R v Burdon - [2021] SADC 5

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BURDON
Criminal Trial by Judge Alone
[2021] SADC 5
Reasons for the Verdict of his Honour Judge Stretton
1 February 2021
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
The accused is charged with one count of robbery over certain events alleged to have occurred in the early hours of 5 May 2019.
In short, it is alleged that the victim in this matter came across the accused at about 2.30am shortly after the accused had collided his own vehicle with a parked car. It is alleged that the accused both threatened to use and did use violence to steal the victim’s car to escape from the scene of the collision.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) CLR 438; R v S,GJ [2012] SADC 150, applied.
Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T,WA (2014) 118 SASR 382, considered.

R v BURDON
[2021] SADC 5

The accused Jason Gregory Burdon is charged with one count of robbery over certain events alleged to have occurred in the early hours of 5 May 2019.
In short, it is alleged that the victim in this matter came across the accused at about 2.30am shortly after the accused had collided his own vehicle with a parked car. It is alleged that the accused both threatened to use and did use violence to steal the victim’s car to escape from the scene of the collision.
The Information
Jason Gregory Burdon is charged with the following offence:
Statement of Offence
Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jason Gregory Burdon on the 5^th day of May 2019 at Clarence Gardens, used force against Martin John Ralph in order to commit the theft of a motor vehicle and contents, and the force was used at the time of, or immediately before, the theft.
Elements of the offence
The elements of the offence of robbery are:
1.The accused commits theft. Theft occurs where a person dishonestly deals with the another’s property without their consent either intending to permanently deprive the owner of the property or to seriously encroach on the owner’s rights in the property.
2.The accused uses force or threatens to use force against another in order to commit the theft or to escape from the scene of the offence; and
3.The force or threat was used at the time of or immediately before or after the theft;
Each element must be proven beyond reasonable doubt.
Legal principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[1] a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.[2]
[1] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[2] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382. The Court applies the principles helpfully set out by Lovell J at paras 6-25 of R v S, GJ [2012] SADC 150.
To be clear however, the court has applied all the principles applicable in a criminal trial of a charge of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however they have all been applied.
It is fundamental however, that the accused has, and always retains, the presumption of innocence. The prosecution bears the onus of proof and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence, and must do so based only on the evidence relevant to that offence.
The accused in this case gave evidence on oath. He was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy the court of all the ingredients of the charge. The accused is entitled to credit for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, the court approaches the task in the same way as with any other witness, always bearing in mind however that the accused bears no onus to prove anything and that it always remains for the prosecution to prove each and every element of an offence before an accused may be convicted of that offence. Further, even if an accused gave evidence and was entirely disbelieved, that does not prove anything against the accused, it would remain, and always remains, for the prosecution to prove each element of any given charge beyond reasonable doubt based on the evidence it calls at trial.[3]
[3] Douglass v R [2012] HCA 34 at [13]-[14].
The cases at trial
The prosecution case is that the alleged victim in this matter was driving home from the Adelaide Casino at about 2.30am on Sunday 5 May 2019 when he came across the accused at the scene of an accident in Caulfield Avenue, Clarence Gardens. It is the prosecution case that the alleged victim stopped and initially agreed to give the accused a lift, but quickly became concerned that he might be doing something wrong, so after a short distance refused to continue. The prosecution alleges that the accused then assaulted and threatened the alleged victim, wresting the victim’s car keys away from him to then steal the victim’s car.[4]
[4] Prosecution opening, T2-5.
The defence case is that there is no dispute that the accused was in Caulfield Avenue with the alleged victim and drove off in his car, but that the two men knew each other and the accused’s acts did not constitute a robbery.[5]
[5] Defence counsel’s outline of issues at the outset of the trial, T5.
The course of trial
The prosecution case consisted of evidence as to the events in question from the alleged victim and a Mr Michael Brown. Mr Brown was the occupant of an adjacent house on Caulfield Avenue. Photos were taken by Mr Brown of the aftermath of the accident, the alleged victim and the accused, and the alleged victim’s vehicle. Crime scene evidence was called by way of photographs of the scene, the alleged victim’s injuries and his car.
Evidence was also called of the police locating the accused and the alleged victim’s car at around 4.30am, with the accused eventually being arrested when he climbed off the roof of a nearby house.
The accused gave evidence on oath and tendered further evidence.
The evidence
The first witness was Mr Michael Brown. Mr Brown lives at an address in Caulfield Avenue. He gave evidence that he was woken at about 2.30am on Sunday 5 May 2019 by the sound of glass breaking. He looked out the front window of his house then went outside.
He observed that a parked Ford Falcon vehicle had been hit head-on by a small red hatchback. The Falcon was owned by the boyfriend of a boarder. Debris from the impact was spread across the road.
As he walked to the footpath he saw a person transferring property out of the small red hatchback and onto the veranda of the adjacent house. That house had been vacated the previous Friday. It is not disputed that the person moving the property was the accused.[6] The accused seemed agitated and flustered and said to him, “Don’t worry about it, police and ambulance are on the way”.[7]
[6] For convenience of the narrative I refer to the man Mr Brown described as being initially present, and unloading then loading the vehicles, then sitting in the passenger seat of Mr Ralph’s car as ‘the accused’. However, at no time did Mr Brown purport to identify anyone as the accused.
[7] T9.
Mr Brown gave evidence that he thought it was all a bit unusual and strange so he took a minute to retrieve his phone from the house and started taking photos. At this point the accused remained the only person present, but then a small silver hatchback came from the east and stopped just before the accident site.[8]
[8] T9.
Mr Brown gave evidence that the accused then went over to the car and had a one or two minute conversation with the driver. Mr Brown could not hear what was said, but the driver of that car reversed slightly east and alighted the vehicle. The accused collected the items he had transferred to the adjacent veranda and put them in the back seat of the driver’s car.[9]
[9] T10.
Mr Brown gave evidence that both men got in the car and it reversed a distance up the road before it stopped on the southern side of the road near the intersection. He said he did not know how far away that was, but he guessed it was roughly 80-100 metres.[10] The headlights had not been on while the car was reversing.
[10] T11.
Mr Brown gave evidence that he then heard voices raised in argument or discussion. He could not clearly see what was happening at that distance in that lighting, beyond seeing at least one silhouette outside the car. Then he heard car doors close and the vehicle did a U-turn and drove east on Caulfield Avenue. It then turned left onto Winston Avenue.[11]
[11] T12.
Through Mr Brown a Google map of the area was tendered,[12] as were the photographs taken on Mr Brown’s mobile phone[13] together with Police photos taken that evening and the next day.[14]
[12] P1.
[13] P3.
[14] P2 and P4.
The tendered photos of the aftermath of the collision between the small red hatchback and Mr Brown’s boarder’s boyfriend’s parked Ford Falcon indicate a severe impact, with each vehicle badly damaged and a significant amount of vehicle debris scattered about.
The truth or accuracy of Mr Brown’s evidence was not challenged in cross-examination. He had not met or seen either of the men before. He said that the silver vehicle’s headlights had been on when it first approached. He could not say from the men’s interaction whether or not they previously knew each other. The driver did not help load the car. He did not see clearly enough to be able to say what happened between the men at the point that he heard the raised voices, and whether or not they were physically fighting.[15] When that was happening, the car the men had driven away in was stationary just before Solent Street. It was there for maybe one or two minutes.[16] Mr Brown agreed with a proposition put to him that at the earlier stage when the vehicle was being loaded he did not see any ‘threatening exchanges’ between the two men.
[15] T30.
[16] T31.
Mr Brown gave evidence that when the accused was about to leave where Mr Brown was, Mr Brown asked the accused why he was leaving, to which the accused said something along the lines of, “Don’t be a snitch”.[17] Mr Brown said that at no stage did he recall any police sirens.[18]
[17] T37.
[18] T39.
The alleged victim Mr Martin Ralph then gave evidence. Mr Ralph said that he had been out on the evening of 4 May 2019, firstly at a hotel and then the Adelaide Casino. He said he left the Casino at about 2am and commenced driving in the direction of his home. He decided to call by a friend’s house to see if the lights were on and maybe drop in. The friend’s house was at (number given) Caulfield Avenue, Clarence Park. There were no lights on at his friend’s house so he drove on down Caulfield Avenue towards South Road with the intention of going home.
Mr Ralph described what then happened. As Mr Ralph’s credibility was in issue, and much therefore turns on a close assessment of his evidence, I will set out his initial description of events verbatim. He described the events in the following terms:[19]
[19] T47-56.
….as I was driving along I then saw two cars in an accident on my right-hand side so I drove past slowly and then - I drove past the cars slowly and then there was another car on my left parked so I went around that car and I saw a lot of debris, a lot of car parts on the road and I thought there was a main big one, big car part, there, I thought 'I can't go past there, I'll reverse and go another way'. Yes.
Q. When you started to reverse did something happen.
A. As I was reversing slowly I then drove - I then steered away from the two cars on the right-hand side, I drove very slowly reversing past them and just as - as I was, I was very slowly driving past them then the man walked over to my car as I was driving slowly and then I stopped. I stopped and now I remember I wound my window down and the man said 'If you help me with my stuff I'll give you $1,000' and I said, I said 'Okay' I said, I said 'Righto' - he asked me that question and then I said 'Okay' - actually I said 'Okay' and 'Yes', then I wound up the window and I then proceeded to reverse very slowly, after the cars were on the right I reversed slowly and stopped after the cars were parked and just out of the kerb there and he said to me, the man said to me 'You might as well go out - you might as well go and open your hatch up and I will put my stuff in the back'.
Q. Okay, I will just stop you there.
A. Yes, yeah, yep.
Q. When the man came to the car and you rolled down the window -
A. Yes.
Q. - did you get a look at him.
A. I did.
Q. Can you describe him please.
A. Slight build but I was in the car so I can't really say the height. He wasn't short but he was car height plus but he was thin build. Thin build and, yes. Yes. That's about it.
Q. You've mentioned that he said two things to you, the first was asking for your help and the second was something to do with things to go in the car, is that correct.
A. That's right, yes.
Q. After the second thing he said to you what did you do.
A. Right, as I had stopped the car to help him he then said to me - he was standing at the car - he was standing outside and I was sat there and he said 'You might as well open up your hatch so I can put my stuff in there' and so I then get out of the car and go to the back of the hatch and opened it up and unlocked it, and so it's up there (INDICATES). He then was going back and forth from the driveway grabbing whatever he could and putting it in the back of my car, the hatch, doing this and doing that.
Q. How many times did he go from the area of your hatch to the front yard and back again.
A. About two or three times.
Q. And where were you when he was doing that.
A. When he was doing that I was standing at the back of the hatch just watching him coming back and forth grabbing stuff, going to the back of the car and putting the goods in the back of the car, back and back and there - there (INDICATES).
Q. While that was going on did you say anything to him.
A. I did not, I did not say anything to him but I think he said - no, I don't - he mumbled something like - when he was at the back of my car putting stuff in there he did say something to me but I don't remember what it was.
Q. That's okay.
A. I think he said like 'I might move this around here to put - or I'd better make more room for here or make more room for that' and I thought - I didn't think anything, I thought 'Okay, fair enough'.
Q. I will stop there you.
A. Sorry.
Q. I will stop you there.
A. Yep.
Q. Could you see what it was that he was putting into your car when he was moving backwards and forwards to the house near where you were.
A. I could not see what he was putting in my car but I do know just plastic bags because I could hear that annoying, sorry, I could hear that annoying crumply. I, yep, I couldn't see what actually he put in there.
Q. After the man finished putting things in the car.
A. Right.
Q. What happened next.
A. What happened next was during - after - or during - during he was taking, going to the driveway and taking the bags there the guy that he hit said - he was holding his camera in - he was leaning against the car and clicking away and he said 'Oh, are you just going to leave, is that all, are you just going to leave?' And I was amazed by that but he said that, and then the man was coming back and forth, putting his stuff in the back of my car and he said 'Right that's enough, you might as well close the hatch and let's go off, let's go'.
Q. What did you do at that point.
A. So we closed the hatch. I then went to - I went and get in the car. I went to get in the car.
Q. Which seat in the car did you get in.
A. The driver's seat. The driver's seat.
…..
Q. What happened after he sat in the passenger seat and closed the door.
A. Right. He - I was in the driver's seat and I turned the engine on and I said 'He's taking pictures of us. He's taking pictures of us'.
Q. Who were you talking about.
A. I was talking about the guy - I was talking about the guy whom - I was talking about the guy who was leaning against the car just standing there and he was taking photographs, photographs upon photographs of the man going back and forth from the driveway to the back of the car, from me getting to my car, he was taking pictures of it and I remember when the man and I were in my car and I started the car up and I said 'He's taking photographs of us. He's taking photographs of my car. He's - I could be an accessory to the fact' and I was just in a mess, I was starting to - I was crumbling, I was just - this was not good. Sorry, go ahead.
Q. The man that was in the passenger seat, did he say anything to you when you made those comments.
A. Yes, he said 'Oh, he's a good friend of mine. He's just an idiot' and -
Q. What happened after that.
A. Was I started to reverse the car very slowly but - and I didn't want to do it but I slowly maneuvered the car and he said 'I don't care where you go, just get me out of here. I can't afford to be caught by the police, take my licence away, lose my job' and he was frantic. So I thought - so I drove, I slowly reversed the car and I then looked to my left-hand side and I could see a street sign saying 'No through road' I said 'Well I can't go there'. He says 'I don't care, just go, go, go, go, go'. And I then reversed the car and I thought 'I'll do a three-point turn' so I started to do the three-point turn but I said 'But he's taking photographs, he's taking photographs'. 'I don't care. I don't care'. I said 'He's taking photographs', the man on the passenger side was saying 'I don't care, just go. Just go, just go'. So I reversed a three pointer and then all the way through that I was very slowly reversing forward, reversing doing a three-point turn and then I was - as then as I turned around to point westerly on Caulfield Avenue towards Winston Avenue again I was saying 'I can't do this. I could be an accessory to the fact. He's taking photographs, I just cannot do this' and he was saying 'Just drive, just drive, just drive. Just get me out of here' and I thought - I said to myself, 'Strategy, I'm now going to - I'm going to - I'm going to - I'm going to quickly drive to the left-hand side, park the car, turn the lights off, take the keys out' and as I was doing that, taking the keys out and stopping the car, he said 'Give me your -' swear, swear, swear '- those keys. Give me those -' swear '- give me those keys, give me your car keys or I'll - give me the car keys. Do that now, give them to me now. And I just - I just did lights off, keys out, opened the car door up and I bolted, I just ran and he - and as I was - yes.
Q. I will just stop you there.
A. Sure, yes.
Q. When you were going in reverse up Caulfield Avenue did you have the lights on in your car.
A. Yes, yes.
Q. When you stopped the vehicle and took the keys out of the ignition what did you do.
A. When I stopped the car - when I stopped the car I turned the lights off and I turned the ignition off and took the keys out.
Q. And then what did you do.
A. I then quickly opened the driver's door, I then get out of the door and I started walking, I started walking away from the car he -
Q. In which direction did you start to walk.
A. I started walking southerly just away from my car, just away from it just to get away from the car.
Q. What happened then.
A. Right. Just after I turned the lights off, after I turned the lights off and turned the engine off he said 'Give me your keys. Give me your keys' and he probably swore but he said 'Give me your keys or else, or else I'll really - give me your keys'. And I thought 'lights off, keys off, out, and just open the car up and get out of there, just get out of there. Just run. Just run'.
Q. Did you take the keys with you when you got out of the car.
A. Yes, I did, yes, yes, I did.
Q. What did the man in the passenger seat do from there.
A. As I did all the switching, turning the lights off -
Q. When you got out of the car. What did the man in the passenger seat do when you got out of the car.
A. Yes, yes. As I was out of the car he then opened up his driver's - the passenger side door and he opened it up and came around to my side saying 'Give me your keys, give me your keys'.
Q. What happened then.
A. Right then as he - as I was on the road with my car keys and he was - he was out - coming towards me I then was walking backwards to keep away from him. I wanted to go away from him having my car keys clenched in my right-hand fist and he said 'Give me your car keys, give me your car keys'. And then he walked towards me and he started to punch me.
Q. Where did he punch you.
A. He punched me - he went punched me first on my right cheek and then he punched me on my left cheek and then he punched me on my right cheek and I was trying to block them, trying to block them and then - yes.
Q. Where were your car keys when he was punching you.
A. In my right hand. My hand.
Q. How many times did the man punch you.
A. It would have been once - he punched me on my right and then he, on my left and then on my right again and I had the car keys in my hand and as he was hitting me, as he was punching me, he then said 'I have a knife', he said 'I have a knife' and I saw him reach down with his left hand to his back of the jeans for his pocket for a knife and I thought 'Oh no' and I said 'I'm in trouble now' and then -
Q. Did you see him with a knife.
A. No, I didn't, no.
Q. After the three punches that you've told us about what happened between you and the man.
A. As he - as he, after the third punch he said he had a knife and reached for it and I was looking at him reaching for his, there, and he didn't have one. So then I then - he then gave me one - we were standing there and he was punching me and then after he couldn't - he didn't have a knife, he then did one hard punch to my left cheek which made me fall, that's it. But I still - sorry.
Q. Where did you land when you fell.
A. I landed in the middle of Caulfield Avenue.
Q. What happened from there.
A. As I landed down, as I landed - I landed on the cement - and then he came up to me, he come up to me and leant over and he reached into my right hand, he reached into my right hand for my car keys and he said 'Give me your car keys, if you don't I will continue hitting you and we don't want that, do we?'
Q. And what happened from there.
A. While he was reaching into my hand trying to get the car keys out and I could feel my hands getting weaker and he - and he then, it came to a point where he had the car keys in his hand securely and took them out.
Q. And what happened to the man from there.
A. Before, before, if I can backtrack to say that before he did get my car keys I said 'Please god, help me'. That was it. He then, he said 'If you don't give me your car keys I'll continue or else’, he then reached into my right hand for the car keys and prised them out, keep prying them until he secured them and that was it. Then -
Q. Once he got the keys then what happened.
A. Then I heard his footsteps running to my car, get into it and start the car up (DEMONSTRATES) and then drive, that was it.
Q. Did you give the man permission to have your car keys.
A. No.
Q. Did you give the man permission to take your car.
A. No.
Q. Had you ever seen that man before.
A. No.

Mr Ralph gave evidence that he then got up from the road and started to look for his car, mobile phone, comb and pen. He found the smaller items but his phone was partly broken from the fall. Mr Ralph gave evidence that he then walked to the friend’s house he had driven past a short time previously. He woke his friend and phone calls were then made to the police and for an ambulance. An ambulance took him to Flinders Medical Centre.
Mr Ralph gave evidence that he was admitted to Flinders Medical Centre, where he was treated for his injuries, including a fractured bone between his cheek and his eye. He was released the following afternoon.[20]
[20] T57.
Photographs were tendered which showed significant bruising, abrasion and injury to most of Mr Ralph’s face, and also to his right forearm and hands. Mr Ralph said that the injuries to his arm and hands were from falling onto the road during the ‘bashing’ he was receiving, and during the time he was on the road in the course of the incident.[21]
[21] T68-71.
Mr Ralph gave evidence that when he last saw his vehicle, before the man drove off with it, the rear window was intact, however at some time after the man took the vehicle that window had been smashed. With reference to police photos of the vehicle he identified one or two items that belonged to him, saying that he was not familiar with all the bags depicted in the back seat and the rear hatch area.[22]
[22] T71.
Mr Ralph was cross-examined in some detail by defence counsel. He denied he had ever been to two houses in Leah Street Forestville near the intersection with Leader Street depicted in defence exhibit D1. It was put to him that he had met the accused in the driveway between those two houses about a week prior to the events in question, and put to him that he introduced himself to the accused as ‘Marty’ and the accused was introduced to him as ‘Jase’ on that occasion. He denied those suggestions.
It was put to Mr Ralph by defence counsel that he saw the accused a second time at that same property the night before the incident. He also denied this suggestion.
It was put that on the morning of 5 May, a couple of hours before the incident in question, he went to that same house in Leah Street and saw ‘Jase’ there a third time. It was put that on this third occasion, that the accused in Mr Ralph’s presence, first went and had dealings with people at one of the houses, and at that time Mr Ralph was talking to a couple of men trying to sell some gold jewellery, which was in a black fabric bag with a drawstring. It was put to the witness that he discussed selling the gold with the accused, who told him that he knew where it could be sold and an arrangement was made that the witness would drive there and the accused would follow. Mr Ralph rejected these propositions.
It was also put to Mr Ralph that he was then driving alongside the accused in Caulfield Avenue, talking to the accused through the window of the two cars, when the accused had an accident in his car, whereupon Mr Ralph then drove off, and returned later. Mr Ralph rejected this proposition.[23]
[23] T78-79.
In cross-examination Mr Ralph agreed he stopped and let the accused put bags in his car, but denied that he helped the accused by putting any bags in the car himself.[24]
[24] T79.
Mr Ralph was then taken through the primary events he had given evidence of, and repeated his account several times. He did say that he only reversed a very short distance before stopping near an adjacent street and refusing to continue to assist the accused. The witness repeated his recollection that it was only a short distance, perhaps a couple of car lengths,[25] not the further distance that had been attested to by Mr Brown or as depicted in a photo taken by Mr Brown contained in P3.[26] He also said that he had his lights on when he reversed, contrary to Mr Brown’s recollection. Mr Ralph said he was frantic and panicking at this stage of the events. When cross examined about whether he actually did fall to the ground and damage his phone, Mr Ralph produced the damaged phone to the court.[27]
[25] T90.
[26] T83.
[27] T99-100.
In the course of his evidence Mr Ralph was adamant that he did not swear, and indeed on a number of occasions substituted other words or spelt out swear words rather than articulate them.
Brevet Sergeant Merritt gave evidence that he attended the Flinders Medical Centre on 5 May 2019 and took photographs of Mr Ralph’s injuries[28] and attended Caulfield Avenue taking further photographs at that location.[29] Brevet Sergeant Merritt also located and photographed 5 blood drops on the roadway between 99 and 107 Caulfield Avenue. He roughly estimated that the first blood drop was perhaps 150 metres from the accident site adjacent 133 Caulfield Avenue.[30]
[28] P5.
[29] P2.
[30] T112.
Then Mr John Van Pamelan was called to give evidence. He said that he lived with his sister at a given address in Caulfield Avenue, and was indeed a friend of Mr Ralph, having known him since 1983. He corroborated Mr Ralph’s evidence that Mr Ralph would often visit him, usually late in the evenings, and sometimes unannounced.[31]
[31] T132.
Mr Van Pamelan gave evidence that on the morning in question he was awoken by repeated tapping on his window. He opened the front door to find Mr Ralph distressed and bleeding from the forehead. He assisted his friend, sat him down, called the police then cleaned up some of the blood he saw on Mr Ralph’s arm. Then they waited out the front for police. Police arrived in about 20 minutes. Mr Ralph was taken away in an ambulance.
Senior Constable First Class Whittington gave evidence as to the location and arrest of the accused. Officer Whittington is a member of the Dog Operations Unit. He gave evidence that at about 2.38am on the morning in question he arrived at Caulfield Avenue and observed the collided vehicles. Persons present gave him the description and registration number of a vehicle that had left the scene of the accident, and he also spoke to a distraught Mr Ralph and obtained an account of the events. After about 30 minutes he started driving around the area to try and locate Mr Ralph’s vehicle. At about 4am while parked in an adjacent street, he saw the vehicle driving along Lee Street.[32] He commenced following the vehicle whereupon it took off at high speed. He activated his marked police vehicle’s lights and siren and followed through several streets ending up on South Road travelling north. Suddenly the vehicle veered onto the wrong side of South Road and turned right in the vicinity of Byron Street, Black Forest, and the officer lost track of it.[33]
[32] T139-140.
[33] T141-142.
Senior Constable First Class Whitting gave evidence that at about 5am he was tasked to attend an area adjacent numbers 1 and 3 Leah Street, Forestville. On arrival, he saw the accused jump the rear fence of one of those properties. The accused was located a short time later on the roof of a property at number 13 Leah Street. He was subsequently taken into custody.[34]
[34] T145-146.
Brevet Sergeant Watts the investigating officer gave brief evidence outlining his role. He said that he had a conversation with the accused at about 12.23pm on 6 May 2019, observing that he had a bandaged arm. Photos of the accused on his arrest were tendered, as was a statement of agreed facts.[35]
[35] P7 and P8.
The accused gave evidence on oath in his defence.[36]
[36] T168 et seq.
The accused gave evidence that in May 2019 he was using a red Ford Laser that he had stolen. He gave evidence that he had in fact met Mr Ralph on two occasions prior to the events in question. The accused said the first of those occasions was a brief encounter in the last week of April, when he was visiting to buy drugs from his dealer who at that time lived at 3 Leah Street. He said that he also spoke to a couple of other people that were in the next-door neighbour’s place, who usually congregated outside of the driveway between the two houses. One of those people introduced Mr Ralph to him as ‘Marty’, and the accused introduced himself as ‘Jase’.[37]
[37] T169, 211.
The accused gave evidence that he saw ‘Marty’ a second time, this time the day before the incident in question, when he again attended Leah Street, Forestville to buy drugs from his dealer. The accused said he arrived in the red Ford Laser. He said he saw ‘Marty’ talking to the same people in the same place, but on this occasion, he did not speak to ‘Marty’.[38]
[38] T170.
Then the accused gave evidence about the evening in question. He said he attended in the red Ford Laser at, “Midnight, around midnight, maybe after midnight”. He said he parked just before ‘Marty’s’ Toyota.[39] He purchased methylamphetamine from his dealer ‘Mick’. The accused said he noticed ‘Marty’ talking to ‘Mick’ and he heard conversation about selling some gold. He said he noticed ‘Marty’ holding a small black bag.[40] He described the event in the following terms:[41]
[39] T171.
[40] T172.
[41] T173-174
Q.    You heard this conversation about the gold I think.
A.    Yes.
Q.    You said something to Marty.
A.    Yes, I did, I did but then I said 'What have you got there?'. He said 'Some gold' and I asked Mick or Michael whether he was purchasing it and he goes 'No'. I said 'Why don't you take it to one of the pawn shops on South Road?', and he goes 'I'd rather not'. I said 'I know where you can get rid of it but you won't get much for it'.
Q.    Who were you having that conversation with.
A.    With Marty.
Q.    Did you see the bag.
A.    I did see the bag.
Q.    Can you describe it.
A.    It was just a small black bag with a draw string (INDICATES).
Q.    You're indicating a bag about 3 x 4 cm in size.
A.    About the size of a packet of cigarettes.
Q.    That's larger than 3 x 4, is it not.
A.    Well (INDICATES).
Q.    About 5 x 6.
A.    About 5 x 6, yeah.
Q.    Did you see the contents of the bag.
A.    I had a quick look in it. All I seen was some assorted gold jewellery and, yeah, that was it.
…
Q.    What did you do then.
A.    I said to Marty 'If you want to follow me, I can help you get rid of it' and we proceeded from there en route to a place at Raglan Avenue.
Q.    Did you drive the red vehicle.
A.    Yes, I did.
Q.    What did Marty do.
A.    Marty drove his vehicle.
Q.    What route did you take from Leah Street.
A.    I went the back streets to avoid main roads as I was driving a vehicle that wasn't mine and yeah, and he followed.
Q.    Can you tell us what streets you drove along.
A.    I can't recall.
Q.    Were you driving the red vehicle later when it was involved in the collision.
A.    Yes, I was.
Q.    Was that on Caulfield Avenue.
A.    Yes, it was.
Q.    The details you've heard about the collision, are they correct.
A.    Yes.
Q.    How did the collision occur.
A.    I had a sudden lapse of judgment. I think I did fall asleep, I dozed off and I come to and I realised I was in an accident with a parked car.
Q.    Where was Marty when that happened.
A.    I don't recall. He was meant to be behind me. When I come to, there was no-one behind me.
This account of the collision is not consistent with the version that had been put to Mr Ralph in cross-examination by the accused’s counsel, that the two had been driving parallel down Caulfield Avenue next to each other speaking through open car windows at the time of the impact.
The accused gave evidence that he came to, and realised he had been in an accident with a parked car. He said he got out of his vehicle and started taking the bags out of it. He said he placed the bags on the side of the road, just at the start of the adjacent driveway. He said he then noticed ‘Marty’ coming down the street. He said ‘Marty’ pulled up and asked what happened to which he replied, “I don’t know I think I fell asleep, what do I do now, what do I do”, to which ‘Marty’ said, “what do you want to do”, and the accused asked, “can you help me get out of here?”, to which ‘Marty’ agreed.[42]
[42] T174.
The accused gave evidence that he did not offer ‘Marty’ any money to help him. He said that ‘Marty’ put a couple of big luggage bags into the vehicle.[43] At this point, “the person whose car I had collided with had come out of his residence” and that person was then taking photographs as the accused and ‘Marty’ got back in the car and ‘Marty’ reversed up the road, “flat out”.[44]
[43] T175.
[44] T176.
The accused gave evidence that ‘Marty’ was “angry”, “just pissed” and “very erratic” saying, “this guy’s got my rego now, I’m going to get in trouble, I’m screwed, I’m stuffed, I’m fucked, yeah, I’m going to get in shit now”.[45] The accused said that ‘Marty’ was slamming down on the steering wheel almost having a tantrum, and that, “he actually caught me in the mouth with a backhand”, which he took as a deliberate blow. He described the ensuing events in the following terms:[46]
[45] T177.
[46] T178-T180.
Q.    Did either of you get out of the car at that point.
A.    Yes.
Q.    Who got out first.
A.    He jumped out of the car.
Q.    Were the lights on or off.
A.    The lights were still off.
Q.    What did he do when he got out of the car.
A.    He got out of the car and started approaching my side to which I thought he's come around to open the door up. He's basically at my door at which point I've realised we're both on the road.
Q.    So what happened then.
A.    We've both engaged in a fight. He's still agitated by the events that had occurred.
Q.    Did you get out of the car.
A.    Yes, I did.
Q.    Why did you get out.
A.    I felt threatened, I felt we were about to engage in a fight. I wasn't going to sit there in the passenger seat with a seatbelt on.
Q.    So you got out of the car.
A.    Yes.
Q.    Who did what when you got out.
A.    I got out of the car, he's still erratic, at which point we've both engaged in a fight.
Q.    Did that involve punching.
A.    Yes, it did.
Q.    Who punched who first.
A.    Well, initially he punched me first in the seat of the car. At which point he proceeded around to the passenger seat. Next thing, we're in the middle of the road having a fight.
Q.    When you got out of the car, out of the passenger side who threw the first punch at that point.
A.    He was, he was engaging in a sort of manner that was threatening me. I did punch him, I punched him several times, I'm not denying that.
Q.    Did he punch you.
A.    Yes, he did.
Q.    What part of the body.
A.    I think it connected me in the stomach somewhere.
Q.    Did that cause any injury.
A.    Not, not particularly, not a visible injury to say.
Q.    You punched him several times.
A.    I punched him several times, yes.
Q.    Why did you do that.
A.    Because I was defending myself.
Q.    At any stage did he end up on the roadway.
A.    No.
Q.    At any stage was he on the roadway with you grappling with him.
A.    No.
Q.    At any stage was he on the roadway with you trying to take some keys from his right hand.
A.    No.
Q.    Did anything of the sort occur.
A.    Absolutely not.
Q.    Did anything happen at that point. Did you hear any noises.
A.    I was under the impression that I heard a police siren at which I panicked, we had a bit of a wrestle, some punches were thrown. I thought I heard police coming, at which point I jump in his car and I drove off.
Q.    How did you start the car.
A.    With the keys.
Q.    Where were the keys.
A.    In the ignition.
Q.    When you jumped in the car was it still facing towards the west or South Road.
A.    It was facing towards Goodwood Road.
Q.    It had reversed up Caulfield Avenue.
A.    It reversed up Caulfield, done a U-turn and was facing the hills.
Q.    Who'd done a U-turn.
A.    Marty did.
Q.    You started the car up, did you drive it away.
A.    Yes, I did.
Q.    Can you tell us where you went.
A.    I was sticking to the backstreets, I went around the block and I went to Forestville.
The accused gave evidence that he did see the police vehicle driven by Senior Constable Whitting and in response did flee the area, as he was aware that he was in trouble. He said he drove back to Leah street as the closest person he knew was there. He parked the car in the next street over from Leah Street, being Charles Street, and then walked around to Leah Street. He could not raise anyone at Leah Street. When police attended he ran away, however he was eventually involved in a stand-off with police before being arrested at 6am.[47]
[47] T182.
The accused concluded his evidence-in-chief by saying that he did not apply force to ‘Marty’ in order to steal his car, nor did he forcibly take or attempt to take anything from him. He agreed he never had permission to take the vehicle.[48]
[48] T183.
The accused was cross-examined, and taken over the events. The accused said that the first time he saw ‘Marty’ at the Leah Street premises was in the evening, “when the sun was going down”. The accused said that the second time he saw ‘Marty’ there was, “Sort of dark. Yeah, it was afternoon”, then he said, “Evening. I’d say evening but I cannot be 100%.” It was put to him that his account of who was present on each occasion and where they were standing was coincidentally similar; he agreed.[49]
[49] T191-192, 194.
The accused was cross-examined as to when he said he attended the Leah St address on the night in question, and he repeated “It was late, midnight”. The accused said he could not recall what he had been doing prior to attending on that occasion, beyond that he had come from the Northern Suburbs.[50]
[50] T193.
The accused said that he told ‘Marty’ to follow him in his car and they departed for Raglan Avenue near Castle Plaza, with the accused taking the back streets. He said he did not stop along the way. He said he could not recall how he came to be on Caulfield Avenue. He said, “At one point we were side by side trying to work out which way to go and the next minute I’ve had a crash”. Then the accused said that ‘Marty’ was not in fact beside him when he had the crash, but rather they had been side by side on a couple of occasions prior to that time.[51]
[51] T199.
The accused repeated that after the crash he had got out and pulled the items he had with him out of the car. The accused conceded that he told Mr Brown that the Police and Ambulance were on the way. He conceded they were lies designed to, “buy some time”. He said that he sat the bags on the side of the road, taking three or four trips to do so, and was then, “still trying to come to sense with what happened.”[52] Then he said he saw ‘Marty’ coming down the road.[53]
[52] T200.
[53] T201.
The accused conceded that as he was getting into ‘Marty’s’ car he told Mr Brown something like “not to be a snitch”, explaining the comment as, “something in the heat of the moment”.[54]
[54] T203.
Then the accused was asked where he claimed ‘Marty’ backhanded him, and he said the side of his head and indicated his cheek area.[55]
[55] T204.
The accused initially agreed that he had previously driven from Leah Street to Castle Plaza on South Road and it wouldn’t have taken as much as six or eight minutes. Then he was asked how long it took him on the night in question and he said that he couldn’t put a number on how long it took, and indeed that evening they never made it to Castle Plaza, but it would have been, “not too long”.[56]
[56] T212.
It became immediately apparent that an accident occurring not long before 2.30am after a six or eight minute drive from Leah Street is quite incompatible with the accused’s evidence that he had departed Leah Street with ‘Marty’ at midnight.
This may have become apparent to the accused at this point, as he became very vague about times, saying a number of things including that the drive could have taken him, “let’s say 20 minutes, half an hour, yes…”, volunteering that he “would class midnight as between 11 and 1”, and that he could not in fact tell the court what time it was that he had first arrived at Leah Street that evening and made the arrangement with ‘Marty’.[57]
[57] T213.

The accused was asked about when ‘Marty’ pulled up to the crash, saying that the first thing that was said was Marty saying, “What the fuck’s happened here”.[58]
[58] T219.
Analysis
The court has been assisted by comprehensive addresses from both counsel. The court has close regard to everything put and submitted by counsel, without repeating it all.
The primary thrust of the prosecution address was that the case turned essentially on the evidence of the alleged victim Mr Ralph who was a credible if somewhat eccentric witness, whose evidence should be accepted beyond reasonable doubt; whereas the accused’s evidence was unlikely, flawed and should not be believed.
The primary thrust of the defence address was that Mr Ralph’s evidence was inconsistent with other evidence in the case and should not be regarded as reliable. Further, that the accused’s evidence was given well, and was at least a reasonable possibility, and accordingly there was a reasonable doubt and the accused should be acquitted.
The court has closely considered all of the evidence and carefully considered counsels’ arguments. Each counsel argued that the prosecution case rises or falls on the evidence of Mr Ralph, and each counsel analysed that evidence in some detail in their closing addresses. Accordingly, the court closely scrutinised him as a witness.
Mr Ralph was clearly a nervous and anxious person in the witness box. In his initial period as a witness he appeared to be so anxious he froze on a couple of occasions, becoming unable to speak and had to be calmed by the bench. He gave evidence in a consistently anxious, stressed and nervous way. He spoke quickly and immediately when answering questions, if anything volunteering information and running ahead in the narrative he gave, and regularly repeating what he viewed as important aspects of what he was saying. This occurred throughout his evidence, and in response to clearly uncontentious matters as well as in disputed areas, and it occurred consistently throughout examination-in-chief and cross-examination. Notwithstanding this nervousness he always answered questions immediately without any apparent pause to think about or assess the question. There was no impression of defensiveness, evasion or inconsistency in his answers over the course of a considerable period in the witness box. The strong impression given was that the demeanour the court was seeing was Mr Ralph’s nervous and anxious personality, rather than a person nervous or anxious as they were not being truthful. The overall impression all of this conveyed was of a genuinely nervous person who had been traumatised by the events in question, who was however keen to answer questions honestly and immediately.
As emphasised by defence counsel, Mr Ralph’s evidence was in two respects at variance with the evidence of Mr Brown. Mr Brown was the occupant of a Caulfield Avenue house who witnessed the events at the front of his premises shortly after the accused collided with his boarder’s boyfriend’s vehicle. The first variance was that Mr Brown said that Mr Ralph’s headlights were off as he and the accused reversed away from the scene of the accident. The second was that Mr Brown said that the vehicle travelled some 80 to 100 metres away before it stopped and the altercation between Mr Ralph and the accused occurred. Mr Ralph said it was a much shorter distance, after perhaps one to two car lengths, and at some stage a three-point turn, and perhaps a little further movement.
Mr Brown was an apparently independent and objective witness. On the other hand, he gave evidence that Mr Ralph’s vehicle did a U-turn after the altercation, whereas both the accused and Mr Ralph said that Mr Ralph did a three-point turn prior to the altercation occurring, so the possibility that Mr Brown was mistaken as to his recollection of detail cannot be entirely dismissed. Having said that, Mr Brown’s evidence as to the headlights and the distance is supported by the photographs he took, and should be preferred.
The distance travelled before the altercation and the issue of whether the headlights were on were not matters where it was suggested that Mr Ralph would have any reason to deliberately lie. To do so would not serve to bolster his story as to the disputed events as between him and the accused, nor did it in any way purport to show the accused in any kind of bad light.
Further, on anyone’s analysis, by the time Mr Ralph was first speaking to police a short time later; he was seriously injured. This is clearly set out in his evidence, the photographs and the agreed facts. He had suffered significant trauma, including serious head trauma. The evidence of Mr Ralph’s injuries was not disputed. It was an agreed fact that he was taken to the Flinders Medical Centre having sustained abrasions around the right eye, bruising under the left eye, abrasions to both forearms, right little finger and left knee. A CT scan showed an orbital floor fracture to both eye sockets and a fracture of the left maxillary sinus.[59]
[59] Agreed fact 5, Statement of Agreed facts (marked P8). It is an agreed fact that Mr Ralph underwent a surgical procedure where all abrasions were cleaned and dressed, the wound in the region of the right little finger was sutured and the left orbital floor fracture was reconstructed with a bone substitute.
Senior Constable Whitting gave evidence that when he saw Mr Ralph in the early hours of that morning he was, “clearly upset, visibly distraught and had some sort of difficulty explaining exactly what happened. We had to calm him down quite a bit to get a version of events”.[60]
[60] T139.
In all these circumstances, the court is satisfied that Mr Ralph is honestly misremembering or reconstructing these two details due to the trauma he suffered.
The injuries suffered by Mr Ralph were serious. The injuries to Mr Ralph’s forearms and hands are consistent with Mr Ralph’s evidence that he was punched down onto the asphalt road where the assault on him continued, with the accused prising car keys from his hand after a further struggle as Mr Ralph lay on the asphalt. Those injuries are not consistent with the accused’s evidence that the fight consisted entirely of a few punches to Mr Ralph’s head, and that Mr Ralph stayed on his feet at all times.
Defence counsel put to Mr Ralph that maybe he fell over by himself at some later time, but before the police arrived. There is no evidence that occurred. Further, the injuries to Mr Ralph’s forearm, for example as depicted on page 8 of exhibit P5, are significantly more serious than one would expect from a single fall to the ground. For example, many inches of skin have been scraped off over half the length of the forearm, and there is a separate injury to the other side of the point of the elbow. In the court’s view, these injuries are quite inconsistent with a single, unaided fall from the standing position.
Mr Ralph’s evidence that he was driving down Caulfield Avenue to see if his friend who lived on that street had his lights on was supported by Mr Van Pamelan who gave evidence that he did live in that street and that Mr Ralph would indeed periodically visit him late in the evening without prior arrangement.
I turn to consider the accused’s evidence on oath. The court gives him the appropriate credit for giving evidence. The accused’s manner and demeanour when giving evidence were quite good. He answered questions in a matter of fact and straightforward way.
There were however a number of aspects to his evidence which gave some cause for concern. The accused’s evidence that he attended at the Leah Street address at midnight, where he said he came to an agreement within minutes that Mr Ralph would follow him, was not consistent with the independent evidence of when the events at Caulfield Avenue unfolded, i.e. sometime after 2am. The accused’s sudden vagueness as to times when he realised this, was a matter of concern. The accused’s evidence that he met ‘Marty’ on three occasions when he attended Leah St over the 10 days prior to the alleged offence, at which time the accused was standing out the front of the premises, with the same people in the same positions, was unlikely. The accused seemed unable to say at what time on those first two occasions he attended. The accused’s evidence that ‘Marty’ would for some reason twice attack the accused, firstly while they were in the vehicle and again after they exited the vehicle, when his ostensible concerns, per the accused’s evidence, were that a third party had taken photographs of him, seemed highly unlikely.
It must also be observed that on everyone’s evidence, Mr Ralph decided to stop assisting the accused, brought his vehicle to a halt and got out onto the street. The accused’s evidence that in those circumstances Mr Ralph would leave his keys in the car, thereby enabling the accused to move to the driver’s seat and simply drive off, seems inherently unlikely.
It must also be observed that the accused had a strong motive to take Mr Ralph’s car and drive off. He had been involved in a serious accident in a stolen car and was illegally leaving the scene of it, was in possession of illicit drugs and had several bags of property to carry. That high degree of motivation is apparent from the lie he told Mr Brown that Police and Ambulance were already coming, so as to in his own words, “buy some time”, and the extreme measures he subsequently took to avoid police which included a high-speed chase, driving onto the wrong side of South Road, jumping fences in Leah Street, and finally being involved in a rooftop standoff with police. Mr Brown’s evidence that he heard a loud argument or discussion coming from where the accused and Mr Ralph had gone is consistent with Mr Ralph’s evidence that the accused was demanding his keys and Mr Ralph was refusing, but inconsistent with the accused’s evidence that there was simply a fight.
At the end of the day, in light of these matters and an overall consideration of the content of the accused’s evidence, regrettably the accused’s evidence as to what occurred between himself and Mr Ralph, whereby the physical altercation occurred and the accused ended up driving off in Mr Ralph’s car, was unimpressive and at the end of the day unconvincing.
Factual conclusions
At the end of the day, in light of a careful consideration of all the evidence given at trial and counsel’s addresses, the court finds that Mr Ralph’s account of events between himself and the accused whereby he became injured and his car was taken, should be accepted beyond reasonable doubt.
Accordingly, the court finds proven beyond reasonable doubt; that shortly after Mr Ralph had commenced to drive the accused and the accused’s bags of property away from the scene of the accident, Mr Ralph became concerned that he may be an ‘accessory after the fact’ to offences that the accused may have committed. This was due to what Mr Brown had said to the accused at their point of departure and the fact that Mr Brown took photos of he and the accused as they began to drive away. Mr Ralph decided to stop the vehicle and stop assisting the accused. He stopped the vehicle, quickly removed the ignition keys and exited the vehicle.
The accused immediately alighted the vehicle and advanced on Mr Ralph, demanding the keys. Mr Ralph backed away and refused to provide his keys. The accused then attacked Mr Ralph punching him three times in the head. The accused then told Mr Ralph that he had a knife and reached behind himself as if to draw a knife. Mr Ralph continued to refuse to provide his keys so the accused punched Mr Ralph so forcefully to the left cheek that he fell to the ground. The accused then grabbed Mr Ralph whilst on the ground and struggled with him in an attempt to force and prise Mr Ralph’s keys from his clenched hand. The accused said to Mr Ralph, “Give me your car keys, if you don't I will continue hitting you and we don't want that, do we?”. Eventually Mr Ralph weakened and the accused was able to force the keys from his hand. The accused took the keys, ran to Mr Ralph’s vehicle and drove off with it. Sometime later the accused successfully evaded a police chase in the vehicle, before being arrested after a standoff on a roof in Forestville.
The overwhelming inference from the accused’s proven conduct is that the accused intentionally threatened Mr Ralph by way of inferring he was going to draw a knife on him, and by saying, “Give me your car keys, if you don't I will continue hitting you and we don't want that, do we?”, and that the accused intentionally used force by way of punching Mr Ralph and prising the keys from Mr Ralph’s hand, and made those threats and used that force for the purposes of taking the keys and Mr Ralph’s vehicle to then use for his own purposes. Those purposes included the immediate purpose of escaping the scene of the accident with the several bags of property he had placed in the rear of Mr Ralph’s car, and, to use Mr Ralph’s car for his ongoing purposes now that he had crashed and wrecked the red Ford Laser he had stolen on 2 May 2019. The court makes those findings beyond reasonable doubt.
Legal conclusions
The court finds proven beyond reasonable doubt that the accused committed theft, in that he dishonestly dealt with Mr Ralph’s car without Mr Ralph’s consent intending to use it for his own purposes to escape the scene of an accident he had caused, and to escape police, which such acts seriously encroached on the owner’s rights in the property.
The court finds proven beyond reasonable doubt that the accused used both force, and threats to use force against Mr Ralph in order to commit the theft.
The court finds proven beyond reasonable doubt that the force and threats were used immediately before and to directly facilitate the theft.
Accordingly, it is proven beyond reasonable doubt that on the 5^th day of May 2019 at Clarence Gardens, Jason Gregory Burdon, used force against Martin John Ralph in order to commit the theft of a motor vehicle and contents, and the force was used at the time of, or immediately before, the theft and that accordingly the accused is guilty of robbery contrary to section 137(1) of the Criminal Law Consolidation Act, 1935.
Verdict
Guilty.