R v Clavell - [2014] SADC 30

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLAVELL
Criminal Trial by Judge Alone
[2014] SADC 30
Reasons for the Verdicts of His Honour Judge Muscat
25 February 2014
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
Aggravated Causing Serious Harm, Aggravated Cause Harm - identity - recognition - circumstantial evidence.
Prosecutor not relying on witness called by the prosecution. No application made to have witness declared hostile.
Verdicts of not guilty.
R v Wilkinson (2008) 101 SASR 21; R v Boardman [1969] VR 151; R v Turnbull [1977] QB 224; R v Brotherton (1992) 29 NSWLR 95; Alexander v R (1981) 145 CLR 395; R v Lovett [2006] VSCA 5; Sindoni v R (2011) 211 A Crim R 187; Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Doney v R (1990) 171 CLR 207; Chamberlain v R [No 2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619; Knight v R (1992) 175 CLR 495; Plomp v R (1963) 110 CLR 234; Thomas v R (1960) 102 CLR 584; Peacock v R (1911) 13 CLR 619; R v Taouk (2005) 154 A Crim R 69; R v Hillier (2007) 228 CLR 618; R v Van Beelan (1973) 4 SASR 353; R v MRW (1999) 131 A Crim R 308; R v Ryan (1984) 14 A Crim R 97; R v White (2008) 102 SASR 35; R v Coxon (2004) SASR 6; R v Turner (2000) 76 SASR 163, applied.
Holdsworth v Mayor of Dartmouth (1838) 174 ER 246; Greenough v Eccles (1859) 141 ER 315; R v Hayden & Slattery [1959] VR 102; R v Lawless [1974] VR 398; R v Jacquier (1979) 20 SASR 543; R v Hutchison (1990) 53 SASR 587; Adam v R (2001) 207 CLR 96; R v Colquhoun [2009] SASC 138; R v Macfie (No 2) (2004) 11 VR 215; R v Mark [2006] VSCA 251; R v Gonclaves (1997) 99 A Crim R 193; Richardson v R (1974) 131 CLR 116; Whitehorn v R (1983) 125 CLR 657; R v Apostolides (1984) 154 CLR 563; Dyers v R (2002) 210 CLR 285; R v MRW (1999) 131 A Crim R 308; R v Kneebone (1999) 47 NSWLR 450; R v Kennedy (2000) 118 A Crim R 34; R v Teasdale [2004] NSWCCA 91; R v Benz (1989) 168 CLR 110; R v Carbone (1989) 50 SASR 495; Pollitt v R (1992) 174 CLR 558, considered.

R v CLAVELL
[2014] SADC 30
Introduction

Rodney Ian Clavell is charged on Information, dated 17 February 2014, with the following offences relating to a vicious assault upon a young woman.
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
Rodney Ian Clavell on the 14^th day of December 2012 at Tranmere, caused harm to Fiona Curran, which consisted of or resulted in serious disfigurement, intending to cause serious harm to her.
It is further alleged that Rodney Ian Clavell used an offensive weapon, namely a metal studded glove, when committing the offence.
Second Count
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Rodney Ian Clavell on the 14^th day of December 2012 at Tranmere, caused harm to Fiona Curran, intending to cause harm to her.
It is further alleged that Rodney Ian Clavell used an offensive weapon, namely a metal studded glove, when committing the offence.
The second count is laid as an alternative to the first.
Mr Clavell pleaded not guilty to both counts and elected to be tried by judge alone.
Mr Clavell is presumed innocent of the charges he faces. The prosecution bears the onus of proving the charges against him beyond reasonable doubt. There is no onus on Mr Clavell to prove anything in this case; least of all that he was not the assailant.
The Prosecution Case
Fiona Curran
Ms Curran gave evidence as to the events that occurred on 14 December 2012 at 56 Birkinshaw Avenue, Tranmere.
She said that she had met her attacker only once prior to this night.[1]
[1] Transcript 52.
Ms Curran attended the Stereosonic music festival in December 2012.[2] The festival was held at Bonython Park and she attended with Paul Ravesi and Anastasia Gianarous.[3] She consumed a couple of alcoholic drinks at home before the concert, and two or three drinks whilst at the concert.[4] She did not consume any drugs, other than alcohol, on this day.
[2] It is an agreed fact that the Stereosonic Concert was held in Bonython Park on 1 December 2012: see Exhibit P13.
[3] Transcript 53.
[4] Transcript 54.
After the concert she returned to 56 Birkinshaw Avenue, Tranmere with Anastasia and Paul. She was living there at the time with the owner of the house, Remo Marcoionni. [5] She moved into the property at the start of September 2012.[6]
[5] Transcript 53.
[6] Transcript 65.
She returned home at around midnight, with Paul and Anastasia. Remo, his friend Jason, and a man named Steven were then present at the house.[7]
[7] Transcript 55.
She then began planning what to do for the rest of the night as it was still early. She texted her friend “Ashleigh” Lewis and asked her what she was doing.[8] Ashleigh Lewis was a friend she had known for 6 months to a year. She believed they were “good friends” at the time.[9]
[8] Transcript 56.
[9] Transcript 56.
Ashleigh Lewis responded to her text message and said she did not want to go out with her and Anastasia, but she would drop around to the house and see them.[10]
[10] Transcript 57.
Ashleigh arrived with her boyfriend at approximately 1:30 am.[11] Ms Curran was in the lounge room of the house when they arrived. Ms Curran was then introduced to Ashleigh’s boyfriend as “Rodney”.
[11] Transcript 57.
Ms Curran gave evidence that Ashleigh would have said “hello” and that her partner knew a couple of people in the house, so he said “hello” to them and shook their hand.[12]
[12] Transcript 58.
When asked to recall the introduction she said:-
A. Ashley would have said, “This is my boyfriend Rodney”.[13]
[13] Transcript 60.

This introduction was in the man’s presence and he did not react in any way to this introduction. She did not shake his hand and did not really interact with him at all. Ashleigh and the man then sat at the dining table and she thought she sat down with them for a minute or so.[14]
[14] Transcript 60.
This man was in her presence for between half an hour to one hour that night.[15]
[15] Transcript 60.
Ms Curran gave evidence of “Rodney’s” appearance on the first occasion she met him, after the Stereosonic concert. She said:
A     He was tall. He had no hair. He had a little bit of facial hair there (indicates).[16]
[16] Ms Curran described a small area of facial hair below the bottom lip known colloquially, amongst other names, as a “soul patch” (Wikipedia reference).
Q     Sorry, are you indicating an area of your face.
A     (Indicates)
Q      Are you indicating the area just below the bottom lip.
A     Yeah, he had a little bit of hair there. He had -
…
Q      You say he had no hair. Do you mean he literally had no hair at all on his head.
A      Like bald.
Q Aside from the area of facial hair just below the bottom lip, did he have any facial growth at all.
A      Not that I remember.
…
A    … I just remember a tall man with a bald head and big build. He looked muscly, like he worked out, fit.
…
Q    Did he have any tattoos.
A    On his arm, I think.
Q    Are you able to give any description of any tattoos.
A    It was like a sleeve-type thing.
Q    What colour skin did he have.
A    He looked tanned.
Q    What was he wearing on the night you met him.
AI don’t remember exactly. It would have been nothing out of the ordinary: pants and a T-shirt.[17]
[17] Transcript 61-63.
In all of the statements that Ms Curran provided to the police during the course of the investigation, she never mentioned that the man at this initial meeting, or on the night of the attack, had any facial hair or hair beneath his bottom lip.
In addition, Ms Curran never mentioned in any of her statements the existence of a tattoo or “tattoo sleeve” in describing the male she was introduced to as “Rodney”.
Ms Curran moved out of the Birkinshaw Avenue residence four days before the assault[18] and at that time her relationship with Remo Marcoionni “was not the best”.[19]
[18] Transcript 65.
[19] Transcript 65.
During the day, on 14 December 2012, Ms Curran was at her new residence that she had just moved into. She had not yet moved all of her belongings to this new address and still had various items at Remo’s house.[20] She had, however, moved her television into her new home but had neglected to take the television remote with her.[21] At about 9:30 pm that night, she telephoned Remo to tell him she was coming over to collect her television remote.[22] She arrived at the Birkinshaw Avenue premises approximately ten minutes after calling him.
[20] Transcript 66.
[21] Transcript 66.
[22] Transcript 67-68.
Ms Curran was by herself and the front door of the residence was locked, so she let herself in by using her set of keys.[23]
[23] Transcript 68.
Once inside the house, she called out to Remo but she could not find him. She had spoken to him only ten minutes prior, and she parked in the drive way because she wanted him to “run the remote out” to her. She eventually found him in his bedroom where she said he was “pretending”. to be asleep.[24]
[24] Transcript 69.
Ms Curran then had a conversation with him about the whereabouts of her television remote, and then walked out of his bedroom and continued looking for the remote, which she was unable to locate.[25]
[25] Transcript 69.
She then unlocked her bedroom door and wardrobe and began to pack some more of her belongings that remained at the residence.[26] She then took the items that she had packed to where she had parked her car, which was parked “on the lawn, on the property, at the front of the house on Shakespeare Avenue”.[27]
[26] Transcript 71.
[27] Transcript 71.
Ms Curran was about to leave the property when Ashleigh and “Rodney” arrived at the house. As Ms Curran was walking out, “Rodney” was walking inside the front door. She did not think much of this as people come and go from the house at all hours, day or night.[28]
[28] Transcript 74.
She walked past “Rodney” down the front steps of the house, and over to her car, and placed some items in the back of the car. [29]
[29] Transcript 75.
Ms Curran was about to get into her car and drive away when she recognised Ashleigh Lewis’ vehicle parked close to her own.[30] She then had a conversation with Ashleigh. She said Ashleigh asked her what she was doing and Ms Curran explained to her she was retrieving her television remote. Ashleigh invited her back into the house to have a cigarette with her.[31]
[30] Transcript 75.
[31] Transcript 76.
Ms Curran then placed her mobile phone on the front seat of her car, because she did not want it to be ringing whilst she was having a cigarette with Ashleigh. Ms Curran then grabbed her handbag and followed Ashleigh inside the house.[32] When Ms Curran went inside the front door, she could see “Rodney” in the lounge.
[32] Transcript 76.
She placed her handbag down on a table, retrieved a cigarette and then sat down on the couch next to Remo.
She asked Remo for a lighter to light her cigarette.[33] She said when she asked Remo for a lighter, “Rodney” said “you’re not lighting that cigarette”.[34]
[33] Transcript 76.
[34] Transcript 77.
“Rodney” then walked over to the dining room table, where Ashleigh was seated, in the same room as the lounge, and he had a bag or a case under his arm. “Rodney” was carrying this bag when he first walked past her through the front door.[35]
[35] Transcript 77.
“Rodney” then began removing items out of the bag. She recalled there being a knife, a studded glove, some other sharp object, gaffer tape or black duct tape and handcuffs that were taken out of the bag. [36]
[36] Transcript 77.
“Rodney” then placed the black leather glove on to his hand and began pacing around the lounge room where he was “sort of swinging that arm, not necessarily punching the air but maybe warming up”.[37]
[37] Transcript 78.
“Rodney” then walked over to where she was sitting, on the couch, and stood in front of her. He pulled his arm back and was lining up the punch with her face.
“Rodney” then swung his arm with “extreme force and punched her in the middle of her face.” She recalled the glove coming towards her and that it hit her “between the eyes, like, the nose, and cracked my bone, I heard it crack”.[38]
[38] Transcript 79.
She said she was punched “close to 20 times” whilst inside the house.[39]
[39] Transcript 79.
She was then hit again and when she moaned, “Rodney” told her “to shut up or he’d kill her”.[40] She was then punched again with the glove, but because she moved her head to block the punches the blows landed on the side of her head.[41]
[40] Transcript 79.
[41] Transcript 79.
At some time during the attack, when “Rodney” had his back turned and was around the dining table, she took the opportunity to escape. She ran from the lounge towards the front window, and launched herself through the window.[42]
[42] Transcript 79.
Prior to going out the window, “Rodney” had said to her, “you’re going to pay for this. You got my girlfriend raped; now I am going to rape you”.[43] He also said, “we have a whole night ahead of us” and, “you have one phone call to get 10 grand, I suggest you make it wisely”.[44] At the time she did not know what “Rodney” meant when he referred to his “girlfriend being raped.” She thought the reference to a phone call to get $10,000, related to an event where Remo had won $10,000 cash at the Sussex Hotel, which was later stolen. She had been accused of stealing it as she was the only person with a key to the house.[45]
[43] Transcript 80.
[44] Transcript 80.
[45] Transcript 82. I observe that no evidence was elicited from Remo Marcoionni on this topic.
During this time she did not understand what “Rodney” wanted from her. She offered her car keys to Rodney for him to take but he said, “that is not your car, that is a hire car. You’re going to give me a hire car, then report it stolen, you fucking dog”.[46] She said “Rodney” then punched her again in the head.
[46] Transcript 88.
Once Ms Curran had jumped through the window, she landed on the cement path on the other side of the wall of the house.[47] As Ms Curan went through the window, her hands and head broke some of the window glass, and her ankle connected with the broken glass and cut her foot “completely open”.[48] She could not really get up or run anywhere at the time.
[47] Transcript 82.
[48] Transcript 82.
“Rodney” then came outside and tried to stop her getting away and they had a “scuffle”. He was grabbing over her body; over her long hair, her legs and around her waist. She was hit on her head again whilst she was outside.[49]
[49] Transcript 84.
Ms Curran had long hair extensions at the time and her extensions and her natural hair was pulled out by “Rodney”. It is clear from the photographs that some of her natural hair and hair extensions were pulled out while she was both inside and outside the house.
“Rodney” eventually placed Ms Curran’s head into a “headlock” and forced her back inside the house.[50]
[50] Transcript 84.
Ms Curran was inside the house lying on the floor, when “Rodney” said to Ashleigh, “I should finish her off now, she is a liability”.[51] “Rodney” then placed the items that they had brought into the house back into the bag or case.
[51] Transcript 86.
“Rodney” then said to Remo, “don’t let her leave, or call an ambulance for 20 minutes”.[52]
[52] Transcript 86.
“Rodney” then came over to Ms Curan and threatened her not to go to the police or “he’d fucken kill her or he’d make sure someone did.” He then hit her again with the glove, in the head, a couple of times,[53] before he and Ashleigh left the premises.
[53] Transcript 87.
Ms Curran estimated that the assault lasted for approximately 45 minutes.[54] She stated that during the assault, neither Ashleigh nor Remo, made a sound or said a word. She said, “it was like they were statues, or something”.[55]
[54] Transcript 95.
[55] Transcript 95.
Ms Curran was still lying in the front door of the lounge room when she decided to get up to seek urgent medical attention. She tried to get out of the front door to escape but Remo blocked his hands over the front door. She said he was trying to stop her leaving.[56] She then made her way to the back door, but Remo again prevented her from leaving.[57]
[56] Transcript 96.
[57] Transcript 96.
She said after a few minutes, Remo allowed her to leave. She got to the front door with the goal of seeking help. She picked up her handbag and went out the front steps of the driveway.[58] She started moving up the driveway, towards her neighbour’s house. Ms Curran said Remo was beside her and she was “leaning on him, hobbling and dragging my right leg along with me and he was steering me away from the next-door neighbour’s house”.[59]
[58] Transcript 97.
[59] Transcript 97.
Ms Curran said she continued along the footpath searching for any house with a light on. She said Remo stopped her and said he would drive her to the hospital. Remo then left her side with the car keys and she continued searching for a house with a light on.[60]
[60] Transcript 98.
She eventually made it to a house with a light on. She banged on the fly-screen and yelled: “help, help, please help me, help”.[61] An elderly woman, Dr Edith Harisun, came to the door and Ms Curran threw herself inside. She pleaded with the elderly lady to turn the lights off and lock the door as “they were coming to kill her”.[62]
[61] Transcript 98.
[62] Transcript 176-179.
Ms Curran said the elderly lady called an ambulance[63] and Ms Curran was then taken to the hospital once the ambulance arrived.[64]
[63] Transcript 98.
[64] Transcript 99.
Ms Curran was asked about the appearance of the man “Rodney” on 14 December 2012. She stated it was the same man she had met a few weeks prior on the night of the Stereosonic concert.[65] She described him as “the same tall man, with a bald head, big, muscly, like fit-looking, tanned skin”.[66] She confirmed he had a little facial growth underneath his bottom lip.[67] She described his demeanour as aggro or out of control, and he just appeared “in a rage”.[68]
[65] Transcript 93.
[66] Transcript 93.
[67] Transcript 93.
[68] Transcript 94.
Ms Curran participated in a photographic identification procedure on 10 April 2013, almost four months after the incident.[69] The photographic array used in the identification procedure with Ms Curran was tendered.[70] A compact disc containing the recording of the identification procedure was also tendered.[71]
[69] Transcript 101.
[70] Exhibit P3.
[71] Exhibit P4.
The recording of the procedure was played to her in evidence and it showed Ms Curran carefully studying the array and eventually saying to the officer: “they don’t look like him to me”. Ms Curran was unable to identify the accused, or the man who she knew as “Rodney” within that array.
I have examined Exhibit P3 and note that Ms Curran was shown an array of bald males, with “goatee beards”. However, she did not mention, in any of her statements, the presence of facial hair, or a goatee beard on her attacker. Therefore, in my mind, it is unsurprising that she was unable to identify her attacker from within that array when she was presented with a series of males who were not consistent in appearance with her memory of the man who attacked her. Further, I have regard to the obvious deficiencies associated with attempting to identify someone from photographs.
A black metal studded glove was tendered,[72] which Ms Curran said “looked like” the glove that the man was wearing on the night of the assault.[73]
[72] Exhibit P5.
[73] Transcript 103.

A photograph of Rodney Clavell taken after his arrest was tendered[74]. Ms Curran said the build of the accused in the photograph, and the tattoos on the accused’s left arm, were the same as the man who assaulted her.[75]
[74] Exhibit P6.
[75] Transcript 104.
At 2.59 am on 15 December 2012, Ms Curran had her first visit from the police when she was in hospital in relation to the assault. On that occasion, she told the police she did not know who assaulted her, or what the person looked like.[76]
[76] Agreed Fact 10 in Exhibit P13.
On 18 December 2012, while she was still in hospital, Ms Curran was visited again by police. However, she was now able to describe what happened to her that night and identified her attacker as “Rodney Clavell”.
Ms Curran explained that the reason she did not provide the police with details regarding her assault on the first occasion was because she was “scared for her life” and that she had been threatened that if she went to the police she would be killed.[77] She could not give a reason for her “change of heart” in co-operating with the authorities.
[77] Transcript 124-126.
Ms Curran said she googled the name “Rodney Clavell” after the assault occurred. She could not specify a date, or a time period, when she performed these “internet searches”[78] and accepted that she viewed images of the accused while searching the internet.[79]
[78] Transcript 135.
[79] Transcript 136.
Ms Curran could have performed these “goggle searches” anytime after the assault occurred in December 2012, right up until the trial in February 2014.
A series of propositions were put to Ms Curran in cross examination. She disagreed with the suggestion that Ashleigh was not present on the night she was assaulted.[80] She also disagreed with the proposition that it was a man that she had a prior relationship with and not “Rodney”, who had assaulted her that night.[81]
[80] Transcript 168.
[81] Transcript 168.
Ms Curran was questioned about precisely when she learnt “Rodney’s” surname. She said that after the introduction, on the night of Stereosonic concert, she had learnt of his surname from other sources. The man, whom she was introduced to that night, had not told her his surname.[82] Ms Curran claimed she has a memory of being introduced to “Rodney”. She said she did not know why, in one of her police statements, she said she “assumed” that she would have been introduced to “Rodney”.[83]
[82] Transcript 171.
[83] Transcript 172.
Remo Marcoionni
Remo Marcoionni is the only other eye witness to the assault called by the prosecution. His evidence stood in stark contrast to that of Ms Curran in a number of ways but particularly in terms of the description of Ms Curran’s attacker.
Ms Curran was living with Mr Marcoionni at his house at 56 Birkinshaw Avenue at the beginning of December 2012.[84]
[84] Transcript 181.
Mr Marcoionni said a number of people would frequently attend at this house, some of whom neither he, nor Ms Curran, would know.[85]
[85] Transcript 182.
He was at home on the night of the Stereosonic concert when Ms Curran left for the concert. He later went out that night, at around 10:30 pm and returned home around 2 am or 3 am.[86] There was no one inside his house when he returned.
[86] Transcript 183.
On 14 December 2012 Mr Marcoionni had been at work during the day and arrived home at about 6.30 pm or 7.30 pm.[87] He had some dinner and went to sleep around 9.30 or 10 pm.
[87] Transcript 183.
He said Ms Curran had moved out of the house about five days prior to this night.[88] Only a few of her belongings remained at the house including the dining room furniture.
[88] Transcript 183.
At around 10.30 pm, Ms Curran came into Mr Marcoionni’s bedroom and asked him to find her television remote control for her. He said he just ignored her, but she asked him a few more times and yelled at him: “please, can you help me find the remote,” so he got out of bed and helped her look for it.[89] He did not remember Ms Curran telephoning him that night and saying she was coming over to get the remote.[90] When he got up and walked into the lounge room he did not see Ms Curran inside the house.
[89] Transcript 184.
[90] Transcript 184.
Ms Curran then walked into the house from the front door with a man.[91] Mr Marcoionni said he had never seen this man before.[92] He did not know whether the man was carrying anything when he entered the house.[93]
[91] Transcript 184-185.
[92] Transcript 185.
[93] Transcript 196.
He said he did not know a man named “Rodney Clavell”.[94]
[94] Transcript 197.
He said the man told him and Ms Curran to sit down on the couch.[95] He sat on the middle of the couch and Ms Curran sat to his left.
[95] Transcript 186.
Mr Marcoionni stated the man was probably “average height”,[96] solid build[97] and was wearing jeans and a black t-shirt.[98] His skin was light and he had a tattoo on his left arm “from the shirt down”.[99]
[96] Transcript 186.
[97] Transcript 186.
[98] Transcript 187.
[99] Transcript 187.
He described the tattoo as going down to the elbow of the man, like an “arrow in shape”.[100] He thought the tattoo was on his left arm. He did not notice any other tattoos on the man.[101]
[100] Transcript 187.
[101] Transcript 188.
Mr Marcoionni sketched a diagram of the man’s tattoo on 15 December 2012 for the police.[102] This sketch depicted a distinctive “v-shape” and he said the colours on the man’s tattoo were red, green and red.[103]
[102] Exbibit P8.
[103] Transcript 188.
He said the man did not have a goatee beard[104] and was wearing a “dark colour” baseball cap on.[105]
[104] Transcript 189.
[105] Transcript 190.
When Mr Marcoionni was sitting on the couch with Ms Curran, he said the man was talking to her. He recalled the “‘gist” of the words spoken, and that she was “in trouble”.[106]
[106] Transcript 190.
He did not know if Ms Curran knew this man.[107] He said there were no names being used.
[107] Transcript 190.
Mr Marcoionni said he knew a girl called Ashleigh, but he did not know if her surname was Lewis. He did not know if she was a friend of Ms Curran’s.[108] He said there was no one else apart from himself, Ms Curran and the man present in the house that night.[109]
[108] Transcript 190.
[109] Transcript 191.
Mr Marcoionni said the man hit Ms Curran on the side of her face, five or six times while she was sitting on the couch.[110] He was sitting next to her at the time.
[110] Transcript 191.
He said the man was wearing a black glove when he punched Ms Curran to the side of her face.[111] He said the glove was black with “silver squares on it, on the back of it”.[112] He said he felt “shocked and traumatised” when Ms Curran was being assaulted.[113]
[111] Transcript 192.
[112] Transcript 192.
[113] Transcript 194.
When Exhibit P5 was produced to Mr Marcoionni he emphatically said “no” when he was presented with the glove. He was not prepared to accept this was the same glove he had observed the man using on the night.[114] The prosecution submitted that this is very telling and demonstrated that Mr Maroionni should not be accepted as a witness of truth on important matters, as the glove was so obviously worn by whoever attacked Ms Curran, as the DNA evidence later revealed.
[114] Transcript 193.
Mr Marcoionnio said that after Ms Curran had been given a few “whacks”, the male had told her the only way for her to get out of there was through the window.[115]
[115] Transcript 184.
The male then walked away and Ms Curran got up from the sofa, kicked the window and went through it.[116] The male attempted to stop Ms Curran, but she went through the window and ended up outside. He said the male also went through the window and ended up outside. He could not say whether the male injured himself.[117]
[116] Transcript 184.
[117] Transcript 193.
Mr Marcoionni said he then went outside the house. He said while the male was outside, he “whacked” Ms Curran a lot more times.[118] He said he tried to help Ms Curran and yelled out “stop, stop, stop”.[119]
[118] Transcript 194.
[119] Transcript 194.
He said the man then dragged Ms Curran inside and told them to wait two or three minutes until he left.[120] The male said to them, “if you ring up the cops, you’re dogs”[121] before leaving.
[120] Transcript 192.
[121] Transcript 195.
After the assailant left, Ms Curran was lying on the floor. He said he and Ms Curran then walked out of the house trying to find her car. He said he intended to take her to the ambulance up the road, but went to the wrong corner of the house, where the car was parked. He then went around the other side of the house to get the car, and by the time he had driven around the block, the ambulance had arrived to attend to Ms Curran.[122]
[122] Transcript 195.
Mr Marcoionni said he then drove to his cousin’s house for help. His cousin’s ex-partner and her son came back with him to the house to clean up “all the blood and mess”,[123] during when the police arrived.
[123] Transcript 196.
Mr Clavell’s’ Arrest/The Armoured Glove
Mr Clavell was arrested by police officers on 26 December 2012 at an address at Kidman Park. The house was the residence of Raquel Fraser.[124] A search of the house located a nappy box in the second lounge room which contained the armoured glove (Exhibit P5) covered by some clothing.[125] Other weapons, including a double-edged dagger, a home-made stabber and a firearm, as well as a number of shotgun shells, were also located at the house. There is no suggestion that any of these items had any connection to Mr Clavell.
[124] Transcript 256.
[125] Transcript 255-256.
Apart from the home-made stabber, which possibly matches Ms Curran’s description of a sharp object or a knife which she says were removed from the bag[126] “Rodney” brought to the Tranmere address on the night she was assaulted (although Ms Curran was never shown any of those items), none of the other items Ms Curran mentioned as being removed from that bag were ever located by the police. They certainly were not with the armoured glove in the nappy box at the Kidman Park house.
[126] Defence counsel called the bag a “torture kit”, an apt description in my view.
It is an agreed fact that Ashleigh Lewis and Mr Clavell were in a relationship during the period encompassing the Stereosonic concert until after Mr Clavell’s arrest, whereby they referred to one another as “boyfriend” and “girlfriend”.
These matters are on the prosecution case items of circumstantial evidence linking Mr Clavell first, to the armoured glove and secondly, with Ms Lewis, who Ms Curran said was in a relationship with Mr Clavell at the time of her assault.
DNA Evidence
Mark Webster, a forensic scientist employed by Forensic Science SA, gave evidence of DNA profiling obtained from samples taken from the metal studded or armoured glove.
Five samples taken from the glove were analysed for the presence of DNA. DNA profiles were obtained from each sample and compared to the DNA profiles obtained from the reference samples taken from Mr Clavell and Ms Curran respectively.
Each sample taken from the glove contained a mixture of DNA profiles of between two and up to six different contributors.[127]
[127] Sample A was a swab of a blood like stain taken from a metal plate between the ring finger and little finger knuckles and contained a mixture of two contributors; Sample B was a tape lift taken from the inner surface of the wrist and contained a mixture of four contributors; Sample C was a swab of a bloodlike stain taken from the metal wrist plate on the outside of the wrist on the thumb side and contained a mixture of three contributors; Sample D was a swab taken from a bloodlike stain on the wrist plate on the exterior palm side and contained a mixture of three contributors and Sample E was a swab taken from the entire plate on the outside across the knuckles and contained a mixture of up to six contributors.
Mr Clavell’s DNA was located in the mixed DNA profiles found at samples B (32 billion times more likely if he was the contributor of the major component of the mixed DNA),[128] C (51 million times more likely if he was one of the contributors)[129] and D (1.5 billion times more likely if he was one of the contributors).[130]
[128] Transcript 227-228.
[129] Transcript 233-234.
[130] Transcript 234.
Ms Curran’s DNA was located in the mixed profiles found at samples A (four times more likely if she was one of the two contributors),[131] B (12 times more likely if she was one of the contributors),[132] C (100 billion times more likely if she was one of the contributors)[133] and D (1.6 billion times more likely if she was one of the contributors).[134]
[131] Transcript 221.
[132] Transcript 231-232.
[133] Transcript 234.
[134] Transcript 234.
Sample E contained a mixed DNA profile that was too complex to determine the number of contributors or the likelihood of it being another unknown contributor from either Mr Clavell or Ms Curran. Mr Webster was of the opinion that there were probably five or more contributors to the mixed DNA found at that location on the glove.[135]
[135] Transcript 234-235.
The evidence of Mark Webster reveals that the glove was handled or worn by persons other than Mr Clavell. Whist Mr Clavell is not excluded as a person who handled or even wore the glove the evidence cannot link him exclusively to it.
Whilst the DNA evidence is an important part of the prosecution case, it does not carry the same degree of weight if the DNA profiles were only that of Ms Curran and Mr Clavell.
Mr Webster also fairly conceded the possibility that the mixture of DNA profiles, which included the DNA of Mr Clavell, could have been deposited upon the glove by way of contact or secondary transfer. Mr Webster accepted that he could not determine how many persons may have touched or worn the glove, or how the DNA was deposited or transferred to the glove. It seems from the evidence that this will always be a possibility, absent the DNA being derived from a bodily fluid such as blood, semen or the like. Having said that, I have not ignored that I must view the DNA evidence implicating Mr Clavell in combination with the other circumstantial evidence, including the finding of the glove at a house where he was arrested, his relationship with Ashleigh Lewis, Ms Curran being introduced to “ my boyfriend Rodney” by Ms Lewis and indeed Ms Curran’s own evidence that he was her assailant.
The Harm Caused
The assault upon Ms Curran was particularly nasty, involving the use of a armoured glove[136] to inflict a number of blows to her face, which in turn caused significant injuries. She required hospitalisation for 10 days or so to treat the injuries she sustained.[137]
[136] Exhibit P5.
[137] Transcript 101.
A booklet of photographs taken on 16 December 2012, whilst Ms Curran was in hospital and depicting the injuries sustained by her, was tendered.[138]
[138] Exhibit P2.
Following the attack upon her, Ms Curran was conveyed to the Royal Adelaide Hospital by ambulance.
The medical evidence[139] discloses that upon examination she was observed to have a very swollen face with bilateral peri-orbtal swelling and bruising, such that she was unable to open her left eye. There was a laceration to her right posterior occiput. Ms Curran complained of some numbness to the right side of her face. She also had a deep laceration to her right ankle.
[139] Witness statements of Dr Marcus Pyragius dated 5 June 2013 (Exhibit P11) and Dr Joshua Yee dated 19 September 2013 (Exhibit P12).
CT scans revealed a number of facial fractures: a right inferior orbital wall fracture with significant displacement; a comminuted fracture of the right zygomatic arch and comminuted fractures of the bilateral nasal bones.
All facial fractures required corrective surgery and sutures were used to close the surgical wounds and the laceration to the right posterior occiput.
Following surgery, Ms Curran required considerable social work assistance relating to her psychological recovery from the trauma of the assault.
On review at Outpatients on 14 January 2013 it was noted that the numbness in her right infraorbital nerve was improving and that she still had mild diplopia on upward gaze.
By 15 April 2013 she was observed by the plastic surgeon to have no visual symptoms, which is consistent with my own observations of her in the photographic identification procedure on 10 April 2013, which was recorded and played to the court.[140]
[140] Exhibit P4.
The deep laceration to her right ankle, which was caused as Ms Curran went through the front window of the house in which she was attacked in order to flee her attacker, had damaged the tibialis posterior tendon required debriding of glass fragments followed by surgical repair.
Absence of witnesses
Ashleigh Lewis was not called by the prosecution to give evidence. Detective Sergeant Quinn, the investigating officer, gave evidence that Ms Lewis would not provide a statement.[141] I have not speculated as to why she has chosen not to do so, or what she might have said if she was called to give evidence. Having said that, her absence as a material witness in this case has resulted in a lack of evidence on important matters, relating to the introduction of “Rodney” to Ms Curran as Ms Curran claimed occurred on the night of the Stereosonic concert, and whether or not Ms Lewis was present and in the company of the assailant during the assault on Ms Curran, depending on who of Ms Curran or Mr Marcoionni is to be accepted is telling the truth about that.
[141] Transcript 8 -10.
Furthermore, a number of other witnesses were not called either. They being the persons Paul Ravesi, Anastasia, Jason and Steven, who along with Ashley Lewis and Remo Marcoionni, were all at 56 Birkinshaw Avenue, Tranmere the night that Ms Curran said she was introduced to “Rodney”. Again, Detective Sergeant Quinn gave evidence that he contacted these persons, all of whom indicated that they would not provide a statement or attend court to give evidence. As with the absence of Ms Lewis, I have not speculated as to the reason for their absence from this trial, nor what they might have said. However, it does leave the prosecution case entirely dependent upon the evidence of Ms Curran relating to the important issue of the identity of “Rodney”, especially given Ms Curran’s evidence that he appeared known to some of the persons in the house.
Rodney Clavell does not give or call evidence
Mr Clavell elected not to give or call any evidence, as is his legal right. I have not drawn any inference against him or the submissions he has made to me on this account. At all times, it is the prosecution who bears the onus of proving the charges brought against him and to do so beyond reasonable doubt. The failure of an accused in giving or calling evidence can never strengthen the prosecution case against him or her.
Analysis of the evidence/legal directions
I have directed myself as to the elements of each offence.
There is no doubt in my mind that whoever inflicted the beating upon Ms Curran did so with the specific intention of causing her serious harm in the sense that she suffered serious disfigurement as a result. Although her disfigurement was not permanent, this is not necessary to establish this element of the offence.[142] I have considered the medical evidence and viewed the photographs of the injuries suffered by Ms Curran, which clearly prove she suffered serious disfigurement to her face. The defence have not contended otherwise.
[142] R v Wilkinson (2008) 101 SASR 21 per Gray J at [18].
Based on the DNA evidence I am satisfied beyond reasonable doubt that the armoured glove produced in evidence was worn by the assailant when assaulting Ms Curran.
The sole issue in this case relates to the identity of Ms Curran’s assailant.
The prosecution case against Mr Clavell is based upon a purported recognition of her assailant by Ms Curran, who claims to have met Mr Clavell on an earlier occasion, a fortnight before she was assaulted.
I remind myself of the dangers inherent in relying upon Ms Curran’s evidence that she recognised “Rodney” having only met him once, some two weeks prior. Experience reveals that humans are prone to make mistakes even of someone they know quite well such as close friends and even relatives.[143] In this case, I must be very careful in accepting as reliable Ms Curran’s purported recognition of Mr Clavell as her assailant. Evidence of this kind can be particularly seductive, especially when given by a witness who appears honest and convincing.
[143] R v Boardman [1969] VR 151; R v Turnbull [1977] QB 224; R v Brotherton (1992) 29 NSWLR 95.

As Mason J stated in Alexander v R:[144]
Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestion, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.
[144] (1981) 145 CLR 395 at 426.
I accept these remarks were made in the context of identification, but I consider on the facts of this case, they apply equally to Ms Curran’s claimed recognition of her assailant. This is not a case in which Ms Curran was very familiar with the accused or there was an extended opportunity for observing him, such that there is little likelihood that the difficulties inherent in the identification process would lead to misrecognition. In this case, I must have regard to the following:
a.The degree of familiarity of Ms Curran and the accused.
b.The circumstances in which the accused was previously seen by Ms Curran on the occasion she claimed she was introduced to him.
c.The circumstances in which the accused is alleged to have been observed by Ms Curran at the time of her attack.
As such, I consider it appropriate to consider these dangers so as to avoid a perceptible risk of a miscarriage of justice by failing to have regard to the possibility of Ms Curran misrecognising her assailant.[145]
[145] R v Lovett [2006] VSCA 5; Sindoni v R (2011) 211 A Crim R 187.
The prosecution also relies upon circumstantial evidence said to prove the identity of the assailant as Mr Clavell. Before Mr Clavell can be convicted on this evidence, his guilt must be the only rational inference which can be drawn from the circumstantial evidence.[146]
[146] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82.
When a case against an accused person rests wholly or substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused.[147] If an inference or hypothesis consistent with innocence is open on the evidence, an accused person must be given the benefit of the doubt necessarily created by those circumstances.[148]
[147] Barca v R (1975) 133 CLR 82; Doney v R (1990) 171 CLR 207; Chamberlain v R [No2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619.
[148] Knight v R (1992) 175 CLR 495.
If there is a reasonable explanation for the circumstances which is consistent with innocence, then Mr Clavell must be found not guilty.[149] This is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence.[150]
[149] Knight v R (1992) 175 CLR 495; Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Plomp v R (1963) 110 CLR 234; Thomas v R (1960) 102 CLR 584; Peacock v R (1911) 13 CLR 619.
[150] Shepherd v R (1990) 170 CLR 573; Doney v R (1990) 171 CLR 207.
Even if there is only one circumstance inconsistent with a conclusion of guilt, that may be sufficient to destroy the hypothesis of guilt, depending on the nature of that individual circumstance.[151]
[151] Peacock v R (1911) 13 CLR 619; R v Taouk (2005) 154 A Crim R 69.
Where the evidence raises a reasonable possibility that the circumstances point to someone other than Mr Clavell being the assailant, then that possibility must be excluded by the prosecution beyond reasonable doubt.
In determining whether an inference is reasonable, I am to consider the evidence as a whole.
A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference.[152] I am not required to analyse each circumstance individually, none of which by itself would support an inference of guilt.[153]
[152] Shepherd v R (1990) 170 CLR 573; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Hillier (2007) 228 CLR 618.
[153] R v Van Beelan (1973) 4 SASR 353.
While guilt must be established beyond reasonable doubt, the individual primary facts used to establish guilt need not themselves each be proved beyond reasonable doubt.[154]
[154] Shepherd v R (1990) 170 CLR 573 at 575 and 585.
I do not have to reject one circumstance because, considered alone, no reasonable inference of guilt can be drawn from it. I must consider the weight which is to be given to the united force of all the circumstances put together. One piece of evidence may resolve a doubt about another.[155]
[155] R v Hillier (2007) 228 CLR 618; Shepherd v R (1990) 170 CLR 573; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Van Beelan ( 1973) 4 SASR 353.
It is not for the defence, either to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts that would tend to support such an inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation then an accused is entitled to be acquitted.[156]
[156] Barca v R (1975) 133 CLR 82.
Prosecutor critical of own witness
The prosecution, having called Mr Marcoionni as a material witness and presumably someone who was to give truthful evidence, later submitted to me during its closing address, that I should reject important and key aspects of his evidence because it differed from the evidence given by Ms Curran on those topics.
It is well established that a party who calls a witness cannot later (without the permission of the court upon a finding that the witness is adverse to the party calling him or her) impeach that witness’ credit.[157] The witness must be unwilling to tell the truth for the advancement of justice and not merely be unfavourable.[158]
[157] Holdsworth v Mayor of Dartmouth (1838) 174 ER 246.
[158] Greenough v Eccles (1859) 141 ER 315; R v Hayden & Slattery [1959] VR 102; R v Lawless [1974] VR 398; R v Jacquier (1979) 20 SASR 543; R v Hutchison (1990) 53 SASR 587; Adam v R (2001) 207 CLR 96.
Whilst it is permissible for a prosecutor to make submissions and advance reasons for the suggested preference,[159] one must have regard to the submissions being advanced that are said to impeach the evidence of a prosecution witness. Furthermore, an attack should generally be restricted to peripheral matters and not such significant differences as has arisen in this case.
[159] There is no rule prohibiting a prosecutor from submitting that a court might disbelieve portions of the evidence which are not consistent with the guilt of an accused: R v Colquhoun [2009] SASC 138; R v Macfie (No 2) (2004) 11 VR 215; R v Mark [2006] VSCA 251; R v Gonclaves (1997) 99 A Crim R 193.
There exists a right for any party to apply to the court to impeach the credit of its own witness. In this case, the prosecutor made no application to have Mr Marcoionni declared a hostile witness pursuant to s 27 of the Evidence Act 1929.
As I queried of the prosecutor, both after the evidence of Mr Marcoionni was completed and during his closing address, one wondered why, given the heavy criticism of Mr Marcoionni’s evidence made by the prosecutor, that Mr Marcoionni was even called at all by the prosecution.[160]
[160] The duty of a prosecutor as to whether or not to call a witness are well established: see Richardson v R (1974) 131 CLR 116; Whitehorn v R (1983) 125 CLR 657; R v Apostolides (1984) 154 CLR 563; Dyers v R (2002) 210 CLR 285.
The prosecution invited me to reject Mr Marcoionni’s evidence wherever it conflicted with that of Ms Curran. I am not prepared to do so. As I have already observed, there are some situations where it will be perfectly proper and indeed necessary, for a prosecutor to invite the court to disregard one of its own witnesses. However, this is not one of those situations.
In R v MRW[161] the Court of Criminal Appeal in NSW referred to the responsibility of the prosecutor not to disregard evidence not, upon proper enquiry, unreliable or to take a course designed to avoid putting an appropriate challenge to adverse evidence when it is elicited.[162]
[161] (1999) 113 A Crim R 308. See also R v Kneebone (1999) 47 NSWLR 450; R v Kennedy (2000) 118 A Crim R 34; R v Teasdale [2004] NSWCCA 91; R v Macfie (No 2) (2004) 11 VR 215.
[162] R v MRW op cit at [48] per James J.
Whilst I permitted the prosecutor to make submissions on the issue, I indicate that I would not have permitted him to address a jury to disregard the evidence of Mr Marcoionni, such was the extent to which he was attacking the credibility of his own witness.
In the absence of other compelling evidence I can see no reason why I should be satisfied beyond reasonable doubt that Ms Curran is telling me the truth over Mr Marcoionni.
Whilst I am satisfied that the glove (Exhibit P5) was the same glove Ms Curran said was used by her assailant,[163] this finding does not mean that Mr Marcoionni’s emphatic denial that P5 was not the glove worn by Ms Curran’s attacker should result in me disbelieving the entirety of his evidence. Mr Marcoionni was clearly a reticent witness. He required very careful and tight examination to elicit his evidence, which he, nonetheless, gave.
[163] See [126].
I can well understand the fear and reluctance of any witness in Mr Marcoionni’s situation. He was sitting next to and witnessed Ms Curran being savagely assaulted. Ms Curran’s assailant was obviously a callous, intimidating and extremely violent individual. He had no hesitation in torturing and inflicting serious harm upon a meek and defenceless young woman. He is obviously a heartless thug, who feels it necessary to beat up on a woman to justify his own significance, relevance or to perpetuate an image of himself. His regard for others is demonstrably non-existent as evidenced by his inexcusable (and cowardly) actions on this occasion.
Mr Marcoionni’s description of the attacker differed from Mr Clavell’s appearance in a number of important ways. Mr Marcoionni described the attacker as wearing a baseball cap and clean shaven. He said the man had a distinctive tattoo on his right arm which was triangular in shape and went from the base of his sleeve of the T– shirt to the elbow. The tattoo was red and green in colour. This differs considerably from the tattoo depicted on Mr Clavell’s left arm in his arrest photograph. It also differs considerably from the swirled patterned muti-coloured tattoo on Mr Calvell’s right arm.
Importantly, Mr Marcoionni stated that apart from the man who attacked Ms Curran, there was no one else in his house at that time. He knew Asheigh Lewis and said that she was not present at the time. The prosecutor submitted that as Ms Harisun gave evidence that a very distressed Ms Curran stated that “they” were coming to kill her, that this was a reference to her assailant “Rodney” and Ms Lewis. He submitted that as this formed part of the res gestae it was not hearsay evidence. Be that as it may, Ms Curran had no reason to fear Ms Lewis nor, for that matter, Mr Marcoionni, and the threats made by her assailant were all in the first person. According to Ms Curran’s evidence, there was no mention by him, that apart from himself, anyone else would seek to harm her.
Based on the evidence of Mr Marcoionni there is the very real possibility, which the prosecution has not excluded, that the man who attacked Ms Curran was not the accused Rodney Clavell. In these circumstances, the identity of Mr Clavell has not been proven and the verdicts must be not guilty.
It was apparent to me that at times Ms Curran was reconstructing some of the events. This is not altogether surprising, given she was attempting to recollect events that occurred some 14 months ago of an attack upon her which must have been very frightening and traumatic. Her evidence contained many references to “what must have happened”, or “I’m guessing”,[164] or her “assuming”[165] things happened a certain way and that someone “would have said” something.[166] Whilst I am prepared to accept that this might just be the way she expresses herself, it does affect, in a general way, the reliability of her evidence such that I must approach it with a degree of caution. As defence counsel submitted, Ms Curran’s verbal ambiguity is a factor I could not ignore when determining her reliability.
[164] For example Transcript 57.
[165] For example Transcript 55.
[166] For example Transcript 64.
Additionally, there are a number of other matters which have the capacity of affecting the reliability of Ms Curran’s evidence, including her failure to make any mention at all to the police throughout her many dealings with them, that the man introduced to her as “Rodney” had a prominent tattoo on his left arm or that he had a small, triangular, facial growth beneath his lower lip, colloquially known as a “soul patch”.[167]
[167] Wikipedia.
Then there is the issue of her searching the internet for any information she could find on Rodney Clavell, including viewing images of him. She was unable to say when it was that she viewed these images in relation to when she spoke with the police, or indeed, from when she was asked to view a selection of photographs which included the photograph taken of Mr Clavell on the day of his arrest on 26 December 2012. This is a serious issue because of the possibility that her memory of the appearance of the man she was introduced to as “Rodney” and who later assaulted her, has been displaced by the images of Rodney Clavell which she viewed on the internet. She gave evidence that after being introduced to “Rodney” by Ashleigh Lewis that she was subsequently told by others that his surname was Clavell. There exists the distinct possibility that she has convinced herself that the man who assaulted her is Rodney Clavell.
When Mr Clavell was arrested he was photographed. The photograph was tendered as an exhibit.[168] It clearly depicts the “sleeve tattoo” on his left arm. He appears to be of muscular build and he has a prominent “goatee” beard. He does not have the “soul patch” described by Ms Curran as appearing on “Rodney’s” face.
[168] Exhibit P6.
This is another area of concern for me. Plainly, if Mr Clavell did not have a “soul patch” at the time of the assault, but rather the full thickness “goatee” he is seen wearing upon his arrest, then he cannot have been Ms Curran’s assailant, the person she said was introduced to her as “Rodney”.
In my mind, Ms Curran viewing images of the accused on the internet has undoubtedly affected her reliability in identifying her attacker as Mr Clavell. This, together with the evidence that she did not mention her attacker had any “facial hair” or a “strip of hair” below his lip, or that her attacker had tattoos or a “tattoo sleeve” cannot be ignored, although I accept that when considering this failure I must take into account that she was never asked by the police to provide a description of “Rodney”. It seems that Detective Sergeant Scott simply accepted what she said about knowing the man who had assaulted her.
I find it is reasonably possible that Ms Curran’s memory of her attacker has been displaced by the viewing of these images on the internet.[169]
[169] Alexander v R (1981) 145 CLR 395.
I am not satisfied that the prosecution has excluded as a reasonable possibility that Mr Clavell did not have a “goatee” beard at the time of Ms Curran’s assault. No evidence was adduced by the prosecution on this important topic. I am not prepared to conclude on the evidence presented to me that Mr Clavell shaved off a “soul patch” and replaced it with a full thickness “goatee” beard in the time between Ms Curran’s assault and the day of his arrest, a period of 12 days.
I reject the prosecution submission on this issue that Mr Clavell did so in order to alter his appearance. It would be illogical for a man, who the prosecution submit was introduced to Ms Curran and who she purportedly recognised, to do so. Further, the man who assaulted Ms Curran did so in an obvious brutal and merciless manner without any attempt to disguise his identity. Such a person would, in my view, not be the least concerned with having to alter his appearance in the event his victim decided to report him to the police.
Again, my finding in respect to this matter must result in Mr Clavell being not guilty of either charge.
The defence has submitted that there is uncertainty relating to the correctness of the identity of Ms Curran’s assailant as Mr Clavell, because when she was first spoken to by the police at the hospital she said she did not know who had attacked her. Ms Curran explained why she said this at that time, namely, because the man had threatened her life if she went to the police. I do not consider that this alone has any adverse impact on her reliability. She had just been subject to a most brutal and terrifying experience and her life threatened. It seems that, apart from defence counsel,[170] everyone else in Ms Curran’s position would have replied in exactly the same way when asked at that time to name her assailant.
[170] Defence counsel's reply in answer to a question from me on this topic. Transcript 318-320.
The defence have also pointed to the fact that when Ms Curran was asked if she could identify her attacker from a series of 12 photographs shown to her by Detective Quinn on 10 April 2013, she was unable to do so.[171] As I commented during the trial, this is hardly surprising given that the photographs (which included the arrest photograph of Mr Clavell taken on 26 December 2012) were of men with goatee beards, whereas Ms Curran described her assailant “Rodney”, as not having such a beard, but a “soul patch”. Nevertheless, as defence have submitted, this is still a factor to consider in relation to the accuracy or reliability of her recognition of her attacker as being the accused Rodney Clavell.
[171] See Exhibit P4.
An important submission made by the defence in relation to the photographic identification procedure was that at no time during it did Ms Curran say anything to Detective Sergeant Quinn as to why she was being shown photographs of 12 men with goatee beards, yet her attacker “Rodney” did not have a goatee beard. No evidence was elicited from her to explain this, so I must not speculate what she might have said in response, but it is surprising that she did not question Detective Sergeant Quinn about it.
The police should have elicited from Ms Curran a description of the man she said she was introduced to as “Rodney”. Had they done so they would have been told that he did not have a goatee beard but a soul patch. Plainly, the police were able to secure a photograph of Mr Clavell wearing a soul patch as the internet photographs demonstrate. Also, in light of the description given by Mr Marcoionni that Ms Curran’s attacker did not have a goatee beard, it is unclear why a photograph of Mr Curran wearing a goatee beard was used as part of the photographic identification procedure with Ms Curran. On either view, the photographic array assembled by the police was deficient in a material respect and has only served to frustrate rather than assist in the investigation into this serious crime perpetrated upon Ms Curran.
I make it plain that despite the many attempts to discredit Ms Curran by counsel for Mr Clavell that attack failed. As I kept reminding defence counsel during his cross-examination, many of his questions seemed irrelevant and I found it difficult to understand how they could possibly have affected the credibility of Ms Curran. I did not find the cross-examination particularly helpful in determining the issue in the trial, namely, Ms Curran’s ability to accurately and reliably identify her attacker.
The deficits in Ms Curran’s evidence principally related to her reliability as a witness in her purported recognition of Mr Clavell as being her assailant and the cross-examination should have been focused on that. As I remarked during the closing addresses of counsel, I found Ms Curran to generally be a credible witness, who was endeavoring as best she could to recall the events leading up to and surrounding the terrible beating she received. Her reliability as a witness is separate and distinct from her general credibility.

The prosecution has led the introduction by Ashleigh Lewis of “her boyfriend Rodney” to Ms Curran not to prove the fact that he was named “Rodney”, nor that he was Rodney Clavell, but rather, as a piece of circumstantial evidence which in combination with the other circumstantial evidence is said to prove the identity of “Rodney” as the accused.[172]
[172] R v Ryan (1984) 14 A Crim R 97; cf R v Benz (1989) 168 CLR 110; R v Carbone (1989) 50 SASR 495; Pollitt v R (1992) 174 CLR 558.
As Ms Curran only met the man “Rodney” on one previous occasion during which her interaction with him was limited, I again remind myself of the many deficiencies of human recollection in such circumstances, as exist here. It is not as though Ms Curran is purporting to recognise someone that she is very familiar or aquatinted with. In this regard, I consider that I must proceed with caution before being prepared to act upon her evidence to be satisfied beyond reasonable doubt of the identity of her assailant.
I must still analyse the circumstantial evidence to determine whether the combined force of the circumstances establishes whether Mr Clavell’s guilt has been proved beyond reasonable doubt, or put another way, that his guilt is the only rational inference to be drawn from the circumstantial evidence.[173]
[173] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Chamberlain v R [No2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619.
Conclusion
I have carefully considered Ms Curran’s evidence that she recognised the man who assaulted her as being the same man who was introduced to her by Ashleigh Lewis as being Ashleigh’s boyfriend, “Rodney”. In determining the reliability of her evidence that the two men were one and the same, namely Rodney Clavell, I have had regard to the circumstantial evidence led by the prosecution of the relationship between Rodney Clavell and Ashleigh Lewis, the finding of the armoured glove at the premises where Mr Clavell was arrested by the police 12 days after the assault and the DNA evidence relating to the glove.[174]
[174] R v White (2008) 102 SASR 35; R v Coxon (2004) SASR 6; Cf R v Turner (2000) 76 SASR 163.
Despite the evidence, I am left with a reasonable doubt whether Ms Curran’s assailant was Rodney Clavell.
Verdicts
I find Rodney Clavell not guilty of both counts on the Information.