R v Azaparti - [2015] SADC 176

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AZAPARTI
Criminal Trial by Judge Alone
[2015] SADC 176
Reasons for the Verdict of His Honour Judge Stretton
19 November 2015
CRIMINAL LAW
The accused is charged with attending the victim's home at Morphett Vale on 23 August 2014. In the course of his attendance it is alleged he became upset, refused a request to leave, then punched one occupant of the house, stabbed another, then stole a purse and left.
Held:
1. The alleged events are established beyond reasonable doubt.
2. The accused is guilty of the offences of:
. Aggravated Serious Criminal Trespass in a Place of Residence.
. Assault.
. Aggravated Causing Harm With Intent to Cause Harm.
. Theft.
Juries Act 1927 s 7, referred to.

R v AZAPARTI
[2015] SADC 176
Introduction

Late in the evening of Saturday 23 August 2014 the accused Wyatt William Azaparti travelled to Sofia Court Morphett Vale, where he knocked on the front door of a house occupied by Jodie West and others, and was admitted.
The house was also occupied by Ms West’s partner Brett Horgan and Ms West’s daughter Samantha. Samantha’s then partner Kiah Heathfield was also present on the premises that evening, as was a family friend Laura Bell.
A short time later an altercation occurred and Ms Bell received a stab wound, after which Mr Azaparti departed the house. That much is not in dispute.
It is alleged that while at the house during a discussion about the death of the accused’s son the accused was asked to leave, became upset and punched Jodie West in the face, and then when Ms Bell sought to intervene the accused stabbed her in the abdomen with a kitchen knife. It is also alleged that the accused then stole Jodie West’s purse and contents.
The accused has pled not guilty to all charges.
Trial by Judge alone
On 7 September 2015 the accused elected for Trial by Judge Alone.[1]
[1] Juries Act 1927, s 7.
The alleged offences
As a result of the allegations, the accused is charged with four offences. They are: aggravated serious criminal trespass in a place of residence for allegedly failing to leave the house when requested to do so, assault in relation to the alleged punching of Ms West, aggravated causing harm with intent to cause harm in relation to the stabbing of Ms Bell, and the theft of Ms West’s purse and contents.
The alleged circumstance of aggravation concerning the trespass is that the accused knew or was reckless as to the presence of others in the place of residence.
The alleged circumstance of aggravation concerning the causing harm offence is that the accused used an offensive weapon, namely a knife, when committing the offence.
I refer to, without repeating, the information filed in this matter.
Elements of the offences
Aggravated Serious Criminal Trespass in a Place of Residence
There are four elements to this offence. Each must be proven beyond reasonable doubt.
1.That the accused entered or remained in a place of residence. The allegation here is that the accused remained in Ms West’s place of residence after he was requested to leave.
2.That the accused did so intentionally as a trespasser. In other words, that he remained in a place of residence without the consent of the occupier, knowing he did not have the consent of the occupier, and he remained notwithstanding.
3.That the accused intended to commit an offence, namely theft, assault and causing harm with intent to cause harm.
4.That the offence was aggravated in that another person was lawfully present in the place of residence and the accused knew of that person’s presence or was reckless about whether anyone was present.
Assault
There are four elements to this offence. Each must be proven beyond reasonable doubt.
1.That there was an application of force.
2.The application of force was deliberate, in other words not unintentional or accidental.
3.The accused acted without the alleged victim’s consent.
4.The accused must have acted unlawfully. In other words, without any lawful justification such as consent or self-defence.
Aggravated Causing Harm with Intent to Cause Harm
There are six elements to this offence. Each must be proved beyond reasonable doubt.
1.That the accused caused harm to the alleged victim. The accused’s conduct must be the sole cause of the harm or substantially contribute to the harm.
2.That the accused caused harm to the alleged victim. The harm may be physical or mental harm. In this case physical harm is alleged. Physical harm includes unconsciousness, pain, disfigurement and infection with a disease.
3.That the accused acted deliberately as opposed to accidentally.
4.That the accused must have acted unlawfully, in other words without any lawful justification such as self-defence.
5.That when the accused caused harm to the alleged victim, he intended to cause harm to the alleged victim.
6.The offence was aggravated if it is proven the accused used an offensive weapon in the commission of the offence. An offensive weapon is anything that is capable of being used as an offensive weapon if it is in fact used for that purpose.
Theft
There are five elements to the offence of theft. Each element must be proven beyond reasonable doubt.
1.That the accused dealt with property.
2.That the dealing was dishonest according to reasonable contemporary standards.
3.That the accused knew that his dealing was dishonest in terms of those standards.
4.That the accused dealt with the property without the owner’s consent;
5.That the accused intended to deprive the owner permanently of the property, or to make a serious encroachment on the owner’s proprietary rights.
Preliminary observations
As mentioned, the accused elected to be tried by judge alone.
I apply all the standard directions as to evidence, procedure, proof, and standard legal principle that would be delivered to a jury were this a jury trial. It serves no purpose to recite them all here.
It is trite to say, but sufficiently important to repeat, that the prosecution bears the onus to prove every element of any criminal charge it levels against an accused person, beyond reasonable doubt. Each charge must be considered separately based only upon the evidence relevant to that charge.
The prosecution case
It is alleged that the accused refused to leave the premises in question when asked, punched Jodie West in the face, stabbed Laura Bell, then stole Jodie West’s purse as he departed.
The prosecution called the five persons present in the house on the night in question, Jodie Marie West, her partner Brett James Horgan, her daughter Samantha Elizabeth West, family friend Laura Bell, and Samantha’s then partner Kiah Rene Heathfield. Each of those people gave evidence that they variously either saw or heard some or all of the alleged events of the evening.
Three attending police officers were also called.
Police seized a number of items from the accused, including the shirt he is alleged to have been wearing on the evening and a knife allegedly similar to the knife it is alleged the accused used to stab Jodie West.
There were also a number of agreed facts, including DNA evidence linking the accused to Ms West’s property.
The defence case
The accused by his plea of not guilty denied the charges alleged against him and maintained his innocence.
As was his right, the accused per his counsel did not exercise his right pursuant to section 288A of the Criminal Law Consolidation Act to outline the issues in contention between the prosecution and defence. There can be no adverse inference whatsoever from taking such a course.
The accused did not give evidence at trial, indeed he remained silent. It is important to observe that he was not bound to give evidence. He had the right to decline to give evidence. Because that is his legal right, no inference adverse to him or the case he put forward can be drawn from the exercise of that right. There may be many reasons why an accused person does not give evidence and a court must not speculate as to those reasons. The fundamental principle remains that it is always for the prosecution to prove its case beyond reasonable doubt.
Indeed, an accused’s silence in court is not evidence against an accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
It was not suggested in cross examination of the prosecution witnesses that the accused was not at Ms West’s property at the relevant time, but the accused’s counsel put to the witnesses that the events arose in a different way. It was put to the prosecution witnesses that in fact the accused attended the house to purchase drugs, that Ms West was never punched nor her purse stolen, and that an altercation broke out wherein Ms West was accidentally stabbed by someone else. These suggestions were denied by those who witnessed the events.
I commence consideration of the matter by setting out some of what appears not to be in dispute, by way of agreed facts.
Agreed Facts
What follows is a brief outline only. I have however had regard to the full facts as tendered.
Medical Evidence
·Laura Bell was examined by a paramedic at the address at Sophia Court at 12.03am on 24 August 2014. Ms Bell had a bleeding wound to her left side with a corresponding incision through her clothing. The wound was approximately 3cm wide. No paramedic put their finger into the wound. Ms Bell was conveyed to Flinders Medical Centre.
·At Flinders Medical Centre Ms Bell was attended to by medical staff. A doctor noted a single laceration consistent with a stab wound to the left side of Ms Bell’s abdomen, just below the ribs.
·Ms Bell underwent a CT scan to determine if the lining of the abdominal cavity had been pieced. Following the CT scan, a doctor inserted a finger or probe into the stab wound to ensure the abdominal cavity had not been pieced and to assist in determining the depth of the wound.
·The laceration was noted to be approximately 3 cm long and about 6 cm deep. It did not enter the abdominal cavity. Ms Bell’s wound was stitched and dressed under local anaesthetic. She was provided with required medication. Medical staff cut off Ms Bell’s clothing and disposed of it.
·Ms Bell was not administered a general anaesthetic during her stay at Flinders Medical Centre. She did not go to an operating theatre. She was injected with fentanyl (commonly known as morphine) while undergoing hospital treatment.
·Ms Bell was discharged from the Flinders Medical Centre on 25 August 2014 and was not readmitted to emergency or any ward attached to the Flinders Medical Centre.
Identification Procedures
·Jodie West undertook a photo ID procedure on 9 October 2014. She positively identified the accused in that procedure.
·Samantha West undertook a photo ID procedure on 9 October 2014. She was unable to positively identify any person in the photographs
·Brett Horgan undertook a photo ID procedure on 9 October 2014. He was unable to positively identify any person in the photographs
·Laura Bell undertook a photo ID procedure on 28 August 2014. She was unable to positively identify any person in the photographs
Items seized from the accused on 27 August 2014
On 27 August 2014 police took a backpack, bum bag, two phones, a kitchen knife wrapped in a tea towel and an ’81 Supporter’ sweater from the accused.
DNA Analysis
Forensic Scientist Rebecca Pinyon examined a number of items relevant to this matter.
·A swab of the blood on the television in the house, taken at 2.45am on 24 August 2014, was found to be a mixed profile with two contributors. It was 1.8 billion times more likely to contain the accused’s blood than contain an unknown person’s not the accused’s. Laura Bell was excluded as a possible contributor to the blood on the television.
·The ’81 supporter’ jacket seized from the accused on 27 August 2014 was also tested for DNA. A tape lift from the inner collar and cuffs was found to be 1.2 billion times more likely to be from the accused than another person. Laura Bell was exclude as a possible contributor to the DNA on the jacket.
·A blood like stain from the same jacket was tested. Testing indicated the stain was 2.3 billion times more likely to have come from the accused than another person.
·The knife and tea towel also seized from the accused on 27 August 2014 were DNA tested. No conclusive results were generated as a result of this testing.
Photos
Whilst not formally agreed, photographs of the premises in question and also of the accused were tendered, and it was not suggested that they had not been taken at the places and times asserted.
Prosecution witnesses
In light of the issues, I have closely scrutinised the evidence of each witness. For brevity I set out only a brief summary of the evidence of each witness, however I have carefully considered all of what they said.
Jodie West gave evidence. She said that some months before the night in question she had purchased a TV off a man she knew as “Azza”. She had met “Azza” through a man named Mark who lived nearby.
On the evening of the 23^rd of August 2014 Ms West said that her girlfriend Laura Bell was at the house. Ms West’s partner Brett Horgan lived there as well, however he had been seriously injured in an LP gas bottle explosion and was convalescing in bed.
The bedroom in question was a large room at the end of the house that had been created by combining two bedrooms, with a curtain to a third bedroom, so in effect the three bedrooms had been combined into a large bedroom with adjacent living area, and then a curtained off walk in robe room. I will refer to that as ‘the bedroom’.
Ms West said she became aware that “Azza” had attended and that Laura had let him in. She first saw him when she walked out of the bathroom after a shower. She went to the walk in wardrobe, off the bedroom, to get dressed. Ms West said that she could hear “Azza” talking to her partner Brett, who was in the bed, about the “81’s”, which she took to mean the Hells Angels, and how they had been supporting him.
Ms West said she came out, saw that “Azza” was in the bedroom where Brett was in bed, and she asked what was up. Ms West said that “Azza” started talking about his son, saying that his son had been murdered that morning. He seemed upset. She asked if it had been on the news and he said yes it was. Ms West said she immediately Googled it, but couldn’t find reference to it, and told him. She said that at that, his manner changed and he became loud and boisterous, asking her why she did not believe him.
Ms West became concerned at this and asked “Azza” to leave. He would not do so, so Ms West said “this is bullshit, you have to leave”. At this, the accused punched Ms West in the face, causing it to bleed. That spun her around, and when she looked back at him he had a knife. The man was saying that she was disrespectful, that she was a fat so-and-so and that he had a new group of mates supporting him and that she needed to start respecting him.
Ms West said that Mr Horgan, who until this time had been in bed, had stood up and said words to the effect of what was going on, there was no need for it. “Azza” threatened to stab Ms West if Mr Horgan came any closer. Ms Bell had come in, and also told him to put the knife down, and at this “Azza” swung the knife at her several times, trying to stab her. Ms West’s small dogs were barking, and he kicked one of them across the room. “Azza” then took Ms West’s wallet from the adjacent table and walked out. The wallet contained about $120.
With reference to police photographs of the room, and of the TV mounted on the wall adjacent to where she and the accused had been standing, she noted a crack to the edge of the TV and some blood on the screen. She said neither were there prior to the accused’s attendance, but she could not now remember how that happened. Ms West said that she identified the accused in a police photo line-up, and then pointed him out in court. I remind myself that an in court identification in such circumstances, whilst admitted to complete the picture, has no evidentiary weight whatsoever.
In cross-examination Ms West was taken through events in detail. I do not repeat, but I have regard to, everything raised with her in cross-examination. Her evidence as to the events was broadly consistent with what she had said in evidence in chief.
Ms West said she was first made aware of the accused’s attendance when Laura Bell had first come to the bathroom and told her that the guy she had bought a television off was there.
Ms West was quizzed in detail about the TV mounted on the wall. She said it was connected to four security cameras outside the house, but that the cameras did not monitor inside the house. She said it was there as they had been broken into before. She said she did not know if it had been on at the time of the accused’s attendance, or whether the police had turned it on, as it was mainly for when they were not at home so it would usually be off when they were home unless she had forgotten to turn it off. It could be set to record, but there was no need for that when they were at home. It had an automatic record function anyway, for 5 minutes only however.
Ms West admitted she had criminal offending in her past for drugs and dishonesty matters. She admitted she was a drug user and that she had drugs in the house on the night in question, but denied dealing drugs at that time, or having met the accused through the drug scene, or any association with suggested other motorcycle clubs.
Defence counsel put to Ms West various matters arising from statements she had given to police. Whereas she told the court the accused had a tattoo on the back of his neck but that she could not now remember what it was, she agreed that in a police statement she had said it was a Nazi tattoo. Photos indicate that indeed the accused has a Nazi tattoo on the back of his neck. Ms West conceded that whereas she told the court she had purchased a TV from the accused for $300, she had told police it was $250. Ms West agreed that not everything she had told the court that the accused said on the night, was in her initial police statement, responding that it had been a confusing evening with one of her friends having been stabbed, and that as such she did not remember everything immediately.
I have regard to all the prior statements put to Ms West by defence counsel and her responses in assessing her credibility and reliability, in accordance with the well-recognised principles applicable to previous inconsistent statements.
Jodie West’s daughter, Samantha West, also gave evidence. She described the house and who was present on the evening in question. She gave evidence that she was in the main lounge of the house watching another TV, when a man came into the house. Her impression was that he was emotional and upset. She kept watching TV for a while but after about 5 minutes went to the bedroom in question to get chocolate. Brett Horgan was in bed. She noticed the man had a Nazi tattoo on the back of his neck.The man said to her “What does my jumper say, you little cunt?”
Samantha West said she went back to the lounge and sat down but then heard loud noises so ran back to the bedroom. She said the man was screaming and shouting saying that they were disrespectful and that they did not care about his son. Her mother Jodie West had blood on her mouth.

Samantha West said the man pulled a knife out. She said he kept telling Mr Horgan to flinch, then he swung the knife at Laura Bell with his right arm, once missing and once connecting, hitting her in the side a bit above the waist. At that, Samantha West started hyperventilating and Ms Bell took her into the bathroom where she, Samantha, had a seizure and hit her head. When Samantha West regained consciousness, she was sitting in the lounge room and police were present.
Samantha West provided a drawing of the knife she had seen used, which was tendered as P6. It is broadly similar in shape to the knife that was seized from the accused and that was tendered as P3.
Samantha West was also cross examined extensively. I have regard to all the cross examination.
Samantha West was taken to her statements to police and a number of issues with them were raised. I briefly summarise some of the matters raised.
Samantha West said that whilst she did her best when speaking to the police, things were jumbled and mixed up, and indeed she has a number of medical issues including having had two strokes in 2013. She said that she was shown her statement and read and signed it as true, as best she could.
Samantha West agreed that although she told the court she did not know the man, she told police that the man was a friend of her mothers, explaining that she only knew they bought a TV off him so she should have said ‘associate’ rather than friend. She also agreed that she told the police that she saw the accused wave the knife around towards Laura but thought it had gone past her, but that she did in fact see Laura get stabbed. She agreed she may have said something wrong in her statement however she had problems with literacy and the meaning of words. In response to later questions, she admitted she was illiterate.
She was taken through the events in more detail and described the conversations and statements made by the man in some detail. She conceded that much of that was not in her statement to police, saying she had told the police that but she did not know why it was not in there, and that she was in fact illiterate. She said she told the police more when she spoke to them prior to trial. She conceded that when police showed her photos of suspects they all looked very similar, so she did not identify anyone, but that she had said more recently that she had recognised the man as someone her mother had bought a TV off.
I have regard to all the issues raised as to inconsistencies between Samantha West’s statements and her evidence. Her initial statement to police was tendered by the defence as P2. That statement is indeed very brief, and her evidence on oath was much more detailed.
Ms West variously said that some things she told the police at the time were not put in her statements, however that she was on medication for her conditions, and that she does not always comprehend things properly or explain things properly. She added that when she has a seizure, as she did on the evening in question, it takes her 2-3 days to become coherent, and she was therefore dazed when spoken to by the police.
Laura Bell then gave evidence. She described her relationship to Ms West and her family, and the events of the evening.
Ms Bell said that at 11.07pm she was doing Jodie West’s hair in the bathroom when there was a knock at the front door which she answered. The man said he was Wyatt Azaparti, “the TV bloke”. Ms Bell shut the door then called to Jodie West “it’s the TV bloke”, to which Jodie responded to let him in. The man walked down the hallway to the bedroom. Ms Bell lay on the bed next to Mr Horgan who was watching TV. Jodie West came in and Ms Bell was aware that they were talking.
Ms Bell said that all of a sudden she heard mention about a death in Lonsdale and a biker group, then a noise from behind her. Mr Horgan went to get out of the bed, and Ms Bell turned around to see that Jodie had blood dripping from her lip. The man threw a chair towards Mr Horgan, and Ms Bell heard Samantha West screaming that ‘he’s got a knife, don’t hurt my mom’. At that, Ms Bell stepped in front of Jodie. Mr Horgan was trying to get out of bed and Ms Bell heard the man say “go on, flinch, I dare you”. She saw the man produce a carving knife from behind his back, and Ms Bell moved in front of him as she did not want him to hurt Ms West or the others, whereupon the man swung the knife at her twice and struck her to the left side. She initially thought she had been punched.
She grabbed a toolbox to throw it at him but it fell open. The man moved forwards so she took Samantha into the bathroom to try and calm her down, and noticed Kiah Heathfield, Samantha’s partner, in there as well. She told the court that Samantha has epilepsy and mental issues. Eventually she heard a door close and she came out, and the man was gone.
Ms Bell was cross examined at length. She said she recalled the ambulance personnel putting their fingers in the wound, and she also said that after the initial treatment she was then readmitted and was in hospital for several days. The agreed facts are that only hospital staff put a finger in her wound, and that she was not readmitted after her discharge on 25 August 2014. She said that she was not conscious when the wound was stitched, however the agreed facts are that she was not given an anaesthetic while in hospital nor operated on in an operating theatre. She did say she was given an inhaler in the ambulance and was ‘away with the fairies’, and also that at some stage she had been diagnosed with a schizo-affective disorder.
She agreed that while in fact she had not actually seen Jodie being punched in the face, she agreed she had signed a police statement that Jodie had been punched in the face. She explained that she had assumed and concluded that from what she did see and hear.
I have regard to those and the other matters put to Ms Bell from her police statements, in accordance with the well-recognised principles applicable to the assessment of witnesses in light of previous inconsistent statements.
Ms Bell was asked if she had stabbed a previous boyfriend of her own. After being advised that she was entitled to decline to answer that question, she so declined.
Ms Bell said that at the time of the events at the house the CCTV was not on. Brett was however watching the other TV.
Then Kia Heathfield, Samantha West’s former partner, gave evidence.
Ms Heathfield said she was present at the premises on the night of the alleged events. She said she was in the bathroom at the time, and did not see the man arrive. Suddenly she heard yelling and screaming, hearing Samantha say “don’t hurt my mum”, and a lot of people screaming “he’s got a knife”. She opened the bathroom door and saw people in the hallway, whereupon Laura Bell pushed her back into the bathroom, and Samantha came in as well. Samantha was hysterical. Laura had been stabbed. Ms Heathfield said police arrived 30 or so minutes later. She said that her relationship with Samantha ended in December 2014.
Ms Heathfield was also extensively cross-examined, all of which I have regard to. I mention some of the matters raised with her.
There were some inconsistencies between her evidence and the other witnesses. For example, she said she was alone in the bathroom about to have a shower at the outset, which was not consistent with other evidence that Jodie West and Laura Bell were in there when the knock came to the door. She was not sure if the CCTV was switched on that night, but said that when it was switched on she was sure it would be recording. She said that when the man first arrived he sounded calm, unlike Samantha’s description of him at that time.
Ms Heathfield said she had not seen the man, or heard his voice prior to the night in question. She said that prior to the police attendance, there was no discussion between anyone about what they should tell the police. She also said that she eventually stopped the relationship with Samantha as she was worried about going to the house, saying that drugs were being sold from the premises day and night. That had been denied by Jodie West.
In re-examination Ms Heathfield confirmed that she had seen Jodie West’s bloodied lip on the night in question.
Then Brett Horgan, Jodie West’s partner, gave evidence.
Mr Horgan described the relationships and domestic situation in the same terms as the other witnesses. At the time Mr Horgan was recovering from severe injuries he had sustained from a LPG gas explosion in a ute he had been repairing. He had consequently been in a coma for 18 days, and had spent three months in hospital recovering from severe burns. He was still badly affected at the time, although he could move about the house slowly.
Mr Horgan said that when the man came to the house on the night in question he recognised him from seeing him at his friend Mark’s place a couple of times, although he had not seen him at their own house before. He did not hear the man come in as he was watching TV from the bed in the bedroom.
Mr Horgan said that when the man came into the room he was saying something about how his son had died. He was also grabbing his jumper, and carrying on about the ‘81’s’. The jumper was a Hells Angels supporter’s jumper. There was yelling and commotion, and Mr Horgan got out of bed to see if he could see what was going on, and to try and get some control, but he could not do too much as his arm was bandaged. The man hit Jodie in the mouth with his fist. Laura got up off the bed. The man produced a knife from behind his back and stabbed Laura. He also saw the man swing the knife back and hit the television screen on the wall next to where he was standing, with the fist that had the knife in it. He then left.
Mr Horgan called the police.
Mr Horgan identified from the tendered police photos the crack and damage to the edge of the television screen on the wall. Those photos also show blood spatter across the screen from that point. That blood was later analysed to match the accused’s DNA.
Mr Horgan was also extensively cross-examined. He said he had met the man once before, rather than the twice he had said in examination in chief. He said he did not believe the CCTV system recorded. He agreed that there were several knives and swords, which he collected, on display on the wall. He said they were blunt. He was cross examined about convictions in the Christies Beach court for possession of prohibited weapons in 2012, but said he could not now recall what those weapons were. He denied drugs had ever been sold from the premises. Mr Horgan denied a suggested connection to another motorcycle club.
The investigating officer Senior Constable Sketchley gave evidence. He told the court of his attendance on the night, and described how a kitchen knife was located in a backpack carried by the accused at the time of his arrest a couple of days after the event, on 27 August 2014. The knife was tendered as P3, and its appearance is broadly consistent with the descriptions given by the witnesses of the knife allegedly used by the accused on the night.
Officer Sketchley also had photos of the accused taken, including the Nazi tattoo on the back of his neck that had been mentioned by at least one of the witnesses. Officer Sketchley asked the house occupants whether the CCTV had been recording on the night in question, and accepted what he was told that it had not been recording.
The single uniformed patrol officer who first attended the house on the evening in question was also called. That was Constable Bough. He gave evidence of his observations and the parties present. He recalled the CCTV screen which he said apparently gave plenty of external coverage. He said he did not see any cameras inside.
In cross examination he said he had taken notes that formed the basis for Samantha West’s tendered statement and although the typed statement had been typed up from his notes by someone else, he said it was essentially the statement he took from her. He agreed what was in, and in particular what was not in, that statement. He said he would have normally offered it to her to read it, that she appeared to read it, and that he gave her the opportunity to read it.
Constable Bough agreed that in his own initial statement he had said that the TV depicted “various camera views both in and outside the premises”, although he did not recall seeing any cameras inside the house. He said he had asked if the CCTV cameras had been operating at the time in case it captured the offending and accepted the assurances he was given that the CCTV was not operating at the time.
The final witness was the Crime Scene Officer, Brevet Sergeant Dunstan. She attended the property at about 2.45am on the morning in question and took the photos of the house that were subsequently tendered as P2. She said she did not notice at the time whether the CCTV was on. She did not note any cameras, nor did she observe any inside the house.
In cross examination Brevet Sergeant Dunstan said she had no recollection in relation to cameras inside or outside the house. Defence counsel highlighted in cross examination that while there appeared to be a clear spatter of blood across the CCTV screen, and there was a field of expertise in blood spatter analysis, she was not qualified in that regard and she had not been asked to send the photos to any such expert.
Addresses
I have close regard to the clear and helpful addresses of counsel, which for brevity I do not repeat all or even most of.
In short, prosecuting counsel submitted that whilst there were some inconsistencies on some matters, the prosecution witnesses were consistent, clear and credible as to the fundamental facts of the matter, that the accused came into the property, and that a loud altercation took place wherein the accused became upset, punched Jodie West and then stabbed Laura Bell.
Prosecuting counsel argued that the different views of the events that were expressed by the witnesses, and the ‘independent’ evidence of Kiah Heathfield, established that no-one got their heads together to fabricate a story against the accused prior to the police arrival, and he argued that Mr Horgan would scarcely have called the police if, as suggested by defence counsel, the accused had not punched Ms West or more particularly if Ms Bell had in some way been accidentally stabbed by one of the house occupants as suggested by the defence in cross examination.
In short, defence counsel submitted that the prosecution simply had not proven the case beyond reasonable doubt. He submitted that the scenario advanced by the prosecution witnesses had no ring of truth, and that there was on the prosecution case simply no motive for the accused to have done what was alleged. He highlighted a range of things including Jodie West and Mr Horgan’s previous convictions, the prior inconsistent statements of some witnesses, inconsistencies concerning the CCTV system, and Ms Heathfield’s evidence that drugs were being sold from the house.
Defence counsel submitted that the police did not adequately investigate the case, particularly in relation to possible CCTV evidence and potential expert analysis of the blood spattering across the CCTV screen. He submitted that all the lay witnesses’ evidence, apart from Kiah Heathfield, was unreliable for a range of reasons. He submitted that Ms Bell was probably stabbed by accident, but not by the accused.
That is only the briefest outline of some of the primary matters submitted by counsel. I have however had close regard to everything they submitted.
Warning re certain evidence
There has been reference to the fact that the accused was wearing a Hells Angels’ supporter shirt or jumper of some kind, and that he had a Nazi tattoo on the back of his neck. There were also various matters put by the accused’s counsel in the course of cross examination to the effect that the accused was or may have been there to purchase drugs. Those matters are before the court for a strictly limited purpose.
The evidence concerning the shirt and tattoo are only relevant to the identity of the alleged offender. The matters put by the accused’s counsel are raised for the purpose of suggesting that the prosecution witnesses’ version of events may not be true and that the court should entertain a reasonable doubt as to the charges against the accused. The evidence cannot be used in any other way, and I do not use it in any other way.
For example it would be completely wrong to reason that wearing the shirt concerned, or being associated with the motorcycle group concerned, or having a Nazi tattoo, or that the suggestion that the accused was possibly there to purchase drugs, is in itself in any way relevant to the proof of any of the charges before the court, nor that because of any of those things the accused is likely to commit any of the charged offences, is the sort of person who might commit an offence, or is of bad character and for that reason did or may have committed any charged offence.
Analysis
I have carefully considered all the evidence, and all counsel’s submissions.
In the final analysis, Jodie West was a good and consistent witness as to the events of the evening. She gave evidence in a fairly clear and straightforward way, and gave a favourable initial impression. Her evidence was reasonably consistent throughout a lengthy cross examination. I have regard to her previous convictions, which she admitted when they were put to her, and note the inconsistency between her evidence and the evidence of Ms Heathfield concerning whether drugs were being sold from the house at around that time. I will return to that latter issue shortly.
On the other hand, Samantha West was a relatively poor witness. There were a number of significant inconsistencies between her evidence in court and her prior statement to police. I note however that she suffers from both physical and mental conditions, and that her initial statement was taken from her after she had had a hysterical reaction to the shocking events of the evening, whatever they were, which on everyone’s story had involved family friend Ms Bell being stabbed. Ms West also has literacy and other issues, which on balance I find, together with her other conditions, and her overall presentation, render her evidence relatively unreliable, although my impression was that she was honestly trying to tell the truth.
Laura Bell was a fairly good and consistent witness. Her description of the events was consistent with Jodie West’s, albiet from a different perspective. She saw the immediate aftermath of the punch to the face, then the stabbing of herself. If she and others had colluded or got their heads together in some way, then I would not have expected her different yet consistent perspective of events to be described in the way they were. In short, it had a ring of truth to it. I accept her explanations for the matters put to her concerning her police statement. Her evidence about being admitted to Flinders Hospital for several days is not consistent with the agreed facts as to her treatment and discharge. In my view this is likely due to an honest mistake in the context of the trauma and medication she underwent, and does not therefore reflect on the credibility of her evidence as to the earlier events, prior to her injury and being medicated.
Brett Horgan was a fairly straightforward and consistent witness. Similarly to Laura Bell, his account of the alleged assaults was from a different perspective, but fundamentally consistent with Jodie West’s evidence. Unlike some others, he gave evidence of seeing the accused strike the adjacent CCTV screen with the fist that was holding the knife. Clearly there was some kind of impact at that point from the damage to the TV, and the blood spattering seems quite visually consistent with having been sprayed in an arc consistent with that point of impact. His evidence did not give the appearance of collusion with any other person’s account. Although I had close regard to all the matters raised with Mr Horgan in cross examination, including his conviction for prohibited weapons charges, he came across as a provisionally credible witness. He did deny that any drugs were being sold from the house at around that time, and I will shortly return to that topic.

Kiah Heathfield was a relatively good witness. She did however, somewhat strangely, give most of her evidence very quietly in a crouched or cowed position, perhaps explicable on the basis that she may have preferred not to have been called. Both the prosecution and the defence submitted that she, no longer being in a relationship with Samantha West, was in a sense independent and her evidence should be accepted. While she did not visually witness the events, she did hear Samantha West exclaim for someone not to hurt her mom, and hear several people call out that “he” had a knife, all of which is consistent with the general scenario of events recounted by the prosecution eyewitnesses. She did however say that drugs were being sold from the house at the time and that was a reason why she later separated from Samantha West and stopped going there. It is unlikely she would have told the court that if it were not true, and I conclude that there is a reasonable possibility that is true.
I therefore return to Jodie West and Brett Horgan’s denials that drugs were being sold at the house. As there is a reasonable possibility that evidence is untrue, I therefore consider whether that affects my view of the credibility of those witnesses generally as to the contested events. There is a strong independent motive for those witnesses to deny the suggestion, as to admit it would be to admit the commission of a serious criminal offence.
In the final analysis, in my view, whilst the possibility that they were selling drugs and lying to the court about it must of course effect the overall reliability of them as witnesses, the evidence they gave as to the assault and the stabbing still appeared ostensibly credible, and in the final analysis I conclude still has some credibility and evidential weight.
The agreed facts and the uncontested evidence plainly establish that the accused attended the premises that night, that his blood sprayed across the TV in a manner I find consistent with him striking the television at a point where the photos establish the television was damaged, and that when apprehended he was in possession of clothing consistent with what the witnesses said he wore on the night in question, and a knife consistent with what the witnesses say he used to stab Ms Bell. It is likely that at some time he cut his hand on the knife he reached behind himself to grab. It is likely that occurred either at that moment, or when he stabbed Ms Bell, or when he struck the CCTV with the fist that was also holding the knife.
I have carefully considered all the matters raised by defence counsel concerning these witnesses, and concerning the prosecution case generally.
In the final analysis, the court finds proven beyond reasonable doubt that on 23 August 2014 the events occurred essentially as alleged by the prosecution witnesses. I turn to consider each alleged offence in particular.
Conclusions
Count 1
The court finds proven beyond reasonable doubt that:
1.On 23 August 2014, at Morphett Vale, Jodie West told the accused to leave her place of residence and that instead of doing so the accused remained in that place of residence;
2.The accused intentionally remained in Ms West’s place of residence without the consent of the Ms West the occupier, knowing that he did not have her consent;
3.The accused intended to commit offences, namely theft, assault and causing harm with intent to cause harm; and that
4.The accused knew that others were lawfully present at the time.
Accordingly count 1, the offence of aggravated serious criminal trespass in a place of residence, is proven beyond reasonable doubt.
Count 2
The court finds proven beyond reasonable doubt that:
1.On the 23^rd of August 2014, at Morphett Vale, the accused punched Jodie West in the face;
2.The punch was deliberate, in other words not unintentional or accidental;
3.The accused acted without Ms West’s consent; and that
4.The accused’s act of punching Ms West was without any lawful justification such as consent or self-defence.
Accordingly count 2, the offence of assault, is proven beyond reasonable doubt.
Count 3
The court finds proven beyond reasonable doubt that:
1.On 23 August 2014, at Morphett Vale, the accused stabbed Laura Bell with a carving knife, which was the sole cause of the harm that occurred to Ms Bell;
2.This act caused physical harm in the form of pain and a stab-wound laceration 3cm in width and 6 cm in depth;
3.The accused’s stabbing of Ms Bell was deliberate;
4.The stabbing was unlawful, in other words without any lawful justification such as self-defence;
5.When the accused stabbed Ms West, he intended to cause harm to her; and that
6.The offence was aggravated in that accused used a knife as an offensive weapon in the commission of the offence.
Accordingly count 3, the offence of aggravated causing harm with intent to cause harm, is proven beyond reasonable doubt.
Count 4
The court finds proven beyond reasonable doubt that:
1.On the 23^rd of August 2014, at Morphett Vale, the accused took Jodie West’s purse containing approximately $120, and in doing so dealt with her property;
2.Taking her property in the proven circumstances was dishonest according to reasonable contemporary standards;
3.The accused knew that his dealing was dishonest in terms of those standards;
4.The accused took the purse and contents without Ms West’s consent; and that
5.The accused intended to permanently deprive Ms West of her purse and contents.
Accordingly count 4, the offence of theft, is proven beyond reasonable doubt.
Verdicts
Count 1:    Guilty
Count 2:    Guilty
Count 3:    Guilty
Count 4:    Guilty