R v Cekic; R v Ciantar; R v Dettman; R v Niemann; R v Paunovic - [2016] SASCFC 31

Supreme Court of South Australia
(Court of Criminal Appeal)
R v CEKIC; R v CIANTAR; R v DETTMAN; R v NIEMANN; R v PAUNOVIC
[2016] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Acting Justice David)
22 March 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - OTHER MATTERS
EVIDENCE - ADMISSIBILITY - HEARSAY - GENERALLY
Appeals against conviction – five appellants charged with aggravated causing serious harm with intent to cause serious harm and aggravated theft – appellants tried by Judge sitting without a jury – appellants convicted for the main charge – whether Judge erred in finding there was a case to answer – whether Judge demonstrated that he gave separate consideration to the case against each appellant – whether adequate reasons given – whether Judge erred in use made of notebook containing expressions of animosity towards victim – whether Judge misused evidence of affiliation with Finks motorcycle gang – whether verdicts unreasonable and unsatisfactory.
Held per David AJ (Vanstone and Kelly JJ agreeing): Appeals dismissed. The Judge gave comprehensive reasons for his decisions. The use made of the evidence and the inferences drawn were available. The verdicts were neither unreasonable nor unsatisfactory.
Criminal Law Consolidation Act 1935 (SA) s 21, s 23(1), s 134(1), s 353(1); Evidence Act 1929 (SA) s 34, s 34R, referred to.
Weiss v The Queen (2005) 224 CLR 300; The Queen v Bilick and Starke (1984) 36 SASR 321; R v Keyte (2000) 78 SASR 68; Barca v The Queen (1975) 133 CLR 82, applied.
R v Mayger (2013) 116 SASR 488; R v Fleming (1998) 197 CLR 250; AK v Western Australia (2008) 232 CLR 438; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

R v CEKIC; R v CIANTAR; R v DETTMAN; R v NIEMANN; R v PAUNOVIC
[2016] SASCFC 31
Court of Criminal Appeal: Vanstone, Kelly JJ and David AJ

VANSTONE J: I agree with the orders proposed by David AJ and with the reasons he has provided.
KELLY J: I agree with the orders proposed by David AJ and with his reasons.
DAVID AJ.
Introduction
This is an application for permission to appeal, and an appeal against conviction by five co-offenders.
Bozidar Cekic (Cekic), Dean Richard Ciantar (Ciantar), Corey Dettman (Dettman), Mostyn Carmelo Rex Niemann (Niemann) and Paul Paunovic (Paunovic), were jointly charged with one count of causing serious harm with intent to cause serious harm, and one count of aggravated theft. I set out the information:
First Count
Statement of Offence
Aggravated Causing Serious Harm with Intent to Cause Serious Harm (Section 23(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic on the 13^th day of February 2013 at Salisbury, caused serious harm to Charles Bonnici, intending to cause him serious harm.
It is further alleged that Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic committed the offence in company with each other.
It is further alleged that Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic used offensive weapons, namely pool cues, a vacuum cleaner and a table when committing the offence.
It is further alleged that Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic committed the offence for the benefit of two or more members of a criminal organisation, or at the direction of, or in association with a criminal organisation.
Second Count
Statement of Offence
Aggravated Theft (Section 134(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic on the 13^th day of February 2013 at Salisbury, dishonestly dealt with property, namely a gold neck chain valued at $67,200 without the consent of Charles Bonnici, the owner of that property, intending to deprive Charles Bonnici permanently of that property, or to make a serious encroachment on his proprietary rights.
It is further alleged that Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic committed the offence in company with each other.
It is further alleged that Bozidar Cekic, Dean Richard Ciantar, Corey Dettman, Mostyn Carmelo Rex Niemann and Paul Paunovic committed the offence for the benefit of two or more members of a criminal organisation, or at the direction of, or in association with a criminal organisation.
The appellants elected for trial by Judge alone and on 24 March 2015 Kourakis CJ (the Judge) convicted each of the appellants of count 1 and acquitted the appellants of count 2, having found that there was no case to answer on that charge at the conclusion of the prosecution case.
On 6 July 2015 a single Judge of this Court referred the applications for permission to appeal filed by each appellant to this Court. Notwithstanding that permission is sought on each ground of appeal, I shall refer to Cekic, Ciantar, Dettman, Niemann and Paunovic as appellants.
A number of different grounds of appeal are argued by the appellants. I will turn to consider each of the complaints in due course. It is first necessary to consider the prosecution and defence cases, and the evidence relied upon in some detail.
The cases at trial
It was common ground at trial that the offending arose out of an altercation on 13 February 2013 at the north chapter clubhouse (the north clubhouse) of the Finks Motorcycle Gang (Finks). Cekic, Dettman and Paunovic were members of the Finks. Niemann and Ciantar had the status of nominees of that organisation. The victim of the offending, Charles Bonnici (Bonnici) was also a member of the Finks. It was also not disputed that Bonnici was assaulted by Cekic in the north clubhouse and suffered serious harm while Dettman and Paunovic were also inside the north clubhouse, and Niemann and Ciantar were outside.
The basis on which the appellants were convicted was that they gathered at the north clubhouse in pursuance of an agreement to assault Bonnici and participated in that assault as part of a joint enterprise to cause him serious harm.[1] The Judge found that the aggravating circumstances of acting in company and the use of weapons were also proved beyond reasonable doubt. The Judge was not satisfied beyond reasonable doubt of the aggravating circumstances of the offending being committed to benefit any of the accused, or being committed at the direction of, or in association with, a criminal organisation.
[1] For convenience, I shall refer to the offence as an assault.
The key issue at the trial was whether there was a plan to assault Bonnici causing him (at least) serious harm or whether, as was put by the appellants at trial, they had attended at the north clubhouse for another purpose and Cekic inflicted the injuries to Bonnici in self-defence.
I now turn to a more detailed and overall summary of the evidence at trial.
Agreed evidence
Consistent with one of the primary issues at trial being the existence of a common plan, a significant amount of evidence at trial was tendered by consent or agreed between the parties by way of agreed facts, or, more correctly, admissions made pursuant to s 34 of the Evidence Act 1929 (SA). Evidence was agreed on the following topics.
Finks culture and organisation
A statement of Detective Senior Sergeant McManus was tendered by consent at trial,[2] and detailed the organisational structure, culture, and history of the Finks. That statement outlines the existence of three chapters of the Finks in South Australia: the north chapter, the south chapter, and the central chapter. As at February 2013, the north chapter was located on Middle Road in Salisbury, the south chapter was on Brighton Road in Seacliff Park, and the central chapter was on Dalgleish Street in Thebarton. Each chapter of the Finks held regular meetings at its respective clubrooms. Nominees of the Finks, as well as full members, were required to attend meetings. However, nominees had no input into decisions or discussions and were required to wait outside while meetings took place.
[2] Exhibit P31.
The Finks also organised “club runs”, which involved a convoy of members and associates travelling as a group on motorcycles in a structured formation, usually to a particular series of destinations. It was an agreed fact at the end of the prosecution case that there was to be a national Finks club run in Melbourne from 9 to 11 March 2013.
Finks membership
It was also agreed that as at 13 February 2013:[3]
[3] Exhibit P37.
·Cekic was a full member of the Finks, and had been a member from at least April 2011;
·Dettman was a senior member of the Finks. He had been a member since at least July 2010 and was a former Sergeant at Arms of the south chapter;
·Paunovic was a full member of the Finks and had been a member since at least April 2012;
·Ciantar was a nominee member of the Finks, and had been a nominee from at least November 2012;
·Niemann was a nominee member of the Finks, and had been a nominee from at least October 2012;
·Bonnici was a member of the Finks and had been from at least 1998. He was a senior member of the Finks and a former Sergeant at Arms. From late 2012 he was associated with the north chapter. Bonnici weighed approximately 140 kilograms and was 175 centimetres tall;
·Nicholas Brouwer (Brouwer) was associated with the north chapter of the Finks;
·Andrew Majchrak (Majchrak) was a senior member of the Finks and a former Sergeant at Arms;
·Timothy Mensforth (Mensforth) was a longstanding member of the Finks and associated with the north chapter; and
·Brett Taylor (Taylor) was a senior member of the Finks.
Closed circuit television footage
Closed circuit television (CCTV) footage from cameras located outside of the central clubhouse and the north clubhouse was significant evidence at trial. Neither the provenance nor the actions recorded on the CCTV footage were disputed. Rather, it is on the inferences to be drawn from this evidence that the prosecution and defence cases differ. The set of agreed facts tendered at trial included the following details regarding the footage:
·It was recorded on CCTV cameras outside the central clubhouse that Dettman left the central clubrooms in a silver Toyota with Paunovic and another senior Finks member as passengers at about approximately 1pm on 13 February 2013. At about the same time Cekic left the central clubrooms in a black car with Majchrak and Niemann as passengers. Another senior member, one nominee, and two other men associated with the Finks also left the central clubrooms in a car at approximately the same time;
·The footage from the north clubhouse was captured continuously by five cameras external to the north clubhouse between 8am and 3.35pm on 13 February 2013. The time on the embedded clock on the footage was accurate to within approximately one minute of South Australian time;
·Some of the events recorded on the CCTV footage outside the north clubhouse are as follows:
14:54.52No cars associated with the accused are seen out the front of the clubhouse.
...
Bonnici arrives
15:07.21A Black car enters Middle Row from junction having turned left into Middle Row.
15:07.33             Bonnici gets out of this car.
15:07.49             Bonnici is at the gate.
15:07.59First visible reaction by Bonnici to [Dettman, Paunovic and Cekic] being there.
15:08.24             Bonnici at the door (C5).
15:08.26First visible sign of two others [Niemann and Ciantar] on right of screen.
15:08.35             Bonnici enters the building.
15:08.36             Dettman enters the building.
15:08.36             Paunovic enters the building.
15:08.38             Cekic enters the building.
15:10.19             Ciantar enters the gate which is open.
15:10.34 –37        Ciantar gets to the entrance and is sometimes partially within the building (C5).
15:10.46             Ciantar exits through the gate and joins Niemann outside the gate.
15:12.00/03         There is a movement of a hand at the door (C5).
15:12.05             Ciantar goes through the gate followed by Niemann.
15:12.12             Ciantar enters the building.
15:12.15/16         Niemann returns to gate and shuts it (C2).
15:12.34             Niemann enters the building (C5).
15:13.48             Niemann leaves the building (C5).
15:13.54Niemann goes to the gate (C2) opens it and then closes it and walks across the road to workshop.
15:14.21             Niemann enters the workshop.
15:15.10             Niemann exits workshop.
15:15.28             Niemann returns to the gate.
15:15.40Niemann enters the building with a pair of bolt cutters in his hand (C5).
15:16.37An arm and shoulder can be seen moving in doorway of the clubhouse (C5).
15:16.46             Paunovic exits the building (C5).
15:16.52Dettman exits the building carrying a gold chain in his right hand and transfers it to his left (C5).
15:16.54             Niemann exits the building with bolt cutters (C5).
15:16.55             Cekic exits the building (C5).
15:16.57             Ciantar exits the building (C5).
15:16.58             Ciantar turns towards clubhouse and then so does Dettman.
15:17.19             All five (5) have exited the gate (C2).
15:17:25             Niemann goes into the auto parts shop.
The others walk towards the cars back in the tree line.
15:18:46The silver car pulls out of the tree line and starts driving towards Commercial Road. Two (2) Black cars and one white car follow.
15:27:25             A silver Holden ute pulls up at front of clubhouse.
15:27:55             Brouwer enters the building.
15:28:35Brouwer comes back out of the building and can be seen talking on the phone.
15:32.00             Brouwer goes to gate and closes it.
15:32.08             Brouwer is near doorway using mobile.
15:32.10             Brouwer disappears into clubhouse.
·The phone call made by Brouwer at approximately 3.27pm is made to 000; and
·At 3.57pm Bonnici was conveyed by ambulance to the Royal Adelaide Hospital.
Appendix A to the set of agreed facts also contained considerable detail of the arrivals, departures and movements of the appellants and various others associated with the Finks and their vehicles outside the north clubhouse from 1.55pm until 2.55pm, when no cars associated with the accused are seen outside the north clubhouse. Appendix A is set out in full at [86] of the Judge’s judgment. For present purposes I note that:
·Dettman and Paunovic arrived at the north clubhouse at 1.55pm;
·Cekic and Niemann arrived at 1.56pm;
·Ciantar arrived at 2.07pm; and
·Between 1.55pm and 2.55pm, the various people present spoke to each other and moved in and out of cars parked outside the north clubhouse.
Gold chain
A large gold chain was tendered at trial.[4] It was agreed that:
·When Bonnici arrived at the north clubhouse on 13 February 2013, he was wearing a gold chain around his neck;
·The chain was removed from his neck with bolt cutters during the assault the subject of count 1;
·Dettman left the north clubhouse with the chain;
·Links from the chain cut from Bonnici were located at the north clubhouse and seized by Forensic Response Team members on 13 February 2013;[5]
·The chain was delivered to Bonnici’s former partner by an unidentified person on 9 February 2014 and seized by police later that day;
·The chain was forensically analysed. No DNA profiles were located; and
·In August 2013 the chain was valued at $67,200.
[4] Exhibit P19.
[5] Exhibits P10 and P11.
Balance of the prosecution case
The prosecution case was circumstantial. Bonnici did not give evidence, and there was no CCTV footage from inside the north clubhouse.
The CCTV footage
On the prosecution case, the proper inferences to be drawn from the CCTV footage outside the central clubhouse and the north clubhouse were follows.
On 13 February 2013 the appellants, except Ciantar, met at the central clubhouse in the hours prior to the assault on Bonnici. Paunovic and Dettman (and others) arrived at about 10.55am, followed by Cekic and Niemann (and others) approximately half an hour later. Just after 1.00pm, the appellants (except Ciantar) and others left the central clubhouse in various cars and arrived approximately 55 minutes later at the north clubhouse. Ciantar arrived at the north clubhouse approximately 10 minutes later. The appellants and others, who were associated with the south and central chapters of the Finks, waited outside the north clubhouse for almost an hour, until just before 3.00pm. Those present had conversations standing in small groups and moved about, and people and cars came and went. At approximately 2.43pm Dettman and Cekic approached the gates, and Cekic mimed breaking the gate down. There was an increase in movement by people and cars, and by 2.55pm none of the people waiting outside the north clubhouse were visible on the CCTV footage, and there were no cars visible immediately outside the north clubhouse.
Bonnici arrived at the north clubhouse at approximately 3.08pm and was met by Cekic, Dettman and Paunovic, but not Ciantar and Niemann. Ciantar and Niemann approached the north clubhouse behind the others and were never seen by Bonnici.
Cekic, Dettman and Paunovic entered the north clubhouse with Bonnici while Ciantar and Niemann positioned themselves as lookouts outside the gates. They were not looking out for members of a rival motorcycle gang, but for supporters of Bonnici and ensuring that Bonnici was alone and unaided. At one point shortly after Bonnici entered the clubhouse, Ciantar left his position outside the gate and entered a short way into the building, before returning to his post, and without showing any sign that “things [were] going wrong inside.” On the prosecution case, the assault was underway at the time Ciantar was just inside the building and Ciantar’s lack of reaction indicated that he was cognisant of the plan to assault Bonnici. It was after the assault had occurred that Cekic waved to Ciantar and Niemann to call them back inside, and Niemann shut the gate behind them before entering the building, to prevent Bonnici escaping.
After Ciantar and Niemann had been inside the north clubhouse for only one minute and 14 seconds, Niemann left the north clubhouse and crossed the road to the auto shop, returning with bolt cutters. It took just under two minutes for Niemann to return with the bolt cutters. Within a minute of Niemann returning, the bolt cutters were used to cut the gold chain off Bonnici’s neck. Less than eight minutes after Bonnici entered the clubrooms, the assault had taken place, the bolt cutters had been retrieved, the chain had been cut from Bonnici’s neck and the appellants had left the north clubhouse. Dettman carried the gold chain and Niemann carried the bolt cutters as the appellants left. Cekic paused to check his reflection in the mirrored window. Niemann returned the cutters to the auto shop. The appellants left in the cars that were parked out of sight of the CCTV cameras.

Almost ten minutes later, Brouwer arrived at the north clubhouse, noted that the gate has been left open and unlocked, and entered the building. Less than a minute later Brouwer emerged from the building and can be seen speaking on his phone in an agitated manner. This was the emergency 000 phone call. At trial the prosecution tendered a disc containing audio of the 000 call made by Brouwer at 3.26pm on 13 February 2013.[6]
[6] Exhibit P17.
On the prosecution case, significant aspects of the CCTV movements that told of a common plan included:
·The positions in which Niemann and Ciantar stood sentry. It was an agreed fact that the maximum temperature in the Salisbury area on 13 February 2013 was 33.5ºC, and Ciantar and Niemann stood in direct sunlight at the gate, not in the shade of the building after already waiting outside for some time. This was consistent with acting as lookouts, rather than waiting for a meeting to finish;
·That either on the prosecution or defence cases, any unexpected altercation would have been underway at the time Ciantar briefly went into the north clubhouse, but his actions did not indicate that anything was amiss and he returned to his lookout position with Niemann;
·Niemann and Ciantar’s purposeful movements when they entered the north clubhouse after being beckoned were inconsistent with being informed that no meeting of the club was going to take place;
·Niemann’s doubling back to lock the gate before entering the north clubhouse when beckoned which was inconsistent with protecting against a rival motorcycle gang, and consistent with preventing Bonnici from leaving the north clubhouse;
·The casual manner in which Niemann walked to retrieve, and then returned with, the bolt cutters;
·None of the appellants appeared concerned about Bonnici’s welfare when leaving the clubroom. They did not call an ambulance or the police. By contrast it was immediately apparent to Brouwer that emergency services were required and he called 000 shortly after arriving; and
·None of the appellants appeared to have suffered any significant injury, except for Cekic, who appeared to have a sore hand.
The north clubhouse interior
The prosecution called evidence from Brevet Sergeant Adam Gates, attached to the Forensic Services Branch of SAPOL, who examined the crime scene. Floor plans of the property were also received into evidence.[7] In the course of his examination, Brevet Sergeant Gates photographed and collected evidence that appeared to be connected to the assault. These included splinters and pieces of broken pool cues, a damaged vacuum cleaner with small blood stains on it, and a small white laminated occasional table with signs of damage and blood splatter on one of the legs. The table was extensively damaged on the underside with a roughly semicircular shape where the laminate was completely removed, and there were cracks and damage on the surface of the tabletop corresponding to the damage on the underside. There was blood on fragments of laminate, including the pieces which fitted the damage to the underside and, to a lesser extent, the top of the table.
[7] Exhibit P5.
Brevet Sergeant Gates also located a gold earring and gold chain links. The shards of pool cues and pieces of the laminate table were found located around a pool table and the bar area. Large broken pieces of the table were found near black chairs, the water cooler, and the bar area. A large blood stain was spread across the floor.
Injuries to Bonnici
The prosecution called evidence from Mr Nathan Parks, an intensive care paramedic who arrived at the north clubhouse on 13 February 2013 at 3.45pm. He attended after two other ambulance officers, who were already in attendance determined that Bonnici had serious critical injuries and required higher level clinical support on site. When Mr Parks entered the north clubhouse he observed Bonnici lying on his side. He was not moving, was unable to communicate, appeared to be struggling to breathe and was diaphoretic. Mr Parks’ first reaction on seeing Bonnici and his poor physical condition was to ask where Bonnici had been shot, as “looking at him he looked seriously critically ill and had the classic presentation of someone who had been shot.” He also observed a large pool of blood around Bonnici; he estimated that Bonnici had lost about 500ml of blood.
Mr Parks assessed Bonnici in the ambulance while he was being conveyed to the Royal Adelaide Hospital. He described that assessment as showing swelling, bruising and blood to the head and face – the right eye being completely swollen and closed – marks and swelling around the neck, abrasions to the flanks over the kidneys and liver and reduced air entry on the right side, indicating collapsed lungs. It was Mr Parks’ view at the time that Bonnici was handed over to the resuscitation team at the Royal Adelaide Hospital that his injuries were serious to critical and that he required surgery. He suspected that if Bonnici were left in the clubrooms he would have succumbed to his injuries and died.
Dr Sonny Bata, a Trauma Senior Registrar in the Emergency Department of the Royal Adelaide Hospital gave evidence of Bonnici’s condition when he arrived in the resuscitation room at about 4.25pm. Both his lungs were collapsed with the left lung containing blood. Bonnici was put on mechanical ventilation and his chest was drained. Dr Bata described Bonnici’s condition as life threatening. His evidence was that without treatment, including a breathing tube and chest drain, his condition could have been fatal. Dr Bata also gave evidence of lacerations on Bonnici’s face, and that Bonnici had a jaw fracture, nasal bone fracture, and subdural bleeding. He also had fractures to his ribs and right fibula. Bonnici was placed in an induced coma from 13 February 2013 to 19 February 2013. On 21 February 2013 Bonnici required surgery to remove his gallbladder and appendix.
The prosecution tendered a statement of Dr Maria Paul,[8] a Senior Consultant at the Brain Injury Rehabilitation Community and Home. Her evidence was that Bonnici was transferred to the Brain Injury Rehabilitation Unit for recovery treatment of his bilateral nasal bone fractures, mandible fracture, multiple rib fractures, left haemopneumothorax (blood and air in the chest wall cavity), right hydropneumothorax (water and air in the chest wall cavity and a collapsed lung), a blood clot in his abdomen, right fibula fracture, and for his appendectomy and cholecystectomy. At the time he was admitted Bonnici had reduced co-ordination in his right arm, reduced sensation on his left thigh, post traumatic amnesia “placing him in the ‘extremely severe’ category of brain injury.” He was assessed as experiencing deficits in memory, attention, orientation, naming and visual/spatial/executive function. Bonnici was discharged on 22 April 2013, still requiring a rollator frame and crutches for mobility and experiencing deficiencies in his cognitive abilities, preventing him from driving and working.
[8] Exhibit P32.
Dr Paul’s prognosis was that Bonnici would never achieve a full recovery, with likely deficiencies in his cognition, mood and behaviour. She also noted that he has deficiencies in short term memory, and that Bonnici was likely to have problems with planning and problem solving and a pre-disposition for physical aggression and reactiveness.
It was not contested by the appellants that these injuries constituted “serious harm” for the purposes of s 21 of the Criminal Law Consolidation Act 1935 (SA).
The Notebook
SAPOL also conducted a search of the central clubhouse on 13 February 2013 and seized a number of items. These items included an A6 notebook,[9] and some pages appearing to be torn from that notebook, having the same size, alignment, and pre-printed words on each page.[10] The notebook was found hanging from a hook in the bar of the clubhouse. The loose pages were found on a box of bourbon bottles in a shed of the clubhouse. Some of the pages in the notebook and loose pages contained handwriting in thick texta. Most of the pages on which there was writing were numbered. Some pages were not numbered and, assuming that the numbering was consecutive, some pages were missing. There was no indication of the authorship of any of the text. The pages were not dated, although reference was made to an event on New Year’s Eve. It is convenient to set out the summary of the content of the pages from the Judge’s reasons:[11]
[9] Exhibit P23.
[10] Exhibit P25.
[11] [2015] SASCFC 47 at [99]–[111].
Page 1 of the notes which is in the notebook, refers to the obligation of an unnamed person to pay money because someone called “Harlo” had gone north. Page 2 of the notebook contains the notation “LEAVE NTH WAR LOST MONEY”.
Page 4 is torn from the notebook. It contains the complaint “I RANG 4 PEOPLE TO KNOW AVAL”. The last word on page 4 is “ANNIVERSARY”. The first words on page 5, which is also torn from the notebook, are “MEMORIAL DAY”. It is followed by these observations:
attendence fucked
bit of miscommunicat[e]
with [indecipherable]
but still fucked
Page 6, which is also torn from the notebook, reads:
noting (sic) changing but date
leave NTH to own peril
can’t change rules
Page 7, which remains in the notebook, contains the words:
just chip away at NTH
don’t want to look like pussy’s
running [indecipherable]
Page 8, which is also in the notebook, advises:
let Charlie sink himself (eg mutiny)
NTH member soon get sick of it;
No page numbered 9 was found.
The next page in the notebook is page 10 which reads:
Charlie blinded by anger –
get ambition mixed up with capabilities eg – Harlo
The next page in the notebook, which is numbered page 11, reads:
Don’t blame central when the shit hits fan
we reached out → told to fuck off.
A torn page, also numbered 11, which was found on the box of bourbon bottles reads:
Hit north where it hurts → Andrew [indecipherable]
$$$
→ need [indecipherable] to live
→ [indecipherable] no steroids.
On a page numbered 13, which was also torn from the notebook, appears to be a reference to the free entrance of all Finks members to premises known as “Strats” on New Year’s Eve. Strats, I was told by counsel, is an adult entertainment venue. Another torn page numbered 14 reads:
STH don’t exit to anybody except [indecipherable].
Page 15 which is found in the notebook reads;
To be frank they or mecinarys created for a reason.
The last page written in texta in the notebook is not numbered but reads:
To do Charlie mates
- security [indecipherable]
- restaurants
- extorts chip [indecipherable]
An unnumbered page amongst the torn pages contains the admonition: “courteous be on time or ring”. Another unnumbered torn page appears to contain a riding order for members of the club when on a “run”.
On the prosecution case, the relevance of the notebook and torn pages was to show motive for the assault on Bonnici. Also said to support this motive was Detective McManus’ evidence regarding the strong culture of loyalty in the Finks, towards the club and amongst members. The prosecution invited the inference, which the Judge ultimately drew, that the views expressed in the notebook and loose pages were “likely to have been known to one or more of the accused before they travelled to the north clubhouse on 13 February 2013.”
Cekic gave evidence that he was not the author of the texta writing, and had no idea as to the authorship.
The Judge found that the location of the notebook suggested that it was available for use by Finks members within the clubhouse and that its contents were connected with the activities of the Finks members of the central chapter.[12] A number of the pages within the notebook referred to “Charlie” who, the prosecution suggested, was Bonnici. A number of those references indicated what could be seen as concern and anger about “Charlie’s” activities and animosity towards him. The use of the plural pronoun “we” and references to “club” and “central” suggest that the issue about “Charlie” was not personal to the writer or writers and would be expected to be tolerated by other members who read it.
[12] [98].
There are other aspects of the evidence which could bear on the evaluation of the notebook. There was general evidence given by Detective Senior Sergeant McManus about the operation of the Finks gang. That extended to its hierarchy, uniforms, clubrooms, activities and meetings. That evidence tended to show that the Finks had a culture of both secrecy and regimentation. Evidence given by Cekic showed that there was a level of ongoing concern within the chapters of the Finks about the possibility of police placing listening devices within the various clubrooms.
Having found beyond reasonable doubt that the appellants gathered at the north clubhouse to meet Bonnici in relation to a matter of substantial concern to them,[13] about which the Judge could not be precise, the Judge said that the probable purpose of the meeting was the matters raised in the notebook and that this would provide a motive for the joint enterprise.[14]
[13] [224].
[14] [227] and [229].
By way of summary of the prosecution case, the movements of Finks members from the central clubrooms and the presence of a large number of Finks including central members outside the north clubhouse, as well as the events which followed, were relied on by the prosecution to show that the attack on Bonnici was not spontaneous, but an organised joint criminal enterprise formulated well before Bonnici was assaulted.
The defence cases
Cekic and Dettman elected to give evidence. Ciantar, Niemann and Paunovic did not give evidence but asked the Court to accept the evidence of Cekic and Dettman. It was the evidence of Cekic and Dettman that the congregation of the appellants and others associated with the south and central Finks chapters at the north clubhouse was for a meeting in preparation for the Finks national run to be held in Melbourne. Cekic gave evidence that the run was to be held in late February, however it was an agreed fact that the run was to be held in March. They had been told about the meeting the day before at a barbecue at Majchrak’s house.
On the defence cases, the CCTV footage was explicable as follows. When Cekic and Dettman attended the central clubhouse they were informed that the meeting had been moved to the north clubhouse, and travelled there with others. None amongst them had keys to the north clubhouse. When they were outside the north clubhouse Dettman called a member of the north chapter, Mensforth, and told him that members of the south and central chapters had arrived. Mensforth attended but he did not have keys to the north clubhouse with him either.
As it was a hot day, people moved between the cars to talk and stayed cool using the car air conditioning. Some of the group became tired of waiting and left, although it was thought that Bonnici was coming. The cars were moved out of sight as there was a secure car park down the road with some shade; they were not moved away from the north clubhouse to conceal their presence from Bonnici.
There was a friendly greeting between Bonnici and those present when Bonnici arrived, and there were no signs of animosity towards him, or surprise or concern on Bonnici’s part at the meeting. Dettman gave evidence that Bonnici said that other members of the north chapter were on their way. Bonnici, Cekic, Dettman and Paunovic entered the clubrooms, however the nominees, Ciantar and Niemann, were not permitted to enter the clubrooms during a meeting. It was for this reason that Ciantar and Niemann waited outside the clubrooms. Dettman gave specific evidence that it was the normal practice in the central chapter for nominees to wait at the front door to let people into meetings. It was also significant on the defence case that none of the appellants were armed.
At trial the only direct evidence of the events inside the north clubhouse came from Cekic and Dettman, who gave largely consistent accounts of what occurred. The effect of their evidence was that, after entering the clubrooms Dettman and Paunovic immediately walked to the rear of the building to go upstairs to the meeting room on the mezzanine level. As they were walking a fight broke out between Cekic and Bonnici. Cekic’s account of the fight was as follows:[15]
Almost immediately as I've walked in, I didn't notice Corey [Dettman] or Paul [Paunovic] there at all, Bonnici was there. We shook hands and sort of had a bit of an argument. I was telling him about how hot it is and why it took him so long to come and he told me to stop treating him like one of his dogs. He become a bit upset and he seemed angry and I've told him 'get fucked'. He's told me to 'get fucked' and he's then struck me and thrown a couple of punches. I've stumbled back and I've thrown a couple of punches back to his face and to his body. At that point, I've gone to walk off and walk towards the stairs and I told him I didn't want to fight, like, why is he rushing me? Why is he so angry? At that point he's then yelled something out. I've turned around. As I've turned around, I've been struck by a pool cue. I got hit in the arm. As that's occurred, I'm not sure whether it broke or not, I turned around and grabbed the lounge chair, held the lounge chair up to protect myself from swinging the pool cue. He's grabbed a couple more pool cues, slapped them over the chair, hit the chair a couple of more times. I realised he wasn't going to stop. I thought he was going to kill me. He's kept coming at me. I've punched him a few more times to the face and to the body and he's then fallen down and as he's fallen down, we've rushed around a bit. I’ve punched him a few more times and it seemed like he had me in a headlock. I was yelling at him, trying to tell him to stop, let go of me. I kept punching him in the stomach while he had me in the headlock until I realised that someone's tried to pull us apart.
[15] T293-294.
In support of Cekic’s evidence that Bonnici commenced the physical altercation and Cekic acted in self-defence, the defence relied upon photographs of Cekic taken by police on 20 February 2013,[16] and a lack of evidence of lineal bruises on Bonnici, suggesting that in the course of the assault he was not assaulted with a pool cue. Cekic gave evidence that eventually Bonnici fell heavily to the ground through the white laminate table, and Cekic fell with Bonnici, while Bonnici continued to hold Cekic in a headlock, holding Cekic’s head to his chest.
[16] Exhibit P34.
Dettman gave evidence that he walked directly to the back of the north clubhouse and up the stairs to the meeting room when he entered the building, and therefore did not see the fight break out. He heard yelling downstairs and emerged to see Cekic and Bonnici fighting on the floor. His account of the assault was as follows:[17]
[17] T436-438.
I went out from the members meeting room, opened the sliding door and directly in front of me was the toilets and I walked towards the barrier for the mezzanine area and looked towards the direction from where I could hear the noise. Downstairs slightly to my right, slightly, I seen - I saw two people on the floor fighting. They were wrestling.
…
I immediately made my way downstairs.
…
I quickly realised it was Mr Cekic and Mr Bonnici.
…
I moved towards both Mr Cekic and Mr Bonnici.
…
They were entangled on the floor, wrestling, fighting. My recollection is that Mr Cekic was positioned on top of Mr Bonnici, Mr Bonnici was on his back, appeared to have Mr Cekic in some type of wrestling hold, so his arm or arms around Mr Cekic's neck. I recall Mr Cekic swinging his arms from side to side towards Mr Bonnici's body and I also recall Mr Cekic yelling and swearing demanding that Mr Bonnici let him go.
…
I tried to intervene and separate Mr Cekic and Mr Bonnici.
…
I grabbed hold of Mr Cekic around his shoulder or upper arm and tried to pull him away from Mr Bonnici.
…
Whilst I tried to do that, I wasn't able to separate them. Due to the intensity of the fight and the strength of both men I wasn't able to get Mr Cekic apart and in the process, whilst that was happening, I received a blow to my face.
…
I believe it was [from] Mr Cekic.
…
It caused me to lose my footing, stumble backwards, but it happened really quickly so it wasn't –
Having recovered, he said he:
… then again moved towards Mr Cekic and Mr Bonnici, I hadn't moved very far, and effectively tackled Mr Cekic.
…
That caused him to separate from Mr Bonnici ...

After Dettman pulled Cekic off Bonnici, he said he observed Bonnici trying to adjust the gold chain around his neck. Dettman tried to take it off Bonnici but was unable to, and yelled out that he needed something to get the chain off Bonnici. This caused Niemann to retrieve the bolt cutters. Dettman was not sure who cut the chain off Bonnici’s neck, but he took possession of it almost immediately before leaving the north clubhouse. When questioned about why he did not call 000, Dettman gave evidence that he called Mensforth to tell him about the fight and to suggest that someone attend to take care of Bonnici. He did not describe Bonnici’s physical state to Mensforth but considered that someone would immediately go to the north clubhouse in any event. Dettman’s evidence was that he did not communicate Bonnici’s injuries to Mensforth as he “had a reluctance to go into that stuff on the phone ... we are constantly thinking about that type of stuff, so conversations we have on the phone are always as though we are talking to three people”. Dettman said he did not call an ambulance because he did not want the police to become involved, and Bonnici also would not have wanted the police coming to the north clubhouse.
After Dettman pulled Cekic off Bonnici, Cekic walked to the front door and motioned for Ciantar and Niemann to come inside. Cekic cleaned himself up in the bathroom before leaving with Niemann.
Dettman said in cross-examination that after the gold chain was cut off he took possession of it. He took it with him when he left the clubrooms. It was an agreed fact that in August 2013 the chain was valued at over $67,000. It was an agreed fact that on 9 February 2014 the chain was delivered to the address of Leanne Bonnici by an unidentifiable person. Leanne Bonnici was Bonnici’s former partner. The case in support of count 2 was expressly put on the basis of a plan to steal items from Bonnici. The prosecution eschewed a case of theft by Dettman as an individual. Not being satisfied that the appellants would have known before arriving that the victim would be wearing the chain, the Judge ruled that there was no case to answer on count 2.[18]
[18] [121]-[124].
Cekic gave evidence that he was aware that there were CCTV cameras at the north clubhouse, and that there were also police listening devices around the north clubhouse. He gave evidence that he and other members of the Finks presumed that their meetings were ‘bugged’. However, he did not recall seeing members write notes to pass around in meetings to circumvent this surveillance.
Dettman was aware that the north, central and south chapters of the Finks had similar security systems in place.
The Judge was not persuaded by the accounts given by Cekic or Dettman. His Honour said that he was “left with grave doubts about the veracity of their testimony about the events at the North clubhouse” and that, for a number of reasons, he was “not prepared to accept the testimony of the accused as truthful or reliable accounts of what happened in the clubhouse”. The Judge determined to “substantially discount the truthfulness or reliability of their accounts by reason of the improbabilities and inconsistencies” contained in the evidence which the Judge also detailed.
I now turn to the grounds of appeal.
1 The Judge erred in finding there was a case to answer (Cekic, Dettman, Paunovic – ground 1, Ciantar – ground 6)
This ground of appeal concerns all appellants. For Cekic it was submitted that the evidence relied on by the Judge was incapable of producing, in the mind of a reasonable person, satisfaction beyond reasonable doubt that there was a common plan on the part of all five appellants to seriously assault Bonnici. Counsel for Cekic contended that the Judge overlooked or ignored the compelling body of evidence which suggested the absence of any such plan. This was said to include the absence of any weaponry carried into the clubrooms by any of the appellants, the apparent friendliness of the greeting between Bonnici and Cekic, Dettman and Paunovic outside the clubhouse, the absence of ambush or surprise, the intrinsic unlikelihood of the appellants planning to attack Bonnici on his own turf, in the middle of the day, in the presence of operational CCTV cameras, and the absence of any shared motive, the only evidence of which came from the notebook, which was inadmissible for that purpose.
On behalf of Dettman (whose argument on this ground was adopted by Ciantar) it was submitted that without any reliance on the notebook and the pages to establish a motive to assault Bonnici, or on propensity reasoning in respect of bad character of the appellants, no reasonable mind could exclude the competing hypothesis put forward by Dettman as being reasonably open on the evidence.
On this ground Paunovic adopted the submissions put on behalf of Cekic and Dettman. Niemann did not specifically rely on this ground of appeal.
The test to be applied in answering the question whether there is evidence capable in law of supporting a conviction was enunciated by King CJ in The Queen v Bilick and Starke:[19]
The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct “evidence” is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? …
[19] (1984) 36 SASR 321 at 337.
I leave aside for the purpose of this discussion the issue that appears to have arisen on the authorities, of whether an appeal court should confine itself to the evidence as it stood at the conclusion of the prosecution case when deciding whether a judge erred in finding a case to answer. In this case the Judge rejected the evidence of Cekic and Dettman and so that controversy is of no moment. However, for the purpose of determining this ground I shall only consider the state of the evidence at the close of the prosecution case.
The prosecution case was a circumstantial one. It is clear from the reasons of the Judge that he relied principally on the following evidence: that the assault upon Bonnici occurred almost immediately after Cekic, Dettman and Paunovic had entered the clubhouse; that Ciantar and Niemann did not approach the gates of the clubhouse at the same time as Cekic, Dettman and Paunovic and only moved to the gates at the front of the clubhouse when the others had disappeared into the clubhouse; that Ciantar and Niemann stayed within sight and earshot of the front door during the next few minutes when the attack on Bonnici must have been taking place; and that they both went into the clubhouse as soon as they received a hand or a voice signal. The Judge concluded that the evidence was capable of supporting an inference beyond reasonable doubt that Ciantar and Niemann had both agreed to act as lookouts.
The Judge also relied on the evidence of the congregation of Finks members at the central clubhouse, their later massing outside the north clubhouse and dispersion 15 to 20 minutes before Bonnici’s arrival as evidence that the attendance of the five appellants at the north clubhouse arose out of an intra-club dispute. By reference to that and the fact that the assault on Bonnici must have occurred almost immediately after Cekic, Dettman and Paunovic entered the north clubhouse, he concluded that there was evidence capable of supporting an inference beyond reasonable doubt that all appellants had earlier joined in an arrangement to assault Bonnici.
Finally, the Judge relied on the contents of the notebook. Although his Honour does not appear to have placed much weight on the notebook, describing it as “not strong evidence”,[20] he concluded that it strengthened the inferences supported by the other evidence and countered an otherwise improbable conflict within the Finks.
[20] [117].
The appellants argue that the notebook was inadmissible. That issue is the subject of a separate ground of appeal (ground 4), and will be discussed later in these reasons.
The issue for this Court is whether, on the state of the evidence at the close of the prosecution case, there was sufficient evidence to support the inferences that the Judge drew and on the basis of which he reached the conclusion that there was a case to answer. In my view the Judge’s decision was correct, even without the benefit of any inference based on the notebook.
In addition to the evidence explicitly mentioned by his Honour, there was evidence of the nature, membership, culture, and operation of the Finks. The inferences drawn by the Judge were against the background of that undisputed evidence from Detective McManus, who described the procedure for admission to membership and the status of nominees.
Dettman, Cekic and Paunovic were full members of the Finks. Ciantar and Niemann were nominees. McManus spoke of the duties and roles of members and nominees, the relationship between members and nominees, and the culture relating to the different levels of membership. The hierarchy of the Finks includes the position and role of the Sergeant at Arms who not only leads the chapter but is also in charge of maintaining order and discipline. The duties of the Sergeant at Arms, according to the rules, are to keep law and order by any means available at all meetings and club-related activities. The Sergeant at Arms may impose penalties on members and nominees who fail to comply with club rules and expectations. Dettman had held the position of Sergeant at Arms of the south chapter at a time prior to 13 February 2013. Others who were present with the appellants outside the north clubrooms on 13 February 2013 including Majchrak, Taylor and McCarthy had also held leadership positions or were senior members of the club. Bonnici himself was a senior member who had previously been a Sergeant at Arms.
That was the undisputed background against which the Judge assessed the evidence seen on the CCTV footage and the other evidence as to the movements of the appellants in the hours before the incident, and their arrival at the north clubhouse just over an hour before the assault on Bonnici. That evidence included that, although there were numerous cars parked in the vicinity of the clubroom gates in the hour before Bonnici arrived, less than 15 minutes before Bonnici’s arrival all of those vehicles were gone and no people or vehicles associated with the appellants could be seen immediately outside the clubrooms on the CCTV footage.
The CCTV footage tendered at the trial revealed that the assault on Bonnici occurred within three and a half minutes of Cekic, Dettman and Paunovic entering the north clubhouse behind Bonnici. The whole incident, from Bonnici’s arrival to the departure of the appellants took less than 15 minutes. That timing alone is powerful evidence of preconcert on the part of each of the appellants.
Also visible on the CCTV footage was the demeanour of each of the appellants as they arrived at the north clubhouse precinct and, more importantly, as they left. There appears to have been little discussion, no concern and no haste as they left. They walked normally back to their cars. None of the appellants made a call to 000.
The nature and extent of Bonnici’s injuries as compared with the apparent lack of any serious mark or injury on any of the appellants as they left was another telling indication of the real purpose of the attendance of the appellants at the premises, and what occurred inside the clubhouse in those three and a half minutes between Bonnici entering the clubhouse and the hand gesture at the doorway to which Ciantar and Niemann responded.
In my view, notwithstanding the facts pointed to by the appellants as telling against preconcert, the Judge’s ruling that there was a case to answer was plainly correct. I would not grant permission on this ground.
2 The adequacy of the Judge’s reasons (Cekic, Dettman and Paunovic – ground 2, Ciantar and Niemann – ground 1), and the complaints that the verdicts are unreasonable and unsatisfactory (Cekic, Dettman and Paunovic – ground 10, Ciantar and Niemann – ground 5)
I turn now to consider these grounds of appeal which for convenience can be dealt with together.
The principal arguments in support of the complaint that the Judge gave insufficient reasons were advanced in argument by counsel for Cekic, Niemann and Ciantar and adopted by the other appellants. The complaint is, in effect, that the Judge failed to properly consider and explain why it was that the defence hypotheses were rejected. In particular it was submitted that the Judge failed to adequately explain how he arrived at his conclusion that there was a common plan to assault Bonnici with the requisite intent at the time when the appellants entered the north clubhouse or at any later stage, how or why the account of Cekic was rejected, how or why the evidence of Dettman was rejected, and how or why he reached the ultimate conclusion beyond reasonable doubt that all five appellants had joined in an agreement to seriously assault Bonnici.
In relation to Ciantar it was complained that the Judge did not adequately explain why Ciantar’s arrival at the north clubhouse separately from the others did not militate against the conclusion that he was part of any joint enterprise; nor was it articulated how it was proved Ciantar was party to a specific agreement to use weapons in a clubhouse to which he had never been.
For Paunovic it was submitted that although he was a full member of the Finks, he was not a longstanding member. It was said this fact was relevant to both his dealings with Bonnici and other more senior Finks members. It also meant that he had no link to the notebook, as he could not have accessed the central clubrooms where the notebook was located.
The obligation upon a trial judge to give reasons has been authoritatively established.[21] In R v Keyte,[22] Doyle CJ considered the extent to which a trial judge sitting alone is required to give reasons. The fundamental requirement is that a judge explain the reasons for his conclusions in such a manner as to enable an appellate court to perform its function at a later stage. However, there is no obligation on a judge conducting a trial without a jury to provide a minute explanation of every step in the reasoning process that led to the conclusion.[23]
[21] R v Keyte (2000) 78 SASR 68; R v Mayger (2013) 116 SASR 488; R v Fleming (1998) 197 CLR 250; AK v Western Australia (2008) 232 CLR 438.
[22] (2000) 78 SASR 68.
[23] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
The Judge gave detailed and comprehensive reasons for his findings having regard to the forensic contest which arose at trial. Contrary to the appellants’ submissions, the reasons were structured in a logical fashion, at the conclusion of which the Judge addressed each of the hypotheses put forward by the appellants.
His Honour summarised that evidence which was relatively uncontentious before turning to the defence hypotheses. In that context he discussed the evidence of both Cekic and Dettman.
The prosecution hypothesis was that the appellants joined in a common plan to seriously assault Bonnici and went to the north clubhouse for that purpose.
The defence hypothesis was that the appellants were there at the clubrooms to plan a future Finks club run. That was, in essence, the evidence of Dettman and Cekic. Each other appellant embraced that hypothesis. There was no evidential basis for any other defence hypothesis. As the High Court pointed out in Barca v The Queen,[24] the bare possibility of innocence should not prevent a trier of fact from finding an accused person guilty if the inference of guilt is the only inference open to a reasonable trier of fact upon consideration of all the facts in evidence. For an inference to be reasonable, it must rest upon something more than mere conjecture.[25]
[24] (1975) 133 CLR 82.
[25] (1975) 133 CLR 82 at 104.
The Judge’s analysis of the improbability of aspects of the appellants’ evidence did not amount to impermissible speculation. It was a valid process of reasoning to explain why he rejected both Cekic and Dettman as witnesses of truth. In my view, the criticism of the Judge for using the word ‘improbable’ on more than one occasion when discussing the evidence is either a misunderstanding or a misreading of the Judge’s reasons. He was doing no more than he was required to do, namely, explaining why he was unable to accept the evidence of both Cekic and Dettman.
The Judge went into some detail when explaining why it was that he ultimately rejected the evidence of Cekic and Dettman. Contrary to the submissions made that his Honour did not distinctly reject their evidence, he concluded with an unequivocal rejection of both witnesses as reliable and credible witnesses after having explained in some detail why he found aspects of the versions given by each appellant as improbable and compartmentalised. Moreover, having done so he explained clearly and correctly that such a conclusion did not inevitably lead to guilt:
219For all of the above reasons I am not prepared to accept the testimony of the accused as truthful or reliable accounts of what happened in the clubhouse. Moreover, I substantially discount the truthfulness or reliability of their accounts by reason of the improbabilities and inconsistencies to which I have referred. However, my dissatisfaction with their testimony does not relieve the prosecution of its onus. Their testimony remains evidence in the case which I must weigh in my consideration of the inferences that I am prepared to draw from the prosecution evidence and in particular in my consideration of whether I am prepared to draw the inferences for which the prosecution contends beyond reasonable doubt. It is to that question which I now turn.
The Judge then turned to the critical issues on the prosecution case and made a series of findings as to the purpose of the meeting, the extent to which he relied on the notebook, and the role of the five appellants at and outside the clubrooms during the critical time. In the course of those findings the Judge also addressed the circumstances said to militate against any common plan, including the absence of weapons, that one of the appellants casually walked into the clubhouse eating a pie, and the irrelevance in all of the circumstances of the presence of CCTV at the clubhouse.
All of the arguments raised on appeal as to why there was no proper basis for rejecting Cekic and Dettman’s evidence were put before the Judge at the trial, including the improbability of Cekic falling into a heated dispute with Bonnici about being kept waiting, the improbability of Bonnici punching Cekic following the verbal exchange, as explained by Cekic, the fact that Cekic would not have turned his back on Bonnici after an initial exchange of punches, and that Cekic did not call out to others during the assault.
As I have already explained, when the Judge was speaking about improbabilities in the evidence of Cekic and Dettman what he was doing was evaluating their evidence against the background of the objective and undisputed facts of the matter. His analysis by reference to the improbabilities and inconsistencies which he found is part and parcel of the task he was required to undertake. He was not required to explain his rejection of every single defence argument, nor to explain every minute step in his own reasoning process.

The thrust of his reasoning is very clear. This ground of appeal is not made out.
I turn now to deal with the complaints that the verdicts are unreasonable.
Elsewhere in these reasons I have summarised the evidence, some of which has already been discussed in the context of the Judge’s ruling that there was no case to answer.
The question for this Court on appeal is whether it was open to the Judge on the whole of the evidence to be satisfied beyond reasonable doubt of the appellants’ guilt.
The appellants’ submissions in respect of this ground conflated that question with the separate and distinct question as to whether the Judge might have, as opposed to must have, entertained a reasonable doubt about guilt.
Most, if not all of the appellants’ submissions in respect of this ground were directed to showing that, because there were alternative explanations for individual items of evidence consistent, on the defence argument, with innocence, the Judge was unable to exclude those explanations as reasonable possibilities and the verdict is therefore unsafe and unsatisfactory. For example, a primary submission on appeal made by counsel for both Ciantar and Niemann was that the state of the evidence was such that it could not be excluded as a reasonable possibility that both Ciantar and Niemann were behaving as a nominee normally would when there is a meeting, that is, waiting outside.
In similar vein counsel for Cekic, Dettman and Paunovic traversed the evidence relevant to the defence version and pointed out that for each and every item of apparently incriminating evidence there was an innocent explanation consistent with the version of events given by Cekic and Dettman.
The submission that the innocent alternative scenarios could not be excluded as a reasonable possibility contains a fundamental flaw. As juries are regularly directed in a circumstantial case, the trier of fact is entitled, indeed obliged, to assess the evidence as a whole rather than analysing each item of evidence in isolation. A piecemeal approach was taken by each counsel in support of this ground of appeal. None of the arguments put by counsel for the appellants undermine the Judge’s rejection beyond reasonable doubt of the evidence of the appellants Cekic and Dettman, and the inferences that the Judge drew from the conduct of the appellants as seen on the CCTV footage. As will be apparent from these reasons I consider that, on the whole of the evidence, the inferences were open to the Judge.
The most fundamental aspect of the evidence which the Judge took into account was the timing of the relevant events. The CCTV footage tendered at the trial showed a number of vehicles, members, nominees and associates milling about in the vicinity of the north clubhouse. About 15 or 20 minutes before Bonnici arrived none of those people or vehicles were visible on the CCTV footage. The Judge’s finding that this was a deliberate decision with the purpose of concealing vehicles and people further down the road and out of sight was important. The only people who greeted Bonnici on arrival were Cekic, Paunovic and Dettman. Neither Ciantar nor Niemann were in sight. Both Ciantar and Niemann took up their position outside the gate only after the men entered the building. Within three and a half minutes Cekic beckoned to Niemann, who immediately went inside the building. On any view of the evidence the assault on Bonnici had taken place by the time Niemann went inside. His casual walk across the road to obtain the bolt cutters and return was noteworthy. There is no dispute that those bolt cutters were used to remove the gold chain from around Bonnici’s neck. Nor is there any dispute that Bonnici suffered critical injuries and, if not taken to hospital, would have died. As mentioned, Bonnici suffered collapsed lungs, jaw and nasal bone fractures, subdural bleeding, rib and leg fractures and underwent surgery to remove his gallbladder and appendix. He has permanent brain damage.
On the other hand there was no evidence of any serious injury to any of the five appellants. Nor was there any evidence that any one of the appellants displayed shock, surprise or worry as they left the building. They walked out as they walked in, casually and in no hurry. Nobody made any call to 000, notwithstanding the state that Bonnici had been left in. The explanation proffered by Dettman that he called Mensforth instead of an ambulance because Bonnici would not have wanted the police to attend at the clubrooms is, in light of the severity of Bonnici’s injuries, implausible. It was immediately obvious to Brouwer that an ambulance should be called for Bonnici; he made a telephone call to 000 less than one minute after entering the clubrooms.
It is unsurprising that the Judge concluded that the testimony of both Cekic and Dettman as to what happened inside was inherently improbable and that both were unreliable and untruthful witnesses.
These salient features of the evidence alone were capable of satisfying the Judge beyond reasonable doubt of each appellant’s guilt.
Indeed, having watched the CCTV footage and having regard to the demeanour of the appellants on that footage and the quick succession of events after Bonnici arrived at the north clubhouse, and after my independent assessment of the other evidence before the Judge, I find that the only rational explanation for the appellants’ conduct is that there was a prearranged common plan on the part of the five appellants to seriously assault Bonnici. The role of Ciantar and Niemann was plainly and obviously to act as lookouts.
In reaching this conclusion I have deliberately refrained from relying on any inference which might be drawn from the existence of the notebook. Elsewhere in my reasons I have explained why.
I would reject these grounds of appeal.
3 Failure to identify the evidence relevant to each appellant and failure to adequately direct himself as to it (Cekic, Dettman and Paunovic – ground 3) and failure to separately consider the case against each appellant (Ciantar and Niemann – ground 2)
None of Cekic, Dettman or Paunovic addressed ground 3 orally. Dettman and Paunovic relied on Dettman’s outline of argument in support of ground 3. Paunovic also adopted the submissions of other counsel.
No argument was put by Cekic, Dettman or Paunovic in support of their ground 8 – a complaint that the Judge took a “global approach to inferring every accused was a participant in a joint enterprise with a specific intention” – it being seen to be subsumed under ground 3.
In essence, these grounds complain that the Judge erred in failing to set out in his reasons his separate consideration of whether each appellant was guilty. In particular, Ciantar and Niemann argue that, having not entered the clubrooms until after the assault had occurred, their cases demanded distinct consideration.
Dettman’s outline puts the following arguments. It is submitted that the Judge failed to identify the circumstantial case against each appellant, that is such evidence as implicated each in the joint enterprise and proved his specific intention; that the Judge failed to identify the defence case of each appellant, and failed to identify and deal with the hypotheses said to be consistent with innocence which the prosecution was required to exclude.
Counsel for Ciantar made similar arguments, but stressed that Ciantar’s mere presence outside the clubrooms, along with Niemann, was neutral. Their status as nominees did not permit them to attend meetings. This could account for their presence outside. If it were to be inferred that Ciantar was acting as a lookout, then the Judge had to grapple with the fact that the eruption of violence inside the clubrooms might have been spontaneous (especially bearing in mind the culture of violence within the Finks); and that, being a nominee, Ciantar would have had no ability to prevent others from accessing the clubrooms. Furthermore, the fact that those who did go in did not carry weapons meant that Ciantar and Niemann might have been ignorant of any planned attack. It was suggested that all these matters made it difficult to draw inferences about the state of mind of Ciantar and Niemann and their reasons for being outside the clubrooms. Similarly, it was submitted that the Judge’s observation that none of the appellants afterwards showed any sign of shock or surprise at the events should have been evaluated in light of Ciantar’s limited status and role.
Counsel for Niemann adopted the arguments put on behalf of Ciantar. Counsel emphasised that Niemann did not enter the clubrooms until the fight was over. It was suggested that the Judge was obliged to deal with each suggested reasonable hypothesis consistent with innocence of the two nominees and to expressly state why those hypotheses were excluded. Counsel suggested that the Judge’s failure to do so implied that he had not considered any explanation for their presence there, apart from involvement in the alleged joint enterprise. It was suggested that the Judge “overlooked” the impact of the fact that the two nominees remained outside on the availability of inferences of guilt.
The Court was told that the availability of other reasonable explanations for the conduct of Ciantar and Niemann had been put to the Judge in final submissions by counsel then acting.
In the course of the early part of his detailed and comprehensive reasons, the Judge clearly outlined the entirety of the circumstantial case against each appellant. Then, commencing at [220], the Judge made clear what inferences he drew on the basis of the evidence.
This was not a case where the evidence comprising the prosecution case against any appellant markedly differed. All the evidence relating to the actions of each appellant was admissible in relation to the other appellants. Therefore, inferences adverse to those appellants who entered the clubrooms – Cekic, Dettman and Paunovic – were properly available for use in the cases against Ciantar and Niemann. To the extent that all the evidence was available against each appellant, it would have been needlessly repetitive to summarise the whole of the evidence in relation to each appellant.
Having said that, the Judge did not expressly deal with any implication flowing from the status of Ciantar and Niemann as nominees and their absence from the clubrooms until after the assault. However, the conclusion drawn by the Judge that their role outside the premises was to act as lookout was one available to him and drawing that conclusion involved an exclusion of any other reasonable possibilities.
I refute the suggestion that in setting out reasons for verdict a judge is obliged to recite every defence argument and to explain why it fails. The fact that particular arguments are not mentioned does not imply that they were not considered. Indeed, the very process of evaluating a circumstantial case necessarily involves a consideration of the strength of the relevant circumstances and the inferences which they might found, as well as other matters which might account for them.
In my view, these grounds are not made out.
4 Use of notebook and pages (Cekic, Dettman and Paunovic – ground 4, Ciantar and Niemann – ground 3)
This ground was addressed orally Mrs M Shaw QC, senior counsel for Dettman. Ciantar, Niemann and Paunovic adopted that argument.
Earlier at [33] to [38] I described the nature of the notebook, P23, and the torn-out pages, P25. I shall generally refer to them together as “the notebook”. The notebook was found hanging from a bolt, acting as a hook, at the eastern end of the Central Clubhouse bar. The loose sheets were found on a box of bourbon bottles in a shed of the clubhouse. There was no evidence of who had written in the notebook.
The appellants now argue that the notebook was inadmissible.
Upon the appeal, the Court was told that counsel for the five appellants had not objected to the admission into evidence of the notebook. That is the position. Prosecuting counsel referred to the notebook and pages in his opening address. He acknowledged that he could not say who wrote in the notebook or when the entries were made.[26] He suggested that the notebook indicated that there was dissatisfaction with Bonnici and “an atmosphere within that club that Bonnici was out of favour”, [27] and a “disapproval of Bonnici” and “a hostility” towards him.[28]
[26] T24.
[27] T27.
[28] T28.
The notebook was next mentioned two days later when prosecution counsel tendered the notebook and the pages through a police witness.[29] There was no objection by any counsel and no further discussion of its relevance. Defence counsel seemingly accepted that the use described by the prosecutor in his opening address was available.
[29] T155.
However, on the following day, the prosecution case was closed and submissions of no case to answer were made. For the first time, defence counsel argued that the use of the notebook foreshadowed by the prosecutor was not available.
Mr Anders, for Cekic, submitted to the Judge that the notebook could not be used for the testimonial purpose of proving “animus” against Bonnici.[30] He submitted that it was available only to show that Bonnici was associated with the Finks. (I note that it was an agreed fact that Bonnici had been a member of the Finks motorcycle club since 1998 and that from 2012 he was associated with the north chapter. Therefore, it was not required for that purpose.)
[30] T221.
Mr Edwardson QC, for Dettman, argued that the notebook contained “incomprehensible jottings”, and was incapable of providing evidence of animosity or a motive.[31]
[31] T254-255.
In his submission in support of a no case ruling, Mr Barklay, for Ciantar, made no reference to the notebook. Mr Allen for Paunovic and Mr Williams for Niemann simply adopted the submissions of the other counsel. Later, in his closing address, Mr Williams, for Niemann, agreed the notes could show a “difference” between their writer and the victim,[32] and counsel for Paunovic submitted that the notes had “limited probative value”.[33]
[32] T685.
[33] T700.
In his closing address, Mr Barklay, for Ciantar, pointed out[34] that included in the notebook were writings which tended to undermine the prosecution case; for example, “let Charlie sink himself”. Mr Barklay submitted that, as an item of circumstantial evidence, the value of the notes was weak. He accepted that the notebook was available for use as evidence of motive.[35]
[34] T649.
[35] T651.
The principal arguments put during the appeal against such use as the Judge made of the notebook were based on the fact that the author was unknown, the time when the notes were made could not be established (except that the Judge found that, there being references to activities on New Year’s Eve early in the notebook, they had probably been made during 2013,[36] and that there was no direct evidence that any of the appellants had any knowledge of the notebook. Indeed, three of the five appellants, namely Dettman, Niemann and Paunovic, were attached to the south chapter and Dettman, at least, did not have a key to the central clubrooms.[37] It was further submitted that, even if the author was dissatisfied with Bonnici’s conduct, expression of that view would not provide a motive for the crime alleged. It was argued that, anyway, there was no demonstrated link between such an expression of ill-feeling and any taking of measures against Bonnici. Counsel also argued that the notebook might have assumed unjustified importance in deciding between a planned confrontation at the north clubrooms, as against a spontaneous eruption of violence at the commencement of a meeting.
[36] [97].
[37] [185].
It was put by Mrs Shaw QC that, being out-of-court statements not falling within an exception to the hearsay rule, the assertions in the notebook were “inadmissible as evidence of any fact stated”. It was said that the use made by the Judge relied on the sincerity and accuracy of the words written in the exhibits. Mrs Shaw argued that the force of the hearsay rule could not be side‑stepped by describing the implication of ill-feeling towards Bonnici as circumstantial evidence.
There are several questions raised by this ground of appeal. Among them are: What did the notebook tend to prove? Did such a use offend the hearsay rule? What flows from the failure to object when the notebook was tendered? In view of the place where the notebook was found, was there a sufficient link between whatever the notebook proved and the appellants? Could a motive be inferred from any permissible use of the notebook? What use did the Judge in fact make of it?
As mentioned, early in his reasons for decision,[38] the Judge described and discussed the possible use of the notebook. The Judge said this:
112The writing on the notebook and the torn sheets of paper found at the Central clubhouse evidences that in the weeks or perhaps months before February 13 one or more members of the Central Chapter of the Finks strongly disagreed with aspects of Mr Bonnici’s leadership of the North Chapter.
The Judge then inferred from evidence about the ethos of loyalty within the Finks membership that the views expressed in the notebook were likely to have been known to one or more of the appellants before they travelled to the north clubhouse on 13 February 2013.[39] Then, in giving reasons for his finding of a case to answer, he said that the notebook provided a possible motive on the part of those appellants who entered the north clubhouse to assault Bonnici.[40] He said this was an item of circumstantial evidence which could go to counter the improbability of conflict within the Finks gang.
[38] [95]-[113].
[39] [113].
[40] [117].
In the section of his reasons for decision entitled “Findings”, the Judge made firm findings about the purpose of the meeting at the north chapter clubrooms. The Judge found that the attendance of the accused at those clubrooms was not, as claimed by Cekic, to discuss arrangements for the forthcoming run to Melbourne.[41] He found beyond reasonable doubt that the purpose of the attendance was to meet Bonnici, and that the purpose of the meeting was a matter of “substantial concern” to senior members of the central and south chapters.[42] Importantly, these findings did not rely on the evidence of the notebook. Rather, they rested on the seniority of some of the personnel who met there, including the Sergeants at Arms, the fact that the meeting was pre-arranged, and the preparedness of the group to wait for a long period in the heat before Bonnici arrived.[43] In my opinion, these findings, coupled with other conclusions to be drawn from the CCTV footage, were the critical ones in terms of the ultimate findings of guilt.
[41] [220]-[223].
[42] [224].
[43] [224] and [226].
The Judge then gave his findings about the third circumstance of aggravation, that the offence was committed “for the benefit of two or more members of a criminal organisation, or at the direction of, or in association with a criminal organisation”. In this context, he contrasted his satisfaction beyond reasonable doubt about those matters referred to by me in the previous paragraph with the lower level of his satisfaction about the precise reason for the meeting. The Judge said:
227In the absence of any other explanation, I find that the probable purpose of the meeting concerned the matters underlying the complaints made about Mr Bonnici’s leadership of the North Chapter in the notebook. ...
His Honour went on to say:
... Even though I am satisfied that the probable reason for the meeting was a dispute of some kind between the North Chapter on the one hand and the South and Central Chapters on the other, I am not so satisfied beyond reasonable doubt.
Because the Judge was not satisfied beyond reasonable doubt as to the precise purpose of the meeting with Bonnici, he did not find proved the third circumstance of aggravation of count 1.[44]
[44] [228].

The Judge then referred to the matter of motive. He said:
229Even though the fourth [sic] circumstance of aggravation has not been made out, my finding as to the probable reason for the meeting provides a motive for the joint enterprise alleged by the prosecution.
This is the critical passage in the reasons for decision to which the complaints about the notebook attach.
It is apparent that the Judge was satisfied beyond reasonable doubt, on all the evidence, that the reason for the meeting was a dispute of some kind between the chapters and that the dispute provided a motive for what occurred. However, that finding did not rest on the notebook. In the way the Judge analysed the evidence, the relevance of the notebook was, in my opinion, very limited. It went towards providing an explanation for the conduct, rather than assisting in proving the conduct. However, since the Judge did make some findings about the notebook and, at least arguably, some use of the evidence, I proceed to examine the question whether it was available for the purpose for which it was tendered.
As the Judge said, the notebook was capable of demonstrating that the writer entertained a level of dissatisfaction, even anger, in relation to Bonnici’s conduct. The positioning of the notebook near to the bar in the clubhouse was important. It was a form of publication of its contents. It was there for any member to read, if he so wished. The view was available that the positioning of the notebook there amounted to a show of ill-feeling towards Bonnici, as opposed to being private musings. The same could have been said – although with more force – had there been a large photograph of Bonnici pinned on a noticeboard in the clubrooms with darts in it. The display of negative sentiment was the probative aspect. The fact that the writer remained unidentified was, in my opinion, not critical. The inference that he was a club member was irresistible. That there was no proof of when the writings were made was rather overtaken by the inference that they were made in 2013, and by their very presence in a prominent location in the clubhouse on 13 February 2013.[45]
[45] [97].
Plainly, the notebook reflected the antagonistic views of at least one member about club business and about the unsatisfactory performance of another club member, Bonnici. The notebook was capable of being seen as an open display of ill-feeling towards Bonnici by the writer; a publication to other members of his attitude. To that extent, the notebook was not testimonial and therefore not hearsay.
In circumstances where four of the five men who were either present or very close by to the scene of Bonnici’s bashing had departed from the central clubhouse prior to the event and four of them returned to that clubhouse afterwards, it would, in my view, defy common sense not to allow that the notebook might be linked to the attack. To put that differently, here at the place from which four of the five appellants left (all except Ciantar) and to which Cekic, Niemann and Ciantar shortly returned (Dettman arriving a little later) after an interaction with Bonnici which left him mortally wounded, was a written and, to an extent, public expression of dissatisfaction and anger in relation to him. It would be perverse to deny the trier of fact the ability to consider that the notebook was representative of a wider view among members of the Finks, and, to use it as an item of circumstantial evidence bearing on the interpretation of the events which caused Bonnici’s injuries.
For these reasons, I find that the notebook and pages were admissible. That is certainly the view taken by all counsel then representing the appellants at trial at the time of the tender.
However, that is not to say that the writings were of much weight. Because the time of writing and identity of the writer were unknown, and because the form of publication was unusual and quite restricted, I consider that the probative value of the evidence was insubstantial. Some judges might have been inclined to exclude the evidence as an exercise of discretion.
In any event, for the reasons given earlier, I would emphasise that, in terms of the Judge’s findings, the notebook related only to a possible explanation of what occurred and had limited significance. The prosecution case rested fairly and squarely on the CCTV footage, not only at the north chapter clubrooms, but also at the central clubrooms. That evidence of itself was sufficient and compelling.
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides as follows:
353—Determination of appeals in ordinary cases
(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
If, contrary to my analysis, inadmissible evidence was introduced or, though properly admitted, was used in a way which was impermissible, that amounts to an error of law. In that event, this Court may yet dismiss the appeal if it considers that no substantial miscarriage of justice actually occurred. In Weiss v The Queen,[46] the High Court explained what is involved in assessing that question in the context of a trial by jury.
[46] (2005) 224 CLR 300. See especially at [41]-[47].
Based on my assessment of all the evidence in the trial, and in particular of the CCTV footage, I find the case against all the appellants to have been compelling. Even if the use of the notebook went beyond what was permissible, I would find that no substantial miscarriage of justice actually occurred as a result.
Since this ground of appeal raised a matter of law no permission to appeal was required. However, the ground fails.
5 Reversal of onus of proof, and speculation about factual matters (Cekic, Dettman and Paunovic – ground 5, Ciantar and Niemann – ground 4)
The relevant grounds of all appellants are not identical, but there is overlap in the complaints made under this heading. The reversal of proof issue is address in Dettman’s outline, adopted by Paunovic.
In respect of the suggested reversal of the onus of proof, Dettman directed attention to [208], [214] and [227] of the reasons. In addition, Dettman put that the Judge “in effect” treated the rejection of Cekic and Dettman’s evidence as proof of the offences.
In my view, this last argument is not well made. To proffer reasons for rejecting the evidence of an appellant (reasons which often supported the prosecution case) is not to use rejection of defence evidence as proof of an offence.
The nature of the findings which are criticised as reversing the onus may be demonstrated by reproducing several passages of the reasons which exemplify the approach taken:
208To my mind it is improbable that Mr Bonnici attempted to punch Mr Cekic following the verbal exchange he described. It is unlikely that he would act in a way which would derail a meeting about the national run over such a trivial provocation. I find it very unlikely, on Mr Cekic’s account, that he would turn his back on Mr Bonnici after their initial exchange of punches and that he would not call out to Messrs Dettman and Paunovic to alert them that a fight had broken out. I find it even more surprising, on his account, that he did not call out to Messrs Paunovic and Dettman when he was struck on the arm by the pool cue or when he held up the chair as a shield.
...
214Mr Dettman gave his evidence in a straight forward manner. I make no criticism of his demeanour. However, I am not at all persuaded by his account. It is improbable that he and Mr Paunovic should have moved so quickly as to have been either on the stairs or on the mezzanine floor when the fight broke out. Mr Dettman’s evidence does not explain why he moved so quickly and directly to the stairs without looking back to see where his host, Mr Bonnici, was, and to see where Mr Cekic was. Mr Dettman gave no satisfactory explanation for why he pulled Mr Cekic from Mr Bonnici when, according to Mr Dettman, it was a Finks club rule that members do not intervene in the private fights of other members. The lack of any substantial or significant blood staining on Mr Dettman is inconsistent with his account of his efforts to help Mr Bonnici get to his feet, and his efforts to help him remove the chain.
...
227In the absence of any other explanation, I find that the probable purpose of the meeting concerned the matters underlying the complaints made about Mr Bonnici’s leadership of the North Chapter in the notebook. It is significant that the writing on a page torn from the notebook refers to the need to be courteous and on time when the North Chapter members had failed to attend both the barbeque or the Central clubhouse meeting. Even though I am satisfied that the probable reason for the meeting was a dispute of some kind between the North Chapter on the one hand and the South and Central Chapters on the other hand, I am not so satisfied beyond reasonable doubt.
It is acknowledged that early in his reasons, the Judge correctly set out the onus and burden of proof as follows:
15I remind myself that reasonable doubt is simply a doubt which I entertain. It is not sufficient for the prosecution to show a mere suspicion of guilt, or to show that the accused is probably guilty. An accused is not to be convicted unless his guilt has been proved beyond reasonable doubt. The accused must be given the benefit of any doubt that I have.
16The prosecution bases its case substantially on circumstantial evidence. I cannot return a verdict of guilty of any charge unless the circumstances exclude any reasonable explanation consistent with innocence. To convict I must be satisfied, not only that the guilt of each of the accused is a rational inference, but that it is the only rational inference that the proven circumstances enable me to draw.
However, it is suggested that in [208], [214] and [227] (and some others) the Judge, in speaking of improbability and implausibility, reversed the onus so that it lay on the appellant witness.
In my view, the criticism is not warranted. Plainly, the Judge is, in these passages, going through the exercise of assessing the evidence and evaluating it against his knowledge and experience of human behaviour. The Judge is not, here, applying the onus of proof to the elements of any offence. This process of assessment and evaluation is of course one which juries necessarily undertake. However, where a jury is the trier of fact, its reasoning process is not revealed. In my opinion, this process does not involve any reversal of the onus.
In respect of the passage at [227] above, the reference to “absence of any other explanation” is merely an observation concerning the state of the evidence. The assertion that there was no other explanation (apart from that which the Judge had rejected at [222]) did not imply that there was an onus on the appellants. It was a statement of fact.
Dettman also argued that [208] contained “speculation as to the psychology and character of the individuals concerned”. Again, my view is that as a trier of fact a judge is entitled to come to conclusions based on his knowledge of human behaviour applied to the circumstances established by the evidence. Indeed, that is his role. No doubt, there is a measure of psychology involved in assessing the actions of others and assessing their characters. That is inherent in the task of determining how the facts are to be interpreted undertaken by any tribunal, irrespective of its nature.
In respect of the complaint of speculation, attention was directed by Dettman to a number of paragraphs.[47] Ciantar referred in this context to various paragraphs also.[48] He asserted that the critical findings involving impermissible speculation related, firstly, to the immediacy with which the fight broke out[49] and, secondly, to the finding that Ciantar was stationed outside the clubrooms playing the role of a lookout.[50]
[47] [207]-[208], [211]-[212], [218]-[221], [227], [229]-[241].
[48] [116], [119], [207]-[208], [222]-[224], [227]-[229], [231]-[232], [235].
[49] [119] and [229].
[50] [116].
Again, I propose to set out some examples of the paragraphs nominated, those being ones which I consider were pivotal in counsel’s complaints:
116It is convenient to start with the accused Messrs Ciantar and Niemann. The evidence that:
·       the assault occurred soon after Messrs Cekic, Dettman and Paunovic entered the clubhouse;
·       Messrs Ciantar and Niemann did not approach the gates of the clubhouse and Mr Bonnici with, and at the same time as, Messrs Cekic, Dettman and Paunovic;
·       Messrs Ciantar and Niemann only moved to the gate at the front of the clubhouse when the others had disappeared into the clubhouse;
·       Messrs Ciantar and Niemann stayed within sight and earshot of the front door;
·       Messrs Ciantar and Niemann went into the clubhouse as soon as they received a hand and or voice signal,
in itself supports an inference which can be drawn beyond reasonable doubt that Messrs Ciantar and Niemann had agreed with at least one of the accused who had entered the clubhouse to act as lookouts whilst that accused assaulted Mr Bonnici. The evidence of their presence outside of the clubhouse and their subsequent movement into the clubhouse is evidence of their participation in that arrangement.
Counsel for Ciantar argued that the circumstances enumerated by the Judge in this passage are also consistent with Ciantar playing, not the role of a lookout, but that of a nominee, that is, not being permitted to attend meetings, but being required to remain outside, available if needed.
Even if it is accepted that the role of the nominee was as described, there is no reason why the trier of fact may not prefer one interpretation of a series of facts over another. The Judge was entitled to draw on his knowledge of all the evidence in interpreting the activities of Ciantar and Niemann. In my view, it was open to him to find, as he did, that the circumstances enumerated, viewed against the background of the entirety of the evidence, led to a conclusion that Ciantar and Niemann were acting as lookouts in accordance with a pre-arranged plan.
Examples of passages concerning the immediate outbreak of hostilities include:
119However, the fact that the beating of Mr Bonnici occurred so soon after the accused entered the clubhouse strongly supports the inference that the accused had earlier joined in an arrangement to assault him. Such a pre-arrangement is a much more probable explanation for the assault than a spontaneous outbreak of hostility.
In relation to [119], counsel for Ciantar argued that it was little more than speculation that the rapidity with which the fight broke out pointed to a pre‑existing plan. He suggested that some of the “findings” amounted to guesswork.
I do not agree. Many of the Judge’s observations are not so much findings, but a disclosure of his reasoning processes. To evaluate the likelihood of events happening in various ways and to consider the probabilities is not to guess. It is a valid analytical approach. The same applies to the following:
221However, most improbable of all is that the non-attendance of any of the members of the North Chapter at the barbeque and then at the Central clubhouse should fail to annoy Messrs Dettman and Cekic at all. It is very surprising that they accepted at face value a reason as improbable as that apparently given by members of the North Chapter for their non-attendance. It is also very surprising that instead of simply holding the meeting in their absence and communicating any decisions to them, the members of the Central and South Chapters decided to travel all the way to Salisbury on what was a hot February day. On the descriptions of the matters to be discussed for the run, and on Mr Dettman’s account of who was responsible for actually making the bookings and arrangements, there is no obvious reason why the meeting could not have taken place without the North Chapter members and the decisions subsequently communicated to them. Nor is there any explanation as to why, to the extent that it was desirable to know the intentions of North Chapter members in this respect, that information could not have been taken over the telephone. Finally, it is simply not believable that the members of the South and Central Chapters would then wait in the heat of the day, and with their cars parked in direct sunlight, for nearly three quarters of an hour at the front of the North clubhouse when no member of the North Chapter had arrived.
Again Dettman argued that this reasoning involved a number of propositions about human behaviour. That is undoubtedly true, but for the reasons already given the argument must fail.
I do not consider that there is substance in these complaints.
6 Treatment of lack of inquiry of Cekic as to what had happened (Cekic, Dettman and Paunovic – ground 6)
No oral argument was put in support of this ground. Indeed, the outline of Dettman, upon which Paunovic relied, merely repeated the thrust of the ground. The outline of Cekic was silent as to this ground.
The finding complained of is this:
240The testimony given by Mr Cekic and Mr Dettman of the elliptical conversations between the accused as they left also supports the inference that they were not surprised by how events had unfolded. The lack of interest in finding out from Mr Cekic what had happened is inconsistent with his account of a spontaneous unexpected outbreak of hostility. To the contrary it supports an inference of pre-concert.
As I understand the complaint, it is that, having rejected the evidence of Cekic and Dettman, the Judge should not have relied on any aspect of their evidence, and that it was wrong to draw a conclusion that the reason for the lack of inquiry after the event by the other appellants as to what had occurred pointed to a lack of surprise and was explicable on the basis the event was a planned one.
In my view, the Judge was entitled to act on this aspect of the appellants’ evidence. He was not obliged to accept it or reject it as a whole. The Judge’s reasoning was neither illogical nor inconsistent with any other evidence.
There is no substance in this ground. Permission should be refused.
7 Failure to properly direct as to impermissible use of propensity evidence (Cekic, Dettman and Paunovic – ground 7)
This ground was addressed in the outline of argument of Dettman, which Paunovic adopted.
The Judge found that the fact that Cekic, Dettman and Paunovic did not take weapons into the clubrooms with them did not tell against a pre-arranged plan to assault Bonnici. There was evidence about the proficiency of Cekic and Dettman as boxers. There was evidence that those two appellants were members of the “terror team”, and that membership of the “terror team” was bestowed only on persons who were good fighters.[51] The Judge also referred to the ‘combined capacity’ of the three men.[52]
[51] T278 and [138].
[52] [235].
Dettman argues that the Judge “made assumptions or engaged in speculation which was influenced by discreditable propensities”.[53]
[53] Outline of argument, Dettman at [28].
Particular complaint is made about the Judge’s reference to possible resort to furniture as weaponry, his finding that Paunovic might have expected the two “terror team” members to “do the heavy lifting”,[54] and to his reliance on an ethos of non-cooperation with authorities, as explaining such a brazen attack.[55] It is suggested that this was a misuse of evidence admissible for other purposes, and contravened s 34R of the Evidence Act 1929 (SA).
[54] [236].
[55] [237].

In my opinion, this was a legitimate use of the evidence by the Judge. The evidence justified a conclusion that Cekic and Dettman were proficient fighters and that the three of them presented a formidable force. The evidence was available to refute a suggestion that the absence of weapons pointed to the absence of a plan. It was evidence of the capacity of the three men, rather than evidence of a propensity to violence.
I do not accept that there was any misuse of this evidence, or any contravention of s 34R of the Evidence Act.
There is no substance in these grounds. Permission should be refused.
9 Error in finding that the “probable purpose” for the meeting was found in the notebook (Cekic, Dettman and Paunovic – ground 9)
This ground was addressed in the outline of argument of Dettman, which Paunovic adopted and supplemented orally.
The ground complains of passages in the Judge’s reasons in which he found that the contents of the notebook provided a “probable purpose of the meeting” (in the absence of any other explanation);[56] that he was not satisfied beyond reasonable doubt that the probable reason for the meeting was a dispute of some kind between the chapters;[57] and that “the probable reason for the meeting provides a motive for the joint enterprise alleged”.[58]
[56] [227].
[57] [227].
[58] [229].
The Judge expressed his application of the differing standards of proof to this issue because one of the aggravating circumstances alleged in respect of count 1 was that the offence was committed “for the benefit of two or more members of a criminal organisation, or at the direction of, or in association with a criminal organisation”. Therefore, it was necessary for the Judge to express his finding on that circumstance of aggravation in terms of the criminal standard. Notwithstanding that the Judge was not satisfied to that standard that the notebook contents constituted the reason for the meeting, he was not obliged to ignore that item of evidence.
The Judge treated the “probable reason” for the meeting as providing a “motive for the joint enterprise”.[59]
[59] [229].
However, to understand what was comprehended in the expression “probable reason” in that paragraph, it is necessary to look back to the immediately preceding findings. At [224] the Judge found that the purpose of the meeting was for senior members of the club to meet Bonnici, but he made no finding about the reason for wishing to meet. The Judge said:
224However, I do find that the purpose of the meeting was for senior members of the Central and South Chapters to meet Mr Bonnici. I am not able to make a finding beyond reasonable doubt as to the precise reason for that meeting. I am satisfied that the meeting was pre-arranged because of the way that Messrs Paunovic and Dettman greeted Mr Bonnici. It is plain that Mr Bonnici expected to see Messrs Dettman, Paunovic and Cekic at the clubhouse when he arrived. I am also satisfied beyond reasonable doubt that the purpose of the meeting was a matter of substantial concern to senior members of the Central and South Chapters. I am so satisfied on the basis of the attendance of a number [of] senior members of the Finks and in particular current or former Sergeants at Arms at the Central clubhouse at about 1.00pm and outside of the North clubhouse for some time after 2.00pm.
The findings in the early part of [224] were supported in turn by findings:
226I am satisfied that the dispersal of all of the Finks members, apart from the accused, in the 20 minutes or so before Mr Bonnici’s arrival was connected to his arrival. In particular, I find that such phone calls as were made at the Central clubhouse, perhaps through the agency Mr Mensforth, procured the attendance of Mr Bonnici at the North clubhouse. His attendance may have been negotiated whilst the accused and other Finks waited outside the North clubhouse. Howsoever the meeting was arranged, Mr Bonnici’s arrival at about the time that he did arrive was expected. I am satisfied that both the movement of most of the Finks members away from Middle Row and the movement by the accused of their cars to the shaded area to the south of the clubhouse were connected and related to the impending arrival of Mr Bonnici. Mere coincidence is an improbable explanation for the relatively close temporal connection of these events. It can be accepted that it was a hot day and that it would have been more comfortable to have the cars parked under shade. However, that does not explain why the accused and the other Finks were prepared to leave the cars under direct sunlight and to wait in the heat immediately outside the clubhouse for as long as they did until about 15 to 20 minutes before Mr Bonnici arrived.
In my view, a fair reading of these passages shows that the finding of joint enterprise was based not on the contents of the notebook, but rather on the actions of the club members, first at the central clubrooms, then at the north clubrooms, and then again at the central clubrooms. This is made clear on a reading of the whole of the reasons under the heading “Findings” starting at [220].
Counsel for Paunovic makes the additional point that, since Paunovic was not a member of the central chapter, he would not have had ready access to the notebook and may have been unaware of its contents. In view of my conclusion as to the very limited use made of the notebook, it is not necessary to separately consider that argument.
This ground was not reasonably arguable.
Conclusion
In my view permission to appeal on grounds 1, 6, 7, 8, 9 and 10 should be refused. In respect of grounds 4 and 5 permission was not required. In relation to grounds 2 and 3 permission should be granted. However, for the reasons given, I have concluded that the appeal in each case should be dismissed.
Orders
I would make the following orders:
1Permission to appeal on Cekic’s grounds 1, 6, 7, 8, 9 and 10 (and the corresponding appeal grounds of the other appellants) is refused.
2Permission to appeal on Cekic’s grounds 2 and 3 (and the corresponding appeal grounds of the other appellants) is granted.
3The appeals are in each case dismissed.