R v Blundell
[2020] SADC 85
•3 July 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BLUNDELL
Criminal Trial by Judge Alone
[2020] SADC 85
Judgment of Her Honour Judge Deuter
3 July 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
The accused is charged with one court of Aggravated Causing Harm with Intent to Cause Harm - trial by judge alone - identity of the offender was the primary issue - displacement effect - evidence not sufficient to prove beyond reasonable doubt that the accused was the offender.
Verdict: Not Guilty
Evidence Act 1929 (SA) s 34AB(4); Criminal Law Consolidation Act (SA)1935 s 24(1), referred to.
R v Blundell [2019] SASCFC 84; R v Gardi [2015] SASCFC 186; Domican v R (1992) 173 CLR 555; Alexander v The Queen (1981) 145 CLR 395, applied.
R v BLUNDELL
[2020] SADC 85Introduction
Keiron James Blundell, the accused, is charged on an Information dated 20 January 2017 with the following offence:
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm (Section 24(1) of the Criminal Law Consolidation Act (SA) 1935)
Particulars of Offence
Keiron James Blundell on the 20th day of March 2016 at Semaphore Park, caused harm to Jason Ward, intending to cause him harm.
It is further alleged that Keiron James Blundell used an offensive weapon, namely a metal garden frame, to commit the offence.
The Prosecution of the Charge
The accused pleaded not guilty to the charge.
The prosecution of the charge has a lengthy history with a trial before a jury (‘first trial’) where a verdict could not be reached, and a second trial before a jury (‘second trial’) which resulted in a guilty verdict. The verdict following the second trial was overturned by the Court of Criminal Appeal on 8 July 2019.[1] The accused has now elected to be tried by judge alone.
[1] R v Blundell [2019] SASCFC 84.
The previous trials and the evidence given in them are irrelevant to the trial before me and will not be considered, except where the evidence of a witness at one of the earlier trials was tendered by the consent of the accused.
Elements of the Offence
The elements of the offence of aggravated causing harm with intent to cause harm are:
1That the accused caused harm to the victim, Mr Ward;
2That the harm caused to Mr Ward was serious harm;
3That the accused acted deliberately to cause harm to Mr Ward;
4That the accused acted unlawfully in assaulting Mr Ward;
5That at the time of the assault the accused intended to cause serious harm;
6The offence is aggravated if it is proved that the accused assaulted Mr Ward with a weapon. That being an article that the accused had for the purpose of causing personal injury or incapacity, or in circumstances in which another is likely to feel reasonable apprehension that he has it for the reason of causing personal injury or incapacity.
Each element must be proved beyond reasonable doubt. The only issue at the trial was whether the accused was the person who assaulted Mr Ward and caused serious facial injuries to him. As I will set out in more detail below, there is no dispute that a weapon, a garden ornament, was used in the assault of Mr Ward. There is no evidence that the attack on Mr Ward was anything but a deliberate act. The only issue in dispute is the identity of Mr Ward’s assailant.
Overview of Prosecution Case
The prosecution case is that shortly after midnight on 20 March 2016, Mr Ward was brutally assaulted by the accused wielding a large metal garden ornament, in the front garden of unit 6, 42 Dotterel Drive, Semaphore Park
The accused was seen walking along a pathway in front of the units and away from unit 6 shortly after the assault. His mother lived at unit 3 and the victim, Mr Ward, was the partner of Rachel Williams, who lived at unit 6. The unit complex consisted of six conjoined two-storey units which faced onto West Lakes. The units belonged to Housing SA.
On the evening of the assault, Mr Ward was upstairs in unit 6 when he heard arguing outside. Mr Ward challenged the people that were making noise and threatened to call the police. Soon after, the front downstairs window of the lounge room of unit 6 was smashed, and Mr Ward ran downstairs to deal with what was going on. As Mr Ward stepped outside the unit onto the lawn, he was hit with an object. He has no other memory of the assault and did not identify the accused as the person who had assaulted him.
The prosecution case is that it was the accused who swung the weapon at Mr Ward. This is based upon photographic identification procedures completed by Ms Williams and a prosecution witness, Ms Heather Castellari, who lived at unit 4. Ms Castellari did not see the assault but heard a disturbance. She had earlier been woken by voices and seen a male, later identified as the accused, walking towards unit 6. After hearing glass breaking she saw the accused walking back towards unit 3, where his mother, Deborah Blundell lived. Her sensor light came on when the accused was walking towards unit 3, and Ms Castellari recognised the accused as the son of her neighbour, when he looked up towards her window.
Mr Ward’s partner, Rachel Williams witnessed the assault upon her partner and made the 000 call to the police. Ms Williams had followed Mr Ward outside and she saw him be assaulted with a weapon. She saw the assailant’s face. Realising her partner was badly hurt, she ran to call for assistance.
Both Ms Williams and Ms Castellari selected the accused’s photograph as the person they had seen on the night of the assault, during separate police photographic identification procedures conducted on 6 April 2016.
The garden ornament used in the assault was found by police outside of the side fence of unit 1. There was forensic evidence linking Mr Ward to that implement. There was no forensic evidence linking the accused to the garden ornament.
General Directions
In sitting as a judge without a jury, I remind myself of the following matters:
·The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged;
·The standard of proof for the prosecution case is beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. Any findings I make are findings beyond reasonable doubt unless I specify otherwise;
·The accused is presumed by law to be innocent of the offence, unless and until, the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt;
·I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witnesses gives, and so find the facts about which the witness has given evidence;
·I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all;
·If however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all the elements of the offence charged, then I must find a verdict of not guilty;[2]
·The accused elected not to give evidence at trial. I remind myself that he is under no obligation to give evidence and that no adverse inference can be drawn from the fact that he has exercised that right. The decision of the accused not to give evidence does not form an admission in relation to any of the facts and cannot be used by the prosecution to prove its case beyond reasonable doubt;
·In this matter where identification and circumstantial evidence are in issue, I remind myself that I must assess each witness as to both their reliability and their truthfulness. I can reject or accept all or part of the witness’ evidence.
[2] See R v Gardi [2015] SASCFC 186.
The Evidence
The following exhibits were tendered:
·Exhibit P1 – Five photographs of Units 1-6, 42 Dotteral Drive, Semaphore Park;
·Exhibit P2 – Booklet of 16 photographs of injuries to Jason Ward;
·Exhibit P3 – DVD of police identification procedures conducted with Mr Ward, Ms Castellari and Ms Williams;
·Exhibit P4 – Copy of the transcript of the evidence of Jason Scott Ward given at the second trial being pages 2T.21-24;
·Exhibit P5 – Copy of the transcript of the evidence of Debra Myra Jagla given at the second trial being pages 2T.61-63;
·Exhibit P6 – Four photographs of a garden ornament, being the alleged weapon, taken by Senior Constable Foreman;
·Exhibit P7 – Booklet of eight photographs of the garden ornament, being the alleged weapon used in the assault;
·Exhibit P8 – Booklet of five photographs of the accused at the time of his arrest;
·Exhibit P9 – Copy of the transcript of the evidence of Constable Benjamin John Foreman given at the second trial being pages 2T.108-111;
·Exhibit P10 – Aerial photograph of the group of units at 42 Dotteral Drive, Semaphore Park;
·Exhibit P11 – Statement of 15 Agreed Facts.
In exhibit P11, the following facts were agreed:
1In March 2016, Keiron James Blundell’s mother, Deborah Marie Blundell, lived at Unit 3, 42 Dotteral Drive, Semaphore Park.
2The complainant, Jason Ward, was taken to the emergency department at the Royal Adelaide Hospital by ambulance, arriving at 1.30am on 20 March 2016. At 5.00am, Jason Ward was reviewed by Dr Amila Siriwardana, a registrar of the Department of Plastic and Reconstructive Surgery. He had sustained lacerations to the left temporal region, right medial and lateral eyebrow, right ear and at a right angle to his mouth. Jason Ward was taken into surgery later that day where the lacerations were explored, washed out, debrided and closed. In Dr Siriwardana’s opinion, Jason Ward will have permanent facial scarring from the injuries.
3On 20 March 2016 at 7.32am in the Property Room at the Port Adelaide Police Station, crime scene examiner Senior Constable Bayley Hill, took eight photographs of a metal garden ornament (depicted in Exhibit P7). Senior Constable Hill also collected a sample from the top of the ornament using a wet green tip swab labelled 53636-395-7 which was lodged with the Property Room and marked with the number PPMS 16/A57494-3.
4On 20 March 2016 at approximately 8.30pm at the Port Adelaide Police Station, Detective Senior Constable First Class Glenn Fulton took a buccal swab from the accused. The buccal swab was lodged in the Property Room at the Port Adelaide Police Station by Detective Senior Constable First Class Fulton and was marked with the number PPMS 16/A57494-8.
5On 20 March 2016 at 10.19pm at the Port Adelaide Police Station cells complex, Brevet Sergeant Russell Logan took five photographs of the accused which are exhibit P8.
6On 24 March 2016 at 12.55pm Brevet Sergeant Steven Goodwin attended at Unit 6, 42 Dotteral Drive, Semaphore Park and took 16 photographs of the complainant, Jason Ward, which are in exhibit P2.
7In the photographic array shown to Jason Ward at the Port Adelaide Police Station on 6 April 2016, the person depicted at position 2 is the accused.
8In the photographic array shown to Rachel Williams at the Port Adelaide Police Station on 6 April 2016, the person depicted at position 5 is the accused.
9In the photographic array shown to Heather Castellari at the Port Adelaide Police Station on 6 April 2016, the person depicted at position 7 is the accused.
10On 24 June 2016 at approximately 11.42am at Unit 6, 42 Dotteral Drive, Semaphore Park, Detective Senior Constable First Class Fulton took a buccal swab from Jason Ward. The buccal swab was lodged at the Property Room at the Port Adelaide Police Station by Detective Senior Constable First Class Fulton and was marked with the number PPMS 16/A57484-12.
11On 27 June 2016, the metal garden ornament was delivered to Forensic Science SA by a police officer, Neil Metcalf. All appropriate procedures for the storage, custody and handling of exhibits were followed.
12Forensic testing of the swab from the top of the metal garden ornament was conducted by Luke Volgin, a Forensic Scientist with Forensic Science SA. A mixed DNA profile with two contributors was obtained from the swab. The mixed DNA profile was compared to the DNA profiles obtained from the buccal swabs taken from the accused and Jason Ward. The forensic analysis determined:
a.There is extremely strong support for the proposition that Jason Ward is a contributor to the mixed DNA profile obtained from the swab; and
b.There is very strong support for the proposition that the accused is not a contributor to the mixed DNA profile obtained from the swab.
13Luke Volgin also took swabs from all four short cross lengths and four sides of the metal garden ornament. The sample taken contained very low amounts of, or no DNA and was not analysed.
14On 6 February 2018, Detective Brevet Sergeant Megan Kelly contacted the Housing SA office at Port Adelaide and was advised of the following:
a.On 21 March 2016, a complaint was made to Housing SA by Heather Castellari about the assault that took place at unit 6 on 20 March 2016. Ms Castellari told Housing SA that she had seen Deborah’s son that night;
b.As a result of the complaint made, a representative of Housing SA convened a meeting at unit 6 of 42 Dotteral Drive, Semaphore Park on 24 March 2016. Present for the meeting were Jason Ward, Rachel Williams and Heather Castellari.
c.On 29 March 2016, a representative of Housing SA spoke with Deborah Blundell and advised her that eviction proceedings would be commencing against her.
15The accused is approximately 5 feet 5 inches tall.
The prosecution called three witnesses, Rachel Williams, Heather Castellari and Detective Brevet Sergeant Megan Kelly. I have also had regard to the evidence tendered by consent given by Jason Ward, Debra Jagla and Constable Foreman at the second trial. I find that the three witnesses who gave evidence were honest, but I take account of the fact that they were giving evidence four years and three months after the events took place, and for a third time.
Unit Complex – 42 Dotteral Drive, Semaphore Park
The witnesses Williams, Castellari and Ward all gave evidence as to the lay out of the unit complex at 42 Dotteral Drive, Semaphore Park. That evidence is consistent. It is important in relation to the movements of the accused on the night of the assault.
From the evidence of those witnesses and from their descriptions relative to the photographs in Exhibits P1, P6 and P10, I make the following findings in relation to the block of units where the assault occurred. The block consists of six two-storey units which are co-joined and face West Lakes. Looking at the units, unit 6 is at the far-right end of the block, and unit 1 is at the far-left end. Unit 4 where Ms Castellari lives is two units to the left of unit 6. Her unit has an upstairs window with no outside blind. Ms Castellari’s unit has a co-joining wall with unit 3, to the left, where the accused’s mother lived on 20 March 2016.
All units have a small garden at the front which extends to a slatted fence that runs in a straight line along the front of all units. There are three wooden slats that make up the fence. The slats run horizontally with a gap between them. The fence bends left and runs down the whole right side of unit 6. The fence also runs around the side of unit 1 until it meets a red iron fence at the end of the building. The exact height of the fence was not the subject of evidence, but was described by Ms Castellari as being waist height. Considering the photographs in Exhibit P1, I agree with that assessment, although for a taller person, it would be below waist height.
Right next to the fence, and towards the lake, a footpath runs along the front of the units. That footpath, at the far-right side of unit 6, joins onto a short path that then leads to another footpath that runs along the foreshore of the Lake. The footpath that runs in front of the fence to the units, also continues with a left turn to run along the side of the fence that runs along the side of unit 6. The path then continues the whole way past the back area of unit 6, to a driveway area. That pathway is only for pedestrian traffic. To the right of the path, and to the right of unit 6 is a large grassed public reserve.
At the far-left end of the block of units, being the side of unit 1, there is an area of shrubbery which leads to a public carpark area off Gannet Grove. That public carpark area was identified in Exhibit P10. It is from that carpark area and Gannet Grove that residents of the unit complex can drive into the back of their units to park inside back gates.
Unit 6 has a slightly larger garden area than units 2, 3, 4 and 5, due to its position being at the corner of the fenced area. In that front garden, there is a lawn area with a large palm tree. Photo 2 of Exhibit P1 shows the front lounge room window on the lower floor of unit 6, to the right of which is a table. Photograph 4 of Exhibit P6 shows a window that was broken on the night of the assault and a light between the broken window and the front door. Photo 2 of Exhibit P1 shows two bedroom windows on the top storey of unit 6.
Finally, in describing the scene of the assault, photographs 1 and 2 of Exhibit P6 show the area where a garden ornament was found by police on the night of the assault. I find that this was in the shrubbery area outside of the units, near the red fence on the boundary of the back area of unit 1.
Evidence
At the time of giving evidence at the second trial, Jason Ward was the partner of Rachel Williams. On 19 March 2016, he was spending the night at unit 6 with Ms Williams. He did not live there permanently, but spent several nights per week at 42 Dotteral Drive. Ms Williams had fallen asleep on the lounge downstairs and he was in an upstairs bedroom, getting ready for bed. Mr Ward heard people ‘carrying on’ outside and a female voice saying, ‘stop hitting me’.[3]Mr Ward describes hearing these voices as being directly out the front. Mr Ward said that he opened the upstairs window, which was a Hopper style window that wound out from the bottom to open. He opened it by 20 to 30 centimetres and yelled out through the window that he would call police if they did not stop the noise. Mr Ward saw two people at the left-hand corner of the fence (being the right-hand corner if looking at the units), standing on the footpath outside the fence.[4]
[3] 2T24.31-33.
[4] 2T25.7-27.
Mr Ward then heard what he believed was the front lounge window smashing. As he was only in underpants, he grabbed a quilt and wrapped it around himself to run downstairs to catch whoever had damaged the window. At that time, the front door was closed and the porch light was off and Mr Ward’s evidence is that he turned the light on as he opened the door. He only just stepped out onto the grassed area, about two metres form the door, when his assailant came around from the far-right corner, being the far end of unit 6, holding a weapon. Mr Ward was struck and has no further memory of the incident.
Mr Ward clearly described the assailant as coming from the side of the house where it was dark, and that he was not able to get a look at him before he was struck. Mr Ward gave evidence that there was no lighting around the fence of unit 6, and that the only lighting was what he described as ‘dodgy lighting’ provided by bollards on the footpath that come on at night. Those lights, he said, emitted light onto the footpath but not necessarily anybody who might be walking along. He stated: ‘they don’t really even do what they were meant to do’.[5] He also said that there was no bollard lighting, or lighting at all, along the path that runs along the foreshore of the lake and in his words, there is ‘not really a lot of lighting down there’.[6]
[5] T36.3-20.
[6] T36.34.
Mr Ward confirmed that during the identification procedure, he did not choose a photograph of the accused and stated that it really was ‘all of a blur’. He was not clear at all as to who had assaulted him, as he had not got a good look at him.
When asked whether he knew Deborah Blundell, Mr Ward said he did not and he was not aware of any concerns with her tenancy in unit 3. He was not aware of any issues with people coming and going to her unit late at night however, he did acknowledge that Rachel Williams complained of people partying along the foreshore of West Lakes late at night and disturbing them.
Mr Ward confirmed that he had sustained serious injuries to his head and face in the assault. He had required surgery for these cuts and lacerations. He identified the photographs in the booklet that was Exhibit P2 as depicting his injuries resulting from the assault. I find that based on Mr Ward’s evidence, agreed fact No. 2 and the photographs in Exhibit P2, that Mr Ward was assaulted and that the harm caused to him in the assault was serious harm. I also find that he was hit with a weapon, although Mr Ward could not give evidence as to what that weapon was.
Heather Castellari, at the time of trial, had lived at unit 4, 42 Dotteral Drive for 34 years. Her unit shares the same roof space as the accused’s mother, Deborah Blundell with whom she has an on and off relationship. She was friendly with Rachel Williams and knew Jason Ward.
On the evening of 19 March 2016, Ms Castellari had gone to bed in her upstairs bedroom at approximately 10.00pm, and gave evidence that she would have been asleep by 10.30pm. She was woken some time later, although the time of that was not given in evidence. Ms Castellari’s bedroom window is the upstairs window in unit 4, and is also a Hopper style window. That window had been left slightly open when she went to sleep and Ms Castellari was woken by loud, angry, arguing voices. She went to the window to look out, explaining that there was a venetian blind on the window which had been left slightly open when she went to bed. She opened it more with her fingers so that she could see out. Ms Castellari’s unit also has a sensor light under the front porch which she explained was positioned to come on when anyone walked past her unit on the footpath just outside of the fence.
When Ms Castellari looked outside her bedroom window, she saw two people walking past her unit towards unit 6. She described them as being a male and a female who were walking fast and arguing. She described the male as being of slim build, with short hair shaved close to his head, a little longer on top, and wearing a light-coloured sweater and dark pants. Ms Castellari lost sight of the two when they were halfway past unit 5 due to the configuration of the units, but could still hear arguing and a girl crying. She heard a female say, ‘please stop’. She also heard something like a slap. She then heard someone say, ‘call the police’ and what sounded like more than two voices being involved.
Ms Castellari then heard glass breaking and not long after, saw the same male and female she had seen earlier walk back past her unit in the opposite direction, that is back towards unit 1. Ms Castellari said that the male was walking past in a fast manner and appeared agitated. The female was behind him. The sensor light came on, and for a second the male looked up at Ms Castellari’s window. She recognised him as the son of Deborah Blundell, the accused. This time she described him as wearing a light-coloured sweater with a zip up front and dark pants and being about five feet five inches tall. Ms Castellari had seen Deborah Blundell’s son earlier in the day at unit 3. She had also seen him at other times in the preceding two weeks, coming and going from his mother’s unit. On the morning of 19 March, Ms Castellari had seen him parking a combi van in the public carpark near unit 1 off Gannet Grove. She had seen him getting something that looked like clothing out of the van as she either walked or drove past him.
When the male was walking back towards her unit, Ms Castellari clearly recognised him as being Deborah Blundell’s son. She gave evidence that she was able to have a good look at his face as he looked up to the window in what she described as a reflex movement as the sensor light came on. Her evidence was that she could not be mistaken as she was wide awake and that he was wearing the exact same clothes, being a cream zip up jumper and dark pants, that he had been wearing earlier in the day when she had recognised him as Deborah Blundell’s son. In her opinion, it was the same person.
When this man was walking back towards unit 1, Ms Castellari said that he was carrying what she believed to be a mobile phone in his left hand, which she identified as a phone as it was glowing. She could not see if there was anything in the other hand, as the right side was closest to the fence. Her evidence was that all she could see was the mobile phone.
Ms Castellari confirmed that a photographic identification procedure was conducted by police a few weeks after the assault, on 6 April 2016 at the Port Adelaide Police Station. She selected the male in photograph number 7. When asked in evidence why she selected that photograph, she said it was the person that she saw on the night of the assault, and that she was close enough to recognise him as it was the same person who had been coming and going at unit 3 over the last few weeks. She had no doubt as to the person she had seen. She did not however witness any assault. The person selected by her was the male who had walked past her unit and looked up at her window.
I find that the person identified by Ms Castellari in the Police identification process was the accused. Her evidence as to who she saw on the night of the assault was not shaken in cross examination. It is supported by her evidence that she had seen the same man earlier in the day, wearing the same clothes, both in the car park near the units, and visiting his mother at the next-door unit. There was really no challenge to this evidence. I accept Ms Castellari as a truthful and reliable witness, and find that the person who she saw walk past her unit on the evening of 19 March / 20 March 2016 was the accused. She knew him, and was in a position to recognize him, as soon as she saw his face.
Rachel Williams has lived at unit 6, 42 Dotteral Drive for 20 years. She gave evidence that she knew and got on well with Ms Castellari, but did not know Deborah Blundell very well.
On the evening of 19 March 2016, she was home with Jason Ward when she fell asleep on the lounge downstairs. She was woken by her front lounge room window smashing, as an ashtray that was kept outside came through the glass. Her partner, Jason Ward, ran downstairs and out the front door to investigate. She describes a figure, coming from the right-hand side of the units, and starting to hit Jason with a weapon. Jason, at that stage, was just off the veranda on the grass and Ms Williams was just in front of the door, just off the veranda. She says the veranda light was on.
Ms Williams described the assault as the assailant coming from around the side of the house and going straight at Jason, hitting him and he just dropped. When cross-examined, she was clear that the assailant had come from around the side of unit 6 and not through the front gate, saying that she could not see him from the door way until he came around the corner.
After the assault, Ms Williams said that the assailant went back the same way, around the side of the unit. She agreed, in cross-examination, that the path past the side of unit 6 went back into the carpark area of the units and then to the street at the end of unit 1.
Ms Williams said that during the assault, she looked directly at the assailant’s face. She described him as being of stocky build, between five feet three inches and five feet four inches tall, with short hair. She described the clothing he was wearing as being a light, or grey short sleeved t-shirt with denim jeans. Ms Williams also saw a young woman on the outer side of the fence, behind the large palm tree in her garden, at the far end of unit 6. She was yelling out ‘stop it’. Ms Williams describes the weapon being used in the assault as a ‘crutch type weapon’ and that it was reasonably large. The assailant needed to use two hands to bring it down on Mr Ward. She described how she got a good look at the assailant’s face when he looked directly at her and told her to back off.
In cross-examination, Ms Williams was challenged regarding the presence of the female outside unit 6 at the time of the assault. Ms Williams agreed that she couldn’t see the female because the background was dark, and she could only see that someone was there. She described this as a silhouette. She believed the person was female because of their voice. Ms Williams described that although, it was dark, it was not pitch black because of some lighting. She confirmed Mr Ward’s evidence that there was some lighting along the path next to the fence, although no lighting on the path next to the lake. She did not describe the female at all in her evidence.
In relation to the assault, Ms Williams gave evidence that she did not own the garden ornament, later agreed to be the weapon. She had never seen it before the assault. She was also asked if she had seen any tattoos on the assailant and stated that nothing had caught her eye. She confirmed that she had seen the assailant’s hands on the weapon being used to assault her partner.
During the assault, Ms Williams ran inside to call 000 to get police and ambulance assistance. In cross-examination, Ms Williams was asked whether the operator has asked her if Mr Ward was being assaulted by a ‘random guy?’. She agreed that she had said ‘yes’ to the operator. Ms Williams explained that she did so because it was a stressful situation. Ms Williams was then taken to another passage of the 000 call, where she had told the operator that she did not know the offender and could not give a description, saying that it was all really quick and ‘…I don’t even really know what he looks like…’. She did give a brief description to the operator of the assailant being five feet four inches to five feet five inches tall with a shaved head and being Caucasian. However, she agreed that she went on to say, ‘I don’t even know who the fucks are’. She also agreed that she did not tell the operator that the she recognised the offender or that he looked familiar to her.
Ms Williams spoke to Constable Foreman, the first Police Officer on the scene. In providing a description of the assailant, she confirmed in cross-examination, that she told him she would recognise the offender if she saw him again, but agreed that she did not tell him that the offender was familiar to her. She next spoke to Detective Kelly who she again told she would recognise the offender, but again agreed in cross-examination that she did not tell Detective Kelly that the offender looked familiar to her.
In relation to whether Ms Williams recognised the offender on the night, or believed he was familiar to her, in her evidence in chief, she stated that at the time of the incident, she did not know the person who assaulted Mr Ward and did not recognise him, but he looked familiar to her.[7] When cross-examined, Ms Williams agreed that at 2.00am on 20 March 2016, the offender did not look familiar to her. In re-examination Ms Williams was asked whether at the time she spoke to police on the night of the incident, in her mind was the person who assaulted Mr Ward familiar to her? She said ‘no’.[8]
[7] T33.28-36.
[8] T49-50.
Ms Williams was asked in cross-examination whether she had seen Deborah Blundell’s son around the units before the assault. She agreed that she had, but not to speak to, only walking past the front of her unit. In relation to the recognition by Ms Williams of the accused, she gave evidence that this first occurred when the Housing SA manager came out to the units approximately three to four days after the assault to speak to her about the incident. This meeting was held at her unit, and Heather Castellari also attended. There were discussions about the incident, including the broken glass and the assault. Ms Williams gave evidence that Ms Castellari ‘referenced who it was – as Deborah’s son’.[9] When asked in re-examination when the person who had assaulted Mr Ward had become familiar to her, Ms William stated a few days later. She gave evidence that this was before the identification at the Police Station, but she was not sure if it was before or after the meeting with Housing SA.[10]
[9] T34.1-13.
[10] T49-50.
In relation to the formal identification procedure, this took place on the same day as the procedure involving Ms Castellari, being 6 April 2016, at the Port Adelaide Police Station. I was shown a video of that procedure and after some initial difficulties with it, Ms Williams selected photograph 5. When asked she stated that she chose that photograph because that was the person she saw assaulting Mr Ward. I find that she selected a photograph of the accused.
The evidence given by both Senior Constable Benjamin John Foreman and Detective Brevet Sergeant Megan Kelly was relatively brief. Senior Constable Foreman confirmed that while on uniform mobile patrol, he attended at unit 6, 42 Dotteral Drive at about 12.30am on 20 March 2016. He was met by Rachel Williams and found Mr Ward lying on the lounge room floor of unit 6, covered in blood around his head and upper body. Senior Constable Foreman arranged for ambulance attendance. He then arranged for the police dog squad and Western Adelaide CIB to attend the scene and those officers found a garden ornament hidden or laying under bushes outside the far end of unit 1. He confirmed that the photographs in P6 depicted where the garden ornament was found. That ornament was approximately 80cms long and consisted of four legs made of tubular steel. It was somewhat like a garden stand. Senior Constable Foreman also confirmed the photographs in Exhibit P7 were of the ornament. There are no exact measurements of the ornament however, the top of it has fleur-de-lis ornamentation with some steel curls. Senior Constable Foreman gave evidence of blood stains on the ornament. It was seized and taken back to the Port Adelaide Police Station. The ornament was later sent to the Forensic Science Centre for examination.
Detective Kelly arrived with her partner, Detective Fulton, at unit 6, at 1.40am on 20 March 2016. A briefing was provided by the police at the scene and she later spoke to Rachel Williams and Heather Castellari. She also spoke to Deborah Blundell. A young woman was in Ms Blundell’s unit, being Grace Whitcomb, a younger woman of slim build with brown hair. Nothing of interest was found in the search of unit 3.
Later on 20 March 2016, Detective Kelly and Detective Fulton went to an address at Ottoway being where Debra Jagla lived. The accused was present and arrested and taken to Port Adelaide Police Station where DNA samples and photographs were taken.
In cross-examination, Detective Kelly confirmed that the accused was a suspect when they searched his mother’s unit. This was based on what they had been told by Ms Castellari regarding the identity of the male she had seen at the units that night. Detective Kelly agreed that after what Ms Castellari had told them, that there was no other suspect or investigations. Detective Kelly confirmed that when they searched unit 3, they had a description of the clothing worn by the assailant from both Ms Castellari and Ms Williams and that those were different, being a cream coloured zip up jumper and dark pants reported by Ms Castellari, as opposed to a grey t-shirt and denim jeans as reported by Ms Williams. Detective Kelly confirmed that they searched both unit 3 and the home of Ms Jagla at Ottoway for these pieces of clothing. No items were found.
Identification evidence
The only issue at trial is whether the accused was Mr Ward’s assailant. On the evidence, it is not disputed and I find beyond reasonable doubt that serious harm was caused to Mr Ward by a deliberate and unlawful assault using a large garden ornament as a weapon. The nature of that assault as described by Ms Williams and Mr Ward makes it clear that the assault was deliberate, intended to cause harm and was unlawful.
The issue to be determined is whether the accused was the assailant. In this regard, although the evidence was of course slightly different to that given at the second trial, I find that the comments of Peek J on appeal in R v Blundell[11] are still applicable:[12]
I consider it to be clear that if one were to subtract the identification evidence of Ms Williams from the case, the balance of the evidence could not support a guilty verdict. While the evidence of Ms Castellari may raise suspicion of the appellant it goes little beyond showing that he was seen at a relevant time walking towards unit 3, a place where he used to go quite innocently (and at which time Ms Castellari thought he was carrying a phone, not a weapon). Such evidence (taken together with the rest of the evidence) could not eliminate the possibility that the assault was the work of someone else.
[11] [2019] SASCFC 84.
[12] Ibid at para 17.
That summary by Peek J, with respect, is also my view of the matter. In coming to that conclusion, I take account of the following:
·Mr Ward could not identify his attacker and gave evidence that the attacker did not come from the path leading to unit 3, but rather from the other side of unit 6, that being the side of the unit closest to the open reserve;
·Ms Williams also gave evidence that the assailant came from that side of unit 6, and not through the front gate[13].
[13] T42.17-19.
·Ms Williams gave evidence that after the assault the assailant left the same way he had come, namely around that side of Unit 6. That is, she did not see the assailant leave the scene by walking towards Unit 3;
·The assault took place ‘inside’ the fenced are of unit 6;
·Ms Castellari gave evidence of a man and woman walking towards unit 6 before she heard breaking glass. She did not identify that person as the accused at that time as she did not see his face;
·Later, after hearing broken glass and some arguing Ms Castellari saw the same man (and a female) walking back towards unit 3. On that occasion, she saw the male’s face and recognised him as the accused, being the son of Deborah Blundell;
·Ms Castellari gave clear evidence that the accused, who she recognised on the night, was wearing a cream zip up sweater with dark pants;
·Ms Castellari saw that the accused was carrying a mobile phone in his left hand. She did not see him carrying a weapon;
·The evidence of Senior Constable Foreman is that the garden ornament used as a weapon was at least 80cm tall. The agreed height of the accused is five feet five inches tall. This is equivalent to 165cm tall. I find that the ornament would have been close to waist height, if not higher for the accused. The photographs show it consists of four legs. I find it should have been clear and obvious to Ms Castellari if the accused was carrying such a weapon, as he would have had to have bend his arm to carry it, or drag it.
·Ms Castellari describes the accused and his female companion as walking quickly. Ms Castellari was looking down on the accused from her bedroom window, giving her a better view of the accused’s right arm and shoulder than if she was at ground floor level. The fence was made of horizontal slats with gaps. The evidence does not support a finding that the accused was carrying the garden ornament as Ms Castellari saw him walk towards unit 3.
·The Forensic testing of the garden ornament found a mixed DNA profile with two contributors. There was extremely strong support for the proposition that Jason Ward was a contributor. There was very strong support for the proposition that the accused was not a contributor. I find on this evidence that there were two contributors to the DNA evidence, one being Mr Ward, and the other being an unknown person, not the accused.
·Ms Castellari identified the accused in her identification procedure but she did not witness the assault. I find that her identification can only be of the person who walked past her unit on two occasions late on the evening of 19 March 2016/20 March 2016.
·Ms Castellari saw the accused earlier on 19 March, taking something out of a combi van in the public carpark near unit 1. She recognised him then as wearing the same clothes he was wearing when she recognised him again walking back from the scene of the assault towards unit 3, namely a cream zip up sweater and dark pants.
·I find that on the evidence of Ms Castellari that the accused had walked towards unit 6 in company of a female before the assault, and was seen walking back towards unit 3 after Ms Castellari heard glass breaking.
Identification evidence
I am required to give myself specific directions on the danger of convicting the accused on Ms Williams’ evidence that that he was the assailant. I must take account of the factors that may affect my consideration of Ms Williams’ evidence in the circumstances of the charge against the accused.
In Domican v R,[14] the High Court set out the direction which should be given in relation to identification evidence as follows:[15]
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective…Consequently, the jury must be instructed ‘as to the factors that may affect the consideration (the identification) evidence in the circumstances of a particular case a warning in general terms is insufficient. The attention of the jury should be drawn to any weaknesses in the identification evidence. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
[14] (1992) 173 CLR 555.
[15] Ibid at p 561.
The warnings given by the High Court have been imbedded in the Evidence Act (SA). Section 34AB(4) of the Evidence Act 1929 (SA) provides:
34AB – Identification Evidence
(1) In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible and is not be excluded, merely because it was obtained other than by means of an identity parade involving a physical line up of persons.
(2) …
(3) In a criminal trial, where the identity of a person alleged to have committed an offence is in issue, the judge must, if evidence of the identity of the person is admitted, inform the jury –
(a)of the need for caution before accepting identification evidence; and
(b)of the reasons for the need for caution, both generally and in the circumstances of the case
(4) In giving any such information, the judge is not required to use any particular form of words but may not suggest that identification evidence obtained from an identity parade by any means other than by a physical line up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means.
…
I take these matters into account and so direct myself when considering the identification evidence of Ms Williams.
A finding of honesty does not relieve me of the obligation to approach the task of assessing the reliability of Ms William’s evidence with special caution. Such special caution is necessary as there is the possibility that Ms Williams may be mistaken in her identification of the accused as being the person who committed the serious assault on her partner. In this case, with the evidence of identification being a significant part of the proof of guilt, I direct myself that there are dangers of convicting on such evidence where the reliability is disputed. I must carefully consider all factors which may affect the consideration of the identification evidence and any weaknesses in that evidence.
I must carefully consider the circumstances in which Ms Williams made her observations of the offender and take account of the stress that she was under as she witnessed her partner being assaulted. This would have been a frightening and traumatic event for Ms Williams. I must also consider the discrepancies between what Ms Williams told police on the night of the assault regarding her identification of the assailant and what occurred between that date and the formal police identification procedure.
As I have set out, on the night of the assault, during her 000 call Ms Williams agreed that she had been asked whether the person who had assaulted her partner had been a random guy, and she confirmed that it was. She also gave evidence that she told the 000 operator that she did not know the offender and could only give a very basic description, as it was really quick and she did not ‘…even know what he looked like…’. She could only provide a description of a man of a certain height with a shaved head and being caucasian. She went on to state ‘…I don’t even know who the fucks are…’ and she gave evidence, both in cross examination and re-examination that on the night of the assault she did not recognise the offender, nor did he look familiar to her.
Ms Williams told the first police officer who spoke with her, Senior Constable Foreman, that she would recognise the offender if she saw him again. She did not recall if she told him if he was familiar to her. She agreed that when she later spoke to Detective Kelly she again said she would recognise the assailant if she saw him again, but not that he did looked familiar to her. She agreed that at 2.00am on 20 March 2016 the offender did not look familiar to her and in re-examination when asked ‘…in your mind was the person who assaulted Jason familiar to you’ she answered ‘no’.
Both Ms Williams and Mr Ward gave evidence that the porch light was on at the time of the assault. Ms Williams gave evidence that the offender was wearing a t-shirt which was light coloured and possibly grey, with denim jeans. She gave evidence that she saw his hands. The evidence of the assailant’s clothing is different to the evidence given by Ms Castellari of the clothes that the accused was wearing, not only on the night of the assault, when she saw him walking both to and from unit 6 along the foot path outside of the fence in front of the units, but also earlier in the day, when he was visiting his mother at unit 3. She clearly described on several occasions that the accused was wearing a long-sleeved cream sweater that zipped up the front and dark pants.
Ms Williams gave clear evidence that on the night of the assault she did not see any noticeable tattoos on the assailant. The photographs of the accused as contained within a booklet of photographs being Exhibit P8, which it is agreed were taken at 10.19pm on 20 March 2016, clearly show that the accused has tattoos over the knuckles of each hand, a large tattoo over the top of his left hand, and tattoos on his lower arms. The lower arms of the assailant would have been visible to Ms Williams as she describes him as wearing short sleeved T-shirt.
Photos 1 and 2 also show that he had a short, but dark beard. Ms Williams gave evidence that the assailant looked straight at her and told her to ‘back off’.[16] Ms Williams also gave evidence that she was a metre away as she was looking at the assailant’s face.[17] She describes him as having a rounded face, dark ‘…like shaven hair short, No1 or 2…’[18] Ms Williams does not mention the assailant having a beard.
[16] T29.38- T30.6 and T33.12-24.
[17] T29.3-7.
[18] T29.8-9.
In reviewing Ms Williams’ evidence, I accept that the whole incident was very traumatising for her, however the evidence she gives is very clear that on the night of the assault after she had considered it on several occasions, and been asked by police, she could not say that the assailant who had assaulted her partner was familiar to her. She said she would recognise him again, but not as somebody who she had necessarily seen previously.
In her evidence Ms Williams was asked whether she recognised the offender at any later time and she said that she did and responded as follows:
QWhen did you recognise him.
AWell, I thought he looked familiar at the time that I’d seen him around, but I don’t think it was until when the Housing Trust Manager or the area manager came out to the house and spoke to me about the incident. I’m pretty sure Heather might have been there and we were talking about it and she referenced who it was.
QWho did she reference.
ADeborah’s son.
QAre you able now to recall when it was that the Housing Trust people came out and spoke to you.
AI think it was about three or four days later. It was during the week, so might have been four days.[19]
[19] T34.1-13.
In re-examination Ms Williams was asked:
QAt the time that you were speaking to the police in your mind was the person who assaulted Jason familiar to you.
ANo.
QAt what point in time did you realise that the person who had assaulted Jason was familiar to you.
AA few days later.
QWas that before or after you did the identification procedure at the police station.
ABefore.
QWas it before or after you had the meeting with the Housing Trust.
AI’m not sure. I can’t recall.[20]
[20] T49.31-50.4.
In cross-examination Ms Williams agreed that she had seen Deborah Blundell’s son around the unit complex at times before the assault.
It is an agreed fact that on 24 March 2016 there was a meeting with a representative of Housing SA at unit 6 because of a complaint made by Ms Castellari regarding the assault on 20 March, and that in making that complaint, Ms Castellari had told Housing SA that she had seen Deborah Blundell’s son that night. Present at the meeting were Jason Ward, Rachel Williams and Heather Castellari.
Assessment of the evidence of Ms Williams
In assessing the evidence of Ms Williams and the circumstances leading to her identification of the accused in the police identification procedure, I must consider whether her memory of the original sighting of the assailant during the assault has been displaced. It has previously been accepted that the displacement affect occurs when the memory of a person’s features as seen by the witness during offending, may be changed by later experience, such as being shown other photographs or identikit photographs, or by discussions with other witnesses.
In this case Ms Williams was not shown any previous photographs of the accused. However, at a meeting held 4 days after the assault, to discuss the circumstances of it with the landlords of the property, the accused was identified as being seen on the night of the assault by another witness, Ms Castellari. This sighting was at around the time of the assault, and on a pathway leading to and from the area where the assault occurred. That identification was of Ms Blundell’s son, whom Ms Williams had seen around the units before the assault. I find this would have given Ms Williams a picture in her mind of what the accused looked like.
Ms Williams was clear that on the night of the assault and for several days thereafter the assailant was not a person who looked familiar to her. She first recognised him as someone who was familiar to her, three to four days after the assault which would be around the time of the Housing SA meeting, where her evidence was that Ms Castellari mentioned the accused.
The High Court in Alexander v The Queen stated: [21]
Lastly, there is the “displacement” effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court, or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.
[21] (1981) 145 CLR 395 at 409 per Stephen J.
This is not a situation where Ms Williams simply identified a person as the assailant whom she had seen before around the units. Ms Williams identified a person whom she had not only seen previously, but a person whom she had been told by Ms Castellari had been seen by her at the time of the assault.
I find that I cannot rely upon the evidence of Ms Williams as to identification. I find that her positive identification of the accused during the police identification procedure suffered from the displacement effect, particularly in the context of her very clearly giving evidence that at the time of the assault and for several days after she did not recognize the accused as being a person familiar to her. It was not until she was told by Ms Castellari that the accused was present in the area at about the time of the assault, that she recognized him as being familiar. It was after this that she positively identified him as being the assailant. I find that on the evidence, that it is likely that Ms. Williams, in identifying the accused, has had her residual memory of the assailant seen on the night of the assault displaced by the information provided to her by Ms Castellari 4 days after the assault.
In the circumstances, I cannot be satisfied beyond reasonable doubt, on Ms Williams’ evidence that the accused was Mr Ward’s assailant.
I also identify other matters that cause me to have significant reservations regarding the reliability of Ms Williams’ identification of the accused as the assailant. Those matters, in combination and independent of the displacement effect finding, leave me with reasonable doubt regarding the guilt of the accused.
The first is the inconsistent evidence between Ms Williams and Ms Castellari regarding the clothing being worn by the accused on the night of the incident. Ms Williams is very clear in describing a short-sleeved, light coloured t-shirt and denim jeans. Ms Castellari is very clear in stating that the accused, on the night of the assault was wearing a long-sleeved cream zip-up top and dark pants. This was the same clothing he was wearing earlier in the day when Ms Castellari saw him in the nearby carpark. I prefer the evidence of Ms Castellari regarding the clothing the accused was wearing, as she had the opportunity to see that clothing in day light, on the day proceeding the assault, and then clearly saw the accused on two occasions around the time of the assault in the same clothing. I consider that this a material inconsistency between the witnesses who have identified the accused as the assailant and it calls into the question the reliability of Ms Williams’ evidence regarding the identity of the assailant as being the accused.
Secondly, the photographs of the appearance of the accused when he was arrested calls into account the reliability of Ms Williams’ identification of the accused as the assailant. She gave evidence that she saw the hands of the assailant, particularly describing how they gripped the garden ornament as he assaulted her partner. She did not see any tattoos. The accused clearly has numerous tattoos on his hands and lower arms (which would have been visible if the accused was the assailant, and wearing a short-sleeved T-shirt). Ms Williams also did not describe the assailant as having a beard or any facial hair on night of the assault, despite describing him as having a round face.
In relation to the description the appearance of the assailant there is also a difference between Ms Williams and Ms Castellari. Ms Williams described the assailant as being ‘stocky’.[22]Ms Castellari described the accused on the night as having a ‘slim to average build’.[23]
[22] T29.16-17.
[23] T55.9.
Thirdly, Ms Williams gave clear evidence that she had never seen the garden ornament which was used as a weapon in the assault and did not own that ornament. As I have found that ornament is a relatively large garden frame consisting of four legs and described as 80cms high. Ms Castellari did not see the accused carrying that ornament either on the way to, or on the way back from where Mr Ward was assaulted. There is no evidence of the accused’s DNA profile on the garden ornament, and very strong support for the proposition that his DNA is not part of the mixed profile of 2 the contributors on that ornament. There is therefore a mixed DNA profile of another unknown person on the ornament. That evidence puts in issue the reliability generally of the evidence of Ms Williams regarding the identity of the person who assaulted her partner.
Finally, I take account of the evidence of Ms Williams given to the 000 operator that she did not know who the offender was; and that it was a random guy, even though if it was the accused she had seen him previously at the units and was aware that his mother lived at unit 3. That evidence seriously impacts the reliability of Ms Williams identification evidence.
For these reasons, I cannot be satisfied that Ms Williams’ identification of the accused as the assailant is sufficiently accurate or reliable to enable me on her evidence to find that the assailant was the accused.
Conclusion
I am satisfied beyond reasonable doubt that the offence of Aggravated Causing Harm with Intent to Cause Harm was committed on 20 March 2016 upon Jason Ward. I am not satisfied beyond reasonable doubt that the person who committed that offence was the accused. Accordingly, I find the accused not guilty of the charge and return a verdict of not guilty on the count of Aggravated Causing Harm with Intent to Cause Harm.
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