Director of Public Prosecutions v Dove (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

OWEN EDWARD DOVE (A pseudonym)

NATHAN CHARLES HARTNETT (A pseudonym)

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JUDGE:	Leighfield
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19 August 2022 and 13, 14, 15 and 16 September 2022
DATE OF JUDGMENT:	13 February 2023
CASE MAY BE CITED AS:	DPP v Dove (a pseudonym) & Anor
MEDIUM NEUTRAL CITATION:	[2023] VCC 137

REASONS FOR JUDGMENT
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Subject:Criminal Law
Catchwords:              Judge alone trial – aggravated burglary – intentionally cause serious injury – recklessly cause serious injury – complicity -
Judgment:                  Not guilty on all charges

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr Stephen Devlin	Office of Public Prosecutions
For Accused Owen Dove	Mr David Gray	Valos Black
For Accused Nathan Hartnett	Mr Allan Marshall	Stary Norton Halphen

Table of Contents

Introduction

General Directions of Law

Onus and Standard of Proof, and Presumption of Innocence
Decision to be Based Solely on the Evidence
Separate Consideration
Credibility, Reliability and Prior Inconsistent Statements

The Charges and their Elements

Statutory Complicity – Assisting or Encouraging
Charge 1 – Aggravated Burglary
Charge 2 – Intentionally Cause Serious Injury
Charge 3 – Recklessly Cause Serious injury (Alternative to Charge 2)
Further Alternatives – Intentionally Causing Injury and Recklessly Causing Injury

The Evidence

The Premises at 46 Sybil Street, Derbun
Mr Phillips’s Hips Prior to the Incident
Prior Contact between Mr Phillips, the Accused and Other Relevant Persons

Prior Contact between Caleb Phillips and Nathan Hartnett
Prior Contact between Caleb Phillips and Owen Dove
Prior Contact between Caleb Phillips and Matthew Sellar
Prior Contact between Nathan Hartnett, Owen Dove and Matthew Sellar
Prior Contact between Millie Lindell and Others

Events Prior to 21 March 2016
Mr Dove and Mr Sellar’s Attendance at the Lindell/Hartnett Home
Evidence as to Mr Dove’s Movements Prior to the Incident
The Incident at 46 Sybil Street – Inside the House

Evidence of Mr Phillips
Mr Phillips’s 000 call
Evidence of Mr Dove
Records of Interview of Mr Hartnett

The Incident at 46 Sybil Street – Outside the House

Evidence of Mr Phillips
Evidence of Mr Dove
Records of Interview of Nathan Hartnett
Evidence of Aidan Dyson
Evidence of Keira Lees

Evidence of Mr Dove and Mr Hartnett’s Movements after the Incident
Results of Forensic Investigation at 46 Sybil Street
Forensic Investigation of Other Items

Black Hooded Jumper
Caleb Phillips’s Shoes
Mr Dove’s Suzuki Jeep
Torch
Spanner and Axe

Mr Phillips’s Injuries

The Law

Directions in Accordance with the JDA

Misconduct Evidence
Unreliable Evidence – Caleb Phillips
Identification Evidence
Section 41 Direction and ‘Liberato-style’ Direction – Mr Hartnett
Section 44I Direction – Mr Dove

Further Principles of Law

Unfavourable Witness – Amelia Lindell
‘Palmer’ Direction – Mr Hartnett
Motive to Lie

Counsel’s Submissions

Prosecution Closing Address
Defence Closing Address on Behalf of Nathan Hartnett
Defence Closing Address on Behalf of Owen Dove

Analysis of Evidence as it Relates to the Elements

Issues to be Determined
Presence at the Scene – Mr Hartnett

Credibility and Reliability of Mr Phillips’s Evidence
Credibility and Reliability of the Evidence of Amelia Lindell
Evidence which places Mr Hartnett at the Scene of the Incident
Other Evidence on the Prosecution Case
Conclusion

Involvement, if any, in Aggravated Burglary – Owen Dove

Evidence of Mr Phillips
Credibility and Reliability of Mr Dove’s Evidence
Other Evidence on the Prosecution Case
Conclusion

Involvement, if any, in Assault on Mr Phillips – Mr Dove

Analysis of the Evidence
Conclusion

Verdict – Formal Orders

HER HONOUR:

Introduction
1Mr Owen Dove[1] and Mr Nathan Hartnett[2] are jointly charged on indictment with one charge of aggravated burglary (charge 1) and one charge of intentionally causing serious injury (charge 2) arising from an incident which occurred in Derbun[3] on 21 March 2016. They are both also charged with an alternative charge to charge 2, being a charge of recklessly causing serious injury (charge 3).
[1] A pseudonym
[2] A pseudonym
[3] A pseudonym
2In summary, the prosecution alleges that Mr Dove and Mr Hartnett, in the company of another offender – Mr Matthew Sellar[4], attended in the vicinity of 46 Sybil Street[5], Derbun in the early hours of 21 March 2016. The complainant in this matter, Mr Caleb Phillips[6], was living at the address at that time. The prosecution alleges that Mr Hartnett and Mr Dove, acting on a complicity basis, entered as trespassers into the home of Mr Phillips, with an intention to assault Mr Phillips, and at the time of entering at least one of them was armed with a large spanner. It is the prosecution case that as a result of what was occurring inside the home, Mr Phillips jumped out of his bedroom window and moved into the street. It is alleged by the prosecution that he was then assaulted in the street and, as a result of the incident, received a combination of injuries which amount to a serious injury. As with the aggravated burglary charge, it is the prosecution case that Mr Dove and Mr Hartnett were acting complicitly in causing the serious injury to Mr Phillips.
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
3Owen Dove and Nathan Hartnett each deny on an individual level that they had any involvement in the alleged offences. Mr Hartnett denies being present at the scene, stating that he was at home at the time of the alleged offences. Mr Dove concedes that he was in the vicinity of 46 Sybil Street, Derbun in the early hours of the morning of 21 March 2016 but denies that Nathan Hartnett was there or that either of them was involved in any way in the incident. Both accused also deny that they assisted or encouraged the other to commit the offences in issue.
4Both accused made an application to be tried by Judge alone pursuant to s420E of the Criminal Procedure Act 2009 (Vic) (‘CPA’). The application of each accused was granted by me on 2 August 2022. The trial then commenced later that same day before me. Both Mr Dove and Mr Hartnett pleaded not guilty to each of the charges on the indictment. I therefore must determine whether the prosecution has proven each of the charges against each of the accused beyond reasonable doubt.
5Pursuant to s420G of the CPA, my judgment must include the principles of law that I have applied, and the facts upon which I have relied. I am not required to recount every piece of evidence or argument which has been put before the court. In coming to my verdict, however, I have had regard to all of the evidence presented throughout the trial and considered all of the arguments put forward by counsel for the prosecution and counsel for each accused. The fact that I have not referred to a particular piece of evidence or a particular argument does not indicate that I have not had regard to that evidence or argument.
6In a trial by judge alone, my reasoning must be consistent with how a jury would be directed[7] and I may make any decision that could have been made by a jury.[8] In this trial that means I may find each accused guilty or not guilty of each of the charges before me, as well as in respect of any available alternatives.
[7]CPA, s420ZG; and Jury Directions Act 2015 (Vic) (‘JDA’), s4A.
[8]CPA, s420F.

General Directions of Law
7In coming to my verdict in this trial, I have ensured that my reasoning has been consistent with the following directions of law which would have been given to a jury hearing this case.
Onus and Standard of Proof, and Presumption of Innocence
8The prosecution bears the onus of proof and the standard of proof is beyond reasonable doubt. This is the highest standard of proof known to the law. Accordingly, in order for the prosecution to prove its’ case on any particular charge, it must satisfy me that each and every element of that charge has been proven beyond reasonable doubt. The accused are presumed to be innocent. They bear no onus of proof. It is not for the accused to prove their innocence, or prove anything at all.
Decision to be Based Solely on the Evidence
9I must decide the case only on the evidence led in this trial and, in respect of each accused, only on the evidence which is admissible against that accused. Where I have been privy to evidence for the purposes of determining legal arguments, and have ultimately determined that evidence to be inadmissible, I have not had regard to that evidence in coming to my judgment in this case. I also have not had regard to any media reporting or social media or conducted any of my own research.
10The evidence adduced in this trial is the evidence of each of the witnesses (whether presented by way of pre-recorded evidence or in person), the exhibits, and the agreed parts of police statements which were read into evidence by the prosecutor. The transcripts of evidence given in this trial, and transcripts of recordings tendered as exhibits in this trial, are to be used as an aid only and are not a substitute for the evidence adduced at trial. The addresses of counsel are not evidence.
11As the judge of the facts and the law, I must consider all of the evidence in the case, find the facts, and only draw reasonable inferences or conclusions based on the evidence that I accept. Where competing inferences arise about an element of the offence, I must determine whether the inference is the only reasonable inference open, so as to leave no reasonable doubt about that element. I must apply the law to the facts as I find them.
12I must bring an open and unbiased mind to the evidence and weigh it logically and dispassionately, free of partiality or prejudice. This is particularly important in this case where the complainant has clearly suffered significant injuries as a result of an assault upon him. That circumstance does not, however, change the fact that I must deliver my verdict according to the evidence – determining whether the evidence presented has proved the offences charged.
Separate Consideration
13Whilst there are two accused and a number of charges for each accused, all being heard together in this trial, I must consider the case against each accused separately, and in light only of the evidence which applies to that accused. Further I must consider each charge which is presented against each accused separately and in light only of the evidence which is relevant to that charge. It would be wrong to say that simply because an accused is guilty or not guilty of one charge, that he must be guilty or not guilty of another charge. Similarly, in this case it would be wrong to reason that because one accused is guilty or not guilty of a particular charge, that the other accused is similarly guilty or not guilty of that charge.
14This is not a case where, by reason of the evidence or the offence charged, the verdict on each charge as between the accused must be the same. I must ask myself in respect of each accused on each charge whether the evidence relating to that accused, and that charge, has satisfied me beyond reasonable doubt that the accused is guilty of that particular offence. If the answer is ‘yes’, then I must find that accused guilty of that charge. If the answer is ‘no’, then I must find that accused not guilty of that charge.
Credibility, Reliability and Prior Inconsistent Statements
15I must assess and determine the credibility and reliability of each witness and I may accept all, some or none of a witness’ evidence. I must base my verdict only on evidence I find to be credible and reliable. It is for me to decide whether each witness is telling the truth and whether they correctly recall the facts about which they are giving evidence. In doing so I bear in mind that I should not make an assessment simply on the basis of how a witness gave evidence. Witnesses come from different backgrounds, have different abilities, values and life experiences. There are too many variables to make the manner in which a witness gave evidence the only, or even the most important factor, in my decision.
16Further most of the oral evidence given by witnesses in this trial was put before me either by way of the playing of previously recorded evidence, or – where witnesses were giving viva voce evidence – by way of audio-visual link. I must not draw any inference adverse to either of the accused from the fact that the evidence was presented in this way; and in respect of each witness, I must not give their evidence any greater or lesser weight because of the use of these arrangements. I must treat the evidence given by each of these witnesses in exactly the same way as I treat the evidence of any other witness in these proceedings.
17In this case, a number of witnesses – including the complainant – were cross-examined about prior versions of events given by them which were alleged to be inconsistent with evidence they gave at trial. If I accept that the witness made the previous statement, there are two ways in which I can use that evidence. Firstly, I can use the contents of the previous statement as evidence in the case. Secondly, if I find that the witness’s evidence is inconsistent with his or her account in court, then I can use that statement when assessing their credibility or reliability.

The Charges and their Elements
18Turning now to an overview of the elements of the charged offences. As previously noted, the prosecution puts its case on the basis of complicity. The prosecution case is that Mr Hartnett was the person who committed each of the offences and that Mr Dove assisted and encouraged Mr Hartnett to commit the offences. The prosecution accepts that Mr Sellar was present and involved in some way in the offending but given the evidence of the complainant, the prosecution does not assert as part of its case that Mr Sellar was the principal offender. However, in the event that I am not satisfied beyond reasonable doubt that Mr Hartnett was present at the scene and was the principal offender, the prosecution still contends that Mr Dove assisted and encouraged the principal offender – whether that offender was Mr Hartnett or Mr Sellar – to commit each of the offences.
19Given the manner in which the case has been argued, I will deal firstly with an overview of the elements of statutory complicity and then with an overview of each of the offences. I will return to discuss the evidence as it relates to each of the elements later in this judgment.
Statutory Complicity – Assisting or Encouraging
20In order for an accused to be found guilty of an offence by assisting or encouraging another person to commit the offence, the prosecution must prove three elements beyond reasonable doubt. Firstly the prosecution must prove that someone – the principal offender – committed the offence in question. Secondly the prosecution must prove that the accused assisted or encouraged the principal offender to commit the offence. Thirdly, the prosecution must prove that the accused provided that assistance or encouragement intentionally.
21The first element requires the prosecution to prove beyond reasonable doubt that someone committed the offence the subject of each charge. So for charge 1, the prosecution must prove that someone committed the offence of aggravated burglary. In circumstances where I cannot be sure whether the accused himself committed the offence, or assisted or encouraged the principal offender to do so, I do not need to resolve this issue. If the prosecution satisfies me beyond reasonable doubt that the accused either committed the offence himself or assisted or encouraged another person to commit the offence, I may still find the accused guilty of the offence.
22The second element the prosecution must prove beyond reasonable doubt is that the accused assisted or encouraged the principal offender to commit the offence. The prosecution does not need to prove that the accused’s words or actions caused the principal offender to commit the crime – a person can assist or encourage someone to commit an offence even if the other person already intended to commit the offence. The prosecution also does not need to prove that the principal offender was actually assisted or encouraged by the accused’s conduct. The element will be proved as long I can be satisfied beyond reasonable doubt that the accused made an effort to assist or encourage the principal in circumstances in which the principal offender could have been assisted or encouraged by the conduct.
23The third element requires the prosecution to prove that the accused intentionally assisted or encouraged the commission of the offence. This requires the prosecution to prove that at the time the accused provided the assistance or encouragement to the principal offender, he knew all the essential circumstances (or elements) needed to establish the offence, or believed that those essential circumstances existed. I must find that the accused, at the time of committing the conduct which constituted the assistance or encouragement, actually knew of or believed in all of the essential circumstances. It is not enough for me to find that the accused should have known those circumstances.
24Turning now to each of the offences.
Charge 1 – Aggravated Burglary
25Charge 1 on the indictment alleges that Mr Dove and Mr Hartnett on 21 March 2016 entered a building situated at 46 Sybil Street, Derbun with intent to commit an offence involving an assault to a person therein and, at the time, had with them an offensive weapon namely a spanner, and/or at the time of entering there was a person present in the building and the accused either knew that the person was present, or was reckless as to whether or not the person was present.
26In order to prove this offence, the prosecution must prove the following elements beyond reasonable doubt:
(a)   the accused entered the building at 46 Sybil Street, Derbun;
(b)   the accused did so as a trespasser;
(c)   when he entered the building, the accused intended to commit the offence of common assault; and
(d)   the accused either had an offensive weapon with him when he entered the building; or alternatively, at the time of entry to the building there was a person present in the building and the accused either knew the person was present, or was reckless as to the presence of that person.
27In the present case there is no dispute that someone entered the building at 46 Sybil Street, Derbun as a trespasser in the early hours of 21 March 2016. There is further no dispute that the person who entered had with them an offensive weapon; and/or that at the time of entry to the building there was a person present in the building and the person who entered knew the person was present. The principal issue in dispute in respect of this charge is whether either of the accused actually entered the building or assisted or encouraged the person who entered the building. If I am satisfied that either of the accused assisted or encouraged the principal offender, then a secondary issue arises as to the accused’s knowledge of the principal offender’s intention at the time of entering the building.
28I note that I am not required to consider any alternative offences in respect of charge 1 if I am not satisfied that the charge has been proven beyond reasonable doubt.
Charge 2 – Intentionally Cause Serious Injury
29Charge 2 on the indictment alleges that on 21 March 2016, Mr Dove and Mr Hartnett intentionally caused serious injury to Caleb Phillips. The four elements which the prosecution must prove beyond reasonable doubt are:

(a)   the complainant suffered a serious injury;
(b)   the accused caused the complainant’s serious injury;
(c)   the accused intended to cause the complainant’s serious injury; and
(d)   the accused acted without lawful justification or excuse.
30The first element requires the prosecution to prove that Mr Phillips suffered a serious injury. A serious injury is an injury, or the cumulative effect of several injuries, which ‘endangers life’ or is ‘substantial and protracted’. In the present case the prosecution relies on the cumulative effect of a number of injuries in proof of the element.
31The second element that the prosecution must prove is that the accused caused the complainant’s serious injury. As will become apparent, there were a number of potential causes of the various injuries which the prosecution seeks to rely upon to establish the serious injury. Some of Mr Phillips’s injuries may have been caused whilst he was escaping through the bedroom window of the house, and some may have been caused either through the complainant being hit with a large spanner, through contact by the accused with the complainant’s legs, or through the complainant falling on to the hard road surface during the alleged altercation on the street. This will be a factual matter for my determination in due course.
32In order for the prosecution to prove that the accused’s acts caused the serious injury, they do not have to prove that the accused’s actions were the only cause of the serious injury. I may find that the accused’s acts caused the serious injury if they were a substantial or significant cause of that result. Further, the prosecution does not have to prove that the accused’s acts were the direct or immediate cause of Mr Phillips’s serious injury – the element can be proven if the prosecution can establish that the accused’s acts were a substantial or significant cause of that result. When considering a situation in which injuries are alleged to have been caused in the process of the complainant fleeing from the accused, to meet the element the prosecution would be required to prove beyond reasonable doubt, firstly, that the accused’s actions were a substantial or significant cause of the complainant fleeing, which in turn caused the injury or injuries; and secondly that the complainant acted out of a well-founded or reasonable fear of the accused, and the complainant’s acts of self-preservation were a natural consequence of the accused’s conduct.
33The third element requires the prosecution to prove that at the time of committing the acts which caused the injuries to the complainant, the accused intended to seriously injure the complainant – that is the accused intended to inflict an injury which would endanger the complainant’s life or which would be substantial and protracted. It is not however necessary for the prosecution to prove that the accused intended to inflict the injury the complainant actually suffered. The element will be established even if the prosecution establishes beyond reasonable doubt that the accused intended to inflict a different kind of serious injury.
34In this case there is no dispute in respect of the fourth element. However, the first three elements are all in issue. Whilst both accused deny causing any injury to Mr Phillips – and indeed Mr Hartnett denies being present at the scene – both accused dispute that the prosecution has proven beyond reasonable doubt that the injuries suffered by Mr Phillips, even in combination, amount to a serious injury. Further, Mr Dove contends that if I was satisfied that he was a principal offender – which he disputes – the prosecution has not proven causation or that he had the requisite intention to cause a serious injury. Additionally, in the event that I am satisfied that Mr Dove was assisting or encouraging the principal offender (which he disputes) the prosecution has not established that he had the requisite knowledge in respect of the state of mind of the principal offender.
Charge 3 – Recklessly Cause Serious injury (Alternative to Charge 2)
35As identified earlier, charge 3 is an alternative to charge 2 and only falls to be considered for each accused if I have found that accused not guilty of charge 2.
36In order to prove the charge of recklessly causing serious injury the prosecution must prove the following elements beyond reasonable doubt:
(a)   the complainant suffered a serious injury;
(b)   the accused caused the complainant’s serious injury;
(c)   the accused was aware that his acts would probably cause serious injury to the complainant; and
(d)   the accused acted without lawful justification or excuse.
37The matters which the prosecution must prove in respect of the first two elements and the last element are the same for both intentionally causing serious injury and recklessly causing serious injury and I will not repeat them.
38In order to establish the third element the prosecution must prove beyond reasonable doubt that at the time the accused did the acts which caused the complainant’s injury, he was aware that those acts would probably result in the complainant being seriously injured – that is, the accused knew that the complainant was likely to be seriously injured by his actions. It is not sufficient for the prosecution to establish that the accused knew it was possible that the complainant would be seriously injured; the accused knew that it was probable that the complainant would have been injured; or a reasonable person would have recognised the likelihood of serious injury. The prosecution must prove that the accused knew or was aware that it was probable that his acts would seriously injure the complainant.
39Similarly to charge 2, there is no dispute in respect of the fourth element of charge 3. However the first three elements are all in issue. Whilst both accused deny causing any injury to Mr Phillips – and indeed Mr Hartnett denies being present at the scene – both accused dispute that the prosecution has proven beyond reasonable doubt that the injuries suffered by Mr Phillips, even in combination, amount to a serious injury. Further, Mr Dove contends that if I was satisfied that he was a principal offender – which he disputes – the prosecution has not proven causation or that he had the requisite state of mind to cause a serious injury. Additionally, in the event that I am satisfied that Mr Dove was assisting or encouraging the principal offender (which he disputes) the prosecution has not established that he had the requisite knowledge in respect of the state of mind of the principal offender.
Further Alternatives – Intentionally Causing Injury and Recklessly Causing Injury
40In the event that I am not satisfied that the prosecution has proven either charges 2 or 3 on the indictment, there are further alternatives which I then turn to consider being the offences of intentionally causing injury and recklessly causing injury respectively. The elements of these offences are essentially the same as the serious injury offences on the indictment, save that in respect of each element, injury is substituted for serious injury.

The Evidence
41This trial lasted approximately three weeks, I heard evidence from more than twenty witnesses and a number of audio and documentary exhibits were tendered. It is neither possible, nor necessary, to refer to the evidence of every witness or exhibit in this judgment. However, as already noted, I have considered all of the evidence in the course of my deliberations.
42As already identified, much of the evidence of witnesses in this matter was presented before me by way pre-recorded evidence, or the reading in of police statements.
43It is useful for me to note at the outset that the only prosecution witnesses who gave evidence ‘in person’ in this trial were Mr Phillips (albeit a large part of his evidence had been recorded at a previous hearing in 2019), Detective Senior Constable Bethany Cooke[9], and Sergeant Oliver Heaton[10] (albeit a large part of his evidence had also been recorded at a previous hearing in 2019). Mr Dove also gave evidence in person at this trial.
[9] A pseudonym
[10] A pseudonym
44The evidence of Senior Constable Zane Waller[11], Sergeant Lucas Farrow[12], Dr Adam Christie, Dr Rachel Marr, Leading Senior Constable Hamish Bull[13], Leading Senior Constable Thomas Prinsep[14], Detective Senior Constable Alana Rossiter[15], Amelia Lindell[16], Alexandra Pike[17], Kate Outteridge, Emily Apelgren, Detective Senior Constable Claudia Kirwan[18], and the majority of the evidence of Caleb Phillips and Sergeant Oliver Heaton[19], was presented by way of the playing of recordings of evidence which had been given by those witnesses at previous hearings in 2019 with different counsel representing each of the prosecution, Mr Dove and Mr Hartnett.
[11] A pseudonym
[12] A pseudonym
[13] A pseudonym
[14] A pseudonym
[15] A pseudonym
[16] A pseudonym
[17] A pseudonym
[18] A pseudonym
[19] A pseudonym
45The evidence of Aidan Dyson,[20] Keira Lees,[21] Gladys Tucker,[22] Jasper Brigstocke,[23] Tahlia Asher,[24] Hugo Vaccari,[25] and Ryan Jenkins[26] was presented by way of their police statements being read into the evidence, by consent, by prosecuting counsel Mr Devlin.
[20] A pseudonym
[21] A pseudonym
[22] A pseudonym
[23] A pseudonym
[24] A pseudonym
[25] A pseudonym
[26] A pseudonym
46In summarising the evidence, I will deal firstly with some preliminary matters including the extent of prior contact between the complainant, the accused and other relevant persons; Mr Phillips’s pre-existing hip issues; and events leading up to the incident in the early hours of 21 March 2016. I will then deal with the evidence pertaining to the occurrence of the alleged offences in a chronological fashion including evidence of matters in the immediate aftermath. I will conclude by addressing the evidence in relation to the injuries suffered by Mr Phillips.
The Premises at 46 Sybil Street, Derbun
47There is no dispute that Caleb Phillips was living at the premises at 46 Sybil Street, Derbun in March 2016. The house was owned by John Dunhill,[27] who Mr Phillips referred to as a friend.[28] Mr Phillips said that Mr Dunhill had given him permission to live at the house,[29] albeit he noted that Mr Dunhill’s son – Daniel Finnis[30] [31] – did not like him living there and had sent him a threatening text telling him to get out.[32] Mr Phillips said that he had lived at the house for a year, then moved out for a few weeks before returning to live in the house approximately two months before the incident on 21 March 2016.[33]
[27] A pseudonym
[28]Evidence of Caleb Phillips, T246, and 275.
[29]Ibid, T247.
[30]Ibid, T275.
[31] A pseudonym
[32]Ibid, T469.
[33]Ibid, T247.
48Mr Phillips gave evidence that at the time of moving back in to the house there was a smashed window at the back of the house, which they covered with boards; and the back door had been nailed shut.[34] He identified that he slept in one of the three bedrooms in the house – being the bedroom situated at the front of the house to the right of the front door (if looking at the house from the front garden),[35] and across the hallway from the lounge room (which was to the left of the front door).[36] The bedroom which Mr Phillips slept in had a lock on the door.[37]
[34]Ibid.
[35]Ibid, T247, 264 and 268. See also Exhibit D, photographs 1, 2 and 3
[36]See, eg, Exhibit D, photograph 48.
[37]Evidence of Caleb Phillips, T247.
Mr Phillips’s Hips Prior to the Incident
49As at 21 March 2016, Mr Phillips had two plastic hips – having had a double hip replacement.[38] He gave evidence that his hips had dislocated a lot of times since his operations, and estimated that they had popped out ten times before the incident in March 2016.[39] He said that sometimes his hip might not pop out for a year, and then at other times once it had popped out, it would pop out again within a couple of days.[40] He also explained that his hip can pop out just standing there, or if he moves the wrong way. He gave examples of when his hip had popped out including when he had tripped over a tree, and bent down to put an aerial cable in a television.[41] Mr Phillips gave evidence that he knows when his hip has popped out.[42] He said when his hip dislocates there is pain and he goes straight down.[43]
[38]Ibid, T246.
[39]Ibid, T480.
[40]Ibid.
[41]Ibid, T527-528.
[42]Ibid, T528.
[43]Ibid, T533.
50Mr Phillips confirmed that at the time of the incident he was taking a dose of 200mg of morphine per day for pain relief in relation to his hips – 100mg in the morning and 100mg at night.[44] However he said that this medication did not affect his sight, hearing, memory, or perception of things.[45]
Prior Contact between Mr Phillips, the Accused and Other Relevant Persons
[44]Ibid, T296, and 532.
[45]Ibid, T532.
Prior Contact between Caleb Phillips and Nathan Hartnett
51Mr Phillips gave evidence that he had known Nathan Hartnett for a long time growing up and that he had seen him around as a child.[46] He said that he had known Mr Hartnett for five to six years, and as at March 2016 did not know anyone else with the Christian name ‘Nathan’.[47]
[46]Ibid, T248.
[47]Ibid.
52In his records of interview with police on 24 March 2016 (‘first ROI’) and 23 May 2016 (‘second ROI’), Mr Hartnett similarly told police that he had known of Mr Phillips – who he referred to as Curly Phillips – for more than five years,[48] they had both grown up in the town,[49] and Curly’s sister was one of his mum’s good friends.[50] Mr Hartnett further told police that he knew that Mr Phillips lived at John Dunhill’s house,[51] and that he was staying in the end room at the front of the house.[52] He said he knew this because he had been there and seen Curly a few times.[53] He also said that he had been to the house 30 or 40 times in total, which included when Daniel was living there.[54]
[48]Second ROI, Q & A 74.
[49]Ibid, Q & A 71.
[50]First ROI, Q & A 158.
[51]Ibid, Q & A 173-177.
[52]Ibid, Q & A 190-191.
[53]Ibid.
[54]Ibid, Q & A 181, 186-187.
Prior Contact between Caleb Phillips and Owen Dove
53Mr Phillips gave evidence that he had known Owen Dove for about a year or two, and had seen him on four or five occasions in that year or two.[55]
[55]Evidence of Caleb Phillips, T248.
54Mr Dove, in his evidence at trial, agreed that he had known Caleb Phillips for a number of years, and had spoken to him on several occasions.[56] However he said that he would not say that he knew Mr Phillips well – he was just someone he had met.[57] Mr Dove said that he did not know, and Mr Phillips had not told him, that Mr Phillips had a problem with his hips.[58]
[56]Evidence of Owen Dove, T510.
[57]Ibid.
[58]Ibid, T511.
Prior Contact between Caleb Phillips and Matthew Sellar
55At trial, Mr Phillips gave evidence that he had known Matthew Sellar for one or two years prior to the incident.[59] Mr Phillips described Matthew Sellar as being younger and taller than Owen Dove, with a slim build, and browny-mousey coloured hair. He said that there was no similarity between the voices of Matthew Sellar and Owen Dove and that they did not walk in the same way.[60] He further described Mr Sellar as being older, taller and skinnier than Nathan Hartnett – and similarly said that their voices and the way they moved was different.[61]
[59]Evidence of Caleb Phillips, T248.
[60]Ibid T530-531.
[61]Ibid, T531.
56During cross-examination, Mr Phillips agreed that in a police statement which he had made on 29 March 2016, he had told Detective Claudia Kirwan that some years prior to the current incident, in approximately 2013, Matthew Sellar was a person who was involved in standing over him for money. He agreed that in his statement he had said that he was in a house when Matthew Sellar came over with another person and was egging people on, and that he had been stood over by Matthew Sellar for a few hundred dollars of debt that somebody else owed him.[62]
[62]Ibid, T486-487.
57By contrast, Mr Phillips was also taken to evidence he had given at committal on 11 November 2016 – only six months later – where he said ‘since I met [Matthew], we never had – I’ve got the utmost respect for him. He’s done the right thing by me and I could never done the wrong thing by him.’[63] At trial, on 30 October 2019, Mr Phillips also added that after this he had gone around to a friend’s house and Mr Sellar was there; he had met him and he seemed all right.[64]
[63]Ibid, T488.
[64]Ibid, T488-489.
Prior Contact between Nathan Hartnett, Owen Dove and Matthew Sellar
58Mr Dove gave evidence that he knew Mr Hartnett from the brief time he stayed at Derbun Caravan Park, their relationship was alright, and that Nathan was a friend of his both in 2016 and currently.[65]
[65]Evidence of Owen Dove, T511.
59Insofar as his relationship with Matthew Sellar, Mr Dove identified that he had met Mr Sellar in Mildura and knew him well as he was one of the close people he met when he first moved to Mildura from South Australia.[66] He stated that Mr Sellar lived in Derbun before moving to Mount Horlong,[67] and Mr Sellar would drive him around everywhere. He also said that Mr Sellar was always with him unless he, Mr Sellar, was at his girlfriend’s house when he was staying in Derbun.[68]
[66]Ibid, T511.
[67] A pseudonym
[68]Ibid, T513.
60Mr Dove also stated that Nathan Hartnett and Matthew Sellar knew each other because they had all been together at the same place or at someone’s house, and that Mr Sellar was always with him.[69]
[69]Ibid.
Prior Contact between Millie Lindell and Others
61Amelia Lindell[70] (also known as Millie Lindell) was engaged to Nathan Hartnett at the time of the alleged offences in March 2016, and the two of them lived together in Derbun.[71] By the time of the trial in October 2019, they had two children together, but had separated some time earlier in January 2019.[72]
[70] A pseudonym
[71]Evidence of Amelia Lindell, T588, 590. See also Mr Hartnett’s first ROI, Q & A 63-64.
[72]Evidence of Amelia Lindell, T588.
62Ms Lindell gave evidence that she knew Owen Dove and that he was a friend of both her and Mr Hartnett. She said that she had known Mr Dove for a couple of months at the time of the alleged incident.[73] Ms Lindell gave evidence that she had also known Matthew Sellar for a couple of months at the time of the incident and had come to know him through Owen Dove.[74]
[73]Ibid, T588-589.
[74]Ibid, T589.
63By contrast, Ms Lindell said that she had known Mr Phillips for years through her best friend Emily, and was aware that Mr Phillips was a friend of Mr Hartnett as well.[75]
[75]Ibid, T589.
Events Prior to 21 March 2016
64Mr Dove gave evidence that between 18 and 20 March 2016 he travelled to Kengoon[76] to see his cousin, Tristan Basedow,[77] who was incarcerated at Wyndwralmee Prison.[78] [79] He went with a young woman named Madison[80] – who did the driving, as well as his cousin’s girlfriend Scarlett[81] and her child Brooke,[82] and his cousin’s daughter Grace Basedow[83] who came over from Adelaide.[84]
[76] A pseudonym
[77] A pseudonym
[78]Evidence of Owen Dove, T465.
[79] A pseudonym
[80] A pseudonym
[81] A pseudonym
[82] A pseudonym
[83] A pseudonym
[84]Ibid, T466.
65Mr Dove said that they left Kengoon on the Sunday afternoon (20 March 2016), went to Wyndwralmee Prison and then drove back home to Mount Horlong.[85] Mr Dove said that he believes that he spoke to Nathan Hartnett about an anniversary celebration on the phone.[86] He said that he might have talked to Nathan Hartnett on the phone or sent a text – he couldn’t remember exactly as it was a long time ago.[87] He also said he thought he received a phone call, but on the way out he was dropping out.[88] Mr Dove was of the view that they had arrived home in Mount Horlong in the dark, maybe about 8pm or 9pm.[89]

[85]Ibid, T466-467.
[86]Ibid, T510.
[87]Ibid, T516.
[88]Ibid, T510.
[89]Ibid, T467.
66The call charge records for phone number 0477 457 588 (being Owen Dove’s phone (‘the Dove phone’)),[90] and phone number 0476 303 125 (being Amelia Lindell’s phone, which she said Mr Hartnett also used occasionally[91] (‘the Lindell/Hartnett phone’)),[92] establish that there were a number of phone calls made from the Lindell/Hartnett phone to the Dove phone between 4.27pm and 4.28pm, which were immediately followed on each occasion by the Dove phone contacting MessageBank on ‘101’. At this point the Dove phone was utilising the Menzies Hill[93] mobile tower.
[90]Ex AD.
[91]Evidence of Amelia Lindell, T593.
[92]Ex AE.
[93] A pseudonym
67An SMS was then sent from the Lindell/Hartnett phone to the Dove phone at 4.32pm, at which point the Dove phone was utilising the Bagshot mobile tower. There were then further regular text messages and phone calls between the Lindell/Hartnett phone and the Dove phone throughout the afternoon and evening with the Dove phone utilising mobile towers at Golden Square at 5.16pm; Kangaroo Flat at 5.38pm and then at Mount Horlong from 8.32pm until 1.17am the next morning – being 21 March 2016. The movement of the Dove phone is consistent with Mr Dove travelling from Wyndwralmee Prison to Mount Horlong on the afternoon and early evening of 20 March, as stated.
68In his first ROI, Nathan Hartnett told police that he had been at Caleb Phillips’ house on 20 March 2016,[94] somewhere between 6pm and 8pm.[95] It wasn’t dark at the time.[96] He said that he went to Curly’s house to say ‘g’day’ to him because they are friends,[97] and that his missus and some other friends where with them too.[98] Mr Hartnett said that he knocked on the side window and on the front door to see if Mr Phillips was up. Mr Hartnett said that he thought Mr Phillips might have been on ‘morph’ and ‘nodded off’ so he was trying to wake him up.[99] Mr Hartnett said he was at the house for 10, 20 minutes[100] and when asked by police what they were having a chat about, said ‘just everything’.[101] Ultimately Mr Hartnett said that he, and the people who had gone to Mr Phillips’s house with him, left and went back to his house and had a few drinks.[102] I note that Mr Phillips did not give any evidence as to his movements in the early evening of 20 March 2016.
[94]First ROI, Q & A 198.
[95]Ibid, Q & A 217-219.
[96]Ibid, Q & A 218.
[97]Ibid, Q & A 200.
[98]Ibid, Q & A 205-206.
[99]Ibid, Q & A 220.
[100]Ibid, Q & A 205.
[101]Ibid, Q & A 202.
[102]Ibid, Q & A 223-228.
69The phone records for the Lindell/Hartnett phone,[103] in combination with screenshots of Mr Phillips’s mobile phone,[104] shows that a text message saying ‘where the fuck are ya’ was sent from the Lindell/Hartnett phone to Mr Phillips’s mobile phone (0411 176 126) at 7.34pm on 20 March 2016. A further text message was then sent from the Lindell/Hartnett phone to Mr Phillips’s phone at 7.35pm which said ‘its Nathan fucking answer cu t’. At 7.53pm there was an attempted phone call from the Hartnett/Lindell phone to Mr Phillips’s phone which lasted 0 seconds, and then a further SMS from the Lindell/Hartnett phone to Mr Phillips’s phone at 8.39pm. In her evidence, Ms Lindell, after initially suggesting that she could have sent the messages to Mr Phillips at 7.34pm and 7.35pm, conceded that the message sent at 7.35pm was sent by Mr Hartnett, but remained equivocal about who had sent the other messages and made the call.[105] There is no evidence before me as to the content of the SMS at 8.39pm.
[103]Ex AE.
[104]Ex E.
[105]Evidence of Amelia Lindell, T597-598.
70Mr Phillips gave evidence that on the evening of 20 March 2016 he went to bed at around 9pm or 10pm,[106] and was fully clothed at the time.[107] He said that he was not intoxicated and had not used methylamphetamine prior to the incident.[108] Mr Phillips said that before he went to bed he checked the house to make sure everything was secure and the front door was locked and all of the windows were shut.[109] He said the lounge room light and the lamp in his bedroom were still on, as he usually sleeps with the light on, and the door to the bedroom was locked.[110] He also said that he had his mobile phone with him at the time.[111] Mr Phillips gave evidence that he knew he had a phone call before he went to sleep, but did not say who that phone call was from, whether he answered it, or how long the call lasted.[112] I was also not provided with any phone records for Mr Phillips’s phone.
[106]Evidence of Caleb Phillips, T248.
[107]Ibid, T477.
[108]Ibid, T477 and 530.
[109]Ibid, T248-249.
[110]Ibid, T248-249.
[111]Ibid, T249.
[112]Ibid, T249-250
71Millie Lindell, gave evidence that on the evening of 20 March 2016, she and Mr Hartnett were celebrating their anniversary. Ms Lindell said that she had been drinking continuously through the afternoon, and into the evening, but that she was not using ‘ice’ on that day.[113] She said that she and Mr Hartnett were home in the evening and had a couple of people over – including their neighbour Shane O’Gorman[114] and others from the flats.[115] Ms Lindell initially said that their visitors came over at ‘midnight, maybe’,[116] but shortly thereafter agreed with the prosecutor that it was before midnight that these visitors left.[117] When asked, Ms Lindell said that she did not agree that Mr Hartnett contacted Mr Dove to bring over some more alcohol when they started to run out; but also conceded that she did not remember whether Mr Hartnett actually talked about homemade whiskey and getting Mr Dove to bring something to drink.[118] Ms Lindell gave evidence that after their visitors left, she and Mr Hartnett stayed at their home and went to bed.[119] Mr Hartnett similarly confirmed in his first ROI, that he had told police on 22 March 2016 in a police statement, that he and Millie had been drinking at home on that evening to celebrate being together for 12 months, and that the two of them then went to bed.[120]
[113]Evidence of Amelia Lindell, T618.
[114] A pseudonym
[115]Ibid, T590-591.
[116]Ibid, T590.
[117]Ibid, T591.
[118]Ibid, T626.
[119]Ibid, T591.
[120]First ROI, Q & A 62-66.
72Mr Dove gave evidence that when he, and the people he was with, got back to Mount Horlong, Madison was picked up by her mother and went home to Derbun and Scarlett and the two girls stayed at his house until their bus arrived to take them to Adelaide.[121] Mr Dove said that Gabrielle,[122] his partner, and his dog Snickers[123] had both remained at home over the weekend.[124] He said that when he and the people he was with got home, Matthew Sellar was already at his house, noting also that Matthew Sellar is always at his house as he lives just at the end of the street.[125] Mr Dove gave evidence that he had spoken with Mr Hartnett on the phone from the time he got back to Mount Horlong, and that he was going to head to Mr Hartnett’s to have drinks because he was celebrating his anniversary, or something, with Millie.[126]
[121]Evidence of Owen Dove, T467.
[122] A pseudonym
[123] A pseudonym
[124]Ibid, T520.
[125]Ibid, T471 and T515.
[126]Ibid, T472-473.
73When Mr Dove was challenged in cross-examination as to why he didn’t immediately head to Derbun to see Ms Lindell and Mr Hartnett when they got home, he said that he didn’t because he started drinking first and that Scarlett, Brooke and Grace had to wait for the bus.[127] He conceded that there would have been time to get to Derbun and back before the bus arrived, but said that he did not go there.[128]
[127]Ibid, T516.
[128]Ibid, T517.
74Mr Dove said that he and Mr Sellar walked with Scarlett and the two girls to the station to catch the bus, and that he did this because while it was not a long walk, it was late at night.[129] Mr Dove agreed that CCTV footage from the bus, which was played during the trial, depicted him and his group at the Mount Horlong station.[130] Mr Dove said that he and Mr Sellar wanted to catch the bus as well as they were planning to going to Mr Hartnett’s house in Derbun.[131] He said that he and Mr Sellar were not let on to the bus by the driver, and that he (Mr Dove) was pretty cheerful and under the influence of alcohol at the time.[132]
[129]Ibid, T519.
[130]Ibid, T467. See also Ex S – CCTV footage.
[131]Evidence of Owen Dove, T472.
[132]Ibid, T473.
75Consistent with this, Mr Ryan Jenkins, the bus driver, said that when he pulled into the Mount Horlong station at 11.45pm he saw five people being two males, an older female, a teenager and a younger girl. He knew that he had to pick up three females as per his manifest. He said the men had plastic bags with alcohol with them and seemed drunk but friendly. He gave evidence that he told the two guys that he couldn’t take them, and then drove off.[133]
[133]Evidence of Ryan Jenkins, T307-308.
76Call charge records for both the Dove phone and the Lindell/Hartnett phone show that there were multiple text messages between the two phones between 11.49pm and 11.53pm.[134] The content of two of those messages are captured in a screenshot of the Lindell/Hartnett phone which was taken by police on 22 March 2016.[135] One of the messages sent at 11.52pm from the Lindell/Hartnett phone to the Dove phone said ‘why wouldnt they let u on. theres no reasin’, whilst one of the messages sent from the Dove phone to the Lindell/Hartnett phone at 11.53pm said ‘Don’t know.bus full he reconds.fukin bullshit.get me a lift and now we go see them.ring me’.
[134]Ex AD and Ex AE.
[135]Ex R, photo 13. See also, evidence of D/S/C Alana Rossiter, T754-755.
77There were then multiple further messages between the two phones between 12.01am and 1.17am on 21 March 2016 – at 12.01am, 12.02am, 12.05am, 12.15am, 12.43am, 12.45am, 12.46am, 1.04am, 1.16am and 1.17am.[136] The only message from this exchange which was captured by the screenshot of the Lindell/Hartnett phone was the message at 1.17am. That message was from the Dove phone to the Lindell/Hartnett phone and said ‘Im on my way to u’.[137]
[136]Ex AD and AE.
[137]Ex R, photo 13.
78Evidence pertaining to who sent the various text messages and who was in communication with whom in the period between 11.49pm and 1.17am was given by both Ms Lindell and Mr Dove.
79Ms Lindell said that she could have sent the 11.52pm message to the Dove phone,[138] and that she did not know whether the 11.53pm message was sent to Mr Hartnett, as she used to talk to Mr Hartnett’s friends as much as he did.[139] Ms Lindell also said that she could not remember whether it was her or Mr Hartnett who made the various calls and sent the various text messages between the Lindell/Hartnett phone and the Dove phone on the afternoon and evening of 20 March 2016, and early hours of 21 March 2016.[140]
[138]Evidence of Amelia Lindell, T600.
[139]Ibid.
[140]Ibid, T598.
80In terms of the content of the other text messages not showing up on Ms Lindell’s phone, whilst Ms Lindell herself was not asked about this, Mr Hartnett in his first ROI told police that Ms Lindell had deleted some of the messages from her phone.[141] He said that she had done that because Ms Lindell had wanted to show Mr Hartnett’s mother some of the text messages, to show her that Mr Hartnett was innocent, but did not want to show Mr Hartnett’s mother all of the messages with all of the other conversations.[142]
[141]First ROI, Q & A 421.
[142]Ibid, Q & A 421-427.
81Mr Dove gave evidence that it might have been Matthew who sent the messages to the Lindell/Hartnett phone at 11.53pm and thereafter, as Matthew was using his phone to talk to Millie because he liked one of Millie’s friends.[143] He said that Matthew had his phone for over an hour whilst he (Mr Dove) was putting radiator hoses on the Suzuki Jeep.[144] Mr Dove said that he did not look at the messages when Mr Sellar gave the phone back to him,[145] and that he did not know what the text messages were about.[146] He did however say that he did not agree that the ‘now we go see them’ part of the message at 11.53pm was talking about going to see at least Mr Phillips or Daniel Finnis.[147] Mr Dove also said during cross-examination that he did not know that Mr Phillips was living in Daniel’s father’s house,[148] and that by 11:53pm there was no plan for he, Mr Sellar and Mr Hartnett to get drugs on this night.[149] Mr Dove said that he believed that Mr Sellar was going to get someone from down there to pick them up,[150] and that they didn’t decide to take the Suzuki until after he had put the hoses back on the radiator.[151] Mr Dove did however concede that the message sent at 1.17am saying ‘I’m on my way to u’ might have been sent by him,[152] and that by 1.17am, he and Mr Sellar were on their way to Derbun.
[143]Evidence of Owen Dove, T477 and 521.
[144]Ibid, T474 and 525.
[145]Ibid, T522.
[146]Ibid, T525.
[147]Ibid, T529
[148]Ibid. T529-530
[149]Ibid, T530.
[150]Ibid, T526.
[151]Ibid, T527.
[152]Ibid, T530.
Mr Dove and Mr Sellar’s Attendance at the Lindell/Hartnett Home
82Mr Dove conceded that Mr Sellar drove them both, and his dog Snickers, to Derbun in his Suzuki Jeep.[153] He further conceded that when they left Mount Horlong that he had a large spanner in the Jeep located on the floor between the driver’s door seat and the back of the Jeep,[154] and that the large spanner which was in the Jeep was the spanner which was later located by police and alleged to have been used in the offending.[155] Mr Dove said that the spanner was in the vehicle so that he could use it to undo the nut to release the spare wheel if he needed to change the wheel.[156] He said that his cousin had undertaken some modifications to the mounting of the spare wheel and that initially a two-piece Stillson set-up was being used for this purpose.[157] He said that he removed the Stillson once he put the spanner in the car.[158]
[153]Ibid, T474-475.
[154]Ibid, T482 and 538. See also Ex P, photo 19 as referred to by Mr Dove at his evidence at T603.
[155]Evidence of Owen Dove, T482.
[156]Ibid, T537.
[157]Ibid, T481-482.
[158]Ibid, T482.
83CCTV footage from a milk bar situated at 71 Roseway Street[159] in Derbun was tendered during the trial as Exhibit AC. That footage showed a vehicle matching the description of Mr Dove’s Jeep going past the milk bar in the direction of Mr Hartnett and Ms Lindell’s home at 1.39am, and then coming back past in the opposite direction at 2.22am. Mr Dove conceded in his evidence that the vehicle shown in the footage was his Jeep, and that he was in the car with Mr Sellar on each occasion.[160]
[159] A pseudonym
[160]Ibid, T541 and 549.
84There is no dispute that Mr Dove and Mr Sellar attended at the home of Mr Hartnett and Ms Lindell during the period between 1.39am and 2.22am. There is however some divergence in the evidence as to what occurred during that time.
85Ms Lindell gave evidence that Mr Dove and Mr Sellar attended at the door sometime after midnight and that she had not been expecting them, despite the text message which was sent from the Dove phone to the Lindell/Hartnett phone at 1.17am.[161] Ms Lindell variably said in her evidence that she was woken up, or was in bed but already awake, when they arrived.[162] She further stated that Mr Hartnett was also present in the house when they arrived, and she thought he got up but she could not remember.[163] She said that Mr Dove and Mr Sellar came into the house[164] and she stayed in bed after they arrived, but was listening in to the conversation and could see what was going on.[165] She said that while it was a one bedroom unit, they slept in the lounge and so they were all effectively in the one room.[166]
[161]Evidence of Amelia Lindell, T591 and 601.
[162]Ibid, T591 and 626.
[163]Ibid.
[164]Ibid, T591.
[165]Ibid, T626-629.
[166]Ibid, T626-627.
86During her evidence, Ms Lindell initially gave evidence that when Mr Dove and Mr Sellar came into the house, Mr Dove was holding ‘a big weapon thing’.[167] She said she could not remember what it was now, and could not remember to describe it any further.[168] Later in her evidence, under cross-examination from the prosecutor, Ms Lindell agreed that in her police statement dated 24 March 2016, she had said that Mr Dove had a big metal spanner about as long as her arm; he just held onto it for the time that he was there; she had a good view of him and he never put it down; she didn’t think much of it; and she thinks he carries it around with him everywhere he goes.[169] She further agreed with the prosecutor that what she had said in her statement was true and correct.[170] She maintained that she had seen Mr Dove with a spanner when further cross-examined by Mr Dove’s previous counsel on that point.[171] Ms Lindell did not agree that Mr Dove was carrying a flask of homemade whiskey and couple of bottles of Coke rather than a spanner;[172] and she said that should could not remember Mr Dove’s dog coming into the unit and jumping on the couch.[173] Further, when challenged as to whether the police had told her what to say about the spanner, Ms Lindell responded that whilst she had a clear idea at the time of making the statement that the police needed her help in terms of giving them as much detail as she could about Mr Dove, she doubted that the police knew about the spanner until she told them.[174] Detective Claudia Kirwan similarly gave evidence that the information in Ms Lindell’s statement came from Ms Lindell.[175]
[167]Ibid, T592.
[168]Ibid.
[169]Ibid, T603.
[170]Ibid.
[171]Ibid, T629.
[172]Ibid.
[173]Ibid.
[174]Ibid, T608.
[175]Evidence of D/S/C Claudia Kirwan, T880-881, and 903.
87In evidence in chief, when asked whether ‘they’ said why they were over there, Ms Lindell replied that ‘they’ said they wanted drugs, and when they left ‘they’ said they were going to find drugs. Ms Lindell said ‘they’ said they were going to do that at Curly’s and other peoples. She said that she could not remember whether there was any discussion about using the weapon that Mr Dove had.[176] When cross-examined by the prosecutor later in her evidence in chief, Ms Lindell agreed that in her police statement dated 24 March 2016 she had said that ‘they were talking about going and smashing cunts’; ‘they were chatting about Curly, I don’t know his name and getting drugs from him but no violence’; and ‘they wanted us, Nathan and I, to go to Daniel Finnis’s or Curly’s to get drugs but I wasn’t interested’.[177]
[176]Evidence of Amelia Lindell, T592.
[177]Ibid, T603.
88At all times throughout her evidence, initially in evidence in chief, whilst being cross-examined by the prosecutor during her evidence-in-chief, and whilst being cross-examined by Mr Dove’s previous trial counsel in cross-examination, Ms Lindell maintained that Mr Hartnett remained with her when Mr Dove and Mr Sellar left, and that he was still there when she woke up later that morning.[178]
[178]See, eg, ibid, T593, 603, 631
89Ms Lindell was also asked about a missed call made from the Lindell/Hartnett phone to Mr Phillips’s phone at 2.21am,[179] one minute before Mr Dove’s Jeep was seen in the CCTV footage passing the milk bar in Roseway Street. Ms Lindell said that she could not remember if she had made the call to Mr Phillips at that time but she could have. She also said it was possible that Mr Hartnett made the call, because they were all friends.[180]

[179]Ex AE and Ex E, photos 1, 2 and 3.
[180]Evidence of Amelia Lindell, T596.
90In his first ROI (which is only admissible against Mr Hartnett and not Mr Dove), Mr Hartnett similarly said that he was awake in bed when he heard a knock at the back door, somewhere between 2.30am and 3am.[181] He said that he answered the door and Mr Dove and Matthew were at the door.[182] Mr Hartnett said that he did not know they were coming at that time – that they had said they would pop in but he had not known what time they were going to do that.[183] He said that Mr Dove had a big bottle of alcohol with him,[184] and that they came in and he had a drink with them.[185] Mr Hartnett said that Mr Dove and Mr Sellar stayed at their place for 10 to 20 minutes.[186] He said there were a couple of conversations, but there was no conversation about going around to Curly’s or doing anything like that.[187] He said that Mr Dove did however say they were off to see Daniel.[188]
[181]First ROI, Q & A 66-67.
[182]Ibid, Q & A 67-68.
[183]Ibid, Q & A 73-74 and 411.
[184]Ibid, Q & A 75.
[185]Ibid, Q & A 81.
[186]Ibid, Q & A 95.
[187]Ibid, Q & A 293-296.
[188]Ibid, Q & A 96, 321, and 337.
91Mr Hartnett said that Mr Dove left a rooftop to the Suzuki at his place when they left,[189] and Mr Sellar left his jumper behind.[190] He further said that when Mr Dove and Mr Sellar left they took their bottle of alcohol and the giant spanner.[191] Mr Hartnett said that Mr Dove brought the spanner into the house and he took it with him.[192] He was equivocal about whether he touched the spanner whilst it was at his house saying variably that he didn’t think that he touched the spanner,[193] and that he thought he might have picked it up.[194] Mr Hartnett also volunteered that Mr Phillips carries around an axe in his joint when Mr Hartnett is there, and said he does this because he ‘being a trooper’ or being a ‘funny cunt’.[195]
[189]Ibid, Q & A 102-103.
[190]Ibid, Q & A 113, and 452.
[191]Ibid, Q & A 312. See also Q & A 280.
[192]Ibid, Q & A 275-277, 280, 282, 401, 403.
[193]Ibid, Q & A 473.
[194]Ibid, Q & A 475.
[195]Ibid, Q & A 305.
92Mr Hartnett told the police that after Mr Dove and Mr Sellar left, he went straight to bed with his fiancé and went to sleep, and was in bed for the whole of the rest of the night until he woke up in the morning.[196] He said that he could not tell police what had happened to Curly Phillips because he was in bed.[197] In his second ROI (which is also only admissible against him and not Mr Dove), Mr Hartnett again reiterated to police that he had nothing to do with what happened to Curly Phillips, and that he was in bed.[198]
[196]Ibid, Q & A 45, 120, and 259.
[197]Ibid, Q & A 271-272.
[198]Second ROI, Q & A 78 and 82.
93In his evidence, Mr Dove confirmed that he and Mr Sellar attended at the home of Mr Hartnett and Ms Lindell, and that it was Mr Hartnett who came to the door.[199] When challenged as to the late hour of their attendance, Mr Dove said that he knew it was after midnight but had lost track of how late it was until they got there.[200] Mr Dove said that he, Mr Sellar and Snickers went inside and they had a few drinks.[201] He said that he did not see Ms Lindell as she was in the bedroom, but that she was crying out to Nathan that she wanted him to come back to the room.[202] He said he did not know if Ms Lindell was listening to the conversation.[203]
[199]Evidence of Owen Dove, T478, T541-542.
[200]Ibid, T542.
[201]Ibid, T477 and 542.
[202]Ibid, T477-478.
[203]Ibid, T543.
94Mr Dove said that when he arrived at the house he was carrying a 2 litre flagon bottle and a 2 litre bottle of Coke.[204] He denied that either he or Mr Sellar had a large spanner with them.[205] Mr Dove also denied that he was talking with anyone about Caleb Phillips or Daniel Finnis; albeit he said Mr Sellar and Mr Hartnett could have been talking about them.[206] Mr Dove gave evidence that after leaving Ms Lindell and Mr Hartnett’s house, that Mr Sellar asked him on the way back to the car whether he had any money and that there was a discussion at that time about going halves in ‘a 50’ (3 grams) of ‘pot’. Mr Dove said he agreed to do that.[207] However he denied that there were any conversations whilst inside Mr Hartnett’s home about drugs, wanting drugs, going to find drugs, going and ‘smashing cunts’, going to Curly’s or other people’s places, or wanting Mr Hartnett and Ms Lindell to go with them to Daniel or Curly’s to get drugs.[208] He maintained that the conversation about getting ‘pot’ happened outside, not inside.[209]
[204]Ibid, T478.
[205]Ibid.
[206]Ibid, T551-552.
[207]Ibid, T479, 484 and 497.
[208]Ibid, T560-562.
[209]Ibid, T563.
95Mr Dove gave evidence that he and Mr Sellar stayed at Mr Hartnett and Ms Lindell’s place for somewhere between half an hour and a hour.[210] He said that Mr Hartnett ‘sort of cut things short’ and told them to go as he was going back to bed.[211] Like Ms Lindell, Mr Dove gave evidence that Mr Hartnett saw them out, and that it was only him and Mr Sellar who left the house.[212] He gave evidence that Mr Hartnett remained behind at his home and that he did not see Mr Hartnett again that day at all.[213]
[210]Ibid, T543.
[211]Ibid, T478.
[212]Ibid, T478-479.
[213]Ibid, T489-490, and 510.
96I note, as pointed out by Mr Devlin during the trial, that this latter evidence of Mr Dove appears to be inconsistent with two questions which were put to Ms Lindell by Mr Dove’s previous barrister when Ms Lindell was giving evidence in 2019 – those two questions being ‘the situation is that when Owen Dove and Matthew left, Nathan went with them, didn’t he?’ and ‘and came home by himself sometime later in the night?’ – both of which were answered in the negative by Ms Lindell.[214] Whilst it can be said that ordinarily a barrister would ask questions based on instructions and that there are occasions where conflicting puttage may give rise to issues as to the weight to be given to the evidence of an accused, on reflection I am of the view that the inference that Mr Dove’s position has changed between the hearing in 2019 and this trial is not the only reasonable inference in circumstances where a different barrister was involved, this was the only question of its kind asked by the previous barrister in the material before me, and I do not have any information about the basis on which the previous hearing was conducted, or why the question was asked (and rightly so). Ultimately, it is the answer to the question that is the evidence, not the question itself.
[214]Evidence of Amelia Lindell, T630-631.
Evidence as to Mr Dove’s Movements Prior to the Incident
97Mr Dove gave evidence that upon leaving Mr Hartnett and Ms Lindell’s home, he, Mr Sellar and Snickers got back into the Jeep.[215] There were only two seats in the Jeep, Matthew was driving and he (Mr Dove) got into the passenger seat.[216] As already outlined above, Mr Dove accepted that the CCTV footage from the Roseway St milk bar showed his Jeep going past at 2.22am.[217]
[215]Evidence of Owen Dove, T490.
[216]Ibid, T498.
[217]Ibid, T549.
98Mr Dove gave evidence that they drove to someone’s house, to score pot, but he did not know whose house they went to.[218] He said the house they drove to was 5 to 10 minutes away from Mr Hartnett’s house.[219] Mr Sellar got out of the car and was gone for 5 to 10 minutes.[220] Mr Dove said he stayed in the car and did not watch where Mr Sellar went.[221] When Mr Sellar came back to the car he said he couldn’t get anything.[222]
[218]Ibid, T498 and 508.
[219]Ibid, T564.
[220]Ibid, T498 and 565.
[221]Ibid, T498 and 564.
[222]Ibid, T498.
99Mr Dove said that they then went for a drive to someone’s else’s house.[223] He gave evidence that he did not know where they were going when they left the first location to go to the second location,[224] and the trip was shorter than the trip to the first house.[225] Mr Dove said that Mr Sellar pulled the car up on the road, and it was positioned in the middle of two houses.[226] When presented with a Google map of the area around 46 Sybil St (Exhibit C), Mr Dove nominated the position of the car to be between the house on the corner (46 Sybil Street) and the next door neighbour’s house, somewhere close to the intersection of Salford[227] and Sybil Street.[228]
[223]Ibid.
[224]Ibid, T508.
[225]Ibid, T565.
[226]Ibid, T565-566.
[227] A pseudonym
[228]Ibid, T566-568.
100Mr Dove said that Mr Sellar got out of the car, and he understood that Mr Sellar had got out to get some pot.[229] However, he did not know where Mr Sellar went when he got out of the car as he wasn’t watching him.[230] He said that he might have been on his phone when Mr Sellar got out of the car.[231] Mr Dove gave evidence that Snickers jumped into the driver’s seat of the Jeep as soon as Mr Sellar got out.[232]
The Incident at 46 Sybil Street – Inside the House
[229]Ibid, T498.
[230]Ibid, T569.
[231]Ibid, T499.
[232]Ibid.
Evidence of Mr Phillips
101Mr Phillips gave evidence that he woke up to a loud banging out the back – which he believed was coming from the back room where he had boarded up the window.[233] He said that he got out of bed and that he was a bit flustered.[234] The only light was coming from the lamp and the television which were still on.[235] Then just after he started hearing the banging, the power went out and the lamp and television turned off.[236] He said the banging went on for a while, it seemed like ages but it was probably only five minutes.[237] Mr Phillips said the banging then stopped and he heard footsteps and voices coming up the hallway.[238] He was still in his bedroom with the door closed at this point.[239] He said he could not hear what the voices were saying, nor could he identify them at this stage.[240]
[233]Evidence of Caleb Phillips, T250.
[234]Ibid, T250.
[235]Ibid, T282.
[236]Ibid, T255.
[237]Ibid, T250.
[238]Ibid, T250-251.
[239]Ibid, T250.
[240]Ibid, T251.
102Mr Phillips gave evidence that he then rang 000 and got onto them pretty much straight away.[241] He gave evidence that during the 000 call flashlights started coming towards his bedroom door and then someone started smashing his door.[242] He said that a big shifter or wrench, approximately 1 metre long, came through the door, and that with one hit it was nearly a hole big enough to walk through.[243] Mr Phillips said that he walked up to the door and was trying to talk to the person at the door.[244] At trial, Mr Phillips nominated Nathan Hartnett as the person at the door, and said that he could see his face through the door.[245] Mr Phillips said that it was not Mr Sellar at the door.[246] Mr Phillips said that he shone a torch on Mr Hartnett and said ‘Nathan, the cops are coming, cops are on their way mate’.[247] He said Mr Hartnett said something in reply but he did not know what it was.[248] Mr Phillips gave evidence that by this time there were two holes in the door, and that he could see through the hole in the door.[249] He said that he did not hear other voices that he recognised at the door.[250]
[241]Ibid T262 and T282.
[242]Ibid, T251-252, and 283.
[243]Ibid, T252-253 and 283.
[244]Ibid, T253.
[245]Ibid, T253.
[246]Ibid, T477.
[247]Ibid, T253 and 283.
[248]Ibid, T254.
[249]Ibid, T253 and 475.
[250]Ibid, T254.
103Mr Phillips said that he then grabbed an axe from his cupboard and started to smash the middle section of the bedroom window with his axe.[251] He said that he was still on the phone to 000 at the time.[252] Mr Phillips gave evidence that Mr Dove was outside the window. He was coming from the walkway at the side of the house and came to the front of the middle window of the bedroom.[253] Mr Phillips said that Mr Dove had a small flashlight with a very bright light, and that he had a flashlight also.[254] Indeed, Mr Phillips said he had his phone and his flashlight in one hand, and the axe in the other.[255] Mr Phillips gave evidence that they spoke and he asked Mr Dove what was going on. He said that he was pretty sure he told Mr Dove that the police were on their way and that Mr Dove asked him to ring them back and tell them not to come.[256] He said that Mr Dove then walked off in the direction of the front door.[257]
[251]Ibid, T254, 284 and 470.
[252]Ibid, T284.
[253]Ibid, T254-255.
[254]Ibid, T255.
[255]Ibid, T285.
[256]Ibid, T256.
[257]Ibid, T256, and 531.
104At trial Mr Phillips conceded that there was only a small opportunity to see the person at the window,[258] but maintained that the person was Mr Dove. He said that he could see Mr Dove’s whole face;[259] the person walking away bore no resemblance to Mr Sellar;[260] and he knew it was Mr Dove because he had met him a couple of times, and he has a very distinguished voice.[261] He did not agree that he could have made a mistake about who was outside the window.[262] This contrasts with evidence given by Mr Phillips at a committal proceeding in this matter where he gave evidence that lights were in his eyes when he was trying to make observations of the person,[263] and agreed that he might have made a mistake given that he was in a bit of a panic, was trying to get out of the window, and had light being shone in his face.[264]
[258]Ibid, T285.
[259]Ibid, T255, and 532.
[260]Ibid, T532.
[261]Ibid, T255 and 532.
[262]Ibid, T286, and 463-464.
[263]Ibid, T287.
[264]Ibid, T288.
105During his evidence, the 000 call was played to Mr Phillips and he identified his own voice.[265] When asked whether he was able to hear any other voices aside from his own and the operator’s on the recording, Mr Phillips answered that he could hear both their voices – being the voices of Owen Dove and Nathan Hartnett.[266]
[265]Ibid, T262.
[266]Ibid.
106In his evidence Mr Phillips agreed that it was a compact period of time between the door being smashed and him smashing the glass out of the window.[267] He said that after he had broken the window with the axe, there was another bang on the door, and you could nearly walk through it.[268] He said it was at this stage that he jumped out of the window.[269]
[267]Ibid, T529.
[268]Ibid, T256.
[269]Ibid.
Mr Phillips’s 000 call
107As already noted, the 000 call made by Mr Phillips was played and tendered in the trial as Exhibit B. The call was made at 2.53am and 44 seconds on 21 March 2016, and lasted 2 minutes and 15 seconds. During that call, Mr Phillips initially told the operator, amongst other things, that there was a home invasion; someone was in his house; they had turned the power off; they were walking around his house; and he did not know how many people were walking around the house; but he could hear a few of them. The operator then asked Mr Phillips ‘Do they have any weapons?’, and at this stage banging and the sounds of another voice or voices can be heard in the background.
108From this point on in the recording, it is much more difficult, in my view, to discern what exactly is being said by Mr Phillips, and the other person or persons. In my view, Mr Phillips does clearly say ‘fuck off’ and ‘who is it?’ before being heard to say something which I cannot fully make out but which sounds like ‘Nathan the cops are coming. Nato [or Nath, no; or Mate, no] the cops are coming … Fuck off… cops are on their way mate.’ Whilst I am confident that the first word in this segment of the recording is ‘Nathan’ and the last word is ‘mate’, I cannot be confident as to whether the other words said by Mr Phillips are ‘Nate’ or ‘mate’. I also cannot pick up every word that was said by Mr Phillips in this segment of the recording.
109I have similar difficulties with the remainder of the recording. Whilst I am of the view that Mr Phillips says at one point ‘No I didn’t call’ and ‘I’ll ring em back’ and another person says ‘right fucking now’ before the abrupt end of the recording, I cannot be confident as to all of the words said by each voice on the recording. I am also unable to discern whether there was only one other person speaking to Mr Phillips (aside from the 000 operator), or more than one.
Evidence of Mr Dove
110Mr Dove gave evidence that while he was sitting in the car, Snickers started growling.[270] Mr Dove initially said that he did not know how long it was after Mr Sellar had left that this happened,[271] but later said that whilst he could not be exact, he thought Mr Sellar had been in the house maybe five minutes when this happened.[272] Mr Dove gave evidence that Mr Sellar had left the window half down and Snickers jumped out of the window.[273] He said he started calling her but she did not come, so he had to get out of the car.[274] Mr Dove said that Snickers was running off down the footpath and he was calling her, and then he saw someone come out of the house.[275] When asked during cross-examination, Mr Dove said he did hear a bang or a smash before Snickers started growling and jumped out of the window.[276] He said he heard either one bang or one smash; he did not hear a series of bangs.[277]
[270]Evidence of Owen Dove, T500.
[271]Ibid, T500.
[272]Ibid, T568.
[273]Ibid, T500.
[274]Ibid.
[275]Ibid.
[276]Ibid, T568-569.
[277]Ibid, T569, 579 and 580.
111During his evidence Mr Dove accepted that Mr Phillips does know him and knows his voice.[278] However he stated that he was not at Mr Phillips’s bedroom window,[279] that he did not assist Mr Sellar by being at the front window of Mr Phillips’s home and speaking to Mr Phillips;[280] and he strongly disagreed with Mr Phillips’s evidence that his voice was captured on the 000 recording.[281] Mr Dove denied that he was assisting Mr Sellar in relation to entry to Mr Phillips’s premises to obtain drugs.[282]
[278]Ibid, T584.
[279]Ibid.
[280]Ibid, T590.
[281]Ibid, T585.
[282]Ibid.
Records of Interview of Mr Hartnett
112In Mr Hartnett’s first ROI, he denied that he had been present at Mr Phillips’s home and said that he was at his own home in bed at the time of the incident.[283] In his second ROI, the interviewers indicated to Mr Hartnett that they had a transcript of the 000 call made by Mr Phillips. It was put to Mr Hartnett (from the transcript) that Mr Phillips has said during the call ‘Nathan, the cops are coming. Nathan, no, the cops are coming. Nathan. Fuck off, cunts, the cops are on their way mate.’[284] Mr Hartnett responded by saying ‘that’s bullshit’ and maintaining that he was not there and was in bed with his ‘missus’.[285]
The Incident at 46 Sybil Street – Outside the House
[283]See, eg, first ROI, Q & A 234, 236 and 238.
[284]Second ROI, Q 112. I note that whilst I have quoted the extract from the transcript which was put to Mr Hartnett in his second ROI, I have done this only for the purpose of identifying what Mr Hartnett was responding to. I have not taken this transcript into account when making my determination as to what I can hear from the 000 recording.
[285]Ibid, Q & A 112, 116 ad 117
Evidence of Mr Phillips
113Mr Phillips gave evidence that he jumped out of the window of his bedroom to get away.[286] He said that there was a big spanner coming through his door and he had no other way out.[287] Mr Phillips said that he took the axe with him, but he thought he dropped the phone inside and the torch outside.[288]

275Further, taking into account all of the above matters, and in particular the timing and content of the conversations captured on the 000 call, I do not accept that during the 000 call there was a person at Mr Phillips’s window with a torch and with whom he had a separate conversation as he alleges there was. The surrounding evidence, in my view, is not consistent with Mr Phillips’s evidence on this point.
Credibility and Reliability of the Evidence of Amelia Lindell
276Ms Lindell did not present particularly well as a witness in terms of her demeanour. Her attitude when giving evidence strongly suggested that she did not want to be in the courtroom and she did not want to answer questions from anybody – whether they be prosecution or defence. She also had difficulty in answering questions directed to detail both in terms of phone records and conversations which occurred in the period between 20 March and 21 March 2016, and leave was granted for her to be cross-examined by the prosecution as an unfavourable witness.
277However, in assessing Ms Lindell’s evidence, I have also had regard to the fact that she was being asked questions about events which had occurred three and a half years earlier, and in circumstances where she was no longer engaged to Mr Hartnett. Prior to being declared an unfavourable witness and the prosecution being given leave to cross-examine her, Ms Lindell had already volunteered a basic gist of events on that morning (which was not unfavourable to the prosecution case against Mr Dove) including that Mr Dove was holding ‘a big weapon thing’ which she couldn’t describe any further; Mr Sellar and Mr Dove said they wanted drugs; they left to go and find drugs; and they were going to do that at Curly’s and other people’s. When Ms Lindell was taken to her statement, she adopted the contents of her statement and said they were true and correct. Notably, none of the matters put to Ms Lindell were inconsistent with her earlier evidence, rather they provided the detail which she had not been able, or said she had not been able, to provide when asked for specifics earlier in her evidence. When challenged by all counsel, despite not being able to provide detail, Ms Lindell maintained the essential aspects of her version of events.
278In the circumstances, I am of the view that Ms Lindell’s evidence on specific details (such as the detail of conversations and who made or received certain calls, or sent certain messages) is not particularly reliable in the absence of supporting evidence. I do, however, accept her evidence on the basic facts is credible, and for the most part reliable. I will come back to my view on specific aspects of her evidence as it is relevant to the cases against Mr Hartnett and Mr Dove in due course.
Evidence which places Mr Hartnett at the Scene of the Incident
279As already identified, the only evidence which places Mr Hartnett at the scene of the incident on 21 March 2016 is the evidence of Mr Phillips. I have already dealt with my assessment of Mr Phillips’s reliability and credibility.
Other Evidence on the Prosecution Case
280As already noted, there is no forensic evidence placing Mr Hartnett at the scene. However, there is evidence on the prosecution case placing Mr Sellar as a likely participant in events at 46 Sybil Street.
281There is no evidence – forensic or otherwise – placing Mr Hartnett in Mr Dove’s two-seater vehicle. Whilst it is, of course, possible that a third person could also travel in the vehicle, the photographs of the state of the boot of the Jeep[571] – in my view – are not consistent with a third person having travelled in that area of the vehicle.
[571]Exhibit P, photographs 18 and 21.
282The evidence of Mr Dyson is also consistent with there only being three persons present during the incident at 46 Sybil Street. Those three persons, on his evidence, would include Mr Phillips as the person who was yelling out hysterically.
283Amelia Lindell maintained throughout her evidence that Mr Hartnett did not leave the unit with Mr Dove and Mr Sellar, but remained at home with her, in bed and asleep.
284Mr Hartnett maintained throughout both his first ROI and his second ROI that he was not involved in the incident and remained at home asleep in bed. Whilst it could be considered suspicious that Mr Hartnett had knowledge of Mr Dove’s spanner and Mr Phillips’s axe, his explanation about Mr Dove’s spanner was consistent with evidence given by Amelia Lindell that Mr Dove brought the axe into the apartment, and he gave a plausible explanation for his knowledge of Mr Phillips’s axe in circumstances where Mr Phillips himself had identified he kept the axe in his bedroom. Further, in my view, the fact that Mr Hartnett was incorrect in the time that he said Mr Dove and Mr Sellar attended at his apartment, and potentially incorrect in his estimation that they were inside for 10-20 minutes, does not undermine his credibility. This is especially so when it is appreciated that the only thing that can be said with certainty about the timing is that the Jeep passed the milk bar firstly at 1.39am and then some 43 minutes later at 2.22am.
285The text message at 3.50am from the Dove phone to the Lindell/Hartnett phone – ‘On my way back to u. cops r looking 4 me’ – is, in my view, inconsistent in content with Mr Hartnett having been involved in the incident at 46 Sybil Street in a number of respects. Firstly, the message is suggestive of Mr Dove and Mr Hartnett being in different places; and secondly, the message is reflective of Mr Dove being of the view that the police were looking for him. In my view, if Mr Hartnett and Mr Dove had been involved in an aggravated burglary and assault as alleged by Mr Phillips, and had somehow become separated, the message would have referred to the police looking for Mr Hartnett and/or both Mr Dove and Mr Hartnett – not just Mr Dove alone.
286This text message at 3.50am – and the call charge records for the Lindell/Hartnett phone – are also consistent with both Amelia Lindell’s evidence, and Mr Hartnett’s versions of events in first ROI and second ROI, that he was in bed asleep at the time of the incident at 46 Sybil Street. The phone records for the Lindell/Hartnett phone show that the last communication prior to the incident from that mobile phone was at 2.21am on 21 March 2016, and there was no further communication from the phone until 10.04am the following morning. In comparison there are multiple communications from that phone leading up to 2.21am, and post 10.04am.
Conclusion
287Taking into account all of the above matters, the prosecution has not, in my view, established beyond reasonable doubt that Mr Hartnett was present at 46 Sybil Street at the time of the incident. Given the conclusions I have come to about the reliability and credibility of Mr Phillips’s evidence, and the other findings of fact which I have made, I cannot discount Mr Hartnett’s version of events that he was at home in bed at the time of the incident. Nor can I discount as a reasonable alternative, that there were only two people who were present at the scene, and those two people were Mr Sellar and Mr Dove. Accordingly, I am left with a reasonable doubt as to Mr Hartnett’s presence at the scene. In the circumstances, there is no need for me to consider the other elements of either offence, or to consider alternatives which are not set out in the indictment.
288In relation to charge 1 – aggravated burglary – I find Mr Hartnett not guilty.
289In relation to charge 2 – intentionally cause serious injury – I find Mr Hartnett not guilty.
290In relation to charge 3 (as an alternative to charge 2) – recklessly cause serious injury, I find Mr Hartnett not guilty.
Involvement, if any, in Aggravated Burglary – Owen Dove
291An essential element of the prosecution case against Mr Dove for aggravated burglary is the evidence of Mr Phillips that Mr Dove was at his bedroom window with the torch, and/or was seen by Mr Phillips coming out of the front door of the house with a torch as he was ‘running’ towards the road. In the absence of being able to prove either of those acts beyond reasonable doubt, there is no basis for Mr Dove to be found guilty of an aggravated burglary either as a principal offender or as someone assisting or encouraging the principal offender. Mr Phillips did not give evidence of Mr Dove undertaking any other acts which could constitute either the offence of aggravated burglary or assistance or encouragement of the offence of aggravated burglary, and there is no other independent or forensic evidence which establishes his involvement in that offence. Therefore an essential preliminary question is whether the prosecution have proven beyond reasonable doubt that Mr Dove committed either of those acts.
Evidence of Mr Phillips
292As noted, Mr Phillips did give evidence that Mr Dove was at the bedroom window of his house with the torch, and did give evidence that he saw Mr Dove and Mr Hartnett come out of the front door of the house – Mr Hartnett with the shifter and Mr Dove with a torch.
293I have already set out my findings as to the lack of credibility and reliability of Mr Phillips’s evidence when considering the case against Mr Hartnett. I have also already identified that I do not accept, on the evidence before me, that during the 000 call there was a person at Mr Phillips’s window with a torch and with whom he had a separate conversation as he alleges there was. As I noted earlier the surrounding evidence, in my view, is not consistent with Mr Phillips’s evidence on this point.
294The question therefore remains, as an essential preliminary issue, whether I am satisfied beyond reasonable doubt that Mr Dove was inside the house at 46 Sybil Street and was seen exiting from the front door as alleged by Mr Phillips.
Credibility and Reliability of Mr Dove’s Evidence
295Mr Dove gave evidence that whilst he was present at the scene, he did not go near the house at 46 Sybil Street, and he was not involved in any altercation with Mr Phillips. He said the closest he went to Mr Phillips was when he was retrieving Snickers and he maintained that position throughout his evidence. Mr Phillips, of course, despite having told Dr Marr that the offender tried to get his bull terrier to attack him, and having said in evidence in chief that Mr Dove told the dog to get him, or ‘sic him’, volunteered the opinion in cross-examination that the dog was a nice dog and accepted that Mr Dove may have simply been calling to Snickers rather than saying ‘sic him’.
296Much of Mr Dove’s evidence was consistent with other evidence in the case. The phone records for the Dove phone, the CCTV footage from the Mount Horlong train station, the evidence of Ryan Jenkins, the photograph of the message he agrees he sent at 1.17am, the CCTV footage from the milk bar, and the passage of time between the Jeep passing the milk bar and the incident at 46 Sybil Street commencing, were all consistent with Mr Dove’s asserted movements on the evening.
297Further, the forensic evidence was not only consistent with Mr Dove’s version of events in circumstances where he alleged that it was Mr Sellar who went into the house of Mr Phillips, and it was Mr Sellar who was involved in the altercation with Mr Phillips, but it was also not inconsistent with his version of events in circumstances where he accepted that Mr Sellar had been in the Jeep with him throughout the evening, and conceded that the torch which was located after the incident was the torch from his vehicle. There was no DNA or forensic evidence which contradicted his version of events.
298The three potential difficulties with Mr Dove’s evidence really arise from the inconsistencies between his evidence and Ms Lindell’s evidence as to what occurred at the Lindell/Hartnett residence; the potential discrepancy with Mr Dyson’ evidence that the offenders were leaving the scene on foot rather than by car; and his explanations in respect of the timing and content of the message which he accepts he sent to the Lindell/Hartnett phone after the incident.
299In respect of what occurred at Ms Lindell and Mr Hartnett’s residence, the main issues in contention between Ms Lindell’s evidence and Mr Dove’s evidence are whether there was any discussion about going to get drugs whilst Mr Sellar and Mr Dove were inside the apartment, and whether Mr Dove had the spanner with him, and held onto it, whilst he was inside the apartment.
300Dealing firstly with the conversations, I note that Ms Lindell expressly denied in her evidence at trial (consistent with her original police statement) that there was ever any discussion about violence being used against Mr Phillips. However, she at all times maintained that there was a conversation where they – being Mr Dove and Mr Sellar – discussed going and getting drugs and mentioned Curly Phillips and Daniel Finnis. Mr Dove did not deny that those two names could have been mentioned at the apartment by Mr Sellar and/or Mr Hartnett but maintained that the conversation between himself and Mr Sellar about going to get drugs occurred after they had left the apartment. I ultimately accept Ms Lindell’s evidence that a conversation about going to get drugs occurred whilst Mr Dove was in the apartment, and that both Curly Phillips and Daniel Finnis were mentioned – however I cannot be certain whether Mr Dove was a contributor to that conversation.
301Turning to Ms Lindell’s adoption of the assertions in her statement that Mr Dove had a large spanner with him, he never put it down, she didn’t think much of it and she thought he carried it around with him everywhere he goes, I note that Mr Dove denied that this occurred. Mr Dove did however concede that the spanner used in the incident (which was similar in size to that described by Ms Lindell), and which was later located in close proximity to the scene, was his spanner.
302Whilst I accept that it is possible that the spanner was taken into the apartment by Mr Dove – thereby accounting for Ms Lindell’s knowledge as to the spanner, and her inclusion of this detail in her original statement – I find it unlikely that anyone would hold on to a spanner for approximately 30 to 40 minutes without letting go, whilst also having drinks and talking and do not accept that part of Ms Lindell’s evidence. However, even if I was to accept that Mr Dove did take the spanner into Ms Lindell’s home, and reject Mr Dove’s denial that he did so, it is ultimately not Mr Dove who Mr Phillips identifies as wielding the spanner during the incident, and there is insufficient evidence to be able to draw an inference that Mr Dove supplied the spanner to the assailant, or for that matter was even aware that the assailant had removed the spanner from the car and was proposing to use it.
303Dealing with the evidence of Mr Dyson, Mr Devlin in his closing address argued that Mr Dyson, as an off-duty police officer, is a trained observer and significant weight should be placed on his evidence that he did not see a car driving off from the scene as a matter which undermines the credibility and reliability of Mr Dove. However, I am of the view that Mr Dove’s evidence is not necessarily inconsistent with that of Mr Dyson.
304Mr Dyson said in evidence that he could not see what was going on because it was dark, he heard one male yelling in pain, another saying ‘we have to get the fuck out of here’ and he heard people running off. In his 000 call he told the operator that the offenders were leaving on foot running westerly along Sybil Street, that one was yelling and screaming hysterically and another one was trying to console the one who was yelling. In this latter aspect Mr Dyson is clearly wrong in his interpretation of events despite his status as a trained observer. In my view, the latter part of Mr Dyson’ 000 call is more consistent with Mr Dyson witnessing the end part of the altercation between Mr Phillips and his assailant. Further, it is not inconsistent with Mr Dove’s evidence that he picked up Snickers, took off after saying ‘I’m getting the fuck out of here’, and left the other two behind. I do not agree that in the circumstances just because Mr Dyson did not hear a car departing, that Mr Dove could not have left in his Jeep as he asserted. I note that Mr Dyson similarly did not give any evidence of hearing or seeing a dog at the scene.
305Turning finally to the text message at 3.50am. Mr Dove’s explanation of when he sent the message is clearly inconsistent with the call charge records. On Mr Dove’s version of events he would have been sending the text message no more than ten minutes after the incident – that is, no later than 3.10am, and yet it is recorded as being sent at 3.50am. I also did not find his explanation as to why he sent the text message convincing when the content of the message and his explanation for it are compared. Whilst Mr Dove maintained his position in respect of the reasons for and timing of him composing and sending the message despite rigorous cross-examination, I do not accept Mr Dove’s evidence on this point. However, I am not of the view that his unreliability and lack of credibility in respect of this aspect of his evidence impacts upon the entirety of the remainder of his evidence – much of which was supported by other evidence. Whilst it was suggested by the prosecution that the car may have been parked and driven away from a different place,[572] and that the time could have been used by Mr Dove to dispose of the weapons and torch,[573] I note that it would be pure speculation for me to come to either of these conclusions.
[572]Prosecution closing address, T704.
[573]Ibid, T727.
Other Evidence on the Prosecution Case
306There is no other evidence on the prosecution case which bears upon Mr Dove’s involvement or otherwise in the break in at 46 Sybil Street. There is no forensic evidence. There are no eyewitnesses aside from Mr Phillips, and he is not mentioned in the 000 call made by Mr Phillips.
Conclusion
307I accept that Mr Phillips saw Mr Dove at the scene of the incident. However, given the conclusions that I have come to about the credibility and reliability of Mr Phillips’s evidence (and not least his initial willingness to identify Mr Dove as committing acts which he later accepted were not committed by Mr Dove, and in some instances were not committed by anyone at all); I am not able to accept Mr Phillips’s evidence when he says he saw Mr Dove and Mr Hartnett come out of the front door of his house. Further, given my findings as to the credibility and reliability of Mr Dove’s evidence; and the other findings of fact that I have made; I cannot discount Mr Dove’s evidence that he did not go near the house. Nor can I discount that the first occasion that Mr Phillips saw Mr Dove on that evening was in the street, just after he had seen Snickers.
308Accordingly, I am left with a reasonable doubt as to Mr Dove having committed the asserted acts – that is shining his torch in the window of the bedroom during the break-in, or emerging from the front door of the house after Mr Phillips had jumped out of his window – necessary for an aggravated burglary to be established. In the circumstances there is no need for me to consider the other elements of the offence.
309On charge 1 – aggravated burglary – I find Mr Dove not guilty.
Involvement, if any, in Assault on Mr Phillips – Mr Dove
310An essential element of the prosecution case against Mr Dove for intentionally (and recklessly) causing serious injury is the evidence of Mr Phillips that Mr Dove removed the axe from him during the altercation, and pushed his leg while he was on the ground with his leg in the air, causing it to dislocate. In the absence of being able to prove either of those acts beyond reasonable doubt, there is no basis for Mr Dove to be found guilty of any of the charged (or alternative) injury offences either as a principal offender or as someone assisting or encouraging the principal offender. Mr Phillips did not give evidence of Mr Dove undertaking any other acts which could constitute either an injury offence or assistance or encouragement of an injury offence, and there is no other independent or forensic evidence which establishes his involvement in that offence. Therefore, an essential preliminary question is whether the prosecution have proven beyond reasonable doubt that Mr Dove committed either of those acts. If the prosecution has not proven one or both of those acts occurred, then there is no need to consider the other elements of the offence.

Analysis of the Evidence
311I have already dealt with the credibility and reliability of Mr Phillips’s evidence, and the multiple inconsistencies in his versions of events of how his hip came to be dislocated, as part of my consideration of the case against Mr Hartnett. I have also dealt with the forensic evidence and the inability to exclude as an alternative reasonable hypothesis that Mr Sellar was Mr Phillips’s assailant.
312Insofar as the evidence pertaining to the removal of the axe from Mr Phillips is concerned, the first time it would seem that Mr Phillips mentioned the axe in his versions of events was when speaking with Dr Marr two days after the incident. As already identified, at that time Mr Phillips spoke to Dr Marr about the actions of a single offender who hit him in the back of the head and the right leg with a wrench, which caused him to fall to the ground. This contrasts with his evidence at trial that he went to the ground due to tripping when moving backwards. Mr Phillips said that the offender then grabbed his right leg and pushed it up over his head. This contrasts with his evidence at trial in two ways – firstly that there was only one not two different offenders involved; and secondly that his foot was pushed up rather than already being up when it was grabbed and pushed back. Further Mr Phillips told Dr Marr that the tomahawk he had with him was taken off him after his hip was dislocated. This again differs from Mr Phillips’s evidence at trial where he said that the axe was taking from him by Mr Dove whilst he was still upright and swinging it at Mr Hartnett – implicating two people in the action rather than one, and in different circumstances.
313Mr Dove in his evidence denied that he had taken the axe from Mr Phillips, and further denied that he had pushed Mr Phillips’s foot or leg at any stage. He gave evidence that it was Mr Sellar, and Mr Sellar alone, who was involved in the altercation with Mr Phillips in the street.
314Notably, both Mr Dove’s evidence and the forensic evidence is more consistent with the version of events given by Mr Phillips to Dr Marr at the hospital – that is, that there was one assailant involved in the altercation on the street. Further, the forensic evidence is not inconsistent with Mr Dove’s assertion that that single assailant was Mr Sellar, and not either himself or Mr Hartnett.
315Finally, as already identified, there is no other evidence on the prosecution case which implicates Mr Dove in either the commission of an injury offence against Mr Phillips, or encouraging and assisting an injury offence against Mr Phillips.
Conclusion
316Taking into account all of the above matters, the prosecution has not in my view, established beyond reasonable doubt that Mr Dove either took the axe off Mr Phillips during the altercation, or pushed Mr Phillips’s leg in the manner alleged during the altercation. Given the conclusions I have come to about the reliability and credibility of Mr Phillips’s evidence, and the other findings of fact which I have made, I cannot discount Mr Dove’s version of events that whilst he was present at the scene, he had no involvement in the altercation which took place. Nor can I discount as a reasonable alternative Mr Dove’s evidence that there was only one assailant involved, and that the assailant was Mr Sellar. Accordingly I am left with a reasonable doubt that Mr Dove committed the asserted acts – that is taking the axe off Mr Phillips during the altercation, and/or pushing Mr Phillips’s foot during the altercation – necessary for any of the charged, or alternative, injury offences to be established. In the circumstances there is no need for me to consider the other elements of the offence, or any alternatives which do not appear on the indictment.
317In relation to charge 2 – intentionally cause serious injury – I find Mr Dove not guilty.
318In relation to charge 3 – recklessly cause serious injury – I find Mr Dove not guilty.

Verdict – Formal Orders
319The formal orders of the Court are:
(a)   on charge 1, aggravated burglary, I find Owen Dove not guilty.
(b)   on charge 1, aggravated burglary, I find Nathan Hartnett not guilty.
(c)   on charge 2, intentionally cause serious injury, I find Owen Dove not guilty.
(d)   on charge 2, intentionally cause serious injury, I find Nathan Hartnett not guilty.
(e)   on charge 3, recklessly cause serious injury, I find Owen Dove not guilty.
(f)    on charge 3, recklessly cause serious injury, I find Nathan Hartnett not guilty.
320I order that these verdicts be entered into the records of the court.

[2023] VCC 137

13 February 2023