R v Ali
[2022] SASC 23
•11 March 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALI
Criminal Trial by Judge Alone
[2022] SASC 23
Reasons for the Verdict of the Honourable Justice Bampton
11 March 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
Accused charged with murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) and in the alternative, murder contrary to s 12A of the Criminal Law Consolidation Act 1935 (SA) – accused pleaded not guilty to murder but guilty to manslaughter and elected to be tried by Judge alone – whether the prosecution proved beyond reasonable doubt that the accused had the specific intent for murder – whether the prosecution has proved the stabbing as part of or to help commit offence of robbery – whether the prosecution has disproved a claim of right beyond reasonable doubt – whether the prosecution excluded all rational hypotheses consistent with innocence.
HELD: The accused is guilty of manslaughter by an unlawful and dangerous act.
Criminal Law Consolidation Act 1935 (SA) ss 11, 12A, 13, 131, 134, 137, referred to.
Barca v The Queen (1975) 133 CLR 82; The Queen v Baden-Clay (2016) 258 CLR 308; The Queen v Langham (1984) 36 SASR 48; R v Bedford (2007) 98 SASR 514; Arulthilakan v The Queen (2003) 203 ALR 259; R v Fuge (2001) 123 A Crim R 310; McGuiness v Police (2016) 125 SASR 413, considered.
R v ALI
[2022] SASC 23Criminal: Trial by Judge Alone
The plea to manslaughter
The Information laid in the Supreme Court
Overview of the prosecution case
The defence case
Presumption of innocenceElements of the offences
Murder contrary to s 11 of the Act
Murder contrary to s 12A of the Act
Elements of robbery
Elements of theft
Assessment of witnesses
Assessment of Ms Harrison’s evidence
Expert witnesses
The issue of specific intent
Circumstantial evidence
Prior inconsistent statementsMotive
The evidence
Dr Heath
Brevet Sergeant Smith
Ms PinyonProf White
The evidence regarding interaction between Mr Ali and Mr Bristow before 3 February 2020
Mr Maiolo
The text messages
The evidence regarding the events of 3 February 2020
Ms Harrison’s interaction with Mr Ali and his cousin on 3 February 2020
3 February 2020
Mr Ismail’s interaction with Mr Ali and Ms Harrison 3 February 2020
Ms Harrison’s interaction with Mr Ali and Mr Bristow on 3 February 2020
Mr Chang-Shien’s interaction with Mr Bristow and Mr Ali on 3 February 2020
The evidence regarding the events of 4 February 2020
Senior Constable Bruce
Ms Harrison’s interaction with Mr Ali and Mr Bristow on 4 February 2020
Ms Hannaford
Ms Harrison’s interaction with Mr Ali after Mr Bristow was got out of the FordThe difficulties presented by Ms Harrison’s evidence
Ms Harrison’s statements to police
Mr Ali’s movements after alighting from the Ford in the Park Terrace service road at 3:59 am on 4 February 2020
Mr Ismail’s interaction with Mr Ali on 4 February 2020
Mr Chang-Shien’s interaction with Mr Ali on 4 February 2020
Mr Kola
Mr Maiolo’s interaction with Mr Ali on 4 February 2020Mr Graziotin
The purported admissions
Senior Constable Fleming
Detective Everlyn’s discussions with Mr Maiolo and Mr Ali
Prison calls
Analysis and findings
Murder contrary to s 11 of the Act
Murder contrary to s 12A of the Act
Claim of right
The dispute between Mr Ali and Mr Bristow regarding propertyManslaughter by unlawful and dangerous act
Verdict
BAMPTON J: On Monday 3 February 2020, Matthew Bristow (“Mr Bristow”) parked his grey 2008 Ford Falcon XR6 (“the Ford”) on the Torrens Road service road out the front of the units at 7 Torrens Road, Ovingham (“the unit block”). The unit block was an address known to police for low level drug dealing and subject to “fairly regular”[1] police attention. At approximately 9:30 pm on 3 February 2020, patrol officers travelling west on Torrens Road stopped on the service road and ran a registration check on the Ford which revealed it was unregistered. Mr Bristow was informed he would receive an expiation notice and the patrol officers, whose interaction with Mr Bristow had been captured by body worn cameras (“the body worn footage”), left.
[1] T598.15.
Later that evening, whilst the Ford was still parked out the front of the unit block, Mr Bristow, with the assistance of Liew Chang-Shien (“Mr Chang-Shien”), was looking under the bonnet of the Ford for a SIM card he had dropped. While they were looking for the card, Abdi Ali (“Mr Ali”) and Dayna Harrison (“Ms Harrison”) arrived on foot at the Torrens Road service road, having walked from O’Connell Street, North Adelaide through the Adelaide Parklands adjacent to the Aquatic Centre. Just after 12:00 am on 4 February 2020, Mr Bristow drove the Ford away from the unit block with Mr Ali in the front passenger seat and Ms Harrison in the rear passenger seat.[2]
[2] Depicted in CCTV footage recorded at 12:08 am seized from BP On the Run, 24 Torrens Road Brompton, Exhibit P4.
Analysis of data extracted from a Garmin GPS installed in the Ford and seized by police indicates the Ford travelled west on Torrens Road to Port Adelaide, Blair Athol, Prospect, Devon Park, and Angle Park, returning to Park Terrace, Ovingham at about 3:42 am on 4 February 2020. CCTV evidence depicts Ms Harrison driving the Ford on the northern end of the Park Terrace service road at Ovingham (around the corner from the unit block) and Mr Ali alighting from the Ford at 3:42 am on 4 February 2020 and walking in the direction of the unit block. CCTV evidence also depicts the Ford driven by Ms Harrison leaving the Park Terrace service road at 3:46 am on 4 February 2020. Mr Ali is seen on CCTV footage walking southeast on the Torrens Road service road back towards Park Terrace at 3:59 am on 4 February 2020.
At around 5:48 am on 4 February 2020, a male was found lying on the ground by a passer-by on Alabama Avenue, Prospect (“Alabama Avenue”). The passer‑by called 000, reported the male was still, did not appear to be breathing, and was unresponsive to noise.
South Australian Ambulance Service paramedics arrived at Alabama Avenue shortly before 5:55 am on 4 February 2020 and, having cut the male’s clothing, noted a small puncture wound to the male’s lower left chest area. Resuscitation attempts were performed to no avail and life was declared extinct at 6:30 am on 4 February 2020.
The identity of the male was subsequently confirmed to be Matthew Scott Bristow, born 19 April 1976. The cause of Mr Bristow’s death was determined to be a single stab which penetrated his heart and time of death was estimated to be approximately 1:45 am on 4 February 2020.
The Ford was involved in traffic offences and chased by police patrols in the hours that followed its departure from Park Terrace. It was found abandoned on a street in Kidman Park at about 1:58 pm on 4 February 2020. Police tasked to patrol the area to look for the occupants[3] of the Ford sighted Ms Harrison standing by a bus stop. Ms Harrison was apprehended on a bus and taken into custody. She provided a statement to police at 5:50 pm on 4 February 2020 omitting any reference to her earlier interaction with Mr Ali.
[3] The other occupant was a person named Robert Jackson who, other than providing a reference sample for the purpose of DNA analysis, is not involved in this trial.
Following identification of Mr Bristow and review of the body worn footage, police door knocked at the unit block. Their inquiries led them to speaking to John Maiolo (“Mr Maiolo”) in the carpark of the Northern Tavern at Sefton Park. Mr Maiolo informed police Mr Ali had told him he had borrowed Mr Bristow’s car and that Ms Harrison had taken it from him. Mr Maiolo then went into the Tavern and returned to the carpark with Mr Ali leaving him to speak to police. Ms Harrison was taken out of custody and, during a drive through interview[4] commencing at 10:08 pm on 4 February 2020, told police Mr Ali stabbed someone that morning.
[4] Detective Brevet Sergeant Michael Newberry gave evidence that court permission was obtained to remove Ms Harrison from the cells to conduct a drive-through which is the police term for taking a person back to reconstruct a scene.
Mr Ali was arrested at about 10:30 pm on 4 February 2020 and charged on a Magistrates Court Information dated 5 February 2020 with the murder of Mr Bristow contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) or in the alternative manslaughter contrary to s 13 of the Act.
The plea to manslaughter
At a committal hearing in the Magistrates Court on 23 September 2020, Mr Ali pleaded not guilty to murder but guilty to manslaughter. The plea to manslaughter was not accepted by the Director and, on 9 December 2020, Mr Ali was committed to this Court for trial on the charge of murder.
The Information laid in the Supreme Court
On 1 March 2021, Mr Ali, born 10 June 1990, was arraigned on a Supreme Court Information charging him with the offence of murder contrary to s 11 and in the alternative murder contrary to s 12A of the Act.
Mr Ali elected for a trial by Judge alone which was heard by me.
Overview of the prosecution case
The prosecution puts its case for murder contrary to s 11 of the Act on two bases. The first is that Mr Ali voluntarily and deliberately stabbed Mr Bristow causing his death, intending to cause him really serious bodily harm or being reckless as to the probability that he would cause him at least really serious bodily harm.
The prosecution submitted the only evidence from which the requisite specific intent can be inferred in this case is Ms Harrison’s evidence as to the way in which Mr Ali, whilst in the driver’s seat of the Ford, swung his hand into Mr Bristow’s chest.[5] In opening, the prosecutor said, “Ms Harrison will say, I expect, that the accused then swung a knife he held in his right hand across his body and made contact with Mr Bristow”. As it transpired, Ms Harrison specifically disavowed seeing a knife. It was contended in closing submissions that while Ms Harrison did not claim to have seen Mr Ali armed with any weapon,[6] it is implicit in her observation that Mr Ali must have been armed with a knife because there could be no other explanation for Mr Bristow’s subsequent death from a single stab wound to the chest.[7]
[5] T286; 381; 385-6; 388; 390; 393.
[6] T283.
[7] T517.
It was submitted if, as Ms Harrison said, Mr Ali’s arm went “flying across” towards Mr Bristow,[8] while Mr Ali was holding a knife, it can be inferred that Mr Ali intended to cause Mr Bristow really serious bodily harm or turned his mind to the probability that he would cause him really serious bodily harm. The prosecution submitted there is no other rational inference from a blow of the type Ms Harrison described in her evidence inflicted while Mr Ali was holding a knife, and therefore he would be guilty of murder.
[8] T393.
The prosecution acknowledged that if I cannot be satisfied beyond reasonable doubt of Ms Harrison’s evidence that Mr Ali swung his arm rapidly into Mr Bristow’s chest, there would be no other evidence from which I could infer he possessed the requisite specific intent for murder contrary to s 11 of the Act. In the absence of such evidence, the prosecution case in the alternative is that Mr Ali caused death by an intentional act of violence contrary to s 12A of the Act.
To prove murder contrary to s 12A of the Act, the prosecution contended it need only prove that Mr Ali committed an intentional act of violence in the course, or furtherance, of robbing Mr Bristow. The prosecution argued it is not necessary to prove that Mr Ali turned his mind to any harm his act might cause Mr Bristow and so the precise act by which he killed Mr Bristow becomes largely immaterial. The prosecution submitted the mere presentation of a knife, in a threatening or intimidating manner, is capable of amounting to an intentional act of violence[9] and so it follows, that, by his own admission, Mr Ali committed an intentional act of violence, whatever the precise act. The prosecution submitted that any conceivable voluntary act with a knife causing a person’s death would amount to an intentional act of violence.
[9] Arulthilakan v The Queen [2003] HCA 74; (2003) 203 ALR 259 at [23] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, Kirby J dissenting).
It was argued Mr Ali committed the intentional act of violence in the course or furtherance of robbing Mr Bristow, as there can be no doubt that he, having committed the act which caused Mr Bristow’s death, took possession of the Ford. The prosecution submitted that the circumstances in which Mr Ali took possession of Mr Bristow’s Ford amount to theft and that Mr Ali’s use of violence is so intimately tied to his immediate theft of the Ford that it proves his purpose in stabbing Mr Bristow was to enable him to steal the Ford. Therefore, it was submitted Mr Ali committed robbery of Mr Bristow’s Ford and killed him in the course, or furtherance, of robbing him by an intentional act of violence, such that he is guilty of murder contrary to s 12A of the Act.
The defence case
Mr Ali by his plea to manslaughter admits he caused Mr Bristow’s death.
As there is no dispute as to the cause of Mr Bristow’s death, the effect of Mr Ali’s plea is that he admits he inflicted the stab wound to Mr Bristow’s heart.
The defence argued there is no direct evidence of his state of mind at the time the stabbing occurred. It was submitted that Ms Harrison should be treated as an accomplice, and I should give myself a warning that the evidence of an accomplice might be unreliable. It was submitted Ms Harrison is neither a reliable witness nor a witness of truth as she was willing to lie on a range of topics, was affected by drugs, asserted a long-standing memory issue, has gaps in her recall, and was open and willing to be led by police in the interrogation process.
Having regard to Ms Harrison’s evidence, the defence argued the prosecution has not established beyond reasonable doubt that he had the requisite intent to find him guilty of murder contrary to s 11 of the Act.
The defence further argued the prosecution has not disproved the claim of right defence raised to the charge of murder contrary to s 12A of the Act. It was submitted that the totality of the evidence does not exclude as a reasonable hypothesis that Mr Ali’s possession of the Ford was motivated by a factor other than an intention to steal.
Presumption of innocence
Mr Ali comes into this Court with the presumption of innocence on the charge of murder in his favour. He is innocent on the charge of murder, unless and until the prosecution proves his guilt on that charge beyond reasonable doubt. The burden of proving murder lies wholly on the prosecution.
Mr Ali does not have to prove anything. He is not required to put forward a positive defence, to give an explanation or to prove his defence. It is for the prosecution to disprove it.
Mr Ali elected not to give evidence as is his right. I do not draw any inference adverse to him or the case he puts forward as a result of his exercise of that right.
The fact that Mr Ali has not given evidence or called evidence does not mean he has not put forward a case in defence. He has done so by raising the defence of claim of right, through the cross-examination of the prosecution witnesses, the exhibits tendered by his counsel, and his counsel’s submissions by reference to aspects of the evidence led by the prosecution.
Elements of the offences
Murder contrary to s 11 of the Act
To prove Mr Ali committed murder contrary to s 11 of the Act, the prosecution must prove the following four elements beyond reasonable doubt:
(1)an act of Mr Ali caused the death of Mr Bristow;
(2)the act was voluntary (i.e., deliberate);
(3)the act was performed with the intent to kill or cause really serious bodily harm to Mr Bristow, or with knowledge that the act would probably cause death or really serious bodily harm;
(4)the act was performed without lawful justification or excuse.
By his plea to manslaughter Mr Ali admits the first two elements of murder. Mr Ali denies he intended to kill or cause really serious bodily harm to Mr Bristow or was reckless as to the probability that he would cause him at least really serious bodily harm. The issue for my determination is whether the prosecution has proved Mr Ali had the requisite specific intent at the time he stabbed Mr Bristow causing his death.
Murder contrary to s 12A of the Act
Section 12A of the Act provides:
12A—Causing death by an intentional act of violence
A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder.
To prove Mr Ali committed murder contrary to s 12A of the Act, the prosecution must prove the following three elements beyond reasonable doubt:
(1)Mr Ali performed an intentional act of violence;
(2)the act caused the death of Mr Bristow;
(3)the act was committed while in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more.
The foundational offence relied on by the prosecution is robbery which is a major indictable offence punishable by imprisonment for 10 years or more. It is alleged Mr Ali stabbed Mr Bristow in the course of committing robbery of the Ford.
The prosecution must prove Mr Ali had the state of mind required for robbery and he intentionally committed an act of violence. By his plea to manslaughter, Mr Ali admits he intentionally committed an act of violence which caused the death of Mr Bristow. The issue for my determination is whether the prosecution has proved Mr Ali committed the stabbing as part of or to help him commit robbery.
Elements of robbery
To prove Mr Ali committed robbery contrary to s 137 of the Act, the prosecution must prove the following three elements beyond reasonable doubt:
(1)Mr Ali committed theft;
(2)Mr Ali used force or threatened to use force against Mr Bristow in order to commit the theft or to escape from the scene of the offence;
(3)The force or threat was used at the time of or immediately before or after the theft.
Elements of theft
To prove the first element of robbery, that Mr Ali committed theft of the Ford, the prosecution must prove the following four elements of theft contrary to s 134(1) of the Act beyond reasonable doubt:
(1)Mr Ali dealt with the Ford;
(2)the dealing was dishonest;
(3)the dealing was without Mr Bristow’s consent; and
(4)Mr Ali intended to deprive Mr Bristow permanently of the Ford or to make a serious encroachment on Mr Bristow’s proprietary rights.
To constitute theft and therefore robbery, the property must be taken dishonestly and without a bona fide claim of right.
Accordingly, as a claim of right pursuant to s 131(5) of the Act has been raised by the defence, I must be satisfied the prosecution has proved the absence of a claim of right before I could find Mr Ali committed the foundational offence of robbery and is guilty of murder contrary to s 12A of the Act.
Assessment of witnesses
In assessing the evidence of the witnesses, I have considered their evidence in the context of other evidence in the case. I have considered their evidence under cross‑examination and applied my judgement to the evidence. I can believe or disbelieve, rely or not rely upon, all or part of a witness’s evidence.
Assessment of Ms Harrison’s evidence
Ms Harrison gave inculpatory evidence against Mr Ali. Her evidence was that she witnessed a swinging action by Mr Ali toward Mr Bristow but did not see a knife. She had previously told police she saw a knife being swung by Mr Ali toward Mr Bristow. Ms Harrison also gave evidence that she wanted to steal the Ford.
Ms Harrison’s evidence was to the effect that in early 2020 she was virtually homeless, had just broken up with a boyfriend who supplied her ice, did not have custody of her daughter born in 2018, had a significant drug addiction, had significant memory issues, and was “off the rails”.[10] At the time of giving her evidence, she appeared to have her life back on track.
[10] T335.21
At the beginning of her second interview with police on 4 February 2020, she was cautioned in relation to murder. During that interview she asked police if she was “gonna get – get done with this?”.[11] It is possible she minimised her role in or was anxious to distance herself from the events of 4 February 2020. Whilst she was not charged with murder, she was subsequently convicted on 21 April 2020 of numerous offences. Three of those offences were committed on 4 February 2020, namely, driving or using a vehicle without consent, making off without payment, and unauthorised person drive vehicle on road.
[11] Exhibit P25, line 422.
As I stated during the trial of this matter, Ms Harrison’s evidence must be carefully scrutinised before it can be accepted as credible and reliable. Having regard to the evidence she gave; I have determined there is a danger of acting on it unless her evidence going to matters in issue is supported by other evidence I accept.
Expert witnesses
Expert evidence was given by the forensic pathologist, Dr Karen Heath; the forensic scientist, Rebecca Pinyon; the pharmacologist, Prof Jason White; the crime scene investigator, Brevet Sergeant Amanda Smith; and an officer in SAPOL’s digital evidence section, Senior Constable First Class Samuel Bruce. The evidence of the expert witnesses must be considered together with the evidence of other witnesses. Ultimately, I must determine what of their evidence I accept, what weight is to be given to it, and any inferences and conclusions that arise from the evidence.
The issue of specific intent
Mr Ali has admitted his act caused Mr Bristow’s death and that his act was voluntary and deliberate.
As stated above, the question for my determination is: has the prosecution established beyond reasonable doubt that Mr Ali held the intention of inflicting (at least) really serious bodily harm when he committed the act which caused Mr Bristow’s death. If I am satisfied, Mr Ali would be guilty of murder contrary to s 11 of the Act.
If the prosecution cannot prove this, then this element will also be proved if, at the time he stabbed Mr Bristow, Mr Ali was aware that it was probable that his act would cause death or really serious bodily harm to Mr Bristow.
To prove Mr Ali’s state of mind, the prosecution asks me to draw an inference. When drawing an inference about Mr Ali’s state of mind, I must look at the surrounding circumstances and decide whether I am satisfied beyond reasonable doubt that the prosecution has proved one of these two states of mind. In drawing inferences about Mr Ali’s state of mind, I can take into account any evidence of words spoken by him and his acts.
The prosecution must prove that at the time Mr Ali inflicted the stab wound (the effect of which was to injure Mr Bristow’s heart, cause haemorrhage and thereby death), he intended to kill Mr Bristow or cause him really serious bodily harm or was reckless as to the probability that he would cause him death or really serious bodily harm.
Circumstantial evidence
The prosecution case against Mr Ali relies upon the evidence of Ms Harrison and circumstantial evidence. As such, the prosecution must exclude all reasonable hypotheses consistent with innocence. I must be satisfied the requisite specific intent is established by inference from facts and circumstances I find proven. I must apply the well-settled principles concerning cases that turn upon circumstantial evidence.[12] In Barca v The Queen, Gibbs, Stephen and Mason JJ said:[13]
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King[14]. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen[15]; see also Thomas v The Queen[16].
(Footnotes in original)
The High Court reiterated this in The Queen v Baden-Clay:[17]
For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”[18] (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”[19] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal[20].
(Emphasis and footnotes in original)
[12] The Queen v Baden-Clay (2016) 258 CLR 308 at [49].
[13] (1975) 133 CLR 82 at 104.
[14] (1911) 13 CLR 619 at 634.
[15] (1963) 110 CLR 234 at 252.
[16] (1960) 102 CLR 584 at 605-606.
[17] (2016) 258 CLR 308 at [47].
[18] Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104.
[19] R v Hillier (2007) 228 CLR 618 at 637 [46]; (footnote omitted).
[20] R v Hillier (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535.
The conclusion I arrive at must be based on evidence I find proven. I must not engage in speculation or conjecture. Any reasonable hypothesis of innocence must be available on the evidence.
In approaching the circumstantial evidence, I must first consider the facts upon which the prosecution relies as circumstantial evidence and decide which facts I accept as established by the evidence.
Mr Ali is not to be found guilty of murder unless there is no reasonable explanation for all the accepted evidence other than that he is guilty of the offence. If there remains any reasonable hypothesis or reasonable explanation consistent with his innocence, he must be acquitted.
Prior inconsistent statements
I heard evidence from witnesses called by the prosecution who gave sworn evidence that was significantly different from statements they had given to police. Prior inconsistent statements of any witness in a criminal trial are not put for the truth of the fact which they purport to assert. Rather, they are put before me to enable me to assess whether I accept as reliable the evidence the witness gave on oath.
Prior inconsistent statements go only to the reliability or credibility of evidence given from the witness box. If a witness gives sworn evidence before me that is significantly different from statements made on earlier occasions, I must exercise caution before accepting the sworn evidence of that witness.
It is a matter for me to assess the significance of any inconsistency that I find proven.
Motive
The prosecution submitted Mr Ali had two potential motives to kill Mr Bristow: one being payback for the alleged property offences that Mr Bristow committed, and the other being the evidence Ms Harrison gave regarding Mr Bristow’s salacious comments towards her in the car. It was contended it could be one or the other, or a combination of both.
It is up to me to decide whether Mr Ali had these motives asserted by the prosecution and whether they are significant. The prosecution is not required to prove he had a motive, it is just a matter I may consider when considering whether the prosecution has proved its case beyond reasonable doubt.
The evidence
Dr Heath
The forensic pathologist, Dr Karen Heath, performed a post-mortem examination on Mr Bristow on 5 February 2020 and determined the cause of his death was a single stab wound which penetrated his heart.
Dr Heath noted at post-mortem Mr Bristow had an obliquely oriented stab wound measuring 16 mm in length located in the skin of the left side of the chest 124 cm above the sole of the left foot and 38 mm to the left of the midline. The wound penetrated the pericardial sack around the heart and the left ventricle, ending within the cavity of the left ventricle. Dr Heath said the wound resulted in haemorrhage into the pericardial sack and the left pleural cavity. The wound showed “squaring off” of the inferior lateral margin of the injury which Dr Heath considered was in keeping with infliction by a single-edged blade.
Dr Heath said the force required to inflict the stab wound depends on the sharpness of the tip of the blade used. She said if the tip is sharp, penetration through skin is easy with relatively minor force required to inflict injury, even with deep penetration, provided bone is not encountered. In Mr Bristow’s case, the stab wound to the left side of the chest passed through the intercostal muscles between the fifth and sixth ribs, and there was no injury to either of the ribs. Therefore, in Dr Heath’s opinion, the injury could have been inflicted with mild to moderate force, however, the use of greater force could not be excluded. Dr Heath considered the knife found in the Ford depicted in the photographs taken by the crime scene investigators[21]could account for the stab wound she noted at post‑mortem.
[21] Exhibit P3.
Dr Heath said that persons suffering from a stab wound to the heart can have a fairly significant period of activity following infliction of the injury before collapsing:[22]
It’s well recognised in the forensic literature that people suffering from stab wounds to the heart can actually have a fairly significant period of activity following the stab wound before their collapse. There have been CCTV recordings of people who have been stabbed in the heart and been able to run at a reasonable pace for approximately a couple of hundred metres before they slow down and collapse to the ground, and so a stab wound to the heart is not necessarily immediately lethal and people are capable of physical activity between infliction of the injury and death.
[22] T519.17-27.
Dr Heath said it is possible that Mr Bristow could have walked or run with the injury he received for up to a couple of hundred metres. She said he could have survived for longer than seconds, somewhere in the range of minutes but not hours, without medical intervention. Medical records reviewed by Dr Heath following the autopsy disclosed Mr Bristow had Hepatitis C, HIV and Type 2 Diabetes.
Dr Heath said there was no natural explanation for Mr Bristow’s death and the toxicology results do not explain his death. Those latter results indicated that he had 0.9 mg/L of methylamphetamine and 0.09mg/L of amphetamine detected in his blood. Dr Heath also found evidence of a possible recent track mark in the antecubital fossa which is the elbow crease. This possible track mark was excised and when examined the microscope showed a thick-walled artery, with recent haemorrhage around it. Dr Heath said the recent haemorrhage indicated there had been a recent puncture of that blood vessel. There was also evidence of healing around that blood vessel in keeping with previous use. Dr Heath was of the opinion it had the appearance of an injection site consistent with both recent use and previous use. Further, Dr Heath was of the opinion recent injection to the injection site might have occurred a few minutes up to four to six hours before death.
I accept Dr Heath’s evidence.
Brevet Sergeant Smith
Brevet Sergeant Amanda Smith is a crime scene investigator with the SAPOL forensic response section. Brevet Sergeant Smith described her attendance at Alabama Avenue at 7:30 am on 4 February 2020.
Brevet Sergeant Smith took photographs of the location of Mr Bristow’s body on the footpath on the northern side and eastern end of Alabama Avenue, near Prospect Road. Brevet Sergeant Smith also noted and took photographs of 11 areas of bloodlike stains. The locations of the bloodlike stains are marked by crime scene markers one to 11 depicted in the photographs[23] and the sketch plan of Alabama Avenue and Hillsdale Street.[24] The location of Mr Bristow’s body on Alabama Avenue is also marked on the sketch plan with “X”. Brevet Sergeant Smith said:[25]
A blood trail was located or blood-like drip stains were located from where you can see marker 1 and they travelled all the way up Alabama Avenue to where the deceased was located in randomly spaced blood-like stains.
[23] Exhibit P1.
[24] Exhibit P2.
[25] T190.35-192.1.
Marker 1 identifies the location of bloodlike stains on Hillsdale Street just before the northeast corner of Hillsdale Street and Alabama Avenue. Markers 2, 3, and 4 identify the location of bloodlike staining on the footpath of the northeast corner of Hillsdale Street and Alabama Avenue. Markers 5 and 6 identify the location of bloodlike staining on the footpath in front of 6 Alabama Avenue. Markers 7, 8, 9, 10, and 11 identify the locations of bloodlike staining noted on the northern footpath in front of 2 Alabama Avenue. Marker 11 signifies the end of the blood trail. Mr Bristow’s body was located approximately 51.7 m east of marker 11. Brevet Sergeant Smith assumed, from what she had observed of the bloodlike staining and the location of Mr Bristow, that the direction of travel of Mr Bristow up to the point he collapsed was from the west. Swabs taken of the bloodlike staining tested positive to the presumptive test for blood.
Brevet Sergeant Smith also conducted an examination of the Ford on 4 February 2020 and took photographs of the exterior and interior, together with various items located in it.[26] Swabs which tested positive to the presumptive test for blood were obtained from areas of bloodlike staining observed in the Ford.
[26] Exhibit P3.
Brevet Sergeant Smith gave a description of the knife[27] located by police in the driver’s side door pocket of the Ford. Ms Smith described it as a black-handled OXO brand knife with an 80 mm long blade and a total length of 190 mm with bloodlike staining on its tip.
[27] Exhibit P14.
The knife and swabs of the bloodlike staining observed on the footpaths of Hillsdale Street and Alabama Avenue, the Ford’s steering wheel, gearstick, handbrake, interior front passenger doorhandle, front passenger doorstep, and driver’s seat, were submitted to the forensic science centre for DNA analysis and comparison.
I accept Brevet Sergeant Smith’s evidence.
Ms Pinyon
Rebecca Pinyon, a forensic scientist, gave evidence regarding the DNA comparisons she conducted as detailed in the forensic biology report.[28] Ms Pinyon explained DNA reference samples were obtained from a post-mortem blood sample from Mr Bristow, and mouth swab kit samples from Mr Ali, Ms Harrison, and Robert Jackson.[29] These reference samples were compared with the DNA extracted from swabs obtained from bloodlike staining on the footpaths and other swabs taken from items of evidence submitted by the crime scene investigators for analysis.
[28] Exhibit P10.
[29] Robert Jackson was the other occupant in the Ford with Ms Harrison just prior to the abandonment of the Ford who, other than providing a reference sample for the purpose of DNA analysis, is not involved in this trial.
A single source DNA profile was obtained from the swab of staining on the footpath on Hillsdale Street at marker 1. The single source profile was compared to the reference profile of Mr Bristow with the result it was greater than 100 billion times more likely that Mr Bristow was the source of the DNA. This is extremely strong support for the proposition that Mr Bristow had contributed DNA to the profile. The same result was obtained for the single source DNA profile obtained from the swab of staining on the footpath on the corner of Hillsdale Street and Alabama Avenue at marker 4.
The knife located by police in the driver’s door pocket of the Ford[30] was examined and bloodlike staining was detected on the blade only. Bloodlike staining on the tip of the blade was sampled for DNA analysis. A single source DNA profile was obtained from the sample which was compared with the reference sample of Mr Bristow with the result that it was 100 billion times more likely that Mr Bristow was the source of the DNA, which is extremely strong support for the proposition that he had contributed DNA to the profile.
[30] Exhibit P14.
A mixed DNA profile with four contributors was obtained from the swab of the handle of the knife. Ms Pinyon said the results revealed extremely strong support for the proposition that Mr Ali had contributed DNA to the profile, extremely strong support for the proposition that Ms Harrison had not contributed DNA to the profile, extremely strong support for the proposition that Mr Jackson had not contributed DNA to the profile, and extremely strong support for the proposition that Mr Bristow had contributed DNA to the profile.
A mixed DNA profile with two contributors was obtained from the swab of staining on the interior front passenger doorhandle of the Ford. The results of comparisons revealed strong support for the proposition that Mr Ali was not a contributor to the DNA profile and strong support for the proposition that Ms Harrison was also not a contributor. There was slight support for the proposition that Mr Jackson was not a contributor and strong support for the proposition that Mr Bristow was a contributor.
A mixed DNA profile with three contributors was obtained from a swab of staining on the front passenger doorstep of the Ford. The results revealed very strong support for the proposition that Mr Ali had not contributed DNA. There was very strong support that Ms Harrison had not contributed DNA to the profile, strong support for the proposition that Mr Jackson had not contributed DNA to the profile, and extremely strong support for the proposition that Mr Bristow had contributed DNA to the profile.
A mixed DNA profile with four contributors was obtained from the swab of staining on the driver’s seat of the Ford. The results obtained revealed very strong support for the proposition that Mr Ali did not contribute DNA to the profile, extremely strong support for the proposition that Ms Harrison did contribute DNA to the profile, very strong support for the proposition that Mr Jackson did not contribute DNA to the profile, and extremely strong support for the proposition that Mr Bristow did contribute DNA to the profile.
I accept Ms Pinyon’s evidence.
Prof White
Prof Jason White provided his opinion regarding the effects of methamphetamine on Ms Harrison, who reported having been a regular user of methamphetamine in the amount of half a ball, or 1.7 g, a day, and at the time of riding in Mr Bristow’s car had been injecting methamphetamine several times that day and awake for five days. Ms Harrison also said that she had consumed 600mg of Lyrica several hours prior to making the observation of the swinging action by Mr Ali. Prof White said the immediate effects of consuming methamphetamine can be a pleasurable feeling or euphoria, and feelings of confidence. Prof White said alertness is increased and fatigue decreased. He said the drug can also have adverse effects. It can cause agitation, which may be associated with rapid speech and racing thoughts. He said a person can have difficulty concentrating on what is occurring around them. Their confidence can be exaggerated to the point that the person engages in impulsive or risky or reckless behaviour and there is the potential for psychotic effects such as hallucinations, delusions, and paranoia. He said the paranoia can be of varying grades. It can be a very mild degree of paranoia, where a person is just somewhat suspicious about the events occurring around them or about an individual, through to a person being extremely fearful, particularly if it is associated with hallucinations and delusions, that someone is going to attack them, and they seek to defend themselves.
Prof White said that in the latter stages of methamphetamine intoxication, the person will become fatigued and may become relatively quiet and somewhat unresponsive. Prof White said the initial effects of methamphetamine intoxication last probably six hours, maybe four hours in some instances, and then the person may experience the rebound phase, where they have a depressed mood and lower levels of alertness. He said that latter phase may persist for a number of hours depending on how much and for how long the person had used previously. He explained it could persist for several days, that is, they may be less alert than normal, experience a depressed mood and lack of motivation. Prof White said withdrawal can be an exaggerated form of the rebound from methamphetamine that lasts a period of days, and the person may then sleep excessively, but typically will report that sleep is not satisfying. They experience a depressed mood, may be quite irritable, in some cases aggressive, will appear to be distracted and have difficulty concentrating on what is occurring around them.
Prof White explained that methamphetamine users fall into a couple of broad types. He said there are occasional users, people who use from time to time. Amongst those who use more frequently, there are the people who use on most days and use several times each day and there are people who engage in binge use. Prof White was asked how frequently at the height of a binge phase, or over what period of time he would expect a person to continue consuming or re‑consuming methamphetamine. Prof White explained a person could re‑dose with the drug as frequently as every two hours and continue doing so over several days. Typically, the lack of sleep means eventually they have to, at least, take some kind of break to experience some sleep. Depending on the individual, often some degree of paranoia will be experienced during a binge cycle and that may range from a small degree of suspicion that is unwarranted through to quite intense fear with hallucinatory effects.
Prof White said there was not sufficient information regarding Ms Harrison’s use of methamphetamine to form an opinion as to whether she was in one or other of the phases described by him. Ms Harrison reported binge use in the days prior to 4 February 2020 and not sleeping, but it was not clear exactly when she last used methamphetamine relative to the time of the events she gave evidence about, so it was very difficult for him to say exactly what stage she was at. He said she would have been presumably experiencing some effects of methamphetamine and effects of sleep deprivation based on her description, but he could not say whether the effects of the drug had started to wear off and she had moved into a rebound phase, or whether she was still experiencing the direct effects of the drug that could occur in the first few hours of use.
Prof White said a binge cycle of methamphetamine has some effects on visual perception, things may not be as clear and may be a little blurry. Perception is also affected because the person is relatively easily distracted so their attention may be diverted from what is their main focus by other things going on and they lose attention. He said that means they may miss things that occur that other people may notice. A person experiencing the effects of methamphetamine will have a general impairment of cognition as their judgement and decision-making can be adversely affected. The cognitive impairment can range from mild through to a person experiencing quite disorganised thoughts due to strong adverse effects of the drug.
Prof White said sleep deprivation will have a number of effects. It will mean the ability to pay attention to what is occurring will be even further impaired. A person who is sleep deprived is likely to be more predisposed to experience psychotic effects and have a certain amount of general cognitive impairment that may be evident in, for example, being slow to react and not comprehending things as well as someone who is awake, alert, and who has slept appropriately.
Prof White said that Ms Harrison’s reported use of 1.7 g per day is a very high level. He said use at that level on a daily basis on most days in a month, while it does occur, is quite rare. He said to use at that level would suggest Ms Harrison had developed a tolerance to methamphetamine and he would describe it as a very high level of dependence or addiction.
Prof White stated that if a person is experiencing relatively strong effects of methamphetamine, they may later have difficulty recalling everything that occurred when they were under the influence of the drug. They may sometimes have difficulty differentiating what they perceived at the time they were intoxicated if they experience, for example, paranoia or delusional thoughts. Prof White explained that when a person is not under the influence of the drug, they may recognise they were irrational. However, another person’s memory may be affected if they have trouble differentiating what was real and what was not when they were under the influence of the drug.
Prof White said Ms Harrison’s memory or likely recall of events that took place while she was intoxicated is likely to be not as accurate and detailed as it would be if she had not been under the influence of any substance.
Prof White explained that Lyrica is a prescription drug used for the treatment of neuropathic pain and epilepsy. As it is a sedative drug, it may be used by methamphetamine users who use sedative type drugs to manage some of the effects of methamphetamine. He said the interaction between Lyrica and methamphetamine would depend on the stage Ms Harrison was in of methamphetamine effects. If she was experiencing strong effects of methamphetamine, such as increased activity and alertness, then the Lyrica would dampen those stimulant effects and she would be less likely to become agitated. If she were experiencing the rebound phase, that is, coming down from the effects of methamphetamine, she might have used Lyrica to counteract feeling depressed and unmotivated. If she was already fatigued it would have compounded her fatigue.
Prof White said, in his opinion, the suboxone Mr Chang-Shien gave evidence he used would not affect his cognitive function or perception.
Finally, Prof White said the concentration of 0.9 mg/L methylamphetamine found in Mr Bristow’s blood would be considered a relatively high level in a living person. A living person with that level would, unequivocally, be significantly affected by methylamphetamine, particularly if there is evidence that they used the drug in the previous two hours.
In cross-examination, Prof White agreed that methylamphetamine can cause a male person to consider themselves sexually empowered. He said aggression is more likely when a person is under the influence of methylamphetamine and a level of 0.9 mg/L would have the effect of making a person more prone to overreacting and irritability.
I accept Prof White’s evidence.
The evidence regarding interaction between Mr Ali and Mr Bristow before 3 February 2020
Mr Maiolo
Mr Maiolo is a low-level drug dealer known to police. He stayed at the unit block “quite a bit”[31] with his partner, Camilla Schultz, who was a resident of unit 4. I infer from the evidence he gave and that given by other witnesses he was a “go to” man. He was referred to as “Mr J” or “J” by the witnesses Mr Chang‑Shien, Marion Kola (“Mr Kola”), and Milko Graziotin (“Mr Graziotin”). By reference to the transcript text messages between Mr Ali and Mr Bristow,[32] they also referred to Mr Maiolo as “J”. As Mr Maiolo did not have a driver’s licence, he was driven around by various associates including Mr Bristow,[33] Mr Chang-Shien, and Mr Graziotin. One of the vehicles used to drive him around was a Mitsubishi with the registration number WNT142.
[31] T89.2.
[32] Exhibit P21.
[33] By reference to the texts between Mr Bristow and Mr Maiolo in Exhibit P21.
Mr Maiolo gave evidence that he had known Mr Bristow for about a year before Mr Bristow’s death and had known Mr Ali, whom he considered a good friend, for about five or six years. He explained Mr Ali had met Mr Bristow a couple of months before Mr Bristow’s death. He said their relationship was friendly at first. He then detailed a particular incident that occurred “probably three weeks”[34] before Mr Bristow died when Mr Maiolo was dropped off at the unit block by Mr Bristow. He described Mr Bristow going towards Mr Ali, whereupon Mr Ali put his hand out to shake Mr Bristow’s hand and Mr Bristow “king-hit”[35] Mr Ali who defended himself (“the king-hit incident”). Mr Maiolo said that he broke up the fight and told Mr Ali to go upstairs because it appeared Mr Ali was winning the fight.
[34] T92.4.
[35] T91.35.
Mr Maiolo gave evidence about a conversation he had with Mr Ali about a week before the king-hit incident, during which Mr Ali told Mr Maiolo that Mr Bristow had stolen two of his phones. Mr Ali said Mr Bristow had taken two of his phones and he was not happy about it. Mr Maiolo said Mr Ali was saying one thing and Mr Bristow was saying he did not take the phones and they both involved him because “I was sort of, you know, the devil’s advocate, as you say, but I was friends with both of them”[36] and they were trying to get him to resolve the issue for them. Mr Maiolo said he received a text message from Mr Bristow apologising for causing trouble.
[36] T92.35-37.
Mr Maiolo also received a text message from Mr Bristow on 16 January 2020 saying Mr Bristow had Mr Ali’s phone. Mr Maiolo said Mr Bristow said he had borrowed the phone. Mr Maiolo recounted he asked Mr Ali why Mr Bristow had his phone, to which Mr Ali replied that Mr Bristow “stole two phones off of him”.[37] Mr Maiolo confirmed about a week after the king-hit incident Mr Bristow and Mr Ali shook hands and made up.
The text messages
[37] T112.16-17.
A timeline of telephone communications including transcripts of text messages was tendered by the prosecution.[38] The following text messages between Mr Bristow, Mr Ali and Mr Maiolo commencing Friday 20 December 2019 appear to support the evidence given by Mr Maiolo. The messages suggest that Mr Ali owed Mr Bristow (or Mr Maiolo) money, that he gave him what he could, but Mr Bristow took off with Mr Ali’s property. Mr Bristow told Mr Maiolo in a text that Mr Ali “left his property in his car” and by 9:26:03 pm it appears that Mr Ali’s anger towards Mr Bristow has changed to a request for a lift and an offer to pay whatever Mr Bristow wanted:
[38] Exhibit P21.
Time From To Text message content / calls 5:42:00 am Mr Ali Mr Bristow I will not be log trying to get pay I’d get money 5:47:00 – 5:57:00 am Four missed calls 5:59:05 am Oi my stuff is in your bag 5:59:38 am Missed call 6:00:42 am Oi look here don’t fucking play up on me now I want my shit 6:01:03 am Eight missed calls 6:03:40 am Drop my shit at dis address I fucking mean it 6:03:47 am 35 Hudson Ace Croydon park room 7 6:05:02 am Gave you what I can and you take off like dis your fucking pissing me off 6:05:27 am Missed call 6:05:28 am Missed call 6:05:53 am Mr Bristow Mr Maiolo I’m not far from yours where are you I wanna give you his shit he left in my car if possible mate 6:07:25 am Mr Ali Mr Bristow If you don’t drop my shit up in the next 20mins god help me I will find you and fuck you up 6:07:34 am Mr Bristow Mr Maiolo He targeted me hard and was really fucking horrible to the other fella who was at yours. Sorry but these people do not dictate who I take where. 6:07:56 am Mr Ali Mr Bristow Missed call 6:07:57 am Mr Maiolo Mr Bristow I don’t want it, I could use a lift though mate 6:08:22 am Mr Bristow Mr Maiolo I know you don’t give a fuck I certainly don’t – but he won’t stop ringing, as we speak 6:09:16 am Mr Maiolo Mr Bristow he didnt keep his word with me tonight he made a mistake 6:09:24 am Mr Bristow Mr Maiolo I’ll gladly take you fucking anywhere 6:09:56 am Mr Ali Mr Bristow Missed call 6:09:59 am Mr Bristow Mr Maiolo And tried to cause havoc 6:17:52 am I’m going up to the servo 6:27:51 – 11:44:11 am Mr Ali Mr Bristow Eight missed calls 11:50:27 am Mr Bristow Mr Maiolo Abdi is calling me now have you seen him and got paid yet? What would you like me to do? 12:45:59 am Mate fuck he will have me running around on another goose chase that’s why I called you twenty times to ask lol 7:34:56 pm Can you call me please. Thanks 9:26:03 pm Mr Ali Mr Bristow Hey bro can you please help me out because I need to get pick up and drop to my friends car what ever you want I will pay you for it
The following telephone communications between Mr Bristow and Mr Maiolo on 21 December 2019 and 23 December 2019 suggest that Mr Bristow was introducing a new customer to Mr Maiolo:[39]
[39] Exhibit P21.
Time From To Text message content / calls Saturday 21 December 2019 2:15:19 am Mr Ali Mr Bristow Missed call 4:36:43 pm Mr Bristow Mr Maiolo Bo please call me back asap I’m in the city need to see you ASAP new customer. Monday 23 December 2019 4:56:59 pm Mr Bristow Mr Maiolo I’m waiting in the aquatic center carpark with someone ok please call me as soon as you’re home J.
Mr Bristow’s text message sent to Mr Maiolo on 2 January 2020, apologising for something he “had to do”, saying “he hit me last week I’m not a fucken pussy J”, and adding:[40]
The right words for adbi now are these ‘so how does it feel being punched in the face (left handed) by a poof’ – I’m sorry mate but I did say that I’d do it.
would appear to relate to the king-hit incident and Mr Bristow is referring to himself as a poof.
[40] Exhibit P21.
The following telephone communications occurred on 14 January 2020:[41]
[41] Exhibit P21.
Time From To Text message content / calls 10:11:56 – 10:23:21 am Mr Ali Mr Bristow Nine missed calls 10:23:53 am Hey it’s me Abdi were are you 10:30:28 am Five missed calls 2:12:04 pm Mr Maiolo Mr Bristow Missed call 2:18:30 pm RING ME 2:18:58 pm Missed call
On 16 January 2020 at 3:22:13 am, Mr Bristow sent a text to Mr Maiolo in the following terms:[42]
I have abdi’s phone etc, too, I can’t say he’s done anything wrong by me at all it’s me that’s fucked him around, but he’s just to shady for me bro…
By reference to this text message, it appears Mr Bristow has Mr Ali’s phone “etc” and Mr Bristow appears to confirm Mr Ali has not done anything wrong by him “at all”, and that it was he – Mr Bristow – who has “fucked [Mr Ali] around”.
[42] Exhibit P21.
The content of the foregoing text messages is relevant to the claim of right raised by Mr Ali to the charge of murder contrary to s 12A of the Act.
The evidence regarding the events of 3 February 2020
Ms Harrison’s interaction with Mr Ali and his cousin on 3 February 2020
Ms Harrison gave evidence that she had met Mr Ali through her former partner, Romeo. She said she would not have a clue when it was that she met him, but that she was about 20 years old at the time. Ms Harrison said that her ex‑partner and Mr Ali used to catch up a lot and, after she and her boyfriend broke up after New Year 2020, she caught up with Mr Ali two or three times.
3 February 2020
At 8:46:03 am, Mr Ali sent a text message to Ms Harrison saying, “It’s me abdi”.[43]
[43] Exhibit P21.
Ms Harrison spoke about travelling around in Mr Ali’s cousin’s car on 3 February 2020 and being dropped off at the end of her street.
Mr Ismail’s interaction with Mr Ali and Ms Harrison 3 February 2020
Asad Ismail (“Mr Ismail”) explained that he and Mr Ali were cousins, not by blood, but in accordance with the Somalian family clan system.
Mr Ismail gave evidence he had known Mr Ali since Mr Ali was a very young boy living in Melbourne. Mr Ismail came to Adelaide in 2004 and he thought Mr Ali came to Adelaide in around 2008, 2009, or even 2010.
Mr Ismail intended on driving to Melbourne on 4 February 2020 as his family had relocated to Melbourne. Just before he was due to leave, he contacted his family and was informed Mr Ali’s mother wanted him to bring Mr Ali home to Melbourne. Mr Ismail contacted Mr Ali two or three days before 4 February 2020. He said that every time he met with Mr Ali, Mr Ali said he wanted to go and finish something or collect something or collect money from people. Mr Ismail agreed to drive Mr Ali around on 3 February 2020. Mr Ismail drove a Holden Calais with the registration number S26BDW.[44] He picked up Mr Ali and a woman called Dayna from an On the Run petrol station on Prospect Road before lunch on 3 February 2020. He drove Mr Ali to a general practitioner for treatment for a cut on his hand, and to Centrelink because Mr Ali’s Centrelink payment had been suspended.
[44] T235.31.
It is an agreed fact that Mr Ismail drove Mr Ali to the house of an associate, Jamaine Sansbury, at Cavendish Road, Devon Park in the early afternoon of 3 February 2020. Ms Harrison was in Mr Ismail’s car as well, seated in the back passenger seat.
Mr Ismail said that he was a bit frustrated because he just wanted Mr Ali to pack his bags and come with him because his family and Mr Ali’s family were telling him to bring Mr Ali to Melbourne. Mr Ismail thought that he dropped Ms Harrison off and then took Mr Ali to his place or a friend’s house, he could not really remember. He said that Mr Ali promised that he would be ready to go to Melbourne on 4 February 2020.
Ms Harrison’s interaction with Mr Ali and Mr Bristow on 3 February 2020
Ms Harrison said she went home after being dropped off by Mr Ali’s cousin and later that day received a message from Mr Ali saying he wanted to catch up that night. Ms Harrison gave evidence she was looking for a vehicle to sleep in because her house had been home invaded, all her stuff had been taken, and she was scared to go home. Ms Harrison said she messaged Mr Ali on Facebook Messenger saying she needed a car and that she had $250. She said he replied he could get a car, but it would cost $1,000. She said she could not afford it. She met up with Mr Ali at the end of her street, walked to Prospect Road, arrived at a service station, and asked an African guy for a lift. The African guy dropped them off at the O’Connell Street pokies. Ms Harrison said they played the pokies and left when she only had a little of the $250 she had left. Ms Harrison said they then walked down to Torrens Road, through the paddock where the swimming centre is in North Adelaide. She described meeting up with men who were looking for a SIM card in a car parked out the front of the unit block. She said the guy who owned the car had lost his SIM card. She turned on the flashlight on her phone and tried to help.
CCTV footage recorded by cameras at the following locations depict Mr Ali and Ms Harrison on the evening of 3 February 2020 as detailed below:[45]
[45] Exhibit P4.
Location Time of event / Time on video file People and movement Monday 3 February 2020 Caltex Service Station
131 O’Connell Street, North Adelaide
10:05 pm / 00:01 Mr Ali and Ms Harrison exit from an unknown silver hatch and walk south on O’Connell Street. Royal Oak Hotel
123 O’Connell Street, North Adelaide
11:16 pm / 01:15 Mr Ali and Ms Harrison exit the Royal Oak Hotel gaming room and walk north on O’Connell Street, North Adelaide. Pellegrini Café
179 O’Connell Street, North Adelaide
11:19 pm / 03:11 Mr Ali and Ms Harrison walk north on O’Connell Street on the western footpath, under the eaves of Pellegrini Café. Caledonian Hotel
219 O’Connell Street, North Adelaide
11:21 pm / 03:48 Mr Ali and Ms Harrison walk northwest through the parklands surrounding the Adelaide Aquatic Centre. 5 Torrens Road, Ovingham 11:31 pm / 05:15 Mr Ali and Ms Harrison walk north-west on Torrens Road service road in Ovingham.
Ms Harrison said after about five minutes or so of trying to help find the SIM card she asked the owner of the car to take her home and he agreed. Ms Harrison said they got into the car, the owner was in the driver’s seat, Mr Ali was in the front passenger seat, and she was sitting in the seat behind Mr Ali. She said Mr Ali and the driver knew each other and the only thing the driver said to her when she got into the car was that they would go to the petrol station and then he would drop her home. Ms Harrison referred to Mr Bristow as the “owner” or the “driver” in her evidence.
Mr Chang-Shien’s interaction with Mr Bristow and Mr Ali on 3 February 2020
Liew Chang-Shien, known as Marcus, was staying with Mr Kola at unit 7 in the unit block in February 2020. Mr Chang-Shien was the person assisting Mr Bristow look for the SIM card when Mr Ali and Ms Harrison arrived at the unit block.
Mr Chang-Shien gave evidence that whilst he was assisting Mr Bristow to look for the SIM card, Mr Bristow went into his car and grabbed a penknife to cut plastic from the wiper to try to get access to the card. He said the knife had a black handle and being about five-and-a-half or six inches long. He described Mr Ali arriving with two girls. He had known Mr Ali at that time for less than six months. He said Mr Ali was in the company of a black woman and a white woman. He knew the black woman’s name was Cheryl. He said Mr Bristow, Mr Ali, and the two girls got into Mr Bristow’s car and Mr Bristow drove off. Thereafter, Mr Chang-Shien stayed at Mr Kola’s unit for a while and then went to the pokies.
The evidence regarding the events of 4 February 2020
Senior Constable Bruce
Senior Constable Samuel Bruce, an officer in SAPOL’s digital evidence section, gave evidence about his interrogation of the contents of the Garmin GPS device (“the device”) installed in the Ford and the reports he prepared.[46] He explained due to the nature of the storage of information on the device, not all events were able to be recovered and there may be gaps in information as the device may have been turned off or not recording for various reasons. He said the device attempts to geolocate the device rather than the car it is installed in by use of the global positioning satellite. Time associated with data extracted from the device is Coordinated Universal Time (“UTC”). As the UTC offset in South Australia on 4 February 2020 was UTC +10.30, Senior Constable Bruce prepared his reports adding 10-and-a-half hours for Australian Central Daylight Time to the time recorded by the data extracted from the device.
[46] Exhibits P20 and P20A.
Ms Harrison’s interaction with Mr Ali and Mr Bristow on 4 February 2020
Ms Harrison said when they got to the petrol station, the driver got out to get petrol. She was going to try and steal his car as she saw the keys were left in the ignition. She described Mr Ali saying he wanted to take a bike he saw at the petrol station and asking the driver if there was anything that he could use – knives or pliers – to cut the bike free. Ms Harrison said the driver reached into the side of his door and pulled something out – she did not know what –and gave it to Mr Ali.
Mr Ali got the bike. Ms Harrison and the driver left the petrol station in the Ford and drove around the corner to a dead end where Mr Ali – and I infer the driver – took the wheels off the bike and put it in the Ford.
CCTV footage recorded by cameras at the following locations depicts the Ford, Mr Ali, Mr Bristow and Ms Harrison as detailed below:[47]
[47] Exhibit P4.
Location Time of event / Time on video file People and movement Tuesday 4 February 2020 Guthie Street/Torrens Road Ovingham 12:07 am / 06:09 The Ford exits Guthie Street, Ovingham to travel north-west on Torrens Road. BP On the Run
24 Torrens Road, Brompton
12:08 am / 07:00 The Ford at the BP Service Station. Mr Bristow in the driver’s seat, Mr Ali in the front passenger seat and Ms Harrison in the rear passenger seat. Mr Ali leaves the front passenger seat and walks away from the vehicle as the vehicle drives out of the service station. A bicycle frame is visible on the driver’s side rear seat as the vehicle leaves the service station. Ms Harrison is visible in the rear passenger side seat. Mr Ali seen riding a bicycle, travelling in the same direction as the Ford as it leaves the service station.
Ms Harrison said after stopping at the BP On the Run at Brompton they travelled to Port Adelaide.
GPS data recorded the device installed in the Ford was in the vicinity of Gouger Crescent, Port Adelaide at about 1:12 am on 4 February 2020.[48]
[48] Exhibit P20.
Ms Harrison said she stayed in the car when it stopped. Mr Ali and the driver got out, took the bike inside a premises. The driver took the keys to the car with him on this occasion.
Ms Harrison said that she messaged Mr Ali as soon as he got back into the car saying they should just take the car. She said Mr Ali replied saying he did not want to do it.
The timeline of telephone communications includes the text sent by Ms Harrison to Mr Ali:[49]
[49] Exhibit P21.
Time From To Text message content / calls Tuesday 4 February 2020 1.10.53 am Ms Harrison Mr Ali We will tell him I can get a phone but he has to run up to the house and get it that’s when we will take off in his car Yeah?
Ms Harrison said the driver said he needed a phone so she thought it could be a way of getting his car. She told the driver she knew someone who had a phone, so directed him from Port Adelaide to somewhere in Kilburn, intending to tell him to go up to the house to get the phone and then drive off in his car.
CCTV footage recorded by a camera at the following location captured the Ford as follows:[50]
[50] Exhibit P4.
Location Time of event / Time on video file People and movement Traffic Management Camera
Intersection of Churchill Road and Grand Junction Road, Kilburn
1:22 am / 11:13 The Ford travels east on Grand Junction Road and turns south onto Churchill Road, Kilburn.
They drove “to some random street to some random house”.[51] Ms Harrison told the driver it was one of the houses on that street and he said, “Well, I’m not just going to walk up to any random one”.[52] Ms Harrison said she kept pointing and saying, “It was one of them”.[53] She was pointing at houses on the left side of the road. They drove up and down the street for a bit and then Mr Ali and the driver got out of the car, walked behind the boot and were talking about something. Ms Harrison said she did not look to see if the keys were still in the ignition, because at that stage she was freaking out as they were talking behind the car, and she did not know what was going on. She was afraid that Mr Ali might be showing the driver the message she had sent about stealing the car.
[51] T279.16-17.
[52] T280.18-19.
[53] T280.24-25.
GPS data recorded the device installed in the Ford in the vicinity of Stone Street, Blair Athol for about 12 minutes between 1:27 am and 1:39 am on 4 February 2020.[54]
[54] Exhibit P20.
Ms Harrison said after five minutes or so the driver and Mr Ali got back in the car swapping seats so that Mr Ali was in the driver’s seat and the driver was in the front passenger seat. She said she did not hear any conversation that explained why they had changed seats. The driver turned around to her and said, “What, don’t you trust me?”.[55] Ms Harrison said she replied, “I wouldn’t be in your car if I didn’t trust you”. Ms Harrison said the driver just went silent, and they drove off.
[55] T281.31-32.
CCTV footage recorded by a camera at Agha Juice on 317 Prospect Road, Prospect captured the Ford travelling south on Prospect Road, Prospect at 1:38 am.[56]
[56] Exhibit P4.
Ms Harrison said she then heard Mr Ali telling the driver to get out of the car and the driver was looking at Mr Ali “like, ‘What, what, bro?’”.[57] Ms Harrison said Mr Ali said, “Get out of the car” again and she saw his “arm going flying across”.[58] She said at this point the car was stopped, but she did not know where. She said she was “pretty sure” there was something in Mr Ali’s hand and then said she was “not quite sure, it was dark”.[59] When asked, “Why did you say you’re pretty sure there was something in his hand”, she said, “Because how else would the guy have got hurt”.[60] Ms Harrison said she did not see anything in Mr Ali’s hand and was not 100 percent sure where Mr Ali’s hand made contact as she was in the back seat. She used her right arm to demonstrate Mr Ali using his right arm, and how he had a clenched fist on top of the steering wheel before he flung his arm across. She explained:[61]
I only saw his hand go across. The driver didn’t act like he had been hurt or anything. He just – he’s like ‘I’m trying to get out’ and then he took his seatbelt off and he opened his car door like nothing had happened and so.
When asked where Mr Ali’s arm finished up after it swung in front of Mr Bristow’s body, Ms Harrison said, “Well obviously on this side … somewhere”,[62] pointing whilst giving her evidence to the left side of her body, near her shoulder or her bicep. She then said, “It could have been anywhere”.[63]
[57] T282.12-13.
[58] T282.14.
[59] T283.15.
[60] T283.16-18.
[61] T283.25-29.
[62] T283.34.
[63] T284.1.
Ms Harrison said Mr Ali did not say anything after flinging his arm across. She said the driver took his seatbelt off, opened the door, and just tumbled out because the car drove off as he was getting out. When asked what happened after they drove off, she said, “I don’t really know after that, it’s all kind of blurry”.[64] Ms Harrison was asked about Mr Ali’s hand being on top of the steering wheel and how long it had been there, Ms Harrison said:[65]
I’m assuming he had only just put it up when they got back in the car, he’d only just put [it] up and then he said, like, ‘Get out the car’.
When asked how much time had passed between Mr Ali saying, “Get out of the car” and moving his hand towards the driver, she said, “I wouldn’t have a clue, I was very high on drugs”.[66]
[64] T285.2-3.
[65] T285.7-9.
[66] T285.13-16.
Mr Harrison said the last time she used drugs on 3 February 2020, was just before she left her house to meet up with Mr Ali on the second occasion on 3 February 2020. She said the last time she used before giving evidence was the day she was arrested on 4 February 2020.
When asked how much she had used prior to meeting up with Mr Ali on the second occasion on 3 February 2020, Ms Harrison said, “…it’s just like I went through half a ball a day, because I was injecting, so I had a bit there and a bit there and then, yeah”.[67] She then clarified she had three or four injections of methamphetamine before meeting Mr Ali on the second occasion on 3 February 2020.[68]
[67] T286.3-5.
[68] T303.7-8.
Ms Harrison said methamphetamine made her feel unstoppable and affected her perception of time by making “time seem like it was nothing, you know, there was no time”.[69] She said the drug made her mental health worse, did not affect her hearing, but blurred her sight.
[69] T286.12-13.
Ms Harrison then gave evidence that the time between Mr Ali saying, “Get out of the car” and putting his hand up on the steering wheel and swinging at the driver was a minute or two. She said Mr Ali was silent after the driver got out, they drove off and he did not explain what had happened. At that point, she was “Scared and, ‘cos I’d been up for a fair few days, so I was, you know, a little bit lost in my brain, I wasn’t all there”.[70] She said she had not slept for a few days because of the drugs she had been using.
[70] T287.1-3.
GPS data recorded the device installed in the Ford in the vicinity of Hillsdale Street, Prospect between 1:41 am and 1:42 am on 4 February 2020.[71]
[71] Exhibit P20.
It is the prosecution case what appears to be a person collapsing at 1:44 am on 4 February 2020, near the intersection of Prospect Road and Alabama Avenue, in CCTV footage captured by a camera installed at a tax agent’s office located at 308 Prospect Road,[72] was Mr Bristow.
[72] Exhibit P4.
Ms Hannaford
Carolyn Hannaford (“Ms Hannaford”), whose home is on the southwestern corner of Prospect Road and Alabama Avenue, was woken around 6:00 am on 4 February 2020 by “a media person”[73] who told her the police were in the street and asked whether she had she heard anything.
[73] T587.25.
Ms Hannaford detailed that at about 1:15 am or 1:30 am on 4 February 2020, she was getting into bed when she heard what sounded like groaning and a voice that said “Ouch, it hurts” in her backyard.[74] She did not investigate as the police told her “Don’t ever do that again” on a previous occasion when she had confronted an intruder.[75]
[74] T588.23-24.
[75] T588.21.
Ms Harrison’s interaction with Mr Ali after Mr Bristow was got out of the Ford
Ms Harrison said Mr Ali did not mention anything about having had issues with the driver he had forced out of the car. After the driver was ejected, Mr Ali asked her if she wanted to go and get a feed. They drove to a service station, she did not have a clue where, and got Hungry Jack’s and Subway. Just before they got to the servo, she thought she jumped in the front seat.
GPS data recorded the device installed in the Ford was present at Cavendish Avenue, Devon Park at about 1:46 am on 4 February 2020 and then in the vicinity of 612 South Road, Angle Park between 2:20 am and 2:31 am on 4 February 2020. It then appeared to remain stationary in a car park until 2:43 am on 4 February 2020. The Ford returned to Cavendish Avenue, Devon Park at about 2:56 am on 4 February 2020[76] until 3:35 am on 4 February 2020.
[76] Exhibit P20.
It is an agreed fact Mr Ali attended Cavendish Avenue, Devon Park at about 1:46 am on 4 February 2020 with a black racing bicycle that he wanted to leave with Jamaine Sansbury to collect later. He left the bicycle at Cavendish Avenue but subsequently returned at approximately 2:56 am. Jamaine Sansbury disposed of the bicycle later on 4 February 2020.
CCTV cameras at locations listed below captured the Ford’s journey between 1:45 am and 2:19 am on 4 February 2020 as follows:[77]
[77] Exhibit P4.
Location Time of event / Time on video file People and movement Advantage Pharmacy
209-211 Churchill Road, Kilburn
1:45 am / 14:16 The Ford travels south on Churchill Road, Kilburn. Traffic Management
Days Road/South Road, Angle Park
2:19 am / 15:05 The Ford exits Days Road to travel north on South Road. BP On the Run
610-612 South Road, Angle Park
2:19 am / 15:46 The Ford enters BP forecourt. Mr Ali and Ms Harrison enter OTR shop and purchase Subway (Mr Ali) and Hungry Jacks (Ms Harrison). Mr Ali can be seen talking on the phone (at 2:23 am).
The timeline of telephone communications[78] records Mr Ali calling Mr Maiolo at 2:23 am on 4 February 2020 for 157 seconds. This corresponds to the CCTV footage of Mr Ali appearing to talk on the phone at 2:23 am at the BP On the Run at Angle Park.
[78] Exhibit P21.
Ms Harrison described going to the pub at the back of a service station. They were about to pull into the car park when they saw the police car and she said to Mr Ali, “Turn out … Get out, there’s a cop car there”.[79] Ms Harrison said at this stage she was in the front seat.
[79] T288.24-25.
Ms Harrison gave evidence that at some point Mr Ali told her that the driver had written something on a note pad, saying that he – the driver – had “first dibs on [her]”.[80] When she asked Mr Ali where the note was, he said it was on the passenger seat floor, but it was not there when she looked.
[80] T291.8-10.
A CCTV camera at the location listed below captured the Ford’s journey between 2:31 am and 2:42 am on 4 February 2020 as follows:[81]
[81] Exhibit P4.
Location Time of event / Time on video file People and movement McQueens Tavern
55 Cardigan Street, Angle Park
2:31 am / 24:43 The Ford exits BP OTR forecourt via carpark to McQueens Tavern and then travels north towards Cardigan Street, Angle Vale. 2:42 am / 25:59 The Ford returns to the carpark of McQueens Tavern, parks momentarily, and then exits again to Cardigan Street, Angle Park.
Ms Harrison said they drove off from the service station and Mr Ali pulled up at a house. He got out of the car and went into the house. She said that when he came back, she asked if she could drive and he said “No”. She could not recall where they went but then she got into the driver’s seat. She thought that occurred when they took off from the last house they went to. Mr Ali said he wanted to go back to Torrens Road to see someone. She drove back to Torrens Road directed by Mr Ali. He got out of the car after she had parked in a side street, told her to wait there and that he would be back. She took off straight away because she was scared. After she left, Mr Ali kept ringing and messaging her. She did not answer and turned off her phone.
GPS data recorded the device installed in the Ford travelling in a south‑easterly direction on Torrens Road, turning right onto Park Terrace, turning right on to the Park Terrace service road at 3:42 am and in the vicinity of 63 Park Terrace, Ovingham at about 3:44 am on 4 February 2020. The data recorded the device installed in the Ford left Park Terrace travelling in a south-westerly direction.[82]
[82] Exhibit P20A.
CCTV cameras at locations listed below captured the Ford, Ms Harrison, and Mr Ali between 3:42 am and 3:59 am on 4 February 2020 as follows:[83]
[83] Exhibit P4.
Location Time of event / Time on video file People and movement Park Terrace and Torrens Road (service road), Ovingham. 3:42 am / 27:15 The Ford driven by Ms Harrison drops off Mr Ali at Park Terrace. Park Terrace, Ovingham 3:46 am / 29:57 The Ford driven by Ms Harrison leaves Park Terrace. Torrens Road (service road), Ovingham 3:59 am / 30:22 Mr Ali walks southeast on Torrens Road (service road) towards Park Terrace.
The timeline of telephone communications[84] includes the following text messages and photo from Mr Ali’s phone to Ms Harrison’s phone:
[84] Exhibit P21.
Time From To Text message content / calls Tuesday 4 February 2020 4.08.18 am Mr Ali Ms Harrison Came to same place I you and you gone 4.08.23 am Really 5.00.52 am [A photo of a person in black thongs holding a bong][85] [85] A copy of this photograph was tendered as Exhibit P19.
Ms Harrison said after leaving Mr Ali she went to a mate’s house in Grange. She parked the car somewhere and tried to sleep, however, she got scared and moved because “the coppers were going to come”.[86] She said she was driving recklessly around Grange and got into a high-speed chase. She parked the car down a side street and took off. She walked to a bus stop, got on the bus, and the police caught her on the bus.
[86] T292.2-3.
It is an agreed fact the Ford was detected having activated fixed safety cameras at the following locations and times on 4 February 2020:
·Grange Road, Kidman Park at 4:22 am;
·Marion Road, Ascot Park at 6:51 am;
·Marion and Sturt Roads, Mitchell Park at 6:54 am; and
·Findon Road and Balcombe Avenue, Findon at 1:07 pm.
Ms Harrison said she did not see a knife in the car. She first learnt about what happened to the driver when she was in police cells and the police told her there had been a murder. She said, at first, she was confused because no one had died, then they told her who it was and “it just, it hit [her] at once, you know”.[87]
[87] T293.27-28.
The difficulties presented by Ms Harrison’s evidence
Cross-examination of Ms Harrison revealed there were significant inconsistencies between her evidence and the statements she gave police. When asked why she told the police an unnecessary lie, she said:[88]
I was scared. I’m going through all of this stuff. I was high on drugs and going through all of this, young girl. It just wasn’t going all through. My stories weren’t coming out straight but I’m here today. I’m telling the frigging truth.
[88] T322.36-T332.3.
At the commencement of these reasons and in discussing Ms Harrison’s evidence, I explained I would not accept her evidence unless it was supported by other evidence I accept.
As there is no other evidence supporting the evidence Ms Harrison gave regarding the swinging of Mr Ali’s arm toward Mr Bristow’s torso, I cannot, given the state of her evidence, find Mr Ali stabbed Mr Bristow with the requisite specific intent to kill or cause really serious bodily harm, or with knowledge that his act would probably cause death or really serious bodily harm.
Mr Ali must be found not guilty of murder contrary to s 11 of the Act.
Murder contrary to s 12A of the Act
As detailed above, the prosecution allege in the alternative Mr Ali is guilty of murder contrary to s 12A of the Act, as he committed an intentional act of violence, namely the act of stabbing, while in the course of robbing Mr Bristow, thereby causing the death of Mr Bristow.
Claim of right
Mr Ali, through his counsel, has raised the defence of claim of right to the Ford.
As theft is an element of the offence of robbery, to establish theft and therefore robbery, the Ford must be taken dishonestly and without a bona fide claim of right. Section 131 of the Act is based on the common law claim of right.
Section 131(1) of the Act provides that:
A person’s conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.
Section 131(5) of the Act provides that:
The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way.
As dishonesty is an element of the offence of robbery, it is necessary for the prosecution to prove the absence of a claim of right as defined by s 131.
R v Bedford[184] concerned an appeal against a conviction of attempted robbery where it was conceded the trial Judge’s summing up contained a misdirection on the law of claim of right. Mr Bedford gave evidence during his trial he had purchased heroin from a shopkeeper which he later discovered was underweight and of poor quality. He asserted he returned to the shop to seek replacement of the heroin, or a refund of the amount paid. The shopkeeper refused to give a refund and an argument ensued involving pushing, shoving, and attempts by Mr Bedford to get money from a cash register. Mr Bedford gave evidence to the effect he believed the money he tried to take from the cash register was money owed to him.
[184] (2007) 98 SASR 514.
In considering the misdirection on the defence of claim of right, Duggan J (with whom Vanstone J agreed) referred to The Queen v Langham.[185] Mr Langham had purchased a crossbow from a sports store and then returned it to the store requesting a refund. Mr Langham was told it was not the policy of the store to give refunds and was offered a credit so he could make other purchases. Mr Langham then purchased a shotgun using part of his credit leaving a credit balance of $301. Mr Langham returned later to the store flourishing the shotgun and demanding the balance of the credit in cash whereupon he was given the amount of the credit. Mr Langham gave evidence claiming he had an entitlement to the money. He was subsequently convicted of armed robbery. The Court of Criminal Appeal decided the jury were misdirected on the defence of right of claim and quashed the conviction. Justice Duggan summarised the observations made in The Queen v Langham as follows:[186]
[185] (1984) 36 SASR 48.
[186] R v Bedford (2007) 98 SASR 514 at [11].
(1)The claim of right must be bona fide, but it need not be reasonable.[187]
[187] Langham per King CJ (at 49). See also Glanville Williams, Criminal Law (2nd ed) at 323.
(2)The claim of right need have no foundation in law or fact in order for it to provide a defence.[188]
[188] Langham per King CJ (at 53); see also R v Lopatta (1983) 35 SASR 101 at 107.
(3)The belief in the claim of right is concerned with entitlement to the property. It need not extend to a belief in the right to take the actual measures which were used to obtain the property.[189]
[189] R v Langham (1984) 36 SASR 48 at 51.
(4)The measures which are used (e.g., violence) may constitute another offence or other offences.
(5)The accused is not required to give evidence as to his belief in the terms used in the definition of larceny, “but in layman’s terms from which the inference can reasonably be drawn that he believed he was entitled to possession of the property”.[190]
[190] R v Langham (1984) 36 SASR at 64 per Johnston J.
(Footnotes in original)
Justice Duggan explained:[191]
[191] R v Bedford (2007) 98 SASR 514 at [20]-[21]; [22].
It has been pointed out that a claim of right can be based on an unfounded and unrealistic view. In Walden v Hensler,[192] Brennan J referred to the common law view summarised by Stephen J, History of the Criminal Law of England:[193]
[192] Walden v Henlser (1987) 163 CLR 561 at 570.
[193] (1883), Vol 3, Ch XXVIII p 124.
Fraud is inconsistent with a claim of right made in good faith to do the act complained of. A man who takes possession of property which he really believes to be his own does not take it fraudulently, however unfounded his claim may be. This, if not the only, is nearly the only case in which ignorance of the law affects the legal character of acts done under its influence.
In the same case, Brennan J quoted with approval the following comments by Gibbs J (Stanley and Hanger JJ agreeing) in R v Pollard:[194]
An accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing. A belief that he may acquire a right in the future is not in itself enough.
... It is not to the point that the accused had no right to take the vehicle. If he had honestly believed that he was entitled to take it, or if the jury had a reasonable doubt whether he had such a belief, he should have been acquitted, however wrong his belief may have been, and however tenuous and unconvincing the grounds for it may seem to a judge.
…
In R v Pollard, Gibbs J underscored this consideration when he said:[195]
It is well settled that a claim of right sufficient to relieve a person of criminal responsibility need only be honest and need not be reasonable (Clarkson v Aspinall; Ex parte Aspinall ([1950] St R Qd 79 at 89)); “the fact that it is wrongheaded does not matter”: R v Gilson and Cohen ([1944] 29 Cr App R 174 at 180). In Rex v Bernhard ([1938] 2 KB 264 at 270) the Court of Criminal Appeal said that a person has such a claim of right “if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact.”
(Footnotes in original)
[194] R v Pollard (1962) 56 QJPR 45; [1962] QWN 13 at 29.
[195] Pollard (at QWN at 29).
The belief in a claim of right does not need to be in a right to the exact property in question and may extend to property of equivalent value. The belief must relate to a right to the whole of the property taken and a belief cannot justify intentionally taking property of greater value.[196]
[196] R v Bedford (2007) 98 SASR 514 at [37] (Gray J quoting R v Fuge (2001) 123 A Crim R 310 at [24]).
As “the concept of claim of right is inextricably bound up with the requirement that an accused act dishonestly in the case of any offence requiring proof of theft”,[197] the prosecution must prove Mr Ali acted dishonestly. Put another way, the absence of a claim of right pursuant to s 131 of the Act is an essential element of the offence of robbery.
[197] R v Bedford (2007) 98 SASR 514 at [18] (Duggan J).
The issue is whether I am satisfied beyond reasonable doubt that the prosecution has negatived the defence of claim of right and failed to prove Mr Ali acted dishonestly.
The dispute between Mr Ali and Mr Bristow regarding property
The prosecution submitted text messages between Mr Bristow and Mr Ali and the prison calls,[198] prove that Mr Ali believed Mr Bristow had acted wrongly in taking or retaining his property in late 2019. Mr Ali, on the prosecution case, was angered by Mr Bristow’s conduct and harboured a resentment towards him, so much so that they fought[199] and Mr Ali spoke contemptuously of Mr Bristow’s conduct many months after his death.[200] It was submitted Mr Ali showed a preoccupation with Mr Bristow’s conduct in retaining his property and issued violent threats to him in the messages before Mr Bristow’s message on 2 January 2020. On the prosecution case, the messages are relevant as they illustrate the extent to which Mr Ali resented Mr Bristow’s conduct which, in turn, informed his attitude towards him on 4 February 2020.
[198] Exhibit P22; P23.
[199] T91.
[200] Exhibit P23.
It was submitted that, while Mr Ali and Mr Bristow appeared to repair their relationship following the king-hit incident,[201] Mr Ali did not forgive or forget Mr Bristow’s conduct in retaining his property.
[201] T421; T111-112.
The text messages sent by Mr Ali commencing at 5:42 am on 20 December 2019 regarding his “stuff” in Mr Bristow’s bag suggest Mr Ali believed Mr Bristow had taken his “shit”.
Mr Bristow told Mr Maiolo in a text at 6:05 am on 20 December 2019 he wanted to give Mr Maiolo Mr Ali’s “shit he left in my car”. The message Mr Bristow sent at 11:50 am to Mr Maiolo asking whether Mr Maiolo had seen Mr Ali and “got paid yet” suggests Mr Ali owed Mr Maiolo payment.
In his message to Mr Maiolo on 2 January 2020, Mr Bristow apologised for something he “had to do” and said, “he hit me last week I’m not a fucken pussy J”, and added:[202]
The right words for adbi now are these ‘so how does it feel being punched in the face (left handed) by a poof’ – I’m sorry mate but I did say that I’d do it.
This message indicates Mr Bristow was annoyed with Mr Ali and was moved to taunt him by saying “so how does it feel being punched in the face (left handed) by a poof”, referring to himself as a poof who had inflicted a punch left handed.
[202] Exhibit P21.
In a message sent on 16 January 2020, Mr Bristow told Mr Maiolo he had Mr Ali’s “phone etc” (I infer he had more than Mr Ali’s phone) and said Mr Ali had not done anything wrong by him “at all”. Mr Bristow continued saying it was he who had “fucked” Mr Ali around, “but he’s just to shady for me bro..”. When asked about this text in cross-examination, Mr Maiolo said Mr Bristow told him he had borrowed Mr Ali’s phone. When Mr Maiolo asked Mr Ali why Mr Bristow had his phone, Mr Ali replied that Mr Bristow took it, “stole two phones off of him”.[203] There is no evidence suggesting Mr Bristow returned Mr Ali’s property.
Mr Maiolo also gave evidence that Mr Ali had told him he had borrowed Mr Bristow’s car on 4 February 2020.
[203] T112.16-17.
Mr Chang-Shien gave evidence about Mr Ali not being happy with Bristow “for something that happened previously, like as if – like [Mr Ali] owed him money or [Mr Bristow] owed him money or something happened between them and [Mr Ali] was not happy and that’s what happened”.[204] He also agreed he had told police in a statement dated 2 March 2020:[205]
About a month before Matty died I was with Abdi and he told me Matty owed him money and a phone. I remember I was at 7 Torrens Road, Ovingham in the outside area, there was no-one else around at the time
[204] T410.1-5.
[205] T418.27-30.
Mr Chang-Shien said in evidence that Mr Ali did not say he wanted to steal Mr Bristow’s car, rather “he wanted to take the vehicle. He wanted to use the vehicle to go for a ride or something, you know”.[206]
[206] T437.36-38.
Mr Graziotin’s evidence was that Mr Ali told him he had “the car and this girl took the car off him and I said ‘Whose car was it?’ He said ‘Matt’s’”.[207]
[207] T539.24-25.
Mr Ali told Senior Constable Fleming the car was taken by the girl and he took the car because “he needed to learn a lesson” and he told him to walk.
Mr Ali told Detective Everlyn on 4 February 2020 that about one week earlier Mr Bristow had given him a lift to Port Adelaide but had left him there and took off with his phone, wallet, and personal effects. Mr Ali also told Detective Everlyn he, Mr Bristow, and Ms Harrison went to Port Adelaide, Gepps Cross, and Kilburn trying to get gear on 4 February 2020 without any luck. Detective Everlyn said he was told by Mr Ali that as some sort of debt or credit arrangement Mr Ali ended up with Mr Bristow’s car and he left Mr Bristow on the street to walk back to Torrens Road at Ovingham. Detective Everlyn said Mr Ali was adamant he did not steal the car, there was no fight, no struggle, and no resistance from Mr Bristow.
Detective Everlyn said the summary of what Mr Ali told him regarding the Ford was that it was some sort of credit or debt arrangement combined with making up for an issue between him and Mr Bristow where Mr Ali had been left at Port Adelaide, but it was not exactly clear what that arrangement was or how that came to be.
Mr Ali referred in the prison calls to taking the Ford “because he has money” and “coz he stole my mobile phone and wallet, everything before that” and leaving him on Prospect Road “cos he keeps stealing my shit”. He also said in another call he had told Mr Bristow “I’m not going to steal your car, right, there’s a VIN number on the engine, right, even if I take the plates off the car scrap metal is only 300 bucks, meet me back at J’s house”.
He said in another call:[208]
They don’t have nothing you know, even on the statement it says, the person was in the car, they see me telling the person, get off the car, that’s it. They haven’t seen me stabbing him, they haven’t seen nothing, me do nothing with him.
and in another “only that Dayna girl said she seen me waving a knife but she did not see me connect with him”. He said in other calls he told Mr Bristow to “get off the car” and to walk to Torrens Road to Mr Maiolo’s house.
[208] Exhibit P23.
Mr Ali denied the killing to persons he spoke to, and suggested Ms Harrison told police he had a knife because the police were going to charge her with murder and that “Probably the girl done it”. He told another person that after he woke on 4 February 2020 he went to the bank and got money out, gave it to his cousin and told him “fuck off and go to Melbourne”.[209] He said he then looked for the Ford “cause the bitch stole my car, you know”.[210] In the same call, he said he told police to look at CCTV footage because they would see he did not have any blood on him.[211] At the time he placed this call, he was of the belief the police did not have “the knife”.[212]
[209] Exhibit P23.
[210] Exhibit P23.
[211] Exhibit P23.
[212] Exhibit P23.
It is clear Mr Ali denied involvement in the killing during the calls, was concerned about what the police could prove, and cast blame on Ms Harrison. He makes clear in the calls as a Muslim he hates the “gay thing”, “I feel nauseous about it”.
In a prison call, Mr Ali recounted:[213]
Because he said you steal things from me get off the car and go and I’ll show you when you left me on the street walking about two or three hours, you know, you are not my mother and you are not my father and you are not my brother f … and why did you leave me on the street and why do you steal my things from me. You know, … Go away. You can’t give me my money and all my things back and I can’t get money from you, you know, think about what you have done was wrong. … Then the boy came up with a foolish thing, a gay thing, you know. … Then Abdirizak punched the boy, you know. … And he said fuckig ‘Oi listen to me I am Muslim an I am (inaudible) don’t come to me with gay and what’s called, foolish things, you know
[213] Exhibit P23.
It is possible, having regard to Mr Bristow’s sentiments expressed in the text on 2 January 2020 about the right words for Mr Ali being “so how does it feel being punched in the face (left handed) by a poof”, that he taunted Mr Ali about being punched by a “poof” whereupon “Abdirizak punched the boy”. Mr Ali’s reference to the “gay and what’s called foolish things” may relate to such a taunt. It could also be a reference to the king-hit incident referred to in the text message on 2 January 2020, where Mr Bristow said “he hit me last week I’m not a fucken pussy J”. The reference to “You can’t give me my money and all my things back and I can’t get money from you” may relate to the possession of the Ford pursuant to a claim of right or a credit/debt type arrangement.
Mr Ali’s statement in a call on 28 February 2020:[214]
the only thing they have for me, alright um, I tool, I took the victim’s car … Alright and victim coz he stole my mobile phone and wallet, everything before that … And I told him, get off you know, he probably go, he probably got killed by his boyfriend (Laughs)
could be an admission to theft and an attempt to distance himself from the killing. It could also be an expression of a claim of right.
[214] Exhibit P23.
The recurring theme in the evidence is Mr Ali’s issues about his property being retained by Mr Bristow. Mr Bristow’s admissions in a text to having Mr Ali’s property, that Mr Ali had not done anything wrong by him “at all”, and that it was he who had “fucked” Mr Ali around, give credence to Mr Ali’s complaints. Detective Everlyn’s evidence was that whilst Mr Ali taking the Ford and leaving Mr Bristow on the street to walk to Torrens Road, Ovingham would probably sound strange to most people, from his experience in the drug scene, low‑level drug users have all sorts of arrangements and debts and credits.
It is possible, given Mr Bristow got out of the front passenger side door, Mr Bristow had at some stage consented to Mr Ali driving. It is reasonably possible Mr Bristow gave permission to Mr Ali to drive the Ford and take it for a period of time as a part of a credit/debt type arrangement Detective Everlyn referred to. Having regard to the evidence that the Ford was in Stone Street for about 12 minutes, it is possible such an arrangement was reached in Stone Street. There is insufficient evidence to make a specific finding about the circumstances of Mr Ali taking up position of driver.
The issue is whether the prosecution has proved Mr Ali had the state of mind required for robbery, in particular, whether the evidence established beyond reasonable doubt that Ali intended to:
(1)deprive Mr Bristow permanently of the Ford pursuant to s 134(1)(c)(i) of the Act; or
(2)make a serious encroachment on Mr Bristow’s proprietary rights pursuant to s 134(1)(c)(ii) of the Act, as defined in s 134(2).
The element of intention must be addressed at the time of dealing with the Ford.[215] There is insufficient evidence to make specific findings about the circumstances of the stabbing, let alone draw inferences about Mr Ali’s state of mind at the time of the stabbing.
[215] McGuiness v Police (2016) 125 SASR 413 at [17].
Mr Ali’s use of the Ford for two hours or so after Mr Bristow got out, and not returning to the unit block to return the Ford, is suggestive of a dishonest intention. So too, are some of Mr Ali’s statements to police and prison calls. Whilst these matters lend to some support to the prosecution’s allegations, the use of the Ford may also have been in furtherance of an agreement between Mr Ali and Mr Bristow. Mr Bristow may have consented to swapping positions in the car and to Mr Ali driving to Devon Park to off load the bike, for example. In one of the prison calls Mr Ali said:
…The man, I took his car only. I said get off the car, when things got intense I slapped him and I said to him ‘get off the car’ and I took his car and a girl stole the car from me.
These matters relied on by the prosecution considered in isolation raise my suspicions, however, they are matters that occurred after the stabbing. There is insufficient evidence available to support a finding beyond reasonable doubt that Mr Ali dishonestly took the Ford at the time of the stabbing.
Mr Bristow was found to have had 0.9 mg/L of methylamphetamine and 0.09mg/L of amphetamine detected in his blood analysis following post-mortem. Dr Heath also found evidence of a possible recent track mark in Mr Bristow’s elbow crease at post-mortem and was of the opinion recent injection to that site might have occurred a few minutes up to four to six hours before death.
Prof White gave evidence aggression is more likely when a person is under the influence of methylamphetamine, and a level of 0.9 mg/L would have the effect of making a living person more prone to overreacting and irritability and might cause a male person to consider themselves sexually empowered.
It is reasonably possible after being giving permission to drive or use the Ford, Mr Bristow’s behaviour under the influence of methylamphetamine was such that Mr Ali stabbed Mr Bristow without the state of mind required for robbery or the requisite specific intent required for murder contrary to s 11 of the Act and ejected him from the Ford because “he needed to learn a lesson”.[216]
[216] T137.21-25.
I cannot exclude as a reasonable possibility that the stabbing occurred in the absence of any intention to rob Mr Bristow. I am not satisfied that the third element of murder contrary to s 12A of the Act, requiring the prosecution to prove the stabbing was committed while in the course or furtherance of the offence of robbery, has been established beyond reasonable doubt as against Mr Ali.
I am not satisfied that the prosecution has excluded Mr Ali held a genuine belief that he had a claim of right to possession, even if temporarily, to the Ford.
Having regard to the totality of the evidence, it is possible, as contended by the prosecution, Mr Ali intended to steal the Ford, however, I cannot exclude as a reasonable hypothesis that Mr Ali’s possession of the Ford was motivated by a factor other than an intention to steal.
The prosecution has not disproved the claim of right raised by the defence.
Mr Ali must be found not guilty of murder contrary to s 12A of the Act.
Manslaughter by unlawful and dangerous act
Mr Ali, by his plea to manslaughter, admits the act of stabbing Mr Bristow was either dangerous or unlawful and has thereby admitted each of the elements of the crime of manslaughter.
I turn to consider the elements to ensure I am satisfied, beyond reasonable doubt, the prosecution has proved the elements of the offence.
The elements of unlawful and dangerous act manslaughter are:
(1)an act of Mr Ali caused the death of Mr Bristow;
(2)the act was voluntary (i.e., deliberate);
(3)the act was unlawful;
(4)the act was dangerous, i.e., a reasonable person in the position of Mr Ali would have realised that his actions would expose Mr Bristow to an appreciable risk of serious injury or harm.
I am satisfied, as with the crime of murder, that the first two elements of the offence are not in dispute.
The evidence establishes the stab Mr Ali admits he inflicted, causing death, was both voluntary and unlawful.
Finally, an act will be considered to be dangerous for the purpose of the fourth element if a reasonable person, in Mr Ali’s position, would have realised that their actions would have exposed Mr Bristow to an appreciable risk of serious injury. There is no doubt in my mind that a reasonable person, in the position of Mr Ali, would have realised that he was exposing Mr Bristow to an appreciable risk of serious injury by stabbing him with a knife.
I am satisfied beyond reasonable doubt as to each of the elements of manslaughter by an unlawful and dangerous act.
Verdict
I find Abdi Ali not guilty of murder contrary to s 11 of the CLCA and not guilty of murder contrary to s 12A of the CLCA.
I find Abdi Ali guilty of the manslaughter of Matthew Bristow by an unlawful and dangerous act.
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