak to the deceased on her own. Moore’s suggestion that he would have people around the back waiting was considered by Tracey to be just “shit talk”. When she replied that it was a good idea having people waiting around the back, Tracey emphasised that this was not actually a plan. Tracey took Moore’s reference to the deceased being “a walking dead” as “shit talk”. According to Tracey she ignored this message because she did not believe anything was going to happen. She also considered Moore’s message, “You and me he will open the door to you then I’ll walk around the corner and I’ll teach him a very big lesson” as being nothing more than “shit talk”. Tracey was concerned that if the deceased was assaulted, and even if she did not lose custody of CWX, the deceased could make Tracey’s life hell. She was concerned about the deceased taking her daughter. Tracey accepted that Moore’s words “teach him a very big lesson” probably contemplated a “flogging” but that her message “he isn’t going to learn from a lesson … he will continue to do what he is doing … and he will then take my daughter …” was her saying no to Moore’s proposal. According to Tracey, all she wished to do was to speak to the deceased and tell him “to pull his head in; he’s scaring me and the kids.”

85. [85]
    After this exchange of text messages Moore and Tracey had a telephone conversation which lasted 35 minutes and 14 seconds. Moore has no recollection of this telephone conversation. Tracey in evidence-in-chief recalled that the discussion was about her going to speak to the deceased alone. Moore said words to the effect, “No no, you’re not going to go by yourself; I’ll come and support you”. Moore then spoke to the twins. According to Tracey there was no talk about doing any violence to the deceased. After this phone call there were no further text messages suggestive of any violence being done to the deceased. Both Moore and Tracey denied that they discussed, in the course of this telephone conversation, not exchanging further texts about the deceased. Tracey’s evidence was as follows:

“And there’s no more – in fact, in the following text, there’s no more talk about anything about James, is there?--- Not that I believe, no, because James had settled down at that time and we’ve already come to a decision that I’m going to go speak to James when it’s a suitable time when he’s not drinking and Paul’s coming with me.

So there’s no more mention about going to visit him to have a chat?-- No, because we’ve already spoken about it, so – didn’t need to keep talking about it.”-

8. (h)
   The deceased was security conscious

86. [86]
    Albert Switez-Glowacz stated that his son’s usual practice was to keep the screen doors locked when he was home. This was also confirmed by Debbie Goodlet, who stated that her son was very security conscious and always locked both the screen doors and the timber doors. The deceased also kept a golf club behind the front door of the unit. After the death of the deceased and the release of the crime scene, Debbie Goodlet observed that the golf club was still located behind the front door with cobwebs on it (exhibit 32).

87. [87]
    In Tracey’s second statement to police (exhibit 13, paragraph 13) she stated:

“James’ doors (both the front and rear) were also closed and locked. He always had the security screen door locked. If he was airing out the unit, he would open up the wooden door, but the security door would always be left locked and closed.”

88. [88]
    In her second interview with police Tracey agreed that the deceased was very security conscious and would keep his door locked and would not allow people inside. In cross-examination Tracey accepted that the deceased was very security conscious but could not say whether the deceased would have been willing to open the door to Moore. In his first interview with police however (exhibit 23) Moore stated that if he had gone to the deceased’s unit, the deceased “would scream his head off at me. He would literally just go off his head at me, and everyone would hear it.” When asked why that was, Moore replied, “’cause he doesn’t like me no more. He used to like me.” In cross-examination Moore asserted that what he had told police was untrue as there had never been any difficulties between himself and the deceased. When it was suggested that he knew the deceased would not open the door to him and that’s why Tracey had to knock on the door, Moore accepted that if it was just him the deceased probably would not have opened the door as “he doesn’t like anyone going there”. Moore knew that the deceased did not like anyone going to his unit but he went in any event “to protect Emily to make sure she was all right. Yes. To keep her safe.” Moore knew that the deceased would not open the door with him there.

9. (i)
   The events of 6 February 2018

89. [89]
    Tracey caught the 11 o’clock barge from Russell Island to the mainland. She then drove in her Holden Captiva to Moore’s house. She had CWX and the twins with her. Moore was living at this time with his daughter BDH. They all went out in the afternoon, first to the ANZ Bank at Underwood where Moore withdrew some cash. There are photographs of Tracey, Moore and the children entering the ANZ Underwood Marketplace Shopping Centre at approximately 13:30 on 6 February 2018 (exhibit 24). These photographs show Moore wearing black and white Nike shoes. They all then walked to Donut King and had lunch. After leaving the shopping centre, Tracey drove Moore and the children to Moore’s house. In the course of the afternoon Moore had a dispute with his neighbour which resulted in the police attending Moore’s address.

90. [90]
    While at Moore’s house Tracey received a number of text messages from the deceased between 12:51 and 19:18 (exhibit 38, items 677–685):

DECEASED: Are we cool

TRACEY: Yeah we’re cool…

TRACEY: Friends only pls … but we are cool

DECEASED: Be honest who are seeing

DECEASED: Honest

DECEASED: I’m going to find out eventually so you may as well tell the truth now.

DECEASED: Em for the sake of what’s left of our friendship just tell me the truth. If you care about me in any way, shape or form just be honest.

DECEASED: Please stop ignoring my texts. Who are you seeing.

At 19:18 the deceased sent Tracey a text intended for CWX:

“Night night princes. Daddy loves you heaps xox Hopefully mum will call in the morning. Because she refused to this morning. Love princes”

At 19:24 Tracey replied to the deceased: “I’ll say night night to her for you”. This text message was sent by Tracey four minutes prior to her commencing the drive with Moore to the deceased’s unit.

10. (j)
    Moore’s evidence as to what happened that night

91. [91]
    Moore in his statement to police dated 17 February 2018 stated that the only time he had ever gone to the unit of the deceased was to carry a washing machine into the downstairs laundry and a single bed up to the first floor bedroom. He denied having been in the unit location in the past two weeks. According to Moore, he was home playing with his twin daughters. He stated that Tracey asked him to look after the children while she travelled to see her ill father. He could not say how long Tracey was away for. He stated that Tracey told him that her father had been sleeping a lot when she visited. She had a coffee and then left around 21:00 with CWX and the twins to catch the 22:00 barge.

92. [92]
    In his first interview with police on 21 February 2018 Moore was asked what shoes he was wearing on 6 February. He stated he was wearing the shoes that he had on, which were light coloured Olympus shoes. He told police that Tracey went for a drive on the night of 6 February for just under an hour. While Tracey was at his house he observed her being on her phone. She told him about the texts from the deceased. Moore sought to clarify his previous statement that Tracey left his house to see her father. Moore did not think she was away long enough to have made that journey. He thought that Tracey had “went for a cry”. He told police that Tracey was back within an hour. He denied leaving his house in the Captiva on the night of 6 February: “I didn’t leave anywhere. Yeah. Well, I’ve got people that can vouch for me when I was there the whole time.” When asked if he knew what happened to the deceased he replied, “I do not know what happened. I’d like to know.” He further stated, “I didn’t hurt him. I didn’t touch him.”

93. [93]
    When shown exhibit 24, which are the photographs of him wearing Nike shoes when entering the ANZ Bank, Moore stated that these shoes broke on 6 February and that they were “long gone”. Moore accepted that he had lied to police about the shoes. He admitted that he had thrown them in the bin but had had the shoes for about four years. Exhibit 36 is an admission by Moore that on 2 September 2017 Terayce Eggmolesse purchased Nike SB check Solarsoft (size 11) shoes which she gifted to Moore. Partial shoe impressions in blood were located on the floor of the deceased’s unit at points KG10 and KG15, as depicted in the attached photographs to exhibit 36. A comparison between the partial impressions and the characteristics of the shoes showed that:

1. (i)
   there was some general alignment possible between the class characteristics of the left shoe and the partial impression marked KG10; and
2. (ii)
   there was some alignment possible between the outside edge of the toe area of the shoes and the scene impression marked KG15. The general alignment was possible with both the left and right shoes.

94. [94]
    In Moore’s second police interview conducted on 22 February 2018 he said to police, “So Emily’s told the truth, yeah? … Well, she’s obviously told what happened.” In that context Moore had the following exchange:

MOORE: Um, yeah. Can’t get away with it hey? So yeah, um she got him to open the door.

SGT LAFFERTY: Okay. Well this, well this is what we wanna talk to you about, mate.

MOORE: I then walked in there and just started layin’ into him.

SGT LAFFERTY: Okay.

MOORE: It got out of hand, yeah.

SGT LAFFERTY: S -, some things happen, mate, when they’re not meant to happen.

MOORE: I know. I know.

SGT LAFFERTY: Okay?

MOORE: It got outta hand.

95. [95]
    In his evidence-in-chief Moore stated that he went with Tracey in her Captiva to the deceased’s unit on the night of 6 February 2018. He denied taking any weapon with him. The purpose of going to the deceased’s unit was to pick up a couple of things which Tracey had there and for Moore to ask the deceased to “cut it out”. He also accompanied Tracey to make sure she was safe. Moore described the decision to go to the deceased’s apartment that night as “just out of the blue”.

96. [96]
    It took approximately half an hour to travel to the unit. The Captiva was parked up the road as, according to Moore, there were no carparks outside the deceased’s unit complex. Tracey initially went to go into the unit carpark but Moore directed her to drive further down the road as he did not believe there were any carparks at the unit.

97. [97]
    Moore’s evidence was that when they arrived at the unit Tracey knocked on the door. The deceased came to the door and Tracey asked for her stuff back. The deceased then went and obtained keys and unlocked the door. Moore states that he was standing next to Tracey. After the deceased unlocked the door he stood halfway-in and halfway-out of the door. At that stage, according to Moore, he asked the deceased to “Please leave Emily alone”. The deceased then lunged at him with a knife, with Moore alleging that the deceased “put the knife up against my throat”. Moore states that he was shocked. He pushed the deceased, who then grabbed onto Moore’s shirt and they both stumbled inside the doorway. Moore eventually got the knife off the deceased. They continued to scuffle and punch each other, tripping over the futon. They both ended up on the floor with the deceased on top of Moore. While the deceased was on top of him Moore continued to punch him in the back of the head and tried to get him off. The struggle eventually stopped. Moore slid from underneath the deceased and ran out the door. When he left the unit he did not think that the deceased was seriously hurt or that he would die. Exhibit 42 is a diagram of the ground floor of the deceased’s unit. Moore marked on that diagram four points, A, B, C and D. A is the point where Moore alleges that the deceased lunged at him with a knife. Moore marked two positions with the letter B. The first B is the position where Moore pushed the deceased to and the second B is where he relieved the deceased of the knife. Point C is where he and the deceased tripped over the futon, and point D is where they ended up with the deceased on top of Moore.

98. [98]
    In his evidence-in-chief, Moore explained how he was able to get the knife off the deceased: “In the altercation, he – he was trying to strike me with it and I grabbed his arm and then I grabbed it with my right hand.”

99. [99]
    Moore explained that after the altercation he did not call for help because he did not think the deceased was seriously hurt and also because Moore was terrified and scared.  He stated that he only found out two days later on 8 February that the deceased had passed away. He admitted that he had lied to police in both his statement and first interview. He lied to protect Tracey and to keep the children safe. When he made the statement to Sergeant Lafferty in his second interview that he walked in and just started laying into the deceased he was depressed, tired and attempting to protect Tracey. What he meant to convey by that statement to Sergeant Lafferty was that he was verbally getting into the deceased rather than physically. He thought the entire incident took around five minutes.

100. [100]
     In punching the deceased in the head when he was on top of him Moore stated that he was not using too much force because they were in a “hugging sort of position”.

101. [101]
     In cross-examination from Mr Hoare, Moore accepted that Tracey knocked on the door and the deceased opened the wooden door. Tracey said to the deceased, “I want to talk”. The deceased then opened the screen door. Tracey opened the door outwards and stepped back. At that point, Moore entered the room before Tracey. Tracey never went further than the foyer near the staircase.

102. [102]
     Moore also accepted that the struggle between himself and the deceased started virtually immediately. When he first saw the knife he said words to the effect of “What the fuck?”. In struggling over the knife, he was seeking to protect himself from the knife. He accepts, however, that once he had the knife in his hand he caused injuries to the deceased. Moore believed he was going to die and that the deceased was going to cause his death.

103. [103]
     The knife that the deceased produced was, according to Moore, a small one with a black handle. He estimated that the blade was about three to four inches and the handle would have been a little bit shorter, about three inches.

104. [104]
     In cross-examination by Mr Boyle, Moore asserted that he did not realise he was stabbing the deceased. When he was punching the deceased it was with a fist, with the knife at a 90 degree angle to his knuckles. Moore could not explain how a knife held in that position might have inflicted stab wounds to the deceased. He recalled seeing some blood in the unit but not much. At the time Moore was in fear for his life, the deceased was unarmed. The fear for his life arose because, according to Moore, the deceased kept hitting him. It was Moore who was armed with the knife. Moore’s evidence changed as to where the deceased first held the knife. Moore changed the position from his throat to his chest bone, which he considered to be his throat. Moore did not cut himself when he got the knife off the deceased. Moore could not explain why the size of the entry wounds to the head of the deceased would indicate that it was the point of the knife going in first. Moore did not feel the knife catching on anything when he was punching the deceased.

105. [105]
     In explaining how he got the knife off the deceased the following exchange occurred:

“And you said yesterday you grabbed his wrist?--- I did.

What hand did you use to grab his wrist?--- My right hand, as I said yesterday.

Right hand. And so he was holding the knife quite firmly I take it?--- Yes.

And how did you manage to get the knife out of his hand?--- Easy. Just forced it out.

Out. How did you get him to release his hold on the knife?--- Just grabbed his arm.

Right. But he’s still got the knife in his hand, even if you’ve got hold of his wrist?--- Yes.

So how did you get the knife out of his hand?--- I had my left arm up on his chest pushing him at the same time as grabbing at the knife.

Okay?--- Yep.

So you’ve got your right hand---?--- Yep.

---on his wrist and you’ve got your left hand pushing him up against the wall?--- Yep.

And so how did you get the knife?--- I grabbed it off him.

How?--- It happened all that quick so---

All that quick?--- Yep.

But he would’ve been holding on to the knife fairly tightly, wouldn't he?--- I’d assume so.

Well, did you sort of go one finger at a time taking his fingers off it or did you do something else?--- I can’t remember.

Well, we’ve got a knife with a four centimetre handle that he’s holding---?--- Yep.

---and by the handle, and you’re somehow able to get a knife – the knife from his hand. Prise it from his hand and can you explain how you did that?--- I had my left hand on his arm, pushing his arm against the wall. I grabbed it and I forced it out of his hand and I held on to it.

How did you force it out of his hand?--- With my right arm.

So did you let go of his wrist?--- No. The left arm.

Your left arm?--- Yes. I was pushing it into the wall.

So you weren’t pushing him with your left arm into the chest?--- Yeah. In the – at first it was the chest and I – I pushed down and slid down.

This is nonsense about him having a knife, isn’t it?--- Not at all.”

106. [106]
     The only injuries Moore alleges he sustained were two bruises to his left cheek. Moore visited his general practitioner, Dr David Smith, on 9 February 2018. While he did not conduct a full physical examination of Moore, Dr Smith’s evidence was that he did not observe any physical injuries to Moore.

107. [107]
     While Moore accepted that he stabbed and killed the deceased in his own unit, he denied that he went there with any intention of killing the deceased.

108. [108]
     After getting back to his feet Moore placed the knife in his pocket. He observed that Tracey had her hands over her face, not her eyes, just over her mouth. He does not recall Tracey saying the words, “Is he gone?” He does not recall touching the deceased with his foot or giving a positive response to Tracey’s question. When he and Tracey left the unit and returned to the vehicle, he noticed that Tracey was visibly upset, pale and shaking. She did not drive off immediately. On the journey back to his house Tracey did not say anything to him in the car. Moore took the carpet mat out of the footwell of Tracey’s car, where he had been sitting, because some blood had been left on the carpet. Moore threw the carpet mat, the knife, his shoes and his shirt into a bin when he returned to his house. Tracey was not with him when he disposed of these items.

11. (k)
    Tracey’s evidence as to what happened that night

109. [109]
     In her first statement to police (exhibit 12) Tracey outlined the circumstances in which she came to know of the death of the deceased:

“Around 4.30 pm or 5.00 pm on Thursday, I was on the phone to a debt collector, I owe AGL money, and I was making a payment arrangement when I saw police sitting in my driveway. I knew something was up, so I hung up on them and walked down to the police. They told an incident had occurred on the mainland with James, and I needed to call his Dad. I called Albert, he told me James was gone, I asked where did he go, and Albert told me James had taken his own life. I have been trying to make sense of it since, but I can’t understand why he would leave his daughter. That is all I can say about James.”

110. [110]
     In her second statement to police (exhibit 13) at paragraph 80 Tracey stated that on 6 February 2018, after returning from lunch with Moore and the children at Underwood, she did not leave Moore’s house again. Nor did Moore.

111. [111]
     In her first interview conducted on 21 February 2018 Tracey told police that she had left Moore’s house and went for a drive for approximately 45 minutes to an hour on the night of 6 February 2018. She drove to the nursing home where her father was in palliative care. Having parked her car in front of the nursing home she had a “cry for a couple of minutes and then just went back”. When asked why she did not mention this in her statement to police she replied, “Oh, because I couldn't remember. Um, so much has happened um, losing James and losing Dad whose dying and Paul wanting so much of me … it’s just hard to remember every single little detail.” Tracey denied going to the deceased’s unit on 6 February.

112. [112]
     In her second interview conducted on 22 February 2018 after she had been arrested for the murder of the deceased, Tracey told police that Moore had convinced her to take him to the deceased’s unit to talk to him. She did not know that Moore would hurt the deceased. Had she known that Moore was going to hurt the deceased she would never have taken him to the unit.

113. [113]
     In that interview, Tracey stated that she remained in the car while Moore went to the unit. She drove into the deceased’s street, but Moore told her to park up the road. She sat in the car while Moore walked down the road. She remained in the car the whole time. She denied knocking on the door of the deceased’s unit. While she was parked on Sibley Road and Moore was gone, Tracey told police that she was playing a game on her phone. She thought that Moore was simply going to tell the deceased to leave her alone, and that Moore was only talking to the deceased. She did not know how Moore would have got into the deceased’s unit as “I wasn’t there”. When Moore got back into the car he said, “Just take me home” and there was not much of a conversation. Tracey stated that when they arrived back at Moore’s place, he got out of the car pretty quickly but Tracey was not watching what he was doing. Tracey did not know that the passenger foot mat was missing but thought it possible that Moore threw it out. When she went to leave with the children, Moore was inside in the shower.

114. [114]
     She told police she tried to contact the deceased the following day. She said that she did not know anything had happened to the deceased until Thursday. When she heard about the death of the deceased on Thursday, 8 February, she was scared and upset and contemplated that Moore could have “done it” and that she was “the stupid idiot that drove him there”. She told police that she had made a false entry in the visitors’ register at the palliative care unit because of her Aunty Thelma.

115. [115]
     In her evidence-in-chief Tracey stated that she did attend the deceased’s unit on the night of 6 February 2018. She and Moore drove in her car. There is an admission that on 6 February 2018 a silver Holden Captiva bearing Queensland registration plates 051 LYT was pictured travelling at the points and times on the attached map; the times noted in black are the times the Captiva was travelling in a general northerly direction. The times noted in red are the times the Captiva was travelling in a general southerly direction. The attached map shows that Moore and Tracey left Moore’s house at 19:28.31 and travelled to the vicinity of the deceased’s unit. The time they returned to Moore’s house was approximately 20:42.14 (exhibit 11).

116. [116]
     Tracey’s evidence was that she went to the unit to speak to the deceased about the way he was treating her. She wanted to talk to him for him to understand how he was making her feel and also discuss their daughter. When she arrived at the unit she knocked on the security door and said to the deceased after he had opened the timber front door, “Can we talk?” She described Moore as standing next to her but slightly behind on her right hand side. At first Moore was standing in the garden.

117. [117]
     Tracey knocked on the screen door. Both the screen door and the wooden door were shut. The deceased opened the wooden door and only after Tracey said that she wished to talk did he open the screen door. Tracey took the handle of the screen door and took two steps back to open the door because it opens outwards. She observed Moore walk into the unit. The only conversation between Moore and the deceased which Tracey heard was one of them say, “What the fuck?”. Those words were spoken, according to Tracey, when both Moore and the deceased were in the unit. When she walked into the unit Moore and the deceased were wrestling belly to back; Moore’s belly on the back of the deceased. The first point where they started to wrestle was just past the staircase wall. As they wrestled they moved through the unit, past the futon, to where the X is shown on exhibit 27. Tracey did not expect this physical interaction between Moore and the deceased. She observed that at the point marked X both were on the ground but Moore did not remain on the ground. He stood up. Tracey noticed that the deceased was on his knees bent over his legs. She could not see any injuries on the deceased but she saw blood. She did not observe any injuries on Moore. She saw that there was a knife in Moore’s hand. She heard the deceased making “a snoring sound” but this stopped very quickly. She then said to Moore, “Is he gone?” She had her hands over her mouth when she asked this question. She observed Moore slightly tap the deceased with his foot and then reply to her, “Yes”. She saw blood on the floor and there was a trail of blood. After Moore had responded to her question Tracey believed that the deceased was dead. She then panicked and went to her car with Moore. Prior to seeing Moore with the knife in his hand she had not previously seen a knife. Nor had there been any discussions about weapons or Moore being armed.

118. [118]
     The Captiva had been parked around the corner and up the road slightly from the deceased’s unit. Tracey accepted that usually there were carparks at the deceased’s unit but could not recall whether there were any available carparks on 6 February. She drove into the cul-de-sac and as she was about to drive into the unit carpark Moore said, “No no no. Go up and around and drive up the road.” After Moore and Tracey got back into her car she sat in silence and had a cigarette. She could not focus and was confused. Eventually she drove away. She asked Moore if he was okay and he said, “Don’t look at me. Don’t talk to me. Just drive me home and don’t stop anywhere.”

119. [119]
     When she arrived back at Moore’s house she stayed in the car trying to compose herself. There were other people at Moore’s house when Tracey arrived back. One of those persons was Jamie Seamons. Moore had asked his daughter, BDH, to look after the children while Moore and Tracey went for a drive. Ms Seamons did not see Moore with a knife. When they returned, however, she noticed that Tracey appeared nervous. She was not crying but her body language was different, as opposed to her being calm before she had left with Moore.

120. [120]
     Under cross-examination by Mr Fraser for Moore, Tracey stated that she and Moore went to the unit to speak to the deceased. She accepted as only a possibility that they went to the unit to collect some of her belongings. This was not, however, planned and she did not suggest to Moore that she had to pick up some of her things from the deceased’s unit on the night of 6 February 2018. When it was suggested to Tracey that after the deceased opened the wooden door he went inside for a short while and came back with the key and opened the security door her response was, “He may have, yes”. Tracey did not believe that Moore said any words to the deceased to the effect of, “Look, this has got to stop”. She conceded that it was a possibility that such words were spoken. She did not observe any move by the deceased where he made a sudden movement towards Moore and grabbed him. She could not rule this out as happening because she did not see everything that was occurring. Tracey agreed that it could have been Moore who said the words, “What the fuck?”. As she was in shock she could not say for sure whether the deceased ended up being on top of Moore but she could not rule this out. She conceded that she could be mistaken about Moore having his belly to the back of the deceased while they were wrestling. She had some recollection of Moore saying to her, “Let’s go”, or “Let’s get out of here”. Tracey accepted that she never saw Moore obtain a knife and that there was no discussion about a knife. She did not observe Moore having a knife in the car nor at the front door of the unit.

121. [121]
     In cross-examination by Mr Boyle Tracey was asked why she did not contact an ambulance when she realised the deceased had been seriously injured. She stated that she was in a panic and not thinking clearly and was thinking that she needed to go. She needed to keep her kids safe in the sense that she could not be separated from them by going to jail. She was concerned that she would be implicated in the death of the deceased. At the time Tracey went to the unit she contemplated that there might be some violence in the sense of Moore giving the deceased a punch in the head, but she did not actually think the deceased would be injured. It would only happen in circumstances where the deceased lunged at her. She confirmed that she had no recollection of the deceased leaving the security door and coming back. According to Tracey the deceased opened the screen door after she had asked if they could talk. She was not 100 per cent sure whether the deceased would have been able to see Moore when he opened the security door. She does not recall Moore being pulled in by the deceased. She accepted that she would have seen the deceased grabbing onto Moore and pulling him into the unit. She walked in behind Moore, where she observed they had turned into the loungeroom and were wrestling.

122. [122]
     In relation to where she parked her car up the street from the unit, she agreed that she would usually park in the unit carpark. The only reason not to park in the unit carpark was if there were no available carparks. She parked in Sibley Road because this is what Moore told her to do.

123. [123]
     After the deceased had unlocked the screen door and she had assisted in opening the door by taking two steps backwards, she was not surprised that Moore entered the unit first “because, to me, we were invited in”. Moore went through the door, walking at a regular speed. She could not recall whether she observed any punches being thrown as she had her hands over her face and could not remember whether she closed her eyes or not as she was “in utter shock”. She observed both Moore and the deceased on the ground but could not say whether one was on top of the other. She recalls Moore standing up and the deceased remaining on the ground in a kneeling position. It was at this point that she saw Moore put a knife in his pocket. She could not see the entire knife because it was in Moore’s hand but estimated that the blade was approximately five centimetres.

124. [124]
     Tracey observed drops of blood, which she marked on exhibit 45, extending from about the beginning of the living room to the X which marks where the deceased was found. By reference to exhibit 4, photograph 36, Tracey confirmed that that was the position the deceased was in when she last saw him. His shirt had been pulled up, as shown in that photograph. It was not until Moore stood up that she observed the knife. At no stage did she see the deceased with a knife. Tracey did not observe any injuries on Moore, including bruising or cuts. From the amount of blood Tracey had observed, she knew that the deceased had been fairly badly injured. When the deceased stopped making the snoring sound, which lasted for approximately 10 seconds, he was not moving and by the time Tracey left the unit she formed the opinion that the deceased had died. Moore exited the unit first and then Tracey closed both the wooden door and the screen door. When Moore and Tracey returned to her car she had a cigarette. She stated that she was “completely confused on what happened”. She believed that she had two, maybe three cigarettes.

125. [125]
     She surmised that Moore had killed the deceased but nothing was said.

126. [126]
     Tracey denied that any of this was pre-planned in terms of parking the car around the corner and her knocking on the door. In Mr Hoare’s re-examination, Tracey stated that Moore, not her, had the best vantage point to see if the carpark was full.

127. [127]
     Tracey believed that her leaving the scene of the killing was wrong. She accepted that it was apparent to her that the deceased had been stabbed by Moore, yet she drove Moore away from the scene to his house. This was about a 30 minute drive.

128. [128]
     According to Tracey, there was no conversation in the car for this 30 minute drive. Having witnessed what she witnessed, she explained that she did not go to the police because she was in shock and panicked.

129. [129]
     When they returned to Moore’s house Tracey observed him get out of the car. When he got out of the car she believed he bent over to pick up his jumper on the floor of the car. Because it was dark she could not see any blood on Moore. Nor did she observe any blood on his shoes, jumper or shirt. There was no conversation between Tracey and Moore when they returned to Moore’s house. She organised the children and left to catch the 22:00 barge.

130. [130]
     As noted above, the last text message sent by Tracey to the deceased before she and Moore travelled to his unit was at 21:24 on 6 February 2018: “I’ll say night night to her for you”. Tracey did not send a text message to the deceased informing him that she was on her way to his unit to speak to him. Her explanation was that she just wanted to turn up and say, “Hey, I’m here. Let’s talk.” She had previously arrived at the unit unannounced, not with Paul Moore but with her uncle. This is a reference to Tracey and her uncle dropping CWX off at the deceased’s unit between 16:30 and 17:00 on Friday, 2 February 2018 (exhibit 13, paragraph 30). Tracey’s uncle only went to the deceased’s unit on one occasion and did not go inside the unit. Tracey acknowledged that the deceased did not like people coming around to his place. When asked why she could not have chosen another time to go around to the deceased’s unit Tracey stated that it was spur of the moment. She explained what she meant by this:

“Well, we’ve – we – as in, Paul and I, or – if I was going to go by myself, there was never a set time or day. I wanted it to be at a perfect moment where he didn’t have any money to go and buy alcohol – so, like, the day before. And when he started sending those messages that afternoon, I was ignoring them. And when he sent [CWX] that text message that night and he said at the end of it, ‘Mummy refused to call’, that, to me, was him fishing for an argument, and I decided, right. That’s it. No more. I need to talk to him.”

131. [131]
     In re-examination Tracey clarified that it was not just this one text that led to a spur of the moment decision to go to the deceased’s unit, but rather a series of text messages.

132. [132]
     Tracey denied that the real reason she went around to the deceased’s unit was for Moore to kill the deceased. She denied sending encouraging text messages to Moore and being present at the deceased’s unit in order to encourage Moore to kill the deceased. Tracey was there so that she could talk to the deceased about how he was making her feel.

12. (l)
    Crime scene evidence

133. [133]
     The primary evidence of the crime scene was given by Senior Constable Paul Weber from the Cleveland Scenes of Crime Unit and Sergeant Kane Gordon from the Major Crime Unit, Brisbane Scientific Section. Sergeant Gordon’s expertise is blood spatter. Senior Constable Weber arranged for 75 photographs to be taken of the crime scene. Photograph 36 shows the deceased in a frog-like position with his shirt pulled up. The deceased is in a pool of blood. Photographs 22 to 31 show drops of blood commencing near the post of the staircase, including blood up that post and around the corner of that post on the wall, together with further blood spots continuing through the lounge area to where the deceased was found. Various swabs were taken of these blood drops and there is no dispute that the DNA analysis to a high level of probability identifies the blood as that of the deceased. Police also found that the electric stove in the kitchen had a saucepan on it and the hotplate was still on. There was nothing in the saucepan but there were two packets of unopened noodles nearby.

134. [134]
     A number of knives were located in the deceased’s unit, but none of those knives had any blood on them. This is consistent with both Tracey and Moore’s evidence that Moore put the knife with which he had stabbed the deceased in his pocket before leaving the deceased’s unit.

135. [135]
     Sergeant Gordon conducted a bloodstain pattern analysis of the blood stains that were located at the unit. Ten photographs were taken of areas of interest (exhibit 28). Photograph 1 shows a bloodstain on the wall separating the staircase from the loungeroom area, which was designated as KG2. Sergeant Gordon described it as a series of larger spatter stains which have impacted the wall from a height at which gravity has affected the blood and the blood has started to flow down the wall. The fact that the blood flowed down the wall in that manner indicates that there is enough blood to be affected by gravity. Photograph number 2 is of the wall on the loungeroom side connected to the stairway post. Photograph number 3, which is designated KG3, is a series of blood spatter stains. The red arrows on the photograph depict the direction that the blood spatter was travelling when it impacted the surface. No bloodstains were found outside the front door. Photograph 4 is a section of the floor of the unit with the front door in the frame. The photograph also shows bloodstains on the cover of the futon couch. These bloodstains were described by Sergeant Gordon as “drip stains”, which is blood that has fallen from a height and is purely affected by gravity. The person from whom the blood droplets came was moving in a direction away from the doorway. This is indicated in photograph number 4 by blue arrows. Photograph 5 shows the area where the deceased was located. There is blood pooling on the floor. Photograph number 9 is a transfer bloodstain of what appears to be a partial impression of a shoe sole.

136. [136]
     The photographs referred to in exhibit 4 and exhibit 28 evidence that the deceased was stabbed near the post to the staircase in the vicinity of the front door. The blood droplets from that position through to where the deceased was found shows a directionality from the doorway towards that position which is marked X on exhibit 27.

13. (m)
    Dr Ong’s evidence

137. [137]
     Dr Ong conducted an autopsy on 13 February 2018. Exhibit 40 is a diagram of the back of a human head where Dr Ong has marked as S1 to S4 four stab wounds, and an incision wound, IW1. Part of exhibit 40 is a diagram of the back of a human body where Dr Ong has marked S5 to S8 being four stab wounds to the top of the deceased’s back. The incision wound IW1 is 7.5 centimetres in length and located on the right side of the back of the head. The incision was to the entire depth of the skull and caused a superficial scratch mark on the outer table of the skull. The injury S1, which is at the centre of the back of the head, is a small superficial stab wound of about 0.5 centimetres, with both ends of the wound appearing to be sharp. The depth of this wound is one centimetre. As the depth of the wound is deeper or longer than the width of the outer dimension of the wound, Dr Ong describes it as a stab wound. The injury S2 is two centimetres long with the ends of the wound being sharp and is directed to the front in a downward direction and slightly to the left to a depth of five centimetres. It missed the skull but involved soft tissue and muscles of the lower and upper neck. Wound S3 is 2.7 centimetres in length. The wound is directed forward and downward and also to the left to a depth of four centimetres. Wound S4 is directly behind the left ear. The depth of S4 is 1.5 centimetres and only soft tissue was involved. Stab wounds S5 to S8 are all on the upper aspect of the back of the torso. S5 is on the right side and is 1.6 centimetres long. It is directed outwards and towards the right side of the body to a depth of 4.5 centimetres, involving the muscles and subcutaneous tissue. S6 is 1.8 centimetres long and is directed outwards and to the left roughly about 45 degrees, with a horizontal plane involving only soft tissue and muscles for about seven centimetres. S7 is directly at the back of the midline. The wound is directed upwards and to the right to a depth of 5.5 centimetres. S8 is 2.3 centimetres long with both ends sharp. It is also directed to the front but sharply to the right side at an acute angle. It is six centimetres deep involving subcutaneous tissue and muscles. Dr Ong found a 14 centimetre long scratch abrasion on the right upper abdomen. A 1.8 centimetres abrasion was found on the deceased’s left knee.

138. [138]
     Alcohol in the deceased’s blood was about .076. Traces of prescription drugs were also found in the blood, as well as a metabolite of cannabis. Dr Ong noted, however, that the post-mortem level of cannabis is very erratic. The urine alcohol level was fairly high at .121. Dr Ong noted that alcohol can be produced post-mortem, especially in decomposition. Urine is less susceptible to decomposition change and therefore more likely to reflect the actual anti-mortem level. The urine level eventually will be more than the level in the blood.

139. [139]
     The cause of death given by Dr Ong was haemorrhage due to, or as a consequence of, multiple stab and incised wounds caused by a knife.

140. [140]
     Dr Ong did not find anything that might be described as a defensive type wound on the deceased.

141. [141]
     Dr Ong did not consider any of the wounds fatal by themselves, however, if there was no attempt to stop the bleeding, eventually it would reach a point where it can cause shock and death. It may have taken the deceased at least five minutes, but probably longer to die. The wounds that the deceased received would have started to bleed immediately. Had the deceased received immediate medical attention death could have been prevented by stopping the haemorrhaging.

142. [142]
     In cross-examination by Mr Fraser, Dr Ong agreed that the force that was used, putting aside S5, was mild for the stab wounds. Dr Ong could not rule out that the stab wounds were delivered from close quarters and that it was possible that the wounds may have been caused while the deceased was over the person that was stabbing him.

143. [143]
     In cross-examination from Mr Hoare, Dr Ong accepted that by observation a person who is not a doctor may have difficulty distinguishing between someone who was dead and someone who was in a state of unconsciousness.

144. [144]
     In re-examination Dr Ong clarified that mild force was the minimum force required to cause the stab wounds which could have been caused by greater force.

14. (n)
    Events following Moore and Tracey leaving the deceased’s unit

145. [145]
     As already stated, on the 30 minute journey from the unit to the house Moore and Tracey did not discuss what had occurred at the unit. Moore disposed of the passenger car mat, the knife, his shoes and shirt.

146. [146]
     After Tracey had left with the children to catch the barge, there is a series of text messages between her and Moore sent between 22:10 and 23:23:

TRACEY TO MOORE: “I made the boat … thank you for lunch today and spending the day with the kids …”

MOORE TO TRACEY: “You’re welcome thank you for bringing them to see me.”

TRACEY TO MOORE: “You’re very welcome … hopefully soon you’ll be well enough for you to have them for a weekend …”

TRACEY TO MOORE: “I hope the doctors are wrong about you having cancer … thank you for talking to me about it …”

MOORE TO TRACEY: “I hope so too [emoji]. Yeah I haven’t been well pretty much bedridden it sucks [BDH] has been looking after me.”

TRACEY TO MOORE: “[BDH] is a good kid … you didn’t look very well today. When is your next doctor’s appointment.”

MOORE TO TRACEY: “I’m next week.”

TRACEY TO MOORE: “Okay … I hope the doctors are wrong … I’m going to bed now … kids taking up all y bed …”

MOORE TO TRACEY: “Okay kiss the girls goodnight for me please.”

147. [147]
     The following morning at 7:25 Tracey sent the following text to Moore:

“Morning … I know I said I’ll take you to see Dad. As they will answer the door to me and you walk in behind me because of family only. But I might have to see how Dad is and I’ll speak to the doctors and deal with them 1st … less stress on him the better … I’ll give the kids a kids for you and I’ll say hello to Dad for you.”

These messages were found to be intact on Moore and Tracey’s phones. Moore could not say why he left these messages intact on his phone. He could not say whether the messages were left intact on purpose because he knew that the police would examine his phone. Moore denied discussing this with Tracey. He could not recall whether he and Tracey had a conversation about not mentioning going to the deceased’s unit. He accepted that none of the text messages exchanged between he and Tracey after she had left his house made any reference to what had happened at the deceased’s unit. Moore suggested that he did not send any text messages about what happened at the unit “out of fear” and because he was scared. Moore could not say whether the text messages were exchanged to conceal his involvement in the killing of the deceased.

148. [148]
     Tracey was prepared to send these text messages, as she was concerned about being implicated in the death of the deceased. She was not thinking clearly and was panicking. By sending these messages she was seeking to cover up her steps. She was doing anything possible to remove herself from the situation stating, “All I had in mind was my kids and myself and what the fuck just happened”. She did not wish to go to jail. One of the reasons she sent these texts was to create a false alibi. She was seeking to create evidence to prove that she had not seen or been in any way involved in the death of the deceased. This was in circumstances where she had driven Moore to and from the deceased’s unit. Tracey did not seek either by text messages or otherwise to talk to Moore about what he had done at the unit. She agreed that the text message sent at 22:10 (exhibit 38, item 692) appeared to be quite a calm text message.

149. [149]
     Tracey not only sent text messages to Moore, she also sent text messages to the deceased on 7 and 8 February 2018. These text messages cover subjects such as CWX wanting her father to call her in the morning and a further request for the deceased to call CWX on the night of 7 February. At 12:28 on 7 February Tracey sent a text to the deceased asking him to pick up CWX from school on Friday. A further text is sent by Tracey to the deceased at 13:38 telling him that his father was trying to contact him and would he please give him a call. At 14:42 on 7 February Tracey sent the following text: “Trying to call you. So you can talk to [CWX] … call me when you can pls …” During this time there are further exchanges of texts between Moore and Tracey which make no mention of what had occurred at the deceased’s unit the previous night. Moore’s evidence was that he had no knowledge of Tracey sending text messages or making phone calls to the deceased. Tracey was trying “to make out that I had no idea that – what happened”. She was scared about going to jail and needed to keep her children safe. She thought that she would go to jail because she had fled the scene and failed to call for help. She described these text messages to the deceased as being lies and her trying to cover up her actions. Tracey, however, denied that she sent the text messages to conceal the fact that she was involved in the murder of the deceased. She stated that she was covering her steps because she panicked.

150. [150]
     Tracey had also spoken to Albert. She believed that Albert was worried about his son. Tracey accepted that she was lying to Albert and stated, “I was lying to everybody”.

151. [151]
     Albert had told Tracey that the deceased had taken his own life. Having been an eyewitness to the death of the deceased Tracey said nothing to Albert to disabuse him of his belief that his son had taken his own life.

152. [152]
     There is then a series of text messages on 8 February 2018 between Moore and Tracey (exhibit 38, items 762–774):

MOORE TO TRACEY: “Are the boys staying the weekend em.”

TRACEY TO MOORE: “I don’t know … I don’t know … police came they said [CWX’s] dad has passed away.”

MOORE TO TRACEY: “Are you bloody serious.”

TRACEY TO MOORE: “Sadly yes … I’m waiting for his dad to call me back … I might need you to take the twins please …”

MOORE TO TRACEY: “Anything ,,, that’s not good.”

MOORE TO TRACEY: “When do you need me to take the twins.”

MOORE TO TRACEY: “I hope his family is coping I think I’m in shock.”

MOORE TO TRACEY: “Are you okay.”

TRACEY TO MOORE: “No …”

TRACEY TO MOORE: “I don’t know what to do …”

MOORE TO TRACEY: “Can I call.”

TRACEY TO MOORE: “I’m waiting for Albert to call.”

MOORE TO TRACEY: “Okay um call me after Albert calls tell him I’m thinking about him and his family send them my regards.”

153. [153]
     Tracey and Moore then had a five minute and 53 second telephone conversation at 21:20 on 8 February 2018. Tracey could not recall what was discussed in this telephone conversation. She denied that there was any plan between her and Moore to pretend that they knew nothing of the death of the deceased. Nor was there any plan to exchange the text messages outlined above. Tracey explained that the messages were left on her phone because they had not been deleted and her phone had been reset a few days prior. She was not expecting police to look at her phone.

154. [154]
     Tracey took other steps to create a false alibi. Tracey admits that she created a false entry in the palliative care unit visitors’ register. On 7 February 2018 at about 10:30 she visited her father at the palliative care unit. She signed in her aunt Thelma Tracey, Robyn Jobson and herself. At or about that time she made a false entry (exhibit 8) that showed that on 6 February 2018 she visited her father, with the time in shown as 19:55 and the time out shown as 20:05. She made that false entry to give herself a false alibi. This was to keep herself and her children safe by her not going to jail. Tracey further admitted in evidence that she removed a number of pages from the visitors’ register that contained this false entry. She originally denied removing these pages to police when interviewed on 21 February 2018.

155. [155]
     Ankit Prajapati was, as at February 2018, working as a registered nurse at the palliative care unit. One of the patients under his care was Tracey’s father, Robert Tracey. Visitors to the unit would enter via the main entrance which required the pressing of a buzzer. Once the buzzer was pressed the doors would open for the visitor to enter. A visitors’ register was maintained requiring each visitor to sign in. The register was kept outside the nursing station. On 17 February 2018 police attended the unit and obtained copies of particular pages of the register for the period 2 February to 14 February 2018. The police retained the copies and the originals were returned to the register by Mr Prajapati.

156. [156]
     On Sunday, 18 February 2018 Mr Prajapati saw that there were a number of people at the palliative care unit and he wished to ensure that everyone had signed in. He was looking for the register, which he located in the possession of Tracey who was in the family room with five or six other persons. He recovered the folder from Tracey and took it back to the nursing station. He noticed that a couple of pages were missing from the register. Despite searching for these missing pages, he could not locate them.

157. [157]
     In her interview on 21 February 2018 Tracey told police that she did not think she had ever signed in the register when she has not been present at the palliative care unit. However, when police showed her the false entry in the visitors’ register, she admitted that she did not go to see her father on the night of 6 February 2018. The reason she gave for making the false entry was so that her family would think that she had visited her father “because my aunty can be quite narky”. The false entry together with the entries on 7 February 2018 are all in Tracey’s handwriting.

158. [158]
     After denying to police in her interview of 21 February 2018 that she did not remove any pages from the visitors’ register, the following exchange occurred:

“SGT LAFFERTY: Okay. Do you think it’s coincidental though? That the pages that are removed are the ones which has an entry in it that---

TRACEY: I think all of this is coincidental.

SGT LAFFERTY: Yep.

TRACEY: And all the evidence is pointing to me but I did not know

…

SGT LAFFERTY: And you’ve also failed to tell me that you put a, an entry in there which wasn’t correct.

TRACEY: I know all the evidence points to me and I know it doesn’t look good.”

159. [159]
     In cross-examination by Mr Boyle Tracey gave the following explanation for removing the pages from the visitor register:

“Because I wanted to reverse what I did. Making the false alibi wasn’t a good idea, I figured. I was thinking about it from – since that day that I made it. And I shouldn’t have done it so I removed it.”

160. [160]
     Her evidence was that after taking the pages from the register she threw them in a bin at the ferry terminal. At the time of removing the pages she had been informed by her aunt, Thelma Tracey, that police were making enquiries at the palliative care unit. Tracey was not happy about this because her father was very sick and she did not want any sort of attention around him. She denied being concerned about any CCTV footage:

“I just wrote it and then I wanted to remove it because I didn’t want that focus around my dad and I realised I shouldn’t have made a false alibi. So I took it before I found out the police were there.”

161. [161]
     Tracey accepted that she had lied to police in relation to making the false entry, why she made the false entry and the removal of the pages. The reason she lied was because she was panicking and covering for herself.

162. [162]
     After Moore’s second interview with police on 22 February 2018 he was released. Moore was collected from the watchhouse by Mr Cain, his sister Juanita and her niece. Mr Cain gave evidence that while in the car Moore said words to the following effect:

“Just in relation to how Emily had gone to James’s, they parked up the – round the corner. He was waiting around like, when she knocked on the door, James let Emily in and shortly after, Paul followed, and apparently stabbed him 7/8 times in the neck.”

163. [163]
     Mr Cain said that Moore “then just denied it afterwards, saying he was only joking”.

164. [164]
     Moore could not remember anything about this conversation. He could not state where he would have obtained information about the deceased being stabbed seven or eight times but denied having any recollection of ever saying words to that effect.

Thecaseinrelationto Moore

165. [165]
     I have already outlined the four elements of murder which the prosecution must establish beyond reasonable doubt. There is no dispute that James Andrew Switez-Glowacz is dead, nor is there any dispute that Moore caused his death. The cause of the deceased’s death was haemorrhage from a combination of the eight stab wounds and one incision wound inflicted by Moore. The prosecution must, however, prove beyond reasonable doubt the third and fourth elements, namely that Moore killed the deceased unlawfully and that Moore intended to kill or do grievous bodily harm to the deceased.

166. [166]
     The first three of the four elements are the elements of an unlawful killing. Proof of them without proof of the fourth element would prove the offence of manslaughter. Manslaughter is an alternative charge to murder but it only becomes available as an alternative in the event that I find Moore was not guilty of murder.

167. [167]
     The third element of unlawfulness requires that in causing the deceased’s death Moore did so unlawfully. All killing is unlawful, unless authorised, justified or excused by law. Our law creates some defences which can operate to excuse a killing, making it lawful. A well known example is acting in self-defence. Where the facts raise the possibility such a defence may apply, it is not for Moore to prove it applies. Rather, it is for the prosecution to exclude the application of such a defence beyond a reasonable doubt. The prosecution must do this because if there lingers a real possibility that such a defence operates to excuse Moore, then the prosecution will not have proved beyond reasonable doubt that his actions were unlawful.

168. [168]
     In the present case in relation to the third element the issues are whether the prosecution has excluded beyond reasonable doubt that the killing of the deceased by Moore was either self-defence against an unprovoked assault (s 271(2)) or self-defence against a provoked assault when there is death or grievous bodily harm (s 272).

(a) Self-defence (s 271(2) of the Criminal Code)

169. [169]
     Dealing first with s 271(2) I direct myself as follows:

1. (a)
    A defendant who has been the victim of an unprovoked assault may lawfully respond in self-defence with lethal force (that is, force which may kill or do grievous bodily harm) when the assault upon him was of such a nature as to cause reasonable apprehension of death or grievous bodily harm.
2. (b)
   The criminal law does not only punish; it protects as well. It does not expect citizens to be unnaturally passive, especially when their safety is threatened by someone else. Sometimes an attacker may come off second best but it does not follow that the one who wins the struggle has committed a crime. The law does not punish someone for reasonably defending himself or herself.
3. (c)
   Moore does not have to satisfy me that this defence applies. The prosecution must exclude or negate it beyond reasonable doubt to satisfy me that Moore acted unlawfully.
4. (d)
   If the prosecution cannot exclude beyond reasonable doubt the possibility that the killing of the deceased occurred in self-defence, as the law defines it, then that is the end of the case in relation to Moore. His use of force would be lawful and I must find him not guilty.
5. (e)
   The law of self-defence is drawn in fairly general terms to cover any situation that may arise. I have to apply it to the particular facts of this case.
6. (f)
   If the violence of the attacker is such that the person defending himself reasonably fears for his life or safety, then the justifiable (or lawful) level of violence which may be used by the person attacked in self-defence will be greater also.
7. (g)
   The level of violence in self-defence that is justifiable, or lawful, depends on the level of danger created by the attacker and the reasonableness of the defendant's reaction to it.
8. (h)
   Section 271(2) applies in circumstances where a person is unlawfully assaulted and has not provoked the assault. Section 271(2) provides:

“If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

9. (i)
   Several matters arise for my consideration. They are:

   1. whether there has been an unlawful assault by the deceased upon Moore;
   2. whether Moore has provoked that assault;
   3. whether the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm;

4. whether Moore believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm, other than by acting as he did.

10. (j)
    The burden remains on the prosecution at all times to prove that Moore was not acting in self-defence (that is, was acting unlawfully), and the prosecution must do so beyond reasonable doubt before I could find him guilty.

170. [170]
     The first matter is whether Moore was unlawfully assaulted by the deceased. If I conclude that the deceased did not first unlawfully assault Moore, a defence under s 271(2) is not open. The prosecution submitted that I should find that the deceased did not unlawfully assault Moore. The alleged unlawful assault by the deceased was that he put a knife to Moore’s chest bone.

171. [171]
     The prosecution identified that Moore initially alleged that the deceased put a knife to his throat, but subsequently changed the position to his chest bone. The prosecution submitted that the evidence of Tracey, which is admissible against Moore, does not support Moore’s evidence of being unlawfully assaulted by the deceased. Tracey did not see any such assault. She described Moore’s belly as being against the back of the deceased. Nor did Tracey observe any injuries to Moore.

172. [172]
     The prosecution also pointed to what Moore told police in his second interview on 22 February 2018, namely that Tracey got the deceased to open the door and Moore walked in and just started laying into the deceased.

173. [173]
     The prosecution pointed to Moore’s inability to explain how he got the knife off the deceased, in circumstances where there were no noticeable injuries either to the hands of Moore or to those of the deceased.

174. [174]
     Moore relied on a body of evidence relating to the deceased having drug, alcohol and mental health problems and to him having been previously violent and using knives. This evidence is relied on as propensity evidence, making it more likely that the deceased, rather than Moore, was the aggressor. Mr Fraser submitted that leading up to 6 February 2018 and having regard to the evidence of Ms Lyne, that the deceased’s life was starting to unravel. Mr Fraser described the deceased as a person who had a “fixation with knives”.

175. [175]
     The prosecution submitted that while this evidence is admissible, it is of little weight because it is both remote and could not amount to establishing that the deceased had a violent disposition. For example, the evidence of Lisa Ikanivere refers to incidents that occurred in 2015 and 2016. Nor does the evidence of Ursula Lyne concerning the conduct of the deceased on the night of 4 February 2018 demonstrate that the deceased had a propensity for using knives and attempting to stab people. The prosecution referred to the evidence of Dr Lee and the family of the deceased as suggesting there had been a marked improvement in his disposition.

176. [176]
     Mr Fraser submitted that in assessing Moore’s evidence and in particular his performance in cross-examination, that I should keep in mind that Moore left school in Grade 8, identifies as an indigenous person and has suffered from depression and anxiety.

177. [177]
     Mr Fraser queried whether the prosecution could prove that Moore had a knife with him when he went to the deceased’s unit on 6 February. There were a number of witnesses who observed Moore on that night, including Sherie Durl and Jamie Seamons, who did not see Moore with a knife. Tracey’s evidence was that she did not see Moore with a knife either at his home or prior to leaving, nor in the car on the way to the deceased’s unit or at the doorway just prior to entering. Mr Fraser referred to Moore’s evidence that it was he who said, “What the fuck?”. This, according to Mr Fraser, is consistent with a person’s reaction when all of a sudden they are confronted with a knife. The effect of Mr Fraser’s submission is that I should accept the evidence of Moore and find that the prosecution has failed to exclude beyond reasonable doubt that Moore was acting in self-defence.

178. [178]
     I am satisfied that the prosecution has excluded beyond reasonable doubt self-defence under s 271(2). This is because I am satisfied beyond reasonable doubt that the deceased did not hold a knife to Moore and therefore the deceased did not unlawfully assault Moore. Apart from the propensity evidence suggesting that the more likely aggressor was the deceased, the only evidence of the deceased holding a knife to Moore’s chest bone is Moore’s evidence. I reject Moore’s evidence that he was unlawfully assaulted by the deceased for the following reasons:

1. (a)
   Moore’s evidence of the deceased assaulting him is inconsistent with what Moore told police in his second interview conducted on 22 February 2018 set out at [94] above. At that point in the interview Moore believed that Tracey had told police what had occurred. He stated “can’t get away with it hey?” In this context Moore volunteered to police that Tracey caused the deceased to open the door and Moore walked in and just started laying into him and it got out of hand. This version is generally consistent with his text message to Tracey sent at 8:26 on 5 February 2018, “You and me he will open the door to you then I’ll walk around the corner and I’ll teach him a very big lesson.” (exhibit 38, item 627). Moore never told police that the deceased had assaulted him with a knife. Mr Boyle in cross-examination questioned Moore as to why he did not mention this fact:

“… But you didn’t say that, did you?--- No.

Why?--- Because I was scared that they would blame me anyway.

So you deliberately not – decided not to tell them about the fact you were acting in self-defence?--- Yes. I was afraid.

So you actually withheld that piece of information from them?--- I did.”

If the deceased had in fact assaulted Moore with a knife, Moore had every opportunity to tell police of this fact.

2. (b)
   Moore’s evidence that the deceased held a knife to his chest bone is also inconsistent with what he told Mr Cain when he was released by police on 22 February 2018. This is set out at [162]–[163] above. On that version, Moore was waiting; Tracey knocked on the door and the deceased let her in; Moore following shortly after and stabbed the deceased seven to eight times in the neck. While Moore said that he was only joking, he did in fact stab the deceased eight times. He had not been informed by police, at the time he spoke to Mr Cain, that the deceased had been stabbed eight times. There was no mention by Moore to Mr Cain that prior to Moore stabbing the deceased, he had assaulted Moore with a knife.

3. (c)
   In his second police interview, Moore stated that he started ‘laying into him’ and that then things got out of hand (as explained at [94]).  In his evidence-in-chief (discussed at [99]) Moore stated that what he meant by ‘laying into him’ was actually that he was verbally laying into the deceased by yelling. I do not accept this evidence. First, it is inconsistent with Moore’s own evidence that the deceased almost immediately upon opening the door held a knife to Moore’s throat. Secondly, it is inconsistent with Moore’s statements to Mr Cain and Tracey that he wished to do violence to the deceased. Further, the plain meaning of Moore’s statements to Sergeant Lafferty in his second police interview is that Moore was physically violent towards the deceased, not merely verbally abusive. Moore’s own evidence was that the only words he said to the deceased were, “Please leave Emily alone” ([97] above). Even if they were said, these words hardly constitute Moore laying into the deceased verbally.
4. (d)
   Moore’s evidence is also inconsistent with Tracey’s evidence. Tracey had no recollection of Moore saying to the deceased, “Please leave Emily alone”. She described Moore standing next to her but slightly behind her on her right hand side. Initially Moore was standing in the garden. In her evidence-in-chief Tracey made no mention of the deceased, after opening the wooden door, going inside for a short while and coming back with the keys to the security door. While she conceded in cross-examination by Mr Fraser that this may have happened, her version in cross-examination by Mr Boyle was that after the deceased had unlocked the screen door, she assisted in opening the door by taking two steps backwards and Moore entered. Tracey did not observe the deceased with a knife and the first time she saw a knife was when Moore stood up. She observed drops of blood which she marked on exhibit 45 extending from the beginning of the living room to the X which marks where the deceased was found. She could not say who said the words, “What the fuck”. Tracey did not observe the deceased make any sudden movement towards Moore. She could not, however, rule out that this occurred as she did not see everything. While she conceded that she could be mistaken about Moore having his belly to the back of the deceased while they were wrestling, this was the evidence that she gave in-chief. Tracey’s evidence as to what occurred in the unit is more consistent with what Moore told police in his second interview and what he told Mr Cain.
5. (e)
   Moore’s evidence-in-chief outlined at [97] above was inconsistent with his evidence given in cross-examination from Mr Hoare outlined at [101] above. The version given in cross-examination was that the deceased opened the wooden door; Tracey said, “I want to talk”; the deceased opened the screen door; Tracey opened the door outwards and stepped backwards, at which point Moore entered the unit before Tracey. This evidence makes no mention of the deceased leaving the security door to obtain keys.
6. (f)
   If Moore had stabbed the deceased in self-defence as he described, the question arises as to why he did not contact police and ambulance for assistance. Moore’s explanation was that he did not think the deceased was seriously hurt. Moore was terrified and scared and did not know what to do. This is not reflected in the texts he sent Tracey later that night (see [146] above).

7. (g)
   Moore’s evidence requires me to accept that the deceased unlocked the security door knowing that Moore was there. The evidence as to the deceased being security conscious is outlined at [86]–[88] above. On the basis of that evidence, I find that the deceased would not have opened the security door to Tracey had he been aware of Moore’s presence.
8. (h)
   On Moore’s version the deceased, having opened the wooden door, left to obtain the keys to the security door and returned with a knife. This conduct on the part of the deceased is difficult to accept in circumstances where he kept a golf club behind the front door of the unit. As referred to at [86] above, after the death of the deceased and the release of the crime scene, Debbie Goodlet observed that the golf club was still located behind the front door.
9. (i)
   The first time Tracey saw Moore with the knife was when he rose from the ground at the point marked X (exhibit 27) and put the knife in his pocket. The fact that other witnesses did not observe Moore with a knife on the night of 6 February 2018 is not a significant factor. If the knife was in Moore’s pocket witnesses would have been unable to observe it. Further, it would be unlikely that if Moore was armed with a knife he would carry it in such a way as to be visible to others.
10. (j)
    As set out at [105] above, Moore could not explain on his version how he was able to get the knife off the deceased in circumstances where there were no injuries either to his hands or the hands of the deceased.
11. (k)
    The blood spatter and the fact that all eight stab wounds and the one incision wound are to the back of the head and the back of the deceased are consistent with Moore stabbing the deceased from behind, heading in the direction from the staircase post to the position marked X on exhibit 27.
12. (l)
    As to the propensity evidence relied on by Moore, much of this evidence is dated. The deceased’s conduct towards Ms Ikanivere and Mr Beatty occurred in 2015 and 2016. The DVO in respect of the deceased concerned events in 2011/2012. While it may be accepted, according to evidence of Ms Lyne, that the deceased was drinking heavily and acting strangely on the night of 4 February 2018, on that same afternoon he had acted normally when Tracey came to collected CWX. Tracey’s evidence was that they spoke for approximately half an hour, including speaking about the deceased’s mental health issues. The deceased was abusive both to Tracey and his own father on the night of 4 February 2018. However, the text exchanges with Tracey on 5 and 6 February support a finding that he had calmed down. There was also evidence referred to at [25] above that the defendant had been generally improving. The propensity evidence does not, in my view, make it more likely that the deceased was the aggressor.

2. (b)
   Self-Defence (s 272 of the Criminal Code)

179. [179]
     Turning then to self-defence under s 272 of the Criminal Code. Section 272 provides:

3. “(1)
   When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.

3. (2)
   This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable.”

180. [180]
     Section 272 raises several matters for my consideration, namely:

1. (i)
   whether Moore unlawfully assaulted the deceased or provoked an assault from the deceased;
2. (ii)
   whether the response from the deceased was so violent as to cause a reasonable apprehension of death or grievous bodily harm;
3. (iii)
   whether Moore believed on reasonable grounds that it was necessary in order to preserve himself from death or grievous bodily harm to use such force in self-defence; and
4. (iv)
   whether the force in fact used was such as was reasonably necessary for Moore’s preservation from death or grievous bodily harm.

181. [181]
     The defence does not apply where:

1. (i)
   the defendant first began the assault with the intent to kill or do grievous bodily harm to the deceased; or
2. (ii)
   the defendant endeavoured to kill or do grievous bodily harm to the deceased before the necessity of so preserving himself arose. However: the defendant may “requalify” for the defence if, before such necessity of so preserving himself arose, the defendant declined further conflict and quitted it or retreated from it as far as was practicable.

182. [182]
     The burden remains on the prosecution at all times to prove Moore was not acting in self-defence (that is, was acting unlawfully), and the prosecution must do so beyond reasonable doubt before I may find Moore guilty.

183. [183]
     So, if the prosecution satisfies me beyond reasonable doubt of any one of the following, the defence has been excluded:

1. (i)
   the assault by the deceased was not of such violence as to cause reasonable apprehension of death or grievous bodily harm; or

2. (ii)
   that the assault did not induce Moore to believe on reasonable grounds that it was necessary for his own preservation from death or grievous bodily harm to use the force used in self-defence; or
3. (iii)
   that the force used was more than was reasonably necessary to save Moore from death or grievous bodily harm; or
4. (iv)
   Moore first began the initial assault with intent to kill or do grievous bodily harm to the deceased; or
5. (v)
   Moore endeavoured to kill or do grievous bodily harm to the deceased before the necessity of so preserving himself arose unless in either case, before such a necessity for self-defence arose, Moore declined further conflict, and quitted it, or retreated from it as far as was practicable.

184. [184]
     It is for the prosecution to satisfy me beyond reasonable doubt that self-defence does not apply. There is no burden on Moore to satisfy me that he was acting in self-defence, or to establish any one of those things I have outlined above. To exclude the defence, the prosecution must exclude any one of those, if it can, beyond reasonable doubt. I consider the fourth element of murder below. From that analysis, I am satisfied beyond reasonable that in stabbing the deceased eight times and inflicting the incision wound, Moore intended to kill or to do grievous bodily harm to the deceased. I have already found that the deceased did not unlawfully assault Moore by holding a knife to his chest bone. It was Moore who first attacked the deceased with a knife.

185. [185]
     I am therefore satisfied that the prosecution has excluded self-defence under s 272 beyond reasonable doubt on the basis that the prosecution has satisfied me beyond reasonable doubt it was Moore who first began the initial assault with intent to kill or do grievous bodily harm to the deceased.

186. [186]
     The prosecution having excluded beyond reasonable doubt self-defence pursuant to s 271(2) and s 272, I am satisfied beyond reasonable doubt that in causing the death of the deceased, Moore did so unlawfully.

3. (c)
   The fourth element

187. [187]
     The fourth element of murder pursuant to s 302(1)(a) is that Moore intended to kill or do grievous bodily harm to the deceased. Whether the killing of the deceased by Moore constitutes murder or only manslaughter will depend upon whether or not element four is proved beyond reasonable doubt and if it is, whether the defence of provocation operates to reduce what would be murder to manslaughter.

188. [188]
     Element four, the mental element of intention, is the extra element to prove an unlawful killing constitutes the offence of murder. If it is not proved beyond reasonable doubt, an unlawful killing would only be manslaughter. In the event I am satisfied that Moore’s actions unlawfully killed the deceased, element four requires me to be satisfied beyond reasonable doubt that, in so acting, Moore intended to cause the death of the deceased or cause some grievous bodily harm to the deceased.

189. [189]
     “Grievous bodily harm” means the loss of a distinct part or an organ of the body, or serious disfigurement, or any bodily injury of such a nature that, if left untreated, would be likely to endanger life, or be likely to cause permanent injury to health, whether or not treatment is or could have been available.

190. [190]
     “Intention” carries its ordinary meaning. A person intends to cause death or grievous bodily harm if that is what the person meant to do.

191. [191]
     In considering whether Moore actually held such an intention, I will be drawing an inference from facts which I find established by the evidence concerning Moore’s state of mind. Intention may be inferred or deduced from the circumstances in which Moore acted and from Moore’s conduct before, at the time of and after his actions. Of course, whatever Moore has said about his intention may also be considered for the purposes of deciding whether he held the requisite intention at the time he acted as alleged.

192. [192]
     While I can have regard to earlier and later events in considering whether the requisite intention existed, I should appreciate that it is not necessary for the prosecution to prove the intention was held for a long time before Moore’s allegedly fatal actions or that the intention lingered afterwards. The time at which Moore must be proved to have held the intention to kill or do grievous bodily harm is the time at which he committed the acts causing death.

193. [193]
     For the element of intention to be proved I must be satisfied beyond reasonable doubt that in acting as he did Moore actually held the intention to cause the deceased’s death or to cause grievous bodily harm to the deceased. Nothing less will suffice. What if I think the evidence may support more than one inference, so that there are competing potential inferences on this issue? There may be the guilty inference, that Moore held the intention to kill or do grievous bodily harm. There may also be inferences consistent with innocence, such as Moore only holding an intention to speak to the deceased about his conduct towards Tracey or to keep Tracey safe in case the deceased attempted to assault her. In such a situation it is essential not only that the evidence is strong enough to sustain the guilty inference but that it is the only remaining inference, that is, that all inferences consistent with innocence have been excluded beyond reasonable doubt. This merely reflects the prosecution’s obligation to prove the element of intention beyond reasonable doubt. It will not have done that if there lingers a real possibility Moore held no particular intention to do harm in acting as he did or, if he did, that the harm intended was something less than an intention to do grievous bodily harm.

194. [194]
     If I am not satisfied beyond reasonable doubt that Moore had the requisite intention at the time of his alleged actions, then I would acquit Moore of murder. In that event, if I am satisfied beyond reasonable doubt of all the first three elements, I would convict Moore of manslaughter. However, if any one of elements one, two or three are not proved beyond reasonable doubt I would also acquit Moore of manslaughter.

195. [195]
     If am satisfied beyond reasonable doubt of all four elements, then I would convict Moore of murder unless I conclude the defence of provocation operates to reduce what would be murder to manslaughter.

196. [196]
     Before further considering the fourth element of murder, I direct myself that in order for the prosecution to prove the charge of manslaughter, it must establish that Moore killed the deceased and that he did so unlawfully. Unlawful simply means not authorised, justified or excused by law.

197. [197]
     It is not an element of the offence that the defendant intended to kill the deceased or to do the deceased any particular harm. So it is sufficient if the prosecution proves that the accused unlawfully killed the deceased.

198. [198]
     Any person who causes the death of another, directly or indirectly and by any means whatever, is deemed to have killed that other person.

199. [199]
     In that regard it does not matter that the death did not immediately result. If the actions of the defendant led to injury to the deceased which in the ordinary course resulted in his death, then in law the defendant is responsible for that death, even though it occurred some days after these actions.

200. [200]
     The actions of the defendant need not have been the only contributing cause of death. However, the defendant’s acts must be a substantial or significant cause of death or have contributed substantially to the death.

201. [201]
     In law, a killing is excuse if a person in the position of the defendant would not have foreseen the death of the deceased as a possible outcome of his actions.

4. (d)
   The excuse of accident

202. [202]
     The evidence of Moore that he was unaware of wounding the deceased with the knife when he was punching him requires me to consider the excuse of “accident” (s 23(1)(b) of the Criminal Code) – which operates like a defence, which the prosecution must exclude, beyond reasonable doubt for me to convict Moore.

203. [203]
     Moore has been charged with murder. The excuse of accident requires me to consider the way in which the killing of the deceased occurred.

204. [204]
     Speaking generally, a defendant is not criminally responsible for the consequences of an act or omission if they did not intend those consequences, or reasonably foresee them, and an ordinary person in their position would not have reasonably foreseen the consequences as a possible consequence of the act or omission either.

205. [205]
     The evidence of Moore raising the possibility of the excuse of accident in this case is his assertion that when he was punching the deceased with the knife held in his fist, he was unaware that he was inflicting the stab wounds and the incision wound to the deceased.

206. [206]
     That evidence raises for my consideration the possibility that neither Moore nor any ordinary person would reasonably have foreseen the infliction of those knife wounds would occur in circumstances where Moore was punching the deceased with a knife held in his fist.

207. [207]
     If, on the whole of the evidence, the prosecution has not persuaded me beyond reasonable doubt that:

1. (i)
   Moore intended the infliction of the eight stab wounds and one incision wound to occur; or
2. (ii)
   Moore reasonably foresaw the event as a possible consequence of him punching the deceased with a knife in his fist; or

3. (iii)
   an ordinary person, in the position of Moore, would have reasonably foreseen these wounds as a possible consequence of Moore punching the deceased,

then the excuse of accident applies, and Moore would be not guilty of murder.

208. [208]
     In considering whether Moore did foresee these wounds, or whether an ordinary person would have foreseen them, I should focus on whether the type of wounds in fact caused was foreseeable as something which could happen, disregarding possibilities that are no more than remote or speculative.

209. [209]
     In the context of this case, where Moore asserts that he was not aware of stabbing the deceased with the knife when punching him: – if Moore did not intend or foresee the infliction of these wounds to the deceased as a possible consequence of his actions; and – if an ordinary person in the position of Moore would not have foreseen that as a possible consequence of those actions, then he would be excused by law of the offence of murder and I would have to find him not guilty.

210. [210]
     It is not for Moore to prove anything.

211. [211]
     Unless the prosecution proves beyond reasonable doubt that Moore intended or foresaw the infliction of the wounds on the deceased or that an ordinary person in the position of Moore would reasonably have foreseen the infliction of those wounds as a possible consequence of his actions, I must find him not guilty of murder.

212. [212]
     Even if I reject Moore’s account of what happened, I must still consider the possibility that the event occurred unforeseen and unintended.

213. [213]
     If, however, I am satisfied beyond reasonable doubt that when Moore punched the deceased with the knife in his fist he intended to cause death or grievous bodily harm, then I may find Moore guilty of murdering the deceased. For that purpose, the question is not whether Moore meant to punch the deceased but whether in punching the deceased Moore intended to kill him.

214. [214]
     If I am not satisfied Moore had such an intention so as to make him guilty of murder, then I must go on to consider whether or not Moore is guilty of manslaughter. Manslaughter in circumstances like these is killing another human being but without having the intention to kill or having an excuse in law for doing so.

215. [215]
     In law a killing is excused if an ordinary person in the position of the accused would not have foreseen the death of the deceased as a possible consequence or result of him punching him in the head with a knife in his fist. In order to convict, the prosecution must satisfy me beyond reasonable doubt that an ordinary person in Moore’s position would reasonably have foreseen the deceased’s death as a possible outcome of punching him in the way that he did with a knife in his fist. Unless the prosecution so satisfies me, I must find the defendant not guilty of manslaughter.

216. [216]
     As outlined below, I am satisfied that Moore intended to inflict the eight stab wounds and one incision wound to the deceased, intending to cause his death or do him grievous bodily harm. The description by Moore of holding the knife in his fist at a 90 degree angle as he was punching the deceased only arises in the context of a sequence of events commencing with the deceased lunging at Moore and holding a knife to his chest bone and then both subsequently wrestling, with Moore relieving the deceased of the knife. I find that Moore was not punching the deceased with a knife in his hands. Rather, I find beyond reasonable doubt that Moore intentionally stabbed and inflicted one incision wound to the deceased with a knife.

217. [217]
     I have found beyond reasonable doubt that the deceased did not unlawfully assault Moore. That finding was in part based on the nature of the stab wounds and the incision wound inflicted by Moore as described by Dr Ong. The nature of the wounds and the depths of the wounds which Dr Ong classified as stab wounds are inconsistent with Moore holding the knife in his fist at a 90 degree angle. Holding a knife and punching a person at such an angle would cause lacerations rather than stab wounds as stated by Dr Ong. The nature of the stab wounds inflicted both to the back of the head and the back of the deceased are consistent with the point of the knife entering first. Moore’s evidence was that he “wasn’t thinking about what injuries may or may not be caused by punching someone with a knife”. Even if there was any reasonable doubt that Moore intended to inflict the wounds on the deceased, the prosecution has persuaded me beyond reasonable doubt that an ordinary person in the position of Moore would have reasonably foreseen the wounds inflicted as a possible consequence of Moore’s act of punching the deceased with a knife in his fist. I am therefore satisfied that the prosecution has excluded beyond reasonable doubt the excuse of accident under s 23(1)(b) of the Criminal Code.

5. (e)
   Moore intended to kill or do grievous bodily harm to the deceased

218. [218]
     The prosecution submits that Moore’s intention to kill or do grievous bodily harm to the deceased may be inferred from a number of matters. They include:

1. (a)
   the Facebook exchange with Mr Cain on 20 January 2018;
2. (b)
   Moore’s text messages which, upon an ordinary meaning of the words used by Moore, evidence an intention on his part to do violence to the deceased;
3. (c)
   Moore deleting the text message exchanges with Tracey;
4. (d)
   the attack by Moore of the deceased had all the hallmarks of a surprise attack, including the fact that the deceased did not try to use the golf club kept at his front door, the saucepan was on the stove, the deceased’s phone was on his charger and there were two packets of noodles next to the saucepan;
5. (e)
   the blood spatter evidence is consistent with the violence commencing at or near the deceased’s front door;
6. (f)
   the nature and location of the stab wounds and the incision wound permit a rational inference to be drawn that there was at least an intention on the part of Moore to do grievous bodily harm;
7. (g)
   no defensive wounds were found to the hands or arms of the deceased;
8. (h)
   Moore stated to Mr Cain that he stabbed the deceased eight times and that he parked around the corner from the deceased’s unit (see [162]–[163]), which indicates a conscious choice on the part of Moore to park around the corner prior to inflicting a deadly attack on the deceased;
9. (i)
   according to Moore he only sustained minimal injuries to his cheek; and

10. (j)
    only the blood of the deceased was found in the unit.

219. [219]
     The prosecution relies on the following post-offence conduct of Moore as demonstrating consciousness of guilt:

“1.Left the scene of the alleged murder with Emily Jane Tracey.

2. Disposed of the following items:
   1. (a)
      knife
   2. (b)
      shoes
   3. (c)
      shirt
   4. (d)
      car floor mat.
3. Exchanges SMS messages with Emily Jane Tracey falsely indicative of no knowledge of, or involvement in, the death of the deceased.”

220. [220]
     The prosecution also relies on the following lies told by Moore demonstrating consciousness of guilt:

“1.Lied to police as to movements and/or the movements of Emily Jane Tracey at the time of the alleged murder, in particular that the:

1. (a)
   defendant was at 21 Rudduck Street, Logan Central and Emily Jane Tracey went to visit her father …;
2. (b)
   Emily Jane Tracey went for a hour long drive …;

2. Lied to police in denying any knowledge of the death of the deceased …;
3. Lied to police as to the shoes he was wearing at the time of the alleged murder …;
4. Lied to police as to not having any involvement in the death of the deceased … .”

221. [221]
     Mr Boyle addressed Moore’s possible motivation in killing the deceased. He submitted that Moore’s motive to kill the deceased did not arise from any particular grievance he might have had against the deceased. Rather, Moore’s motivation is borne out by the text messages exchanged with Tracey, namely to resume a relationship with her. Moore was seeking to please Tracey “by getting at James”. Not only did Moore wish to make himself look good in Tracey’s eyes, he also wanted to remove any possible impediment to him getting back into a relationship with Tracey. I outlined at [31] above that Moore was devoted to Tracey, that he desired to recommence a relationship with her, and that she had twice previously left Moore for the deceased.

222. [222]
     Mr Fraser submitted that the Facebook exchange with Mr Cain on 20 January 2018 occurred 17 days before the killing of the deceased. Moore never approached Mr Cain again in relation to the deceased. Mr Fraser emphasised that Moore has a reputation for talk as opposed to action, which was also confirmed by Tracey and Mr Cain. The fact that Moore was all talk in the email exchange with Mr Cain is supported by the fact that on 6 February 2018 he did not take any mates to assist him to assault the deceased. The Facebook exchange with Mr Cain also occurred in the context that Tracey had met Moore at the Redland Bay park on the same day and informed him that the deceased had given her two black eyes and threatened violence to the twins.

223. [223]
     As to the lies relied upon by the prosecution as going to consciousness of guilt, Mr Fraser emphasised that the defendant suffered from both depression and anxiety and he was feeling scared and out of his comfort zone when interviewed by police. Mr Fraser submitted that the lies told by Moore may have been motivated by his desire to protect Tracey, who was the mother of his twin daughters. This, according to Mr Fraser, constituted a powerful reason why Moore did not wish to say anything which could implicate Tracey. At its highest, according to Mr Fraser, the lies go to consciousness of guilt of Moore having unlawfully killed the deceased as opposed to having murdered him.

224. [224]
     As to the post-offence conduct of Moore, Mr Fraser noted that there was no dispute that Moore disposed of the knife, his shirt, his shoes and the car mat. As to the text messages expressing surprise at the death of the deceased, Moore’s evidence was that when he left the unit he did not believe that the deceased was dead. Mr Fraser further submitted that the post-offence conduct identified by the prosecution should be considered in light of the fact that there is no evidence of flight, no evidence of concealment of the deceased’s body, no taking of the deceased’s phone and considerable cooperation by Moore with police. Moore allowed police access to his social media account, he provided DNA and fingerprints. His post-offence conduct is therefore explicable as being borne of fear, panic and a desire to protect Tracey.

225. [225]
     The prosecution has satisfied me beyond reasonable doubt that in inflicting the eight stab wounds and one incision wound on the deceased, Moore intended to kill or do grievous bodily harm to the deceased. This satisfaction arises from a consideration of the matters set out at [226]–[247] below, arising from the evidence admissible against Moore.

226. [226]
     Moore’s Facebook message of 20 January 2018 to Mr Cain occurred on the same day that he had been informed by Tracey that the deceased had assaulted her, giving her two black eyes, and threatened violence to the twins. The language used by Moore in the exchange evidences a desire on his part to do violence to the deceased with the assistance of Mr Cain. In particular, Moore speaks of making the deceased pay “in pain” and taking him out bush to tie him to a tree and “belt the living shit out of him” and then stab the deceased “straight through the neck”. While this exchange occurred 17 days prior to Moore stabbing the deceased and was the only time that he sought Mr Cain’s assistance, the Facebook exchange is not a one-off threat of violence by Moore against the deceased. In his text message exchanges with Tracey, Moore continued to assert that he would do violence to the deceased. This is all in the context that Moore did in fact stab the deceased on the night of 6 February 2018. The consistent language of Moore wishing to do violence to the deceased in the Facebook exchange and the text message exchanges cannot be dismissed as simply constituting “boys talk”, “shit talk”, “tough talk” or Moore being “all talk and no action”. It is the fact that these statements of doing violence to the deceased were not remote in time to Moore actually stabbing the deceased eight times.  I do not accept Moore’s evidence that he was only seeking Mr Cain’s assistance to go and talk to the deceased and that he had no intention of assaulting the deceased. Nor can the reference to Moore stabbing the deceased in the Facebook exchange be a mere coincidence given the content of Moore’s subsequent texts.

227. [227]
     Moore accepted that he was angry and stressed at the time he sent the text messages to Tracey. His evidence was that he did not intend to carry out any of the threats contained in those messages and did not intend to either kill or hurt the deceased. He generally categorised the messages sent to Tracey as seeking to make her feel safe. His only intention was to talk to the deceased and to tell him to “cut it out”. This is not, however, reflected in the language of the messages. Only seven days after the Facebook exchange with Mr Cain, Moore sends a text to Tracey referring to the deceased as a “dirty dog”. Moore talks of taking two people out, including “the mutt JAMES”. This is in the context of Moore stating that he was dying of cancer. The words “taking two people with me” can, in my view, only be construed as Moore stating that he would kill the deceased. Moore’s desire to kill the deceased is also evident in his text exchanges with Tracey on 5 February 2018 between 9:30 and 9:43 (see [71]) above. The language used by Moore “I will end it” and “I’ll take him out” knowing it would result in Moore going to jail can only be understood as a statement of an intention to kill the deceased. I reject Moore’s evidence that the reference to him going to jail was in the context that if he “punched” the deceased he would go to jail. I also do not accept Moore’s evidence that the talk of him going to jail meant only for a few months and not being jailed for either seriously injuring or killing the deceased. To suggest that the words “I will end it” or “I’ll take him out” meant that Moore would have a stern talking to the deceased cannot be accepted. I also do not accept Moore’s evidence that the words meant that he would go and have a long talk to the deceased and if it escalated to violence, he would get into trouble for it. It strains the ordinary meaning of the words “I’ll take him out” or “I’ll end it” as meaning that Moore would go and have a chat with the deceased and if things got out of hand and he assaulted the deceased, Moore would go to jail. On the same day Moore exchanges further texts with Tracey between 11:08 and 19:30 where he uses the language of “I’m still going to get him”, “he’s a waist of space I’ll deal with him”, “he is nothing he is a walking dead” and “you and me he will open the door to you then I’ll walk around the corner and I’ll teach him a very big lesson”. The ordinary meaning of these words evinces an intention on the part of Moore to kill or do grievous bodily harm to the deceased. The words used by Moore in the text messages cannot be interpreted as simply a desire on Moore’s part to have a talk with the deceased. Moore could not explain what the words “I’ll teach him a very big lesson” meant. Further, as I have already observed, Moore’s suggestion in one of the texts that the deceased would open the door to Tracey and then he would walk around the corner and teach the deceased “a very big lesson” is in broad terms exactly what happened on the night of 6 February at the deceased’s unit.

228. [228]
     The deletion by Moore of incriminatory text messages on his phone is also significant. As outlined at [55] above, Moore in his statement falsely suggested that the reason there were no communications on his phone before Tuesday 6 February, was that he had broken his previous phone. This statement makes no reference to him deleting his text messages. In his first interview he denied clearing call histories on his phone. He also denied sending any text messages to Tracey prior to 6 February suggesting that they only communicated by Facebook. Nor could Moore explain why from 6 February he stopped communicating with Tracey by Facebook and started sending text messages by phone. His explanation for deleting the incriminatory text messages was that he wished to protect Tracey. He could not explain what he was seeking to protect Tracey from in deleting the messages. He accepted, however, that it did occur to him that police might get hold of the text messages and it was a good idea to delete them. This idea occurred to Moore prior to going to the deceased’s unit, but he could not recall whether he deleted the text messages prior to or after killing the deceased. His purpose in deleting the messages was that he did not want either Tracey or himself getting into trouble. In their ordinary meaning the words used by Moore in his text messages evidenced an intention on his part to kill or do grievous bodily harm to the deceased. In those circumstances, the deletion of the text messages by Moore demonstrates pre-planning on his part, seeking to ensure that police would not have access to these incriminatory messages inferentially because Moore had already formed the intention to kill or do grievous bodily harm to the deceased.

229. [229]
     Moore’s intention in travelling with Tracey to the deceased’s unit on the night of 6 February is also revealed in what he told police in his second interview, as outlined at [94] above. It is also consistent with what he told Mr Cain on 22 February 2018 as outlined at [162]–[163] above. Moore’s statement that he got Tracey to get the deceased to open the door and Moore then walked in and just started laying into the deceased is consistent with an intention to kill or do grievous bodily harm to the deceased. That same intention is reflected in what he told Mr Cain, namely that Moore stabbed the deceased seven to eight times in the neck. Both these statements are inconsistent with Moore having the intention to simply speak to the deceased or being there to ensure Tracey’s safety in case the deceased assaulted her.

230. [230]
     The nature of the wounds and the blood spatter evidence set out at [133]–[136] above is also consistent with Moore having an intention to kill or do grievous bodily harm to the deceased. The evidence is that the deceased would have bled immediately from the stab wounds. There are a number of blood droplets commencing near the post of the staircase which was generally adjacent to the front door. The blood droplets led from the staircase post near the front door, through the loungeroom, to where the deceased was found in the position marked X on exhibit 27. The blood droplets were coming from the deceased who was moving in a direction away from the doorway. The deceased was therefore first stabbed in the vicinity of the front door. The number of the stab wounds and the depth of the stab wounds together with the length of the incision wound are, in themselves, sufficient to infer that Moore in inflicting these wounds on the deceased had at least the intention to do grievous bodily harm to the deceased. This is further supported by the fact that no defensive wounds were found to the hands or arms of the deceased and all wounds inflicted were to the back of the head and the back of the deceased. Only the deceased’s blood was found in the unit.

231. [231]
     Moore had a motive to kill the deceased. Moore was devoted to Tracey and wanted to look good in her eyes, recommence a relationship with her and protect her, as I outline at [31] and [221]. Moore believed that the deceased had previously harmed Tracey. At their 20 January meeting in the Redland Bay park, Tracey stated to Moore that the deceased had given her two black eyes (outlined above at [38]–[39]). Moore’s anger about the deceased’s violence towards Tracey is evidenced by his Facebook messages to Mr Cain (exhibit 9 outlined above at [41]) and to Tracey (for example, exhibit 38, item 24). Tracey had texted Moore, among other things, that ‘he needs to go NOW’ (exhibit 38, item 605) and Moore, being so devoted to Tracey, would kill to protect her or to recommence a relationship with her. When asked by Mr Boyle whether killing the deceased would “get him out of the picture as far as Emily is concerned”, Moore answered “I assume so”.

232. [232]
     The prosecution relies on post-offence conduct of Moore as demonstrating consciousness of guilt of murder. This conduct includes him leaving the scene of the alleged murder with Tracey and disposing of the knife, his shoes and shirt and the passenger car floor mat. The prosecution also relies on the exchange of SMS messages with Tracey which are said to be falsely indicative of Moore having no knowledge of or involvement in the death of the deceased. However, before I could use this conduct as indicative of guilt, I would first have to find that Moore engaged in this conduct because he knew he was guilty of murder, not for any other reason.

233. [233]
     I must remember that people do not always act rationally and that conduct of this sort can often be explained in other ways – for example, as the result of panic, fear or other reasons having nothing to do with the offence charged. I must have regard to what has been said by Mr Fraser for Moore as to other explanations for Moore’s conduct. It is not disputed that Moore left the scene with Tracey and that he disposed of the specified items and exchanged the SMS messages set out at [146]–[152] above. I have already outlined Mr Fraser’s submissions in relation to the post-offence conduct, including an explanation for the conduct borne out of fear, panic and a desire to protect Tracey. I must consider all these matters in deciding whether I can safely draw any inference from Moore’s post-offence conduct.

234. [234]
     Moreover, before the evidence of Moore’s post-offence conduct can assist the prosecution, I would have to find, not only that it was motivated by a consciousness of guilt on his part, but also what was in his mind was guilt of the offence charged, namely murder, not some other misconduct, such as manslaughter. If, and only if, I reach the conclusion that there is no other explanation for Moore’s post-offence conduct, such as panic or fear of wrongful accusation or protecting Tracey, I am entitled to use that finding as a circumstance pointing to Moore’s guilt, to be considered with all the other evidence in the case. Standing by itself it could not prove guilt.

235. [235]
     In my view, when taken with the other evidence outlined above in relation to Moore’s intention, I find that he disposed of the knife, shoes, shirt and car floor mat because each of those items were capable of connecting him with the murder of the deceased. The knife was the knife with which he had stabbed the deceased eight times and inflicted the incision wound. Moore explained that he disposed of the carpet mat because some blood had been left on the carpet. It may also be accepted that Moore disposed of his shoes because they were also bloodstained. As referred to at [135] above, photograph 9 of exhibit 28 shows a transfer bloodstain of what appears to be a partial impression of a shoe sole. I am satisfied that this conduct indicates consciousness of guilt of murder and not some lesser offence such as manslaughter.

236. [236]
     The fact that Moore left the scene of the alleged murder with Tracey is, in my view, equivocal and I have not relied on this conduct as post-offence conduct demonstrating consciousness of guilt.

237. [237]
     The text messages sent by Moore to Tracey after the killing of the deceased do, however, constitute post-offence conduct demonstrating consciousness of guilt of murder and not some lesser offence such as manslaughter. In light of the fact that Moore had deleted incriminatory text messages from his phone, the presence of intact messages commencing at 22:10 on 6 February 2018 and the intact text messages of 7 and 8 February 2018 were, in my view, calculated to create the impression that Moore had no knowledge of or involvement in the death of the deceased. Moore could not say why he left these messages intact on his phone. He denied discussing this with Tracey. I do not accept this evidence. Moore must have discussed the general content of these texts with Tracey. If he had not there would have been a real risk that in replying to his texts Tracey may have made mention of what had occurred at the deceased’s unit, thereby implicating Moore. If there was not collusion Moore would not have known how Tracey would have responded to his text messages. For example, had she responded by referring to what had actually happened, such a message would have incriminated Moore. It is evident that none of the text messages exchanged between Moore and Tracey after Tracey had left Moore’s house made any reference to what had happened at the deceased’s unit. In spite of Moore being unable to say whether the text messages were exchanged to conceal his involvement in the killing of the deceased, I find that Moore exchanged these texts with Tracey to conceal his involvement in the killing of the deceased. In circumstances where Moore knew it was him who had stabbed the deceased with a knife having previously stated that he wished to kill or seriously harm the deceased, the exchange of these texts after the deceased was killed can only be motivated by a consciousness of guilt on his part of murder.

238. [238]
     The prosecution relies on what it says are lies told by Moore as showing that he is guilty of murder. I have already outlined these lies above. They include lies concerning the movements of both Moore and Tracey at the time of the alleged murder. Other lies to police include Moore denying having any knowledge of or any involvement in the death of the deceased. Another lie identified by the prosecution is in relation to the shoes Moore was wearing at the time of the alleged murder.

239. [239]
     Before I can use this evidence against Moore I must be satisfied of a number of matters. Unless I am satisfied of these matters, then I cannot use the evidence against Moore.

240. [240]
     First, I must be satisfied that Moore has told deliberate untruths. There is a difference between the mere rejection of a person’s account of events and a finding that the person has lied. In many cases, where there appears to be a departure from the truth, it may not be possible to say that a deliberate lie has been told. The defendant may have been confused; or there may be other reasons which would prevent me from finding that Moore has deliberately told an untruth.

241. [241]
     Secondly, I must be satisfied that the lie is concerned with some circumstance or event connected with the offence. I can only use a lie against Moore if I am satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it.

242. [242]
     Thirdly, I must be satisfied that the lie was told because Moore knew that the truth of the matter would implicate him in the commission of the offence of murder and not some lesser offence such as manslaughter. Moore must be lying because he is conscious that the truth could convict him. There may be reasons for the lie apart from a realisation of guilt. People sometimes have an innocent explanation for lying. Mr Fraser emphasised that Moore suffered from both depression and anxiety and he was feeling scared and out of his comfort zone when interviewed by police. Further, Moore was educated to Grade 8 and identifies as an Indigenous person. Mr Fraser submitted that the lies told by Moore may have been motivated by his desire to protect Tracey who is the mother of his twin daughters. This constitutes, according to Mr Fraser, a powerful reason why Moore did not wish to say anything which could implicate Tracey. At its highest, according to Mr Fraser, the lies go to consciousness of guilt of Moore having unlawfully killed the deceased as opposed to having murdered him. I cannot use these lies as consciousness of guilt of murder if the lies were told by Moore to conceal his involvement in the lesser offence of manslaughter.

243. [243]
     If I accept that a reason of this kind is the explanation for the lies identified by the prosecution, then I cannot use it against Moore. I can only use it against Moore if I am satisfied that he lied out of a realisation that the truth would implicate him in the murder of the deceased. In the present case, the alleged lies are not the only evidence against Moore. The lies are, however, a critical fact in the prosecution case that Moore, at the time he caused the death of the deceased, intended to kill or do grievous bodily harm to the deceased. I therefore direct myself that as the alleged lies are critical facts in the prosecution’s circumstantial case against Moore, before I can use the lies against him, I must be satisfied beyond reasonable doubt not only that he lied but also that he lied because he realised the truth would implicate him in the offence of murder.

244. [244]
     The circumstances in which Moore told these lies are outlined at [91]–[94] above. In his statement to police (exhibit 22, paragraphs 24, 47 and 51) and in his first interview with police on 21 February 2018, Moore told police that he was at his home and that when Tracey went for a drive on the night of 6 February it was to go and visit her father. He also stated in his first interview that Tracey was away for approximately one hour. In both his statement and first interview Moore denied having any knowledge of the death of the deceased and lied about having any involvement in the death of the deceased. Moore’s evidence establishes that each of the lies identified by the prosecution were in fact lies told by Moore. His evidence-in-chief was that he and Tracey did go to the unit where he killed the deceased. He was at the time wearing Nike shoes, which he subsequently disposed of. When cross-examined by Mr Boyle as to his lie to police regarding Tracey’s movement on the night of 6 February, Moore gave the following evidence:

“You knew it was false? Mr Moore, you knew it was false?--- I assume so.

Well, I didn’t happen that way, did it?--- What? Well you lied?--- Okay.

Why?--- I can’t – I can’t say.

What I’m suggesting is that you told the lies to protect yourself and Emily from a police investigation; is that true?--- Yep.

It was?--- It would be.

It would be because you were scared you’d get into trouble?--- That is correct.

Because it would show that you killed James if you told the truth?--- That is correct.”

245. [245]
     When asked why he lied about having any knowledge of the death of the deceased Moore explained that he was scared and knew that he was the one that had caused the death of the deceased. I am therefore satisfied that Moore has told deliberate untruths, as identified by the prosecution. Each of those lies is directly concerned with the circumstances and events connected with the killing of the deceased.

246. [246]
     When these lies are considered in the context of the other evidence I have identified above in relation to Moore’s intention, including the Facebook exchange with Mr Cain, his text message exchanges with Tracey both before and after the killing of the deceased, the deletion by Moore of the incriminatory text messages, Moore’s admission that he stabbed the deceased eight times and inflicted the incision wound, as well as Moore’s post-offence conduct, I am satisfied beyond reasonable doubt not only that Moore told these lies, but also that he lied because he realised that the truth would implicate him in the offence of murder.

247. [247]
     As to the fourth element of murder, I am therefore satisfied beyond reasonable doubt that the prosecution has established beyond reasonable doubt that in causing the death of the deceased, Moore did so with the intention of killing or doing grievous bodily harm to the deceased. The only rational inference that can be drawn from the circumstances arising from a consideration of the evidence admissible against Moore is that he is guilty of murdering the deceased.

(f) The partial defence of provocation

248. [248]
     Moore raises the partial defence of provocation.

249. [249]
     The law recognises that a person may be killed in circumstances where the defendant was so provoked by something done by that person as to lose the power of self-control, such that this provides an explanation for his actions which should be taken into account.

250. [250]
     Under our law if a person acts under provocation, he is not guilty of murder but is guilty of manslaughter only. Provocation is therefore something which operates only as a partial defence, not a complete defence, because it reduces what otherwise would be a verdict of murder to one of manslaughter.

251. [251]
     In this context, provocation has a particular legal meaning. It consists of conduct which causes a loss of the power of self-control on the part of the defendant and which might have caused an ordinary person to lose the power of self-control and to act in the way in which Moore did.

252. [252]
     There are three questions of fact that are involved here. They are:

1. (i)
   was there any provocation by the deceased towards Moore?
2. (ii)
   was Moore actually provoked by the deceased?
3. (iii)
   was Moore acting, whilst provoked, when he did the acts by which the deceased was killed?

253. [253]
     Moore must satisfy me that more probably than not:

1. (i)
   there was provocation by the deceased towards Moore;
2. (ii)
   Moore was provoked by the deceased; and

3. (iii)
   Moore was acting, while still provoked, when he did the acts by which the deceased was killed.

254. [254]
     As to the first question, I have to consider what Moore argues was the provocation by the deceased. In this case the provocation identified by Mr Fraser was the deceased holding the knife to the chest bone of Moore. In considering whether the prosecution has excluded self-defence under s 271(2), I have found that the deceased did not unlawfully assault Moore by holding a knife to his chest bone (or any other part of his body such as his throat). By reference to the findings stated at [178] above, I am not satisfied that Moore has established on the balance of probability that there was any provocation by the deceased towards him. The partial defence of provocation is therefore not available.

255. [255]
     The prosecution having satisfied me beyond reasonable doubt of each of the four elements to prove murder founded upon an intention to kill or do grievous bodily harm, I find Paul Mathew Moore guilty of the murder of James Andrew Switez-Glowacz.

Thecasein relationto Tracey

(a) Directions – section 7(1)(b) and (c) of the Criminal Code

256. [256]
     The prosecution’s case as particularised in relation to Tracey is set out at [15] above. The prosecution relies on the party provisions of the Criminal Code, namely s 7(1)(b) and (c) and s 8.

257. [257]
     Section 7(1) provides:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

1. (a)
   every person who actually does the act or makes the omission which constitutes the offence;
2. (b)
   every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
3. (c)
   every person who aids another person in committing the offence;
4. (d)
   any person who counsels or procures any other person to commit the offence.”

258. [258]
     The prosecution alleges that Tracey enabled, aided or encouraged Moore to cause the death of the deceased, knowing that Moore intended to cause either death or grievous bodily harm by doing any one, or all, or any combination of the following acts:

1. (a)
   encouraging Moore by words;
2. (b)
   driving and/or directing and/or travelling with Moore to the deceased’s unit;
3. (c)
   persuading or causing the deceased to open the door of his unit;
4. (d)
   being deliberately present at the deceased’s unit.

259. [259]
     Section 7(1)(b) and (c) extends criminal responsibility to any person who is a party to an offence which relevantly includes:

1. (a)
   each person who does an act (or makes the omission) for the purpose of enabling or aiding another to commit the offence; and
2. (b)
   each person who intentionally aids another to commit the offence.

It is not only the person who actually does a criminal act (or makes a criminal omission) who may be found guilty of an offence. Anyone who aids – that is, assists or helps or encourages – that person to do it may also be guilty of the (same or a less serious) offence if they did it for the purpose of, or with an intention to, aid.

260. [260]
     Proof of aiding involves proof of acts and/or omissions intentionally directed towards the commission of the principal offence by the perpetrator, and proof that the defendant was aware of at least, the essential matters constituting the crime in contemplation. To aid means to assist or help.

261. [261]
     The prosecution does not need to prove that the person who actually committed the offence has also been convicted. It is enough that the prosecution proves, not necessarily the identity of the perpetrator, but that there was a principal offender or perpetrator, and proof of the commission of an offence by that someone, and that the defendant aided that person to commit it. The prosecution must prove that the other perpetrator was guilty of committing the offence by evidence which is admissible against the defendant.

262. [262]
     The prosecution must prove that the defendant knew that the type of offence which was in fact committed was intended; but not necessarily that the particular offence would be committed on that particular day at that particular place. It is not enough if the prosecution prove the defendant knew only of the possibility that the offence might be committed.

263. [263]
     I may find Tracey guilty of the offence of murder only if I am satisfied beyond reasonable doubt of four matters. The first is that Moore murdered the deceased. The second is that Tracey either in some way assisted Moore to murder the deceased or did an act with the purpose of assisting or enabling Moore to murder the deceased, even if that act did not in fact assist. The third is that Tracey assisted or did the act with the intention of helping Moore to murder the deceased. The fourth is that when Tracey assisted Moore or did the act with that purpose, she knew that Moore intended to kill or do grievous bodily harm to the deceased.

264. [264]
     I have already found that Moore murdered the deceased. I consider the other three matters below.

265. [265]
     Tracey can be found guilty of murder only if I am satisfied beyond reasonable doubt that, when Tracey did the acts said to have given assistance she did so intending to help Moore cause the death of the deceased knowing that Moore intended to cause either death or grievous bodily harm to the deceased. If I am not satisfied that Tracey knew that Moore intended to cause either death or grievous bodily harm to the deceased, or if I have a reasonable doubt about it, then I must find Tracey not guilty of murder. If I am not satisfied of each of these matters beyond reasonable doubt, but on the evidence am satisfied beyond reasonable doubt that Tracey did acts or made omissions for the purposes of enabling, aiding or encouraging Moore to unlawfully assault the deceased, then the prosecution would not have satisfied me beyond reasonable doubt that Tracey is guilty of murder on the basis of s 7(1)(b) and (c).

266. [266]
     Before I could find Tracey guilty of manslaughter, relying on s 7(1)(b) and (c), the prosecution must satisfy me beyond reasonable doubt that:

1. (a)
   Tracey did the acts or made the omissions for the purposes of assisting Moore to unlawfully assault the deceased;
2. (b)
   she did them with the intention to enable, aid or encourage Moore to unlawfully assault the deceased;
3. (c)
   she had actual knowledge that Moore intended to unlawfully assault the deceased; and
4. (d)
   that the nature of the unlawful assault that she intended to enable, aid or encourage was such that the deceased’s death was either actually foreseen by her or foreseeable by an ordinary person in her position.

267. [267]
     One of the prosecution’s particulars as to how Tracey enabled, aided or encouraged Moore is that she was deliberately present at the deceased’s unit. I direct myself that a defendant may assist or aid another by giving actual physical assistance in the commission of an offence, but it is not necessary for the prosecution to show actual physical assistance. Wilful encouragement can be enough, certainly if the defendant intended that the perpetrator should have an expectation of aid from the defendant in the commission of the offence. Where the prosecution alleges aiding by encouragement, such as from the presence of the person charged at the commission of the offence, the prosecution must prove both that the person charged as an aider did actually encourage the perpetrator in the commission of the offence, such as by presence at the scene; and also that the person charged intended to encourage the commission of that offence by his or her presence. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding.

2. (b)
   The prosecution’s submissions

268. [268]
     As to the prosecution’s particulars of how Tracey is said to have enabled, aided or encouraged Moore, Mr Boyle submitted that there is no dispute that Tracey drove Moore to the deceased’s unit on the night of 6 February. Moore, having only been to the unit on one previous occasion, did not know the address. Mr Boyle refers to the text message exchanges between Tracey and Moore prior to them travelling to the deceased’s unit. In the course of these text messages Mr Boyle submits that Tracey was “putting fuel on the fire” and talking through plans and the fact that someone would have to get the deceased to open the door. It was Tracey who knocked on the door and was present in the unit when Moore stabbed the deceased, causing his death.

269. [269]
     Mr Boyle submitted that it did not make any sense when one considers the nature of the text messages exchanged between Tracey and the deceased on 6 February why Tracey, without notice to the deceased, decided to drive with Moore for approximately 30 minutes to speak to the deceased. There was nothing in the deceased’s text messages on 6 February which would cause Tracey to have any particular fear for her safety. According to Mr Boyle, there was simply no need for Tracey and Moore to go around to the deceased’s unit except for the purposes of carrying out a physical attack on the deceased. Tracey knew that the deceased would not let Moore in if it was just him. Mr Boyle submitted that from the text messages exchanged with Moore, Tracey knew that he intended to kill or do grievous bodily harm to the deceased.

270. [270]
     The prosecution identified Tracey’s motive as being that the death of the deceased would remove any risk of Tracey losing custody of CWX to the deceased. Tracey had previously denied to police that the deceased had threatened to take CWX away from her. While Tracey accepted that she lied to police, she could not explain why.

271. [271]
     Mr Boyle referred to the post-offence conduct of Tracey and lies told by her as demonstrating a consciousness of guilt of murder. He submitted that in enabling, aiding or encouraging Moore to cause the death of the deceased Tracey had actual knowledge that Moore intended to cause either death or grievous bodily harm to the deceased. The post-offence conduct is as follows:

     1. Left the scene of the alleged murder with Paul Mathew Moore.
     2. Made a false entry in the Blue Care Palliative Care Centre visitor register.
     3. Disposed of pages from Blue Care Palliative Care Centre visitor register.
     4. Disposed of, or caused the disposal of, the car floor mat.
     5. Exchanged SMS messages with Paul Mathew Moore falsely indicative of no knowledge of, or involvement in the death of the deceased.
     6. Sent SMS messages, and made telephone calls, to the deceased’s phone falsely indicative of no knowledge of the death of the deceased.

272. [272]
     The lies told by Tracey demonstrating consciousness of guilt relied on by the prosecution are as follows:

     1. Lied to police as to her movements and/or the movements of Paul Mathew Moore at the time of the alleged murder. In particular that:
        1. (a)
           Tracey and Paul Mathew Moore were at 21 Rudduck Street, Logan Central;
        2. (b)
           Tracey went for a drive to outside the Blue Care Palliative Care Unit;
        3. (c)
           Tracey did not go to the deceased’s unit.
     2. Lied to police in omitting to disclose her knowledge of the death of the deceased.
     3. Lied to police that the deceased had never threatened to take their daughter from her.
     4. Lied to police that she did not make a false entry in the Blue Care Palliative Care Unit visitor register.
     5. Lied to police as to the reason she made a false entry in the Blue Care Palliative Care Unit visitor register.
     6. Lied to police as to a disposal of pages from the Blue Care Palliative Care Unit visitor register.
     7. Lied to police that she stayed in the car at the deceased’s townhouse at the time of the deceased’s alleged murder.
     8. Lied to police in denying knowledge of the death of the deceased.

9. Lied to police that she did not knock on the door of the deceased’s townhouse.

273. [273]
     Mr Boyle submits that if the killing of the deceased had occurred as described by Tracey in her evidence, namely that she went to the deceased’s unit to speak to him and that Moore “went off on a frolic of his own” in killing the deceased, Tracey would have called an ambulance or the police. As at 6 February she had no particular allegiance to Moore apart from describing him as a friend, although they had been previous partners. Having been an eyewitness to the killing of the deceased by Moore, Tracey proceeded to drive him back to his house, have an innocuous text message exchange with him and subsequently lied to police. This post-offence conduct and lies, according to Mr Boyle, is inconsistent with Tracey’s asserted lack of knowledge of Moore’s intention to kill or do grievous bodily harm to the deceased.

3. (c)
   Tracey’s submissions

274. [274]
     Mr Hoare submitted that Tracey’s presence at the deceased’s unit on the night of 6 February arose from a coincidence of circumstances. The text messages that she had received from the deceased caused her to feel anxious. She had previously been subjected to both physical and verbal abuse and she wished to speak to him so that he would stop treating her as he had. While she knew that the deceased could be reasonable when sober, there was no guarantee he was going to be sober on the night of 6 February. It was because of that uncertainty that she decided to take Moore with her. The choice to bring Moore with her simply granted her a sense of security against risk; the risk of being assaulted by the deceased given his previous history. Tracey’s plan, in attending the deceased’s unit, was to have a conversation “with a person she knows who can be reasonable to end the constant stress, to reason with him, and not a plan for anything more”. According to Mr Hoare, it was only if the deceased attempted to harm her did she contemplate any harm befalling the deceased. That harm was only limited, according to her belief, to the deceased receiving a “punch in the face” from Moore.

275. [275]
     The text messages exchanged prior to Moore and Tracey attending the deceased’s unit do not, according to Mr Hoare, support the existence of any plan to kill or do grievous bodily harm to the deceased. He emphasised that there were gaps in the telephone records and therefore gaps in the conversations between Tracey and Moore which cannot be filled with speculation. Mr Hoare argued that when the text messages are read in a proper context, they do not support the prosecution’s case that Tracey knew Moore intended to kill or do grievous bodily harm to the deceased. Tracey’s text on 5 February 2018 at 9:43 (exhibit 38, item 557), where she texts Moore, “I’m ready NOW …” should, as submitted by Mr Hoare, be construed with Moore’s text sent at 9:59, “Or can I come with you baby”. There are a number of texts sent between 9:44 and Moore’s text sent at 9:59 which have not been recovered (exhibit 38, items 558–557). Mr Hoare submitted that when read in context, what Tracey was proposing was to speak to the deceased alone. Moore’s subsequent text sent on the same day at 10:11 (exhibit 38, item 588), “You’re not running you have a lot to deal with here bub” evidences a further plan on the part of Tracey to simply run away. These two plans, as submitted by Mr Hoare, are not consistent with a plan to kill or do grievous bodily harm to the deceased. When Moore suggests that he needs the phone number of the deceased Tracey responds, “I told you … if you call him it will make it worse … pls listen.” (exhibit 38, items 607 and 609). Contrary to the plan alleged by the prosecution, Mr Hoare submits that Tracey was actively dissuading Moore from contacting the deceased or attending his unit.

276. [276]
     According to Mr Hoare, there is no evidence that Tracey read the message from Moore sent on 5 February 2018 at 12:25 (exhibit 38, item 616), “Okay baby sleep tight and don’t fear him he is nothing he is a walking dead”. That message was sent by Moore 21 minutes after Tracey had informed him that she was going to “have a nap with the kids babe”. In support of this submission that Tracey did not absorb all the messages from Moore, Mr Hoare referred to the lengthy message sent by Moore to Tracey on 27 January 2018 at 12:58 (exhibit 38, item 23) in which he informed Tracey that he has terminal cancer. On 30 January 2018 at 14:46 Moore sent a text to Tracey (exhibit 38, item 233), “This is the name of cancer if you want to read about it”, to which Tracey replies (exhibit 38, item 235), “Whose cancer?”

277. [277]
     Mr Hoare submitted that when the text messages are placed into context and considered in the light of Tracey’s evidence, the explanations she gives are entirely consistent with a plan for her to simply speak to the deceased.

278. [278]
     Mr Hoare submitted that the Court should accept both Tracey and Moore’s evidence as to why Tracey’s phone was reset at 15:44 on 6 February. The Court should also accept that the reason they parked around the corner from the deceased’s unit was because Moore observed that the unit carpark was full. Mr Hoare argued that if the plan was to kill or do grievous bodily harm to the deceased, why would Tracey and Moore attend the unit at 8 o’clock in the evening, when neighbours and others would have been going about their ordinary business.

279. [279]
     As to the post-offence conduct and lies demonstrating consciousness of guilt relied on by the prosecution, Mr Hoare submitted that none of the conduct or lies is capable of demonstrating consciousness of guilt of murder or manslaughter. Tracey’s evidence was that she was stunned as to what she observed at the unit. She had to compose herself before she drove back to Moore’s house.  This according to Mr Hoare demonstrates that there was no plan to kill or do grievous bodily harm to the deceased. He referred to the change in Tracey’s demeanour upon her return to Moore’s house, which was observed by Ms Seamons.

280. [280]
     According to Mr Hoare, all of Tracey’s post-offence conduct and lies are explicable by the fact that she witnessed Moore kill the deceased in circumstances where she was the person who drove Moore to the unit. Having witnessed the killing, Tracey left the unit with Moore and knew she had fled the scene of a crime and failed to call for assistance. These acts caused her to be afraid of going to jail. She therefore engaged in the post-offence conduct and told the lies not only to keep herself safe, but also her children. She was also panicking and not thinking rationally. The post- offence conduct and lies are therefore incapable of demonstrating that when she gave assistance to Moore she did so intending to help Moore, knowing that he intended to cause either death or grievous bodily harm to the deceased. Nor does the post-offence conduct or lies permit the Court to be satisfied that Tracey assisted Moore with the intention of enabling, aiding or encouraging Moore to unlawfully assault the deceased with actual knowledge that Moore intended to unlawfully assault the deceased and that the nature of the unlawful assault that she intended to assist in was such that the deceased’s death was either actually foreseen by her or foreseeable by an ordinary person in her position. The only assault envisaged by Tracey was Moore punching the deceased if he attempted to assault Tracey.

281. [281]
     Mr Hoare also referred to there being no evidence that Tracey knew Moore was going to be armed. No weapon was observed either by Tracey or other witnesses when Moore left his house. She told police in her interview on 22 February 2018 that had she known Moore would hurt the deceased, she would never have driven him to the unit. This, according to Mr Hoare, demonstrates Tracey’s true state of mind when she and Moore went to the deceased’s unit.

4. (d)
   Did Tracey enable, aid or encourage Moore to cause the death of the deceased knowing that Moore intended to cause either death or grievous bodily harm?

282. [282]
     There is no dispute that Tracey sent the text messages to Moore, as set out in exhibit Nor is there any dispute that it was Tracey who drove Moore to the deceased’s unit in her car on the night of 6 February 2018 ([115][118] above). Tracey’s own evidence establishes that she was physically present, standing at the foyer in the unit near the front door, from where she witnessed Moore kill the deceased. She had knocked on the security door to the unit and asked the deceased “Can we talk?” ([116] above). The issue is not whether she gave this assistance to Moore, but rather, when she did give this assistance, did she do so with the intention to enable, aid or encourage Moore to unlawfully kill the deceased actually knowing that Moore intended to cause death or grievous bodily harm to the deceased.

283. [283]
     In evidence Tracey denied that the real reason she went around to the deceased’s unit was for Moore to kill the deceased. She denied sending encouraging text messages to Moore and being present at the deceased’s unit in order to encourage Moore to kill the deceased. Her evidence, consistent with the submissions made by Mr Hoare, was that she went to the deceased’s unit to speak to the deceased. The reason she was accompanied by Moore was that she was uncertain as to whether the deceased would be sober and Moore would protect her by, if necessary, punching the deceased if he attempted to assault her. In light of these denials, the prosecution can only establish Tracey’s requisite intention and actual knowledge beyond reasonable doubt as a matter of inference arising from the whole of the evidence admissible against her. I remind myself that in order to bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is my duty to find Tracey not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.

284. [284]
     The prosecution has satisfied me beyond reasonable doubt that in assisting Moore, Tracey intended to enable, aid or encourage him to cause the death of the deceased, actually knowing that Moore intended to kill or do grievous bodily harm to the deceased. This satisfaction arises from a consideration of the matters set out at [285]– [314] below arising from the evidence admissible against Tracey.

285. [285]
     I consider the text exchanges up to and including 6 February 2018 at [70]–[85] above. As I have already observed at [68] above, caution should be exercised in considering the text messages both as to content and context. Further, I do not use the evidence of one defendant to definitively determine the meaning of another’s texts, but I use their respective evidence about what they thought the other meant as evidence of their own intention. There are two further observations to make in relation to the exchange of text messages between Tracey and Moore leading to the night of 6 February 2018. Moore and Tracey were well known to each other having been in a relationship from 2011/2012 until mid-2017. They shared twin girls who were born in early 2013. Tracey also knew that Moore wanted to renew their relationship.

286. [286]
     The text exchanges, as submitted by Mr Hoare, do evidence changing plans on the part of Tracey as to how she would deal with the deceased. Those plans vary from her seeing the deceased by herself, to Moore speaking to the deceased, to Tracey running away with CWX and to Tracey and Moore going together to talk to the deceased, with Moore providing protection. What in fact occurred was that Moore and Tracey went to the unit of the deceased and Moore inflicted eight stab wounds and one incision wound causing the death of the deceased. While the plan may have changed, the ordinary and natural meaning of the text messages support a finding that when Tracey drove Moore to the deceased’s unit, she knew he intended to kill or do grievous bodily harm to the deceased. In making this finding, I have not taken into account Moore’s lengthy text to Tracey sent on 27 January 2018 (exhibit 38, item 24). At [74] above, the text messages sent on 5 February 2018 between 9:30 and 9:43 end with Tracey stating, “I’m ready NOW …”. Tracey’s evidence-in-chief was that by these words she was informing Moore that she was then ready for him to speak to the deceased. Tracey’s response, however, is in the context of Moore texting “I’ll take him out. I’ll take him out and if get caught I’ll so jail time.” As set out at [76], Tracey sought to explain this reference to jail time as Moore being jailed if he punched the deceased in the face. This is not how I construe this exchange. Tracey’s response is to Moore’s suggestion that he would take the deceased out. The ordinary meaning of this exchange is that Tracey was informing Moore that she was ready “now” for him to take out the deceased. I reject Tracey’s evidence that she understood Moore’s message to mean that he would punch the deceased in the face and take him out of her life by speaking to the deceased. In rejecting Tracey’s evidence, I take into account that she had never seen Moore be violent towards the deceased. She had observed these interactions between Moore and the deceased, however, as early as 2012 and 2013. Tracey knew that she had informed Moore as recently as 20 January 2018 that the deceased had given her two black eyes and threatened violence to the twins ([38] above). Knowing of Moore’s devotion to her, Tracey must have appreciated that the conveying of this information would have affected Moore’s disposition towards the deceased.

287. [287]
     The text message exchange outlined at [83] above includes Moore stating that he was going to “get him” and referring to the deceased as a “waist of space”. Tracey responds, “He needs to go … NOW”. She also refers to it being a “good idea” for Moore to have people waiting at the back for the deceased if he failed to open the front door to Moore and ran out the back. When Moore suggests to her that “you and me he will open the door to you then I’ll walk around the corner and I’ll teach him a very big lesson” Tracey responds, “He isn’t going to learn from a lesson … he will continue to do what he is doing … and he will then take my daughter …”. This exchange is, in my view, inconsistent with Tracey’s evidence of her intention to simply go and speak to the deceased. I do not accept Tracey’s evidence that Moore’s text to her “I’m still going to get him” can be dismissed as simply “boy talk”. To the extent that Tracey suggested in her evidence that she was both scared and terrified at this time, it may be accepted that she had a real concern that the deceased was threatening to take CWX. This concern is expressly referred to by Tracey in her text to Moore (exhibit 38, item 628).

288. [288]
     I do not accept Tracey’s evidence that she was scared or terrified of the deceased coming over to her house to “bash” her again. She had seen the deceased by herself on 4 February when she went to pick up CWX. There was no arguing or fighting between Tracey and the deceased on this occasion. He admitted to Tracey that he was drinking again and had not taken his prescribed medication for a couple of days. Further, for the deceased to travel to Tracey’s house on Russell Island required two means of public transport as he did not have a car. While it was suggested in Mr Hoare’s submissions that Tracey may not have read Moore’s text message referring to the deceased being “a walking dead”, she did give evidence about this text stating that it was “shit talk”. She also considered Moore’s message “you and me, he will open the door to you. Then I’ll walk around the corner and I’ll teach him a very big lesson” as also constituting nothing more than “shit talk”. As I have previously observed however, this is what effectively occurred on the night of 6 February 2018.

289. [289]
     After this exchange of text messages Moore and Tracey had a telephone conversation which lasted 35 minutes and 14 seconds. Tracey’s evidence in relation to this telephone conversation is set out at [85] above. Tracey sought to explain why after this lengthy telephone conversation there were no further texts suggestive of any violence being done to the deceased. Tracey’s explanation was that she and Moore had already arrived at a decision to go and speak to the deceased at a suitable time when he had not been drinking. I reject this evidence. The benign nature of such a decision is inconsistent with the language of the text messages suggestive of violence being done to the deceased. Nowhere in the text messages does Tracey tell Moore that she does not wish any violence to be done to the deceased. To the contrary, when on 5 February 2018 (exhibit 38, item 555) Moore states, “I’ll take him out and if get caught I’ll – so jail time” Tracey responds by stating that of course she would bring the girls to see him … “no matter what sweetheart …” (exhibit 38, item 556). This is followed immediately by Tracey’s text, “I’m ready NOW …”. This is followed by a subsequent text on the same day at 11:19 where Tracey states, “He needs to go … NOW” (exhibit 38, item 605). The words used by Tracey in response to Moore’s threats of violence to the deceased constitute encouragement for Moore to follow through on these threats. It is a fact that it was Tracey, knowing that Moore had made these threats, who drove him to the deceased’s unit on the night of 6 February.

290. [290]
     Tracey’s phone was reset at 15:44 on 6 February 2018. This factory reset erased all data on the phone, including the text message exchanges between Moore and Tracey. The first text that was able to be recovered from Tracey’s phone was on 6 February 2018 at 22:10 after the deceased had been killed. In her evidence Tracey stated that on 6 February her phone was freezing and nothing would happen when she tapped a message. She was also at times finding it difficult to swipe to answer the phone. Her evidence as well as Moore’s evidence was that he reset Tracey’s phone for her. The effect of this evidence is that the texts on Tracey’s phone were only deleted because the phone was freezing, and not for any other reason, such as to delete what may be considered incriminatory text messages. I reject Tracey’s evidence as to the reason her phone was reset. She did not accept in cross-examination that the reason her phone was reset was to delete all messages which suggested some violence towards the deceased. The reset, however, occurred approximately four-and-a-quarter hours before she and Moore went to the deceased’s unit. Tracey also would not accept that there was any coincidence between her phone being reset by Moore and them travelling to the unit. She did not accept that she caused messages to be deleted from her phone because police could seek access to her phone. Tracey made no mention to police of Moore resetting her phone. As set out at [64] above, Tracey told police that she always deleted messages from Moore. When reminded by police that there were messages between her and Moore which had not been deleted Tracey replied, “They should be all deleted”. When the reset of Tracey’s phone is viewed in the light of the intact text messages which were exchanged between Moore and Tracey after the deceased was killed, the resetting of Tracey’s phone was not a mere coincidence. Moore had also deleted the incriminatory text messages from his phone. Unless the incriminatory messages were deleted from both Moore’s phone and Tracey’s phone, their subsequent text messages on the night of 6 February, indicative of them having no knowledge of the death of the deceased, would have been directly contradicted by the content of the deleted messages. I find that Tracey caused the incriminatory texts to be deleted from her phone prior to travelling to the deceased’s unit because she knew Moore intended to kill or do grievous bodily harm to the deceased. If the texts were not deleted they would have incriminated Tracey as they were indicative of Moore planning violence to the deceased.

291. [291]
     If Tracey’s plan was simply to speak to the deceased and for Moore to be present to protect her, it does not make any sense that Tracey did not first inform the deceased they were going to visit. Her evidence as to why she did not is as follows:

“How come you don’t say, ‘Hey, I’m on my way for a chat’?--- Because I just want to turn up and say, ‘Hey, I’m here. Let’s talk’.

A surprise?--- It wasn’t so much of a surprise. I’ve turned up to his place unannounced before.

By yourself?--- Yes. With Paul?--- No.

At night-time?--- With my uncle. Yes.”

292. [292]
     The circumstances in which she attended with her uncle at the deceased’s unit are set out at [130] above. Tracey’s uncle did not go inside the unit. Further, this was not an unannounced visit as she was there to drop off CWX. This visit is very different to Tracey arriving at the deceased’s unit unannounced at 8 o’clock at night accompanied by Moore. Tracey was aware that Moore had expressed a desire to take the deceased out. On 4 February 2018, Tracey had a normal interaction with the deceased for approximately 30 minutes. Although the deceased had been abusive over the telephone to her on the night of 4 February, including sending the message, “Now reap the whirlwind”, by 12:51 on 6 February 2018 he texted Tracey, “Are we cool”, to which she replied, “Yeah we’re cool …” and subsequently “friends only pls … but we are cool” (exhibit 38, items 677–679). In his subsequent text on that afternoon the deceased was enquiring as to who Tracey was seeing. His last text message to Tracey (exhibit 38, item 685) is in part a message to CWX, together with the words “hopefully Mum will call me in the morning. Because she refused to do this morning.” While Tracey interpreted the last message from the deceased as him seeking an argument, the texts sent by the deceased were not threatening. From the visitors’ register at the palliative care unit, Tracey visited her father on 7 February 2018 with other members of her family. The palliative care unit was just around the corner from the deceased’s unit. If Tracey wished to speak to the deceased she could have done so on 7 February 2018. The evidence therefore does not logically reveal why Tracey, in company with Moore, had to visit the deceased unannounced on the night of 6 February 2018. In light of the fact that the incriminatory messages had been deleted from both Moore and Tracey’s phones, the visit to the deceased’s unit cannot be considered a mere coincidence nor as simply a visit for Tracey to speak to the deceased.

293. [293]
     There are further aspects of Tracey’s conduct which are, in my view, inconsistent with her having no knowledge of Moore’s intention to kill or do grievous bodily harm to the deceased. This conduct does not include her parking the car around the corner, as instructed by Moore. When driving to the deceased’s unit Tracey’s evidence is that she and Moore did not speak. According to Tracey, the only words she spoke on arrival was to the deceased, “Can we talk?” She heard the words, “What the fuck?” but could not say who spoke these words. When she walked into the unit she observed that Moore and the deceased were wrestling belly to back. This was just past the staircase wall. Tracey’s evidence was that she did not expect this physical interaction between Moore and the deceased. The only words she speaks, however, after Moore stands up with the knife are, “Is he gone?”, to which, according to Tracey, Moore replied, “Yes” after tapping the deceased with his foot. On Tracey’s own evidence there is no suggestion that she sought to intervene in the physical interaction by saying, for example, “Stop!” or “Don’t hurt him!”. She heard the deceased making “a snoring sound”. On her estimate, this stopped after about 10 seconds. Tracey made no attempts to call for assistance either from ambulance or police. She did not speak to Moore on the drive back to his house as to what had just occurred. Prior to leaving the unit, Tracey had already surmised that Moore had killed the deceased. She accepted that it was apparent to her that the deceased had been stabbed by Moore, yet she drove Moore away from the scene to his house. Her explanation for not calling an ambulance or going to police was because she was “shocked and panicked”. Tracey’s evidence was that there was no conversation between her and Moore when they returned to his house. She organised the children and left to catch the 10 o’clock barge. Tracey’s evidence that, while witnessing the physical altercation and the aftermath, the only words she said were, “Is he gone?” is inconsistent with Moore’s attack on the deceased coming as a complete surprise to her. Even though there had been difficulties between Tracey and the deceased, he was the father of CWX. In this role Tracey considered that the deceased was a very good father. Accepting that the attack was swift, it was an attack that commenced near the front door and continued through to the point marked X (exhibit 45). According to Dr Ong, the deceased would have bled immediately from the stab wounds. Tracey observed drops of blood which she marked on exhibit 45 commencing from about the beginning of the living room. At no time, however, does she seek to verbally stop Moore’s attack, nor does she call for assistance, nor does she seek an explanation from Moore as to what she has just witnessed.

294. [294]
     It was Tracey who knocked on the screen door, although in her second interview she denied this. She describes Moore as standing next to her but slightly behind her on her right-hand side. It is not clear from Tracey’s evidence whether the deceased could see Moore. Tracey, however, knew that the deceased was security conscious. In Tracey’s second statement to police, as outlined at [87]–[88] above, Tracey referred to the deceased as always having the security screen door locked. In her second interview she confirmed that the deceased was very security conscious and would keep his door locked and would not allow people inside. She could not say in cross- examination whether the deceased would have been willing to open the door to Moore. Tracey, however, in her text on 5 February at 11:21 told Moore that the deceased would not open the door to him (exhibit 38, items 609–611). I find in light of the fact that the deceased was security conscious, he opened the security door only to Tracey. As the visit was unannounced, the deceased would not have opened the door had he been aware of Moore’s presence. I find that it was Tracey who caused the deceased to open the security door to his unit.

295. [295]
     Tracey had a motive for assisting Moore to kill the deceased. She was concerned that the deceased wanted to take CWX. In her text to Moore on 5 February 2018 at 18:34 (exhibit 38, item 628), she refers to the deceased taking her daughter away from her. Tracey lied to police that the deceased had never threatened to take CWX away from her. In cross-examination the relevant extract from her interview with police on 21 February 2018 was read to her, followed by this exchange:

“Was that truthful?--- Yes. When he was drunk and when we were arguing he would make threats, but never follow through with it and I never had any concerns.

Okay. But the point is you were asked – and if you want to qualify it by what you say later – but you were asked whether he had threatened to take [CWX] from you. And---?--- And I said no, so that would be a lie.

So why did you tell that lie?--- I don’t know. I can’t answer that question.

So you can’t think of a reason?--- No.

Could it be that perhaps that might be another possible motive for your part for the death of James?--- It’s possible, but I can’t exactly answer that truthfully.

Do you accept that it’s possible that you could have lied – told that lie, because it would appear that you might have a motive?--- It’s possible, yes.

So, in that sense, if that happened, it would be lying to protect yourself?--- Yes.”

Tracey was close to CWX. Tracey’s evidence was that when she contemplated running away, the only child she was taking with her was CWX. I accept that the deceased’s threats to take CWX away from Tracey when considered in the context of the whole of the evidence constituted a motive for Tracey to assist Moore to murder the deceased.

296. [296]
     Before I deal with post-offence conduct and lies going to consciousness of guilt, it is necessary to deal with Mr Hoare’s submission that the post-offence conduct and lies identified by the prosecution are incapable of being used rationally to infer the specific intent, which is required for murder. In considering whether the post-offence conduct and lies demonstrate a consciousness of guilt of murder, rather than a lesser offence such as manslaughter or an uncharged offence such as leaving the scene of a crime, I am to have regard to all of the circumstances established by the evidence. In R v Baden-Clay^[2] the High Court referred to the decision of the Supreme Court of Canada in R v White^[3] where Major J observed:

“As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.”

297. [297]
     The High Court continued:^[4]

“… There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: ‘The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute.’”

298. [298]
     In R v Reid^[5] Sofronoff P (with whom Morrison JA and Jackson J agreed) stated:

“It is, therefore, a mistake to focus attention upon ‘the crime charged’ rather than upon the relevant behaviour of the person accused of that crime and what that behaviour may say about the fact it is led to prove. Sometimes it is led to prove only the accused’s complicity in an offence. Sometimes the accused’s involvement is admitted but an element of the offence is in issue and it is that factual element alone which is said to be proved, by inference, from the accused’s actions after the offence had been committed.

Consequently, when considering evidence of post-offence conduct as proof of guilt, whether by proof of statements or other acts, it is essential first to identify the fact sought to be proved by that evidence. The significance of the evidence, and its weight, will vary according to the relationship of the post-offence conduct to the fact sought to be proved by proof of that conduct.”

299. [299]
     In the present case the prosecution relies on Tracey’s post-offence conduct and lies as demonstrating consciousness of guilt of murder and, more specifically, that she did the acts said to have given assistance to Moore intending to help Moore unlawfully kill the deceased, knowing that he intended to cause either death or grievous bodily harm to the deceased. In determining whether such an inference arises from the post- offence conduct and lies, I am required to have regard to all of the circumstances established by the evidence.

300. [300]
     As to the post-offence conduct relied on by the prosecution in the present case, before I could use this conduct as indicative of guilt, I would first have to find that Tracey engaged in this conduct because she knew she was guilty of murder, not for any other reason.

301. [301]
     I must remember that people do not always act rationally and that conduct of this sort can often be explained in other ways – for example, as a result of panic, fear or other reasons having nothing to do with the offence charged. I must have regard to what has been said by Mr Hoare as to other explanations for Tracey’s conduct. Her conduct according to Mr Hoare is explicable by reference to Tracey being shocked by the killing of the deceased by Moore. She panicked because she was the person who had driven Moore to the deceased’s unit. She had also fled the scene of a crime and failed to seek assistance for the deceased either from an ambulance or police. Her motivation in relation to the post-offence conduct was not only to protect herself but also her children by ensuring she did not go to jail. All these matters identified by Mr Hoare must be considered by me in deciding whether I can safely draw an inference from Tracey’s post-offence conduct.

302. [302]
     Moreover, before the evidence of Tracey’s post-offence conduct can assist the prosecution, I would have to find, not only that it was motivated by a consciousness of guilt on her part, but also that what was in her mind was guilt of murder and not some other misconduct, such as manslaughter or fleeing the scene of a crime. If, and only if, I reach the conclusion that there is no other explanation for Tracey’s post-offence conduct, such as panic or fear of wrongful accusation, I am entitled to use that finding as a circumstance pointing to Tracey’s guilt to be considered with all the other evidence in the case. Standing by itself, it does not prove guilt.

303. [303]
     As to the post-offence conduct alleged, I have already found that it was Moore (not Tracey) who disposed of the car floor mat. I have not taken the disposal of the car floor mat into account in considering Tracey’s post-offence conduct. The evidence of Tracey leaving the scene of the alleged murder with Moore is set out at [127] above. The evidence concerning her making a false entry in the Blue Care Palliative Care Centre visitor register, and her later disposal of the pages from Blue Care Palliative Care Centre visitor register is set out at [146]–[148]. The exchange of SMS messages with Moore falsely indicative of no knowledge of, or involvement in the death of the deceased is set out at [149] and [152]. The sending of SMS messages and making telephone calls to the deceased’s phone is set out at [149]. There is no dispute that Tracey engaged in this conduct.

304. [304]
     In my view, when taken with the other evidence outlined in relation to Tracey’s intention and actual knowledge, I find that her post-offence conduct indicates a consciousness of guilt of murder and not some lesser offence, such as manslaughter or leaving the scene of a crime. As to leaving the scene of the alleged murder with Moore, Tracey had been an eyewitness to Moore stabbing the deceased. She accepted that it was apparent to her that the deceased had been stabbed by Moore, yet she drove Moore away from the scene to his house. This was a 30 minute drive in which, according to Tracey, they did not discuss anything about what had just happened.

According to Tracey, Moore’s attack on the deceased came as a complete shock to her. If that evidence was to be accepted, apart from driving Moore to the deceased’s unit, Tracey would have had no actual knowledge of Moore’s intention to kill or do grievous bodily harm to the deceased. Instead of calling for assistance, she drives Moore 30 minutes back to his house without discussing what had just happened. This was in circumstances where incriminatory text messages between Moore and Tracey had been deleted from their phones.

305. [305]
     As to making a false entry in the visitor register, Tracey admits that she created this false entry for the purposes of giving herself a false alibi. She also admits that she removed a number of pages from the visitors’ register that contained this false entry. I do not accept Tracey’s evidence that she removed these pages because she wanted to reverse what she had done by making a false alibi. At the time of removing the pages she had been informed by her aunt Thelma Tracey that police were making enquiries at the palliative care unit. The creation of a false alibi and Tracey’s subsequent conduct in trying to hide this false alibi is, in my view, conduct which is out of all proportion with her having no actual knowledge that in driving Moore to the deceased’s unit he intended to kill or do grievous bodily harm to the deceased.

306. [306]
     As to the text exchanges with Moore after the deceased had been killed, these messages were found intact on both Moore and Tracey’s phones. Tracey was prepared to send these text messages as she was concerned about being implicated in the death of the deceased. Her evidence was that she was not thinking clearly and was panicking. By sending these messages she was seeking to cover up her steps. All she had in mind was protecting herself and her children from what had just occurred. She did not wish to go to jail. One of her reasons in sending these text messages was to create a false alibi. Tracey did not seek either by text messages or otherwise to talk to Moore about what he had done at the unit. She agreed that the text message sent at 22:10 (exhibit 38, item 692) appeared to be quite a calm message. Tracey denied that there was any plan between her and Moore to pretend that they knew nothing of the death of the deceased. I reject this evidence. The text exchanges between Moore and Tracey after the deceased was killed evidence a degree of pre-planning on the part of Tracey prior to driving Moore to the deceased’s unit. The text exchanges are inconsistent with Tracey’s evidence that she had no actual knowledge that Moore intended to kill or do grievous bodily harm to the deceased. On her own evidence, after Moore had killed the deceased they did not speak to each other on the 30 minute drive back to Moore’s house. Nor did they converse when they arrived at Moore’s house. If the killing of the deceased came as an utter shock to Tracey and there was no pre-planning as to the nature of the text messages to be exchanged after the killing, both the content and the nature of these text messages are inexplicable. If Tracey was panicking and was utterly shocked by Moore killing the deceased and if there was no pre-planning between the two of them, why would she send to Moore the following text at 22:10, “I made the boat … thank you for lunch today and spending the day with the kids …”. Both the deletion of the incriminatory texts and the intact text messages sent after the killing of the deceased evidences pre-planning by Tracey with Moore. Tracey, having sent this text message to Moore and not having spoken to him in the car or at his house about the killing, would not have known how Moore would reply to this text. If Moore in reply had mentioned what had just occurred, it would have incriminated Tracey. Moore’s reply, however, is, “You’re welcome thank you for bringing them to see me”. Any plan or agreement to send these text messages on Tracey’s own evidence could not have occurred after Moore killed the deceased. Any pre-planning to exchange these messages falsely indicative of Tracey having no knowledge of the death of the deceased must have occurred prior to Tracey driving Moore to the unit. The exchange of these text messages permits an inference to be drawn that at the time of driving Moore to the unit and having the deceased open the door to her, Tracey intended to assist Moore to unlawfully kill the deceased, actually knowing that he intended to kill or do grievous bodily harm to the deceased.

307. [307]
     The messages and telephone calls made by Tracey to the deceased’s phone after she had witnessed his killing by Moore were utilised by her in her second police interview. In this interview she had told police that even though she drove Moore to the unit, she had parked around the corner and remained in the car playing a game on her phone. She told police that she tried to contact the deceased the following day. She stated that she did not know anything had happened to the deceased until Thursday. When she heard about the death of the deceased on Thursday, 8 February, she was scared and upset and contemplated that Moore could have “done it” and that she was “the stupid idiot that drove him there”. The true situation was that Tracey had sent the deceased text messages and made calls to his phone, having been an eyewitness to his killing.

308. [308]
     When all of this post-offence conduct is considered in the light of the circumstances outlined above in relation to Tracey’s intention to assist Moore to unlawfully kill the deceased and her actual knowledge of Moore’s intention, the conduct is out of all proportion to her panicking and being shocked because of Moore unexpectedly killing the deceased. In particular, the exchange of texts between Tracey and Moore after the deceased had been killed does not suggest that she was panicked or shocked.

309. [309]
     As to the lies told by Tracey said to go to a consciousness of guilt of murder, before I can use this evidence against her I must be satisfied of a number of matters. Unless I am satisfied of these matters, then I cannot use this evidence against Tracey.

310. [310]
     First, I must be satisfied that Tracey has told deliberate untruths. There is a difference between the mere rejection of a person’s account of events and a finding that the person has lied. In many cases, where there appears to be a departure from the truth, it may not be possible to say that a deliberate lie has been told. The defendant may have been confused; or there may be other reasons which would prevent me from finding that Tracey has deliberately told an untruth. This does not arise in the present case as there is no dispute that Tracey told each of the lies identified by the prosecution.

311. [311]
     Secondly, I must be satisfied that the lie is concerned with some circumstance or event connected with the offence. I can only use a lie against Tracey if I am satisfied, having regard to those circumstances and events, that it reveals knowledge of the offence or some aspect of it. Tracey’s lies go directly to the murder of the deceased. The lies include Tracey not knocking on the door and not being at the deceased’s unit at the time he was killed by Moore. They also include Tracey’s failure to disclose her knowledge of the death of the deceased, as well as denying that the deceased had threatened to take CWX away. The lies also relate to the creation of false entries in the visitors’ register and the removal of the pages. Tracey’s lies therefore reveal a knowledge of the killing by Moore of the deceased, including her driving Moore to the unit and knocking on the door, being physically present in the unit when Moore killed the deceased and driving Moore to his house after the killing.

312. [312]
     Thirdly, I must be satisfied that the relevant lie was told by Tracey because she knew the truth of the matter would implicate her in the commission in the offence of murder and not some lesser offence, such as manslaughter or leaving the scene of a crime. Tracey must be lying because she is conscious that the truth could convict her. There may be reasons for the lie apart from a realisation of guilt. People sometimes have an innocent explanation for lying. Mr Hoare identified those reasons, including that Tracey panicked and was in shock because she witnessed Moore kill the deceased in circumstances where she had driven him to the unit and subsequently fled the scene of the crime. Tracey’s lies were therefore motivated by her self-interest to prevent her being responsible for driving Moore to the scene and subsequently leaving the scene. The lies, according to Mr Hoare, are entirely proportional to what Tracey did in driving Moore to and from the unit in the context of seeking to protect herself and her children by her staying out of jail. The lies, according to Mr Hoare, are proportional, explicable, panic-driven and maintained out of self-interest. They do not, according to Mr Hoare, implicate Tracey in either murder or manslaughter.

313. [313]
     If I accept that reasons of this kind are an explanation for the lies identified by the prosecution, then I cannot use them against Tracey. I can only use them against Tracey if I am satisfied that she lied out of realisation that the truth would implicate her in the murder of the deceased. In the present case, the alleged lies are not the only evidence against Tracey. The lies are, however, a critical fact in the prosecution case that Tracey, at the time she assisted Moore, intended to help Moore knowing that he intended to cause either death or grievous bodily harm to the deceased. I therefore direct myself that as the alleged lies are critical facts in the prosecution’s circumstantial case against Tracey, before I can use the lies against her, I must be satisfied beyond reasonable doubt not only that she lied, but also that she lied because she realised the truth would implicate her in the offence of murder.

314. [314]
     A number of the lies told by Tracey relate to her post-offence conduct in making a false entry in the visitor register and removing pages from the register. In her first interview Tracey told police that she did not believe she had ever signed the register when she had not been present at the palliative care unit. However, when shown the false entry she admitted that she did not go to see her father on the night of 6 February 2018. Tracey, however, continued to lie in that she offered as the reason for making the false entry was so that her family would think that she had visited her father and not for the purpose of creating a false alibi. A similar pattern is shown in Tracey’s lies when, in her first statement to police, she gives no detail at all about her involvement in the deceased’s death. In her second statement she states that on 6 February 2018 she stayed at Moore’s house the entire time. In her first interview she told police that she left Moore’s house and went for a drive for approximately 45 minutes on the night of 6 February 2018 and parked outside the palliative care unit. When asked why she did not tell police this earlier she replied, “Oh, because I couldn’t remember. Um, so much has happened um, losing James and losing dad who’s dying and Paul wanting so much of me … it’s just hard to remember every single little detail”. She maintained her denial that she had gone to the deceased’s unit on 6 February. Even in her second interview, after she had been arrested for murder, Tracey continued to lie. She told police that Moore had convinced her to drive him to the deceased’s unit “to talk to him”. She told police, however, that she had remained in the car while Moore went to the unit. Even after Tracey had been charged with murder she was still telling lies to distance herself from physically being in the unit at the time Moore killed the deceased. She told police in the second interview that she did not know Moore would hurt the deceased and had she known she would not have driven him to the unit. She does not, however, take the opportunity to inform police that she was an eyewitness to the killing in circumstances where it came as a complete shock to her. When these lies are considered in the light of the other circumstances relating to Tracey’s intention and knowledge, I am satisfied that Tracey told these lies out of a realisation that the truth would implicate her in the offence of the murder of the deceased. I am satisfied beyond reasonable doubt not only that Tracey told these lies, but also that she lied because she realised the truth would implicate her in the offence of murder.

315. [315]
     I am satisfied beyond reasonable doubt that when Tracey encouraged Moore by words, drove Moore to the deceased’s unit, persuaded or caused the deceased to open the door of his unit and was deliberately present at the unit, she did so intending to help Moore unlawfully kill the deceased, actually knowing that Moore intended to cause death or grievous bodily harm to the deceased. The only rational inference that can be drawn from the circumstances arising from a consideration of the evidence admissible against Tracey is that she is guilty of murdering the deceased.

316. [316]
     Having determined Tracey’s criminal liability pursuant to s 7(1)(b) and (c) of the Criminal Code, it is unnecessary for me to consider s 8.

317. [317]
     I find Emily Jane Tracey guilty of the murder of James Andrew Switez-Glowacz.