R v Clough - [2019] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLOUGH
Criminal Trial by Judge Alone
[2019] SADC 125
Reasons for the Verdicts of His Honour Judge O'Sullivan
29 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Criminal trial by Judge alone.
The accused was charged with one count of Aggravated Serious Criminal Trespass in a Place of Residence, and one count of Aggravated Assault Causing Harm.
On 12 November 2019 at approximately 10:00am the accused, in company with two other men, entered and remained on the residential address of the Complainant and his mother, with the intention of assaulting the Complainant.
The accused, in company with the two other men, entered into the rear yard of the residence through an open gate, before proceeding to force open the laundry door. When the laundry door was forced open, the accused was the first person to enter the dwelling. The accused assaulted and caused harm to the Complainant, by striking him to the head using an offensive weapon, namely a wooden baton. The other two men then assaulted the Complainant by stomping on him, whilst he was on the laundry floor.
Verdicts: Guilty on all counts.
Criminal Law Consolidation Act 1935 ss 5, 5AA, 20(4) and 170(1); Juries Act 1927 s 7; Crimes Act 1958 (Vic) s 76(1), referred to.
R v Gardi [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v Western Australia (2008) 232 CLR 438; R v R, R & R, LJ [2008] SASC 35; R v Nemeth [2008] SADC 112; Barker v The Queen (1983) 153 CLR 338; Halliday v Nevill & Anor (1984) 57 ALR 331, considered.

R v CLOUGH
[2019] SADC 125
Overview

The accused is charged with two offences alleged to have been committed on 12 November 2017 at Elizabeth North.
In summary, Mr Adam Freeman (‘the complainant’), alleges that on that date at or about 10.00am the accused, in company with two other men, entered onto the property where he lived at 2 Chirton Street, Elizabeth North, (‘the Property’) as a trespasser with the intention of assaulting him and did so using a wooden baton.
There is no dispute the accused entered onto the Property on that day.
Charges
The two offences with which the accused is charged are as follows:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence (Section 170(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
David John Clough on the 12^th day of November 2017 at Elizabeth North, entered or remained in the place of residence of Adam Freeman as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and David John Clough knew of the other’s presence or was reckless about whether anyone was in the said place.
It is further alleged that David John Clough committed the offence in company with other people.
It is further alleged that David John Clough used or threatened to use an offensive weapon, namely a wooden baton, to commit or when committing the offence.
Second Count
Statement of Offence
Aggravated Assault Causing Harm (Section 20(4) of the Criminal Law Consolidation Act).
Particulars of Offence
David John Clough on the 12^th day of November 2017 at Elizabeth North, assaulted Adam Freeman and thereby caused him harm.
It is further alleged that David John Clough committed the offence in company with other people.
It is further alleged that David John Clough used or threatened to use an offensive weapon, namely a wooden baton, to commit or when committing the offence.
Trial by Judge Alone
By application dated 17 June 2019, the accused elected for trial by a judge sitting without a jury, pursuant to the provisions of s 7 of the Juries Act 1927. The application was not opposed and after being satisfied as to the reason for the late application, I extended the time within which the application could be filed to 18 June 2019 and granted the application.
In R v Gardi,[1] Lovell J observed that whilst the Juries Act is silent as to any requirement regarding the contents of the Reasons for Verdict, the requirement to provide adequate reasons is established in a number of authorities.[2]
[1] R v Gardi [2015] SASC 186, delivered 23 November 2015.
[2] See R v Keyte (2000) 78 SASR 68 [52]-[57]; Douglass v The Queen (2012) 86 ALJR 1086; and AK v Western Australia (2008) 232 CLR 438 per Heydon J.
General Legal Directions
In a trial heard by a judge sitting without a jury, it is not necessary for the Court to detail every obvious and basic direction of law which might be given to a jury.[3]
[3] R v R, R & R, LJ [2008] SASC 35, [42].
The general directions were conveniently summarised by Lovell J in R v Gardi and I remind myself of them:[4]
[4]    R v Gardi at [9]-[15].
1       As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find;
2       I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process;
3       Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will;
4       I must deliver my verdict according to the evidence;
5       The prosecution bears the onus of proving the guilt of the accused. The accused does not have to prove that he did not commit the offence as charged;
6       The standard of proof of the prosecution case is proof beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence satisfies me beyond reasonable doubt of guilt. Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or even that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient;
7       The accused is presumed by law to be innocent of the offence unless and until the evidence satisfies me that each and every element of the charge has been proved beyond reasonable doubt. If I am left with a reasonable doubt as to the establishment of any element of a charge, I must give the accused the benefit of that doubt and find him not guilty of the charge;
8       I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’ evidence and reject part of that evidence or accept or reject it all;
9       Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, then the accused remains presumed innocent and the appropriate verdict is not guilty; and
10    I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence.[5]
[5]    See R v Gardi at [9]-[15].
In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
Particular Directions
The complainant gave evidence about the critical events on the morning of 12 November 2017.
Intoxication
On his evidence the complainant had taken an ‘eight ball’ of methamphetamine (3.5g) at 6.00am on the day in question. The witness Kelly‑Anne Clough, gave evidence that she and the complainant had both smoked cannabis that morning. I will deal with this in more detail when I review both witness’ evidence, however I remind myself that the intoxication of a witness may affect the proper assessment of his or her reliability as a witness. In this case, the intoxication to which I refer is intoxication due to the ingestion of methamphetamine and/or cannabis.
It is a common experience that intoxication can have an adverse bearing on a person’s perception of relevant events. It is also common experience that intoxication can affect a person’s subsequent recall of relevant events. Since intoxication can affect or alter a person’s state of mind, the intoxication of any of the witnesses is relevant to my consideration of their evidence and to my assessment of their credibility and reliability.
Identity
In this matter, identity is an issue. I take account of the fact that there can often be problems with evidence of identification and care should be taken in assessing the reliability of identification. I recognise that honest witnesses can be mistaken making an identification and that a mistaken witness can be certain and believe in the identification that they have given.
Elements of the Offences
Aggravated Serious Criminal Trespass in a Place of Residence (s 170(1) Criminal Law Consolidation Act 1935)
The elements of aggravated serious criminal trespass in a place of residence are:
1The accused entered or remained in a place of residence;
2The entry was intentional;
3The entry was as a trespasser in that it was without the consent of the owner or occupier;
4The accused knew he did not have the consent of the owner or occupier or was recklessly indifferent as to consent; and
5The entry on to or remaining on the property was with the intent to commit an offence, in this case, an offence against the person.
The information alleges three aggravating factors:
(i)     The residents were at home and the accused knew of their presence;
(ii)   The offence was committed in company with others; and
(iii)     An offensive weapon was used, namely a wooden baton to commit or when committing the offence.
Aggravated Assault Causing Harm (s 20(4) Criminal Law Consolidation Act 1935)
The elements of this offence are:
1That the accused intentionally applied force to the complainant;
2The complainant did not consent to the assault; and
3The assault caused harm to the complainant.
The alleged aggravating features are:
(i) That the accused committed the offence in company with other people; and
(ii) The accused used or threatened to use an offensive weapon, namely a wooden baton to commit or when committing the offence.
The Prosecution Case
Aggravated Serious Criminal Trespass in a Place of Residence
The prosecution case on serious criminal trespass is that the accused, in company with two others, gained intentional entry to the dwelling located on the Property (‘the dwelling’) through the locked laundry door at the rear of the dwelling by forcing it open, without the consent of the residents to do so, and for the purpose of committing an offence against the person, that person being the complainant.
The prosecution initially put its case that the trespass occurred when the accused, and two others, forced open the laundry door and entered the laundry to the dwelling.[6]
[6] T295.8-12, T295.35-296.2.
That position evolved during the closing such that the prosecution submitted that at the point the accused first set foot on the Property holding the wooden baton, he had the intention to assault the complainant. Accordingly from that point in time there was a trespass. The prosecution also contended that in any event, by the time the laundry door was forced open, there could be no doubt about a trespass.[7]
[7] T299.21-35.
Aggravated Assault Causing Harm
As to the charge of aggravated assault causing harm, the prosecution case is that the accused intentionally applied force to the complainant by striking him with a wooden baton, without his consent, and that the assault caused harm to him.
Agreed Facts
The prosecution and defence agreed a number of facts which were reduced to writing and tendered as Exhibits P6 and P9 respectively. Those agreed facts are as follows:[8]
[8]    Exhibits P6 and P9.
Exhibit P6
Photographs
1.   On 17^th November 2017, Brevet Sergeant Field took 11 photographs of Adam Freeman showing the following:
a.Reddening to top of head
b.Swelling to rear of left hand
c.Scratches to left armpit area
Those photographs are contained in Exhibit P3.
2.   On 12^th November 2017 at 12.30pm, Brevet Sergeant Murphy took 26 photographs of the residence at 2 Chirton Street Elizabeth North. Those photographs are contained in P2.
000 Call
3.   On 12 November 2017 at 10.07am a call was made to South Australian Police 000 number. The caller was from a landline registered to Helen Freeman at 2 Chirton Street Elizabeth North.
2 Chirton Street Elizabeth North
4.   A swab was taken of a blood stain on the laundry floor at 2 Chirton Street Elizabeth North. The swab was given Exhibit No 18/A20562-1.
Search Warrant
5.   On 12^th November 2017 at 12.35pm a General Search Warrant was executed at 28 Sterling Court Smithfield Plains.
6.   When Police attended at 28 Sterling Court Smithfield Plains, the accused, David Clough answered the door.
7.   The accused, David Clough was arrested and charged with Aggravated Serious Criminal Trespass and Aggravated Assault.
8.   The following items were seized by police during the search warrant:
a.A ‘Hills’ CCTV unit
b.A mobile phone (lounge room)
c.A pair of boots (lounge room)
d.T-shirt and jeans (bedroom)
9.   The mobile phone was examined by the Electronic Crime Branch and a number of SMS were extracted. The following SMS were extracted from the phone.

Date
Time

(Local)
Direction From To Text

8/11/17 18:21 Outgoing 04*****155
I got raided today & arrested

You able to help me go fuck this prick up or not

8/11/17 18:29 Incoming 04*****155
Wtf everything ok bro how are you?

I’ll give you a call after work bro or tomorrow morning

8/11/17 18:31 Outgoing 04*****155 Kool I’ll wait for you to ring

8/11/17 22:12 Incoming 04*****155 We’ll sort it mate

12/11/17 8:34 Outgoing 04*****995 Yeah I’m out with 3 others trying to find this prick that got me raided that’s why I said catch up in the afternoon

12/11/17 9:00 Incoming 04*****155 I’m ready mate how long will you be

12/11/17 12:54 Incoming 04*****155 Everything ok bro
CCTV
10. The ‘Hills’ CCTV unit was analysed by SAPOL with the following results:
a.The Unit had four cameras recording. Camera 4 showed the carport area.
b.Footage from the CCTV Unit recorded on 12 November 2017 between 9.01am – 12.42pm was downloaded.
c.The time stamp on the CCTV Unit was verified as being accurate by cross-referencing with the timing of police arrival on the CCTV as against the time recorded by police.

Vehicle
11. As at 12 November 2017, a red Kia Sorrento Wagon S717 AOL was registered to David Clough.
DNA
12. Reference DNA samples were taken from the accused, David Clough and the complainant, Adam Freeman. Those samples were both sent to Forensic Science SA for analysis.
13. The following items seized from the Search Warrant executed at [sic] were sent to Forensic Science SA for analysis:
a.A pair of shoes from lounge
b.Jeans and T-shirt from bedroom
c.Wooden baton from bedroom.

14. The following items from the Freeman residence at 2 Chirton Street Elizabeth North were sent to Forensic Science SA for analysis:
a.Swab of blood-like stain on laundry floor.

Medical
15. On 12^th November 2017, Adam Freeman was taken by ambulance to Lyell McEwin Hospital and seen by Dr Hassan at 10.48am.
16. On examination of Adam Freeman, Dr Hassan noted the following:
a.Head – two small haematoma on occipital area with skin tear and no active bleeding
b.Chest was clear, tender at left lower thoracic back
c.Limbs – left hand – mild swelling at distal 4^th and 5^th metacarpal bone, tender on palpation

Exhibit P9
1. On 29^th November 2018, David Clough, the accused was sentenced in the District Court to a term of imprisonment as a result of pleading guilty to the following offences (offence date in brackets):
a.Traffic in a controlled drug – basic offence (16/6/18)
b.Unlawful possession (16/6/18)
c.Traffic in a controlled drug – basic offence (8/11/17 to 12/11/17)
d.Traffic in commercial quantity of controlled drug – basic offence (8/11/17 to 12/11/17)
e.Unlawful possession (12/11/17)

Facts not in Dispute

As the evidence in this matter unfolded, there are a number of facts which are not in dispute:
1Exhibit P2, a series of photographs, shows the property at 2 Chirton Street, Elizabeth North. The Property is on the corner of Chirton Street and Dilton Street. By reference to the top photograph on page 1 of Exhibit P2, Chirton Street is the street which runs across the bottom right hand corner of the photograph such that the light pole that can be seen in the photograph is on the Chirton Street frontage.
2That photograph also shows that on the Chirton Street frontage, there is a carport in which a white Magna sedan is parked. The front door to the dwelling is to the left of the rear of the white Magna sedan.
3Access to what is referred to as the rear yard of the dwelling is gained from the Chirton Street frontage through a gate in the fence which can be seen to the front and right of the white Magna sedan depicted in Exhibit P2, page 1 bottom photograph. The gate to the rear yard is open on that photograph.
4The external laundry door of the dwelling is situated in the rear yard. There are two external doors to the laundry, a screen door and a solid door. Internally there is a sliding door which leads from the laundry into the kitchen of the dwelling.
5In the bottom photograph on page 2 of Exhibit P2, the laundry screen door is seen to be open with the solid door opening inwards and open.
6The steps to the laundry are shown in the top photograph on page 5 to Exhibit P2. There are two steps, the first of which has a small black and silver object on it with an orange top, described as a pump. The third step is a relatively short step from the middle step into the laundry.
7On 12 November 2017, the accused arrived at the Property in his maroon coloured vehicle, parking on the Chirton Street frontage at about the same location as the light pole or the second of the two trees shown on the Chirton Street frontage.
Prosecution Witnesses
The prosecution called four witnesses:
1The complainant;
2The complainant’s mother, Helen Freeman;
3Dr Duncan Taylor from Forensic Science SA;
4Detective Brevet Sergeant Aaron O’Malley, the allocated investigating officer in relation to this matter.
Adam Freeman
The complainant is unable to read or write.[9]
[9] T39.4-6.
He is currently remanded in custody on a charge of rape[10] and was cross‑examined about his past criminal history. The defence tendered a bundle of apprehension reports and summons/informations[11] together with his antecedent report.[12] Those documents reveal a criminal history dating back to

December 1992. All of the offences were dealt with in the then Childrens Court or Magistrates Court respectively.
[10] T42.7-11.
[11] Exhibit D8.
[12] Exhibit D4.
During his evidence, the complainant was candid about his background. He was not a sophisticated witness and was able to remember some important details about the incident. He had little memory about matters other than the incident and I formed the view that he was being uncooperative in cross-examination, to the extent of being aggressive towards cross-examining counsel. Nevertheless, he admitted many matters put to him in cross-examination some of which he must have known could affect his credibility.

Clearly, the complainant is a person whose evidence I must consider carefully from the perspective of credibility.
Evidence
Kelly-Anne Clough (‘Ms Clough’) is the accused’s daughter and at the relevant time was in a relationship with the complainant. The complainant is no longer in a relationship with Ms Clough. The complainant has had a number of intervention orders taken out against him by both Ms Clough and his mother.[13]
[13] T40.17-41.18.
At the time of the alleged offences the complainant was a drug addict and a regular user of methamphetamine. He gave evidence that at 6.00am on 12 November 2017 he took an eight ball or 3.5g of methamphetamine. According to Mr Freeman, that was not a large dose for him at that time. He agreed it made him hyperactive but not angry.[14]
[14] T22.32-23.19, T28.10-32.
He gave evidence that he had been awake for three days at the time the alleged offences took place and told police he took methamphetamine to keep awake longer. As to his memory, he described himself as a junkie and that he remembered everything ‘from back then when I was on the gear’ by which he was referring to methamphetamine. He then qualified that answer to being able to remember ‘most things’.[15]
[15] T51.7-23.
He said that he was living at 2 Chirton Street, Elizabeth North in November 2017, together with his mother and Ms Clough, a fact about which there is no dispute. He said, and I accept, that he had met the accused a few times prior to 12 November 2017.
On the morning of 12 November 2017 at about 10.00am he was cleaning copper wire in the rear yard with Ms Clough and two other men, one named Shaun Moran and the other who went by the nickname of ‘Past’, also known as Patrick Smith. The complainant’s mother, Ms Helen Freeman, was also home. At or about that time the complainant saw the accused arrive in a ‘reddy’ coloured four-wheel drive. The complainant knew it was 10.00am when he saw the accused and two other men arrive because he was on a telephone call at the time and was looking at his mobile phone.[16] It was put to him in cross-examination that he had not mentioned anything about a telephone call in statements he had made to the police to which he replied he did not think about it.[17]
[16] T28.10-29.7.
[17] T29.3-19.
He said he saw the car arrive by looking through the gate in the fence to the rear yard which was open. He knew the car belonged to the accused. He saw the accused get out of the car with two other men whom he did not recognise.
It was suggested to him that these two men had arrived at the Property before the accused had arrived, a suggestion which he denied, asserting again that they arrived with the accused in the accused’s four-wheel drive. He confirmed he saw them get out of the vehicle, although he accepts that he never said that in any of his statements. He was able to give a general description of the two men to police.[18]
[18] T48.20-50.34.
He was taken to a statement he made to the police on 15 January 2018. He said he did not recall saying to the police that he did not know what clothing the two other men were wearing but said he now remembered. He said he was ‘off my head’ a lot at that time and that he used to buy a lot of gear off the accused but his memory has become better over time, which is why he told police he did not know what clothing the two other men were wearing when he gave a statement on 15 January 2018.[19]
[19] T85.25-86.20.
The complainant said in evidence that he owed the accused $1,000 for a drug debt which had been outstanding for a couple of weeks and that he was ‘scoring quite a bit through Dave’ but denied having a relationship with the accused other than buying drugs from him.[20]
[20] T32.16-27.
He said that he ran into the laundry when he saw the accused’s car arrive because he owed the accused money and he knew the accused was going to bash him. There had not been any conversation between him and the accused before 12 November 2017, it is just that he knew it was going to happen.
It was put to him in cross-examination that he said to an officer of the DPP on 19 December 2018 that he owed the accused $400 for drugs. He agreed with that proposition and said that he accused put interest on his drug debts.[21]
[21] T91.28-92.27.
It was also suggested to him that he did not have a drug debt to the accused but rather to the two other men who were already at the premises when the accused arrived. He denied that allegation vehemently on a number of occasions. I deal with the question of whether the complainant owed a drug debt to the accused later in these reasons.
I accept the complainant’s evidence and I am satisfied that at about 10.00am on 12 November 2017 he was in the rear yard of the Property when he saw the accused arrive in his ‘reddy’ coloured four-wheel drive and get out of the car accompanied by two other men.
When he saw the accused’s car arrive and the accused, together with two other men get out of it, he went into the laundry and shouted out to his mother to call the police. After he went into the laundry, he locked the solid door that led to the rear yard from the inside of the dwelling. He said that Mr Moran and Past both fled and said that Past owed the accused money. The complainant did not see what Ms Clough did.
The complainant’s mother, Ms Helen Freeman, said in evidence that the laundry door is locked by two mechanisms. The first being in a round door handle which was inoperative, the second being a slide bolt which was operative.
The complainant said he was wearing his glasses when he saw the car arrive and when he locked himself in the laundry.
The complainant gave evidence that the laundry has one window on the outside however he could not see through it and could not see what the three men were doing when he was in the laundry, other than that the laundry door was forced open.
It was put to him in cross-examination that in a statement he gave to the police on 5 April 2019 he said:[22]
Once they had forced their way in to the laundry, I was covering my head so I wasn’t able to see them at all. My glasses had come off at that time because of the assault, so everything was blurry. I didn’t see them leave, as my vision was still blurry.
[22] T91.3-8.
When that was put to the complainant, he said he did not recall the officer reading it to him and he does not recall signing the statement as being true and correct.[23] I do not accept that the complainant does not remember making that statement to the police or signing it. However, he did say in evidence that without his glasses he is legally blind and that when the laundry door was forced open he had his glasses on. He also said in evidence that when he was knocked to the ground his glasses came off his face. That evidence is consistent with what he told the police on 5 April 2019.
[23] T89.37-38, T90.37-91.21.
I find that upon seeing the accused arrive in his reddy-coloured car in company with two other men, the complainant ran into the laundry and locked the solid door that led to the rear yard using the slide bolt. I also find that the exterior, solid laundry door was forced open by one or all of the three men who arrived at the Property.
The complainant said that the accused was the first of the three men to enter the laundry and was carrying a piece of wood in his hand. He said that the accused hit the complainant with the piece of wood he was carrying across the head. He does not recall if it was once or more than once.
He described the piece of wood that the accused was carrying as being approximately 750mm long and 50mm in diameter. He said it had something like a screwdriver sticking out of it, which was the same length as a pen, in the order of 100mm long. The accused was the only person he saw with the piece of wood.[24]
[24] T19.28-20.17.
Mr Freeman was shown Exhibit P1, a wooden baton that was located at the accused’s residence the day of the alleged incident. He was candid in saying that he was not sure if it was the same item that the accused had used to hit him, and this was the first time he had been shown that item.
In cross-examination he confirmed that Exhibit P1 looks different from the one he remembers. He agreed that there was no screwdriver like object attached to the end of Exhibit P1. He denied having been to the accused’s home before and denied handling Exhibit P1 at any time.[25] He did not see the accused hit him with the handle end of Exhibit P1.[26]
[25] T26.28-27.30.
[26] T28.3-9.
I find that after the exterior, solid laundry door was forced open, the accused was the first person to enter the laundry, holding a piece of wood in his hand which he then used to strike the complainant on the head, on at least one occasion and that when he was hit on the head, the complainant’s glasses came off.
The complainant also gave evidence that the accused did not say anything to the complainant when the accused came into the laundry, nor to the other two men.[27]
[27] T14.3-18.26, T20.26-28.
Subsequently, he said in examination-in-chief that he knew the three men were in the laundry because he could hear their voices.[28] On the face of it that appears to be inconsistent, however he confirmed that no one said anything at all whilst they were in the laundry with him.[29] Later in cross‑examination he was referred to that answer where he said he could tell by voices that people were speaking, and was asked what was said whilst in the laundry. He responded that he could not remember what was said, he just remembered voices.[30] I accept that evidence.
[28] T20.32-34.
[29] T21.35-22.1.
[30] T34.3-8.
In cross-examination he was asked again about the events that occurred inside the laundry. He was asked whether he was ever on his knees in a crouched over position on the floor of the laundry, to which he said he did not remember. When asked whether he knew who was stomping on his head, he indicated the accused. He said he saw the accused stomp on his head and hit him with what he described as ‘a fucking bat’. He was unable to say how many times the accused stomped on his head.[31]
[31] T84.19-32.
I do not accept that the accused stomped on the complainant’s head. By that stage he had lost his glasses, was face down on the floor and could not see who was stomping on him.
The complainant said in evidence that whilst he was in the laundry he heard his mother come in through the sliding door which joined the laundry and the kitchen of the dwelling.
He heard his mother yelling during the time he was being assaulted.
He did not see the three men leave but he heard the car drive off. When he heard the car drive off he stood up and the only other person in the laundry was his mother.[32] At that stage he was trying to calm his mother down.
[32] T21.7-22.8.
The police attended and he was taken to hospital at which time he had a number of injuries treated including stitches to his head. He also had other injuries including injuries to his left hand and scratches to his left armpit. He had none of those injuries prior to the arrival of the three men.[33]
[33] Exhibit P3, T22.10-31.
He said in evidence that at no point after the men had left had he discussed with Ms Clough the description of the people who were there on that day nor at any time after 12 November 2017 and, in particular, no conversation occurred between him and Ms Clough about it being her father that had assaulted him. [34] He said he spoke to his mother about it, however there was no discussion about the name of the accused.
[34] T76.37-77.25.
I find it improbable that the complainant did not discuss with Ms Clough the fact of her father assaulting him and I reject that evidence.
Detective O’Malley spoke with the complainant on the day of the incident. The complainant told Detective O’Malley he had only taken half a point of drugs the night before,[35] which is inconsistent with the complainant telling the Court that he had taken an eight ball of methamphetamine at 6.00am on the morning of the incident. Although inconsistent, the evidence that the complainant gave as to the taking of an eight ball does not assist his case and I accept his evidence as to his drug taking on the morning of 12 November 2017.
[35] T164.8-16.
The complainant was asked about a person named Mark Ritchie

(‘Mr Ritchie’). The complainant knew Mr Ritchie and he knew that the accused kept his truck at Mr Ritchie’s premises.[36]
[36] T29.32-38.
Approximately two weeks after the incident he saw one of the two men who accompanied the accused, at Mr Ritchie’s house. He did not speak to him or try to find out who he was.[37]
[37] T24.3-26.38.
The complainant denied being violent towards his mother although there was an intervention order made against him from his mother on or about 11 May 2018 and related to him throwing some toilet paper at her. [38] Otherwise, he does not recall anything about what happened saying he was a ‘gear head’.[39]
[38] T59.11-26.
[39] T59.34-60.20.
The complainant admitted that Ms Clough had obtained intervention orders against him on 25 September 2017 and again on 20 May 2019 and he confirmed that he had assaulted Ms Clough a number of times during the course of their relationship.[40]
[40] T68.11-22.
It was suggested to him that as a result of an assault, Ms Clough was going to the police and that as a consequence he punched her and threatened her so that she would not do that. It was also put to him that he threatened to kill Ms Clough’s daughter, an allegation to which he said he did not know. I do not accept that he did not know but was avoiding answering the question.[41]
[41] T73.1-34.
He said that he was not aware that Ms Clough had called the accused saying that she could not handle the assaults anymore because she was being bashed all the time.[42]
[42] T93.34-94.26.
It was suggested to the complainant that Ms Clough was at the front of the house during the incident, however he denied that and said that she was at the back of the house. Previously he had said in evidence that he did not know where she was during the incident. When pressed on that he said that he thought that she was out the back. [43] I find that Ms Clough was, at least initially, at the back of the house in the rear yard when the accused and the two other men arrived at the Property.
[43] T83.17-26.
Much of the cross-examination then concerned the complainant’s prior offending. He said that he could not remember a number of the matters that were put to him about that offending. I formed the view that in relation to those matters at least, he was being uncooperative and was simply refusing to answer by saying he did not remember.
There were a number of inconsistencies put to the complainant. Often he said that he could not recall. In giving that answer I find that the complainant was avoiding answering questions by resorting to the response that he could not recall.
That however does not affect my view of the truthfulness or otherwise of his account of the entry by the accused onto the Property and into the laundry of the dwelling with two other men and the assault on him by the accused in the laundry.
Helen Margaret Freeman
The prosecution called the complainant’s mother, Helen Margaret Freeman. Ms Freeman gave evidence that she was living at 2 Chirton Street, Elizabeth North in November 2017. Also living at that address at that time were the complainant and Ms Clough, who was her son’s girlfriend at the time.
Ms Freeman said in evidence that she and the complainant rented the Property.
Ms Freeman described the dwelling in the following terms. The front door faces onto Chirton Street and there is a carport by the front door. The rear of the Property is accessed by coming across the front (Chirton Street frontage) lawn, through a gate and into the rear yard. As one comes through the gate to the rear yard, the laundry is on the left.[44]
[44] T100.22-101.22.
She said in evidence that the laundry has two exterior doors, a screen door and a solid wooden door.[45]
[45] T102.3-5.
As well as the doors that led outside, there was a sliding door between the laundry and the kitchen. The outside solid laundry door had a handle lock on it but it did not work. The other type of lock on the external solid laundry door was a slide bolt on the inside of the door which was operative.[46]
[46] T102.18-21, 110.4-27.
Prior to this incident, there was no real damage to the exterior, solid laundry door in that the slide bolt worked, and the door could be locked using it. After the incident, she looked at the slide bolt and it did not work. There was also damage to the wooden door which had split. She did not see how the door came to be split.[47]
[47] T110.21-111.24.
I accept Ms Freeman’s evidence about the condition of the exterior, solid laundry door and its locking mechanisms prior to 12 November 2017 and immediately after the incident.
She gave evidence that she recalled a day in November 2017 when police attended at the Property. She said that she heard her son calling out ‘call the cops’. Ms Freeman has mobility issues in that she uses a walking frame. She also has breathing difficulties and gave evidence by AVL in which it was apparent she has a breathing tube. When she heard the complainant call out ‘call the cops’, she responded ‘what for?’ and went out to what she described as ‘there’, being the laundry. She said that when she arrived at the interior laundry doorway she saw her son on the laundry floor being kicked by two men. He was crouched up trying to protect himself. She saw the accused standing there looking at her ‘right in the face’.[48] She is unable to recall the time.
[48] T98.16-99.17.
Ms Freeman said the accused was standing on the step outside the laundry. She was standing in the doorway between the kitchen and the laundry and was looking right at him. She did not see him set foot inside the laundry at any time.[49]
[49] T113.20-36.
She could see two other men in the laundry. She suffers from cataracts and with the light could not see anything further. She had met the accused before on a few occasions and she was sure that it was the accused that she could see because they were near each other. She did not recognise either of the other two men although she could recognise her son even if he was a shadow to her. She could not see whether the accused had anything in his hands and did not see whether either of the two men who were kicking her son had anything in their hands. All she saw was the accused’s face. She heard him say ‘let’s go’ after which the three men left. She was clear that the person that said ‘let’s go’ was the accused.[50] She did not see the accused hit the complainant at any time on 12 November 2017.[51] She attempted to push one of the men who was hurting her son away.
[50] T116.11-13, T117.6-8.
[51] T117.23-25.
The three men left together at which time her son was still on the floor and was bleeding.[52]
[52] T103.6-107.37, T123.15-37.
In cross-examination she said that the first person she saw was a big heavy built man stomping on her son. She did not hear him say anything at all.[53] There was another man in the laundry who was also stomping on her son’s head but she was unable to give a description of him. She tried to hit that man with the telephone she was holding.[54]
[53] T112.31-38.
[54] T113.7-19.
She does not recall seeing Ms Clough at any time whilst her son was being assaulted.[55]
[55] T114.15-18.
Ms Freeman agreed that on occasions, she contacted a person known as Mark who lived around the corner, to get a message to the accused that needed to leave the house at Chirton Street because of the complainant’s violence towards

Ms Clough.[56]
[56] T118.3-6.
She had seen the complainant be physically violent towards Ms Clough when he had hit her a number of times and punched her to the face. He had also used a bucket to hit Ms Clough on an occasion and had thrown things at her face causing her to bleed. Ms Freeman said that the complainant did some terrible things to Ms Clough as a result of which she had concerns for her safety. It was as a result of that, that she contacted ‘Mark’ because she knew he was a friend of the accused as well as Ms Clough’s.

At no time prior to 12 November 2017 did she have a discussion with

Ms Clough in which Ms Clough said that her father was coming over to get her and her stuff so she could leave the house.[57]
[57] T122.31-123.13.
Ms Freeman confirmed that she obtained an intervention order against the complainant on 11 May 2018 which is still in existence.
In re-examination, she said that she assumed it was the accused who she heard say ‘let’s go’ as she was looking at him when those words were said, and she recognised his voice as the one saying those words.
Ms Freeman presented as an honest and forthright witness who was doing her best to assist the Court. As I have noted, she gave evidence by AVL due to her health issues. I have no hesitation in accepting her evidence in its entirety and I am satisfied as to the matters the subject of her evidence.
Dr Duncan Alexander Taylor
Dr Taylor works at Forensic Science SA where he holds the title of Forensic Scientist. He has experience and training in DNA analysis, in which he has worked since he began his employment at Forensic Science SA in 2005. He prepared a report dated 13 July 2018 which was received as Exhibit P5.
Dr Taylor reviewed the work that was done by Forensic Science SA in relation to this matter and is familiar, not only with the work that was done, but the results of the examinations and analysis.
Forensic Science SA was provided with six items for analysis. The results of the analysis are as follows:
1A swab of blood like stain on the laundry floor at 2 Chirton Street, Elizabeth North had a statistical weighting of greater than 100 billion in favour of the complainant being a contributor.
2A left shoe taken from the lounge in the accused’s residence had two tests performed on it. A tape lift of the inner left shoe had a statistical weighting of greater than 100 billion in favour of the hypothesis that the complainant is not a contributor. A further test done on the shoe in relation to a blood like stain contained very low amounts or no DNA and was not analysed further.
3A right shoe obtained from the lounge in the residence of the accused was subjected to two tests. A tape lift of the inner right shoe showed a mixed DNA profile with a slight statistical weighting in favour of the hypothesis that the complainant was not a contributor. A swab of a blood like stain on the heel had two contributors but the complainant was excluded as a contributor. A further test of a blood like stain on the sole of the shoe contained very low amounts or no DNA.
4Tests performed on jeans from the bedroom from the accused’s residence were not tested for DNA nor a t-shirt from the accused’s residence.
5A wooden baton seized from the bedroom in the residence of the accused was subjected to three tests.
i.A swab of the handle end had a greater in 100 billion statistical weighting that the complainant is a contributor.
ii.A blood like stain on the head of the baton contained low amounts of DNA and was not analysed.
iii.A further swab of a blood like stain on the head of the baton was contaminated with the result representing an individual who is identified in the quality assurance register as an employee of Forensic Science SA.
I accept Dr Taylor’s evidence and I am satisfied as to the matters the subject of his evidence.
Detective O’Malley and CCTV Footage
Detective O’Malley was allocated as the investigating officer in this matter and first became involved in the investigation on 12 November 2017.[58]
[58] T149.4-13.
When police arrived at the Property, the complainant, Ms Freeman,

Ms Clough and Shaun Moran were present. Statements were taken from

Ms Freeman, Ms Clough and the complainant. Mr Moran declined to provide a statement.
Detective O’Malley gave evidence that the police attended the accused’s premises the same day and seized a CCTV unit which was subsequently examined and analysed by police.[59]
[59] T150.6-32.
There were four CCTV cameras in operation at the accused’s premises, one of which shows the back carport area. Detective O’Malley reviewed the footage and compared the time stamp on the footage with the time he noted he arrived at the accused’s premises. He concluded the time stamp on the footage was accurate. I accept that evidence and find the time stamp on the CCTV footage is accurate.
By reference to the CCTV footage,[60] and using the time stamp on the footage, between 9.02am and 9.03am, the accused is seen getting into the driver’s seat of a maroon or reddy coloured vehicle carrying the wooden baton, Exhibit P1. Just after 9.03am the vehicle starts to reverse out of the carport and returns at 10.40am. At 12.43pm the police arrive.
[60] Exhibit P7.
It is apparent from the examination of the CCTV footage that prior to the accused reversing his car, he is carrying a wooden baton which has a strap through one end and matches the appearance of Exhibit P1. I find that the accused carries Exhibit P1 into the vehicle and then reverses out of his carport at 9.03am with Exhibit P1 in the vehicle.
When the accused returns home, the CCTV reveals he is wearing jeans, a black t-shirt and what appears to be some boots. When attending at the accused’s residence, police seized jeans, boots and a shirt.[61]
[61] T152.27-37.
The four-wheel drive driven by the accused was examined for weapons. Nothing was located within the vehicle, including nothing that could be identified as DNA or blood spatter.[62]
[62] T158.5-19.
Detective O’Malley said that after making a statement to him in January 2018, Ms Clough provided a subsequent statement in March 2019, having attended at the police station unannounced and requesting to speak to Detective O’Malley. After the subsequent statement was taken by Detective O’Malley,

Ms Clough was referred to an officer from the Domestic Violence Unit.[63]
[63] T166.8-27.
Detective O’Malley said in evidence that there was no record of any telephone contact between Ms Clough and the accused between 8 November and 12 November 2017, nor any telephone contact between the complainant and the accused in that same period.[64]
[64] T175.4-18.
I accept Detective O’Malley’s evidence and I am satisfied as to the matters the subject of his evidence.
Defence Case
The defence called two witnesses, being the accused and Ms Clough.
David John Clough
The accused gave evidence on oath and thereby exposed himself to cross-examination. I remind myself that he was not obliged to give evidence and always had the right to remain silent in answer to the charges, leaving it to the prosecution to satisfy me of all the ingredients of the charges.
The accused is presently serving a sentence of imprisonment in relation to the following offences (offence dates in brackets):
1Traffic in a controlled drug– basic offence (16/6/2018);
2Unlawful possession (16/6/2018);
3Traffic in a controlled drug– basic offence (8/11/2017-12/11/2017);
4Traffic in a commercial quantity of a controlled drug– basic offence (8/11/2017-12/11/2017);
5Unlawful possession (12/11/2017).[65]
[65] Exhibit P9.
Ms Clough is his daughter. He also has sons and is married. In November 2017, the accused was living at 28 Sterling Court, Smithfield Plains, South Australia.[66]
[66] T180.29-181.15.
To his knowledge, in November 2017 Ms Clough was living at the Property. He said that he had been to this address some weeks (approximately two weeks) prior to 12 November 2017.[67]
[67] T181-16-23.
The accused said he knew Ms Freeman was living at the Property and had spoken to her directly on a number of occasions leading up to

12 November 2017. The topic of those conversations concerned the complainant’s violent behaviour towards Ms Clough.
Police had attended the accused’s residence on 8 November 2017 and seized a number of items including a mobile telephone.
He was taken to the statement of agreed facts[68] and in particular the agreed facts at paragraph 9 which sets out a number of text messages that had been extracted by the police from his mobile telephone.
[68] Exhibit P6.
There are a number of outgoing and incoming messages to and from a telephone number ending with the digits 155. The accused identified that telephone as belonging to one Adam Cox.
On 8 November 2017 he sent a text to Mr Cox, in which he wrote:
I got raided today & arrested
You able to help me go fuck this prick up or not
The accused said he was referring to Mr Ritchie in that text because he believed Mr Ritchie had informed on him. He said he had been providing drugs to Mr Ritchie and believes he went to see Mr Ritchie on either 9 or 10 November 2017 about the fact he had been raided.[69]
[69] T182.8-183.10.
The accused gave evidence that prior to 12 November 2017, he had been supplying Mr Cox with drugs. On 12 November 2017 at 9.00am, Mr Cox had sent a message to the accused, ‘I’m ready mate, how long will you be?’.[70] The accused said this message was in relation to the accused dropping some ‘gear’ to Mr Cox.
[70] Exhibit P6.
He denied that on 8 November 2017 it was his intention at any time to go around to the complainant’s house and bash him, and said that at no time did he ever think that the complainant was responsible for the police raid on

8 November 2017.[71] He denied that the complainant owed him a drug debt of $1000 or $400 in the four weeks prior to 12 November 2017. Indeed he said that the complainant had never had a drug debt to him. It was the accused’s belief that the complainant was getting drugs from Mr Ritchie.[72]
[71] T184.7-9.
[72] T183.27-184.3.
He was aware that his daughter had a friendship with Mr Ritchie as she used to live with him.[73]
[73] T184.4-6.
In his examination in chief, the accused was taken to a text message on

12 November 2017 at 8.34am. That message was sent to a mobile telephone with a number ending in ‘995’ and reads:[74]
Yeah I’m out with 3 others trying to find this prick that got me raided that’s why I said catch up in the afternoon
[74] Exhibit P6.
He identified the telephone number as belonging to friends of his named Leah and James. He said that Leah had messaged him wanting him to visit them at their residence and he did not want to go round there so he made up a story as to why he could not visit them. He said that at 8.34am he was not out with three other people trying to find the person that was responsible for him being raided, but was still at home.
The CCTV footage[75] that was tendered does not show any movement on the part of the accused at 8.34am. That of course does not mean the accused was not out on foot or in another vehicle but no evidence was tendered to suggest that he was in fact away from his premises at that time and I find that at 8.34am he was at his premises in Smithfield Plains.
[75] Exhibit P7.
On the CCTV footage[76] the accused is seen getting into a reddy-coloured vehicle at 9:02am. He identified that vehicle as his car, a red Kia Sorrento wagon which had tinted windows and a bull bar on the front.[77]
[76] Exhibit P7.
[77] T184.18-29.
The accused recognised Exhibit P1, the wooden baton and confirmed it belonged to him. The baton was located hanging up in the main bedroom at the accused’s house when it was seized by police on 12 November 2017. The accused described the baton as a kiwi warrior stick given to his wife by her father.[78]
[78] T186.10-28.
The accused said he believed that the complainant had handled the wooden baton on a prior occasion. The accused said that the complainant attended his house looking for Ms Clough, at which time the accused was in the backyard applying beeswax to the baton as it must be kept moist. The accused said that he believed that it was on that occasion that the complainant held the baton. He said this was the second occasion that the complainant had attended at the accused’s address and was the event closest to 12 November 2017.[79]
[79] T187.20-188.3.
The accused was aware the complainant had been violent towards his daughter but said there was no contact between Ms Clough and the accused by direct telephone call in the lead up to 12 November 2017. The accused said that he did receive a message through his phone or Facebook messenger in which

Ms Clough asked if she could move into one of the accused’s spare rooms. He replied that not whilst she was with the complainant.[80]
[80] T188.26-33.
I do not accept the accused’s evidence that the complainant had been to the accused’s residence on two occasions, or for that matter on any occasion. I also do not accept that on any occasion the complainant handled the wooden baton, Exhibit P1. I accept the complainant’s evidence and find that the accused was supplying and had supplied drugs to the complainant. Further, I accept that Ms Clough had approached the accused about living with him but the accused had refused whilst she remained in a relationship with the complainant. That and the fact of drug supply makes it highly unlikely that the complainant would attend at the accused’s residence.
Further, in view of the complainant’s apparent history of violent behaviour and that he was apparently looking for Ms Clough, it is inconceivable that the accused would allow him to handle the baton and thereby provide him with an offensive weapon.
The accused denied using the baton as a weapon to hit the complainant on 12 November 2017, and denied there was a screwdriver attached to the top of it. He said he took the baton with him because the complainant’s anger and because Ms Freeman had told the accused that the complainant was violent. He said he did not take it to assault the complainant but for protection.[81]
[81] T189.1-30.
I accept there was no screw-driver attached to the wooden baton,

Exhibit P1. However, I do not accept the accused did not use the wooden baton as a weapon against the complainant that day, nor do I accept that he took it with him for self-defence.
The accused gave the evidence that prior to 12 November 2017, he had been to the Property about four to six times. He had been there on those occasions because of a request by Ms Freeman, communicated through Mr Ritchie, that she wanted to see him in relation to how the complainant was treating Ms Clough.[82]
[82] T188.8-25.
The accused said in evidence that after speaking with Mr Ritchie on or about 10 November 2017, he intended to pick up Ms Clough from the Property and take her to the police station so she could make a report in relation to the domestic violence she was suffering at the hands of the complainant.[83] It was for that reason that the accused said he got into his car at about 9.00am on 12 November 2017 and drove to the Property He said he did not stop anywhere along the way, nor did he pick anybody up, arriving at the complainant’s house at about 9.20-9.30am. I do not accept that evidence.
[83] T188.34-38.
The accused said he had parked his car in the vicinity of the light pole shown in the photographs in Exhibit P2 on the Chirton Street frontage, more or less across from where the Magna motor vehicle is parked under the carport in the photographs in Exhibit P2. He could see the Magna and could see through the open gate to the rear yard.[84] I accept that evidence.
[84] T189.31-190.31.
As to what happened next, he said that when he arrived at the Property, he saw the complainant and two men standing outside the fence on the lawn. He had not arranged for those two men to go with him. One was big and stocky, the other was thin.[85]
[85] T190.33-191.12.
The accused said he got out of his vehicle and walked up to the complainant. He said the two men had their backs to the accused as he was walking towards them, with the complainant facing towards the accused and standing about two to three metres to the left of the carport.[86] All three were outside the fenced rear yard area.
[86] Exhibit P2 page 1, bottom photograph.
The accused said he heard a mention of money by the two men to the complainant, who then threw his arms up holding a knife in each hand and there was a short scuffle.
The accused said the complainant started swinging the knives around for about 15 seconds. He thought they were steak knives. After that, the complainant ran into the rear yard through the open gate in the fence, and then into the laundry followed by the two men and the accused. The accused said he followed the complainant and the two men through the open gate and into the rear yard to ‘go and watch’.[87] At no time did anyone tell the accused not to come through the gate.[88] When he walked in to the rear yard, the accused saw no one standing or sitting on the laundry steps. The accused walked up behind the two men and saw them inside ‘giving Adam Freeman a hiding’ in the laundry.[89] He did not see the complainant with the knives in the laundry.[90]
[87] T206.35-207.6.
[88] T192.4-12.
[89] T191.24-37.
[90] T197.13-198.22.
The accused said when he first arrived Ms Clough was in the rear yard, he did not speak with her and did not see where she went.
The accused said he did not see the other two men with anything in their hands. He denied going into the laundry at any time and said that when he got out of the car he was carrying the wooden baton but he did not threaten to use the wooden baton in any way, and did not raise the baton above his head or hit anybody (including the complainant) with it.[91]
[91] T192.38-193.8, T194.38-195.4, T196.1-7.
The accused denied causing injury to the complainant at any time on

12 November 2017. He said in evidence that he did not enter the dwelling at any time on that day, and that nobody told him not to be on the Property. The accused said that he had never been refused entry to the dwelling by either the complainant or Ms Freeman prior to 12 November 2017.[92]
[92] T202.27-203.7, T204.1-16.
I have accepted Ms Freeman’s evidence that she heard the accused say ‘let’s go’ when he was standing on the laundry steps. The accused does not believe he said ‘let’s go’ but if he did it would have been directed towards

Ms Clough.[93] However, as I have noted, in his prior evidence he said he did not speak with Ms Clough and did not see where she went.[94]
[93] T193.35-194.7.
[94] T193.9-34.
I find that the accused said the words ‘let’s go’ and that those words were directed to the two men in the laundry and not Ms Clough.
I do not accept the accused’s version of what occurred from the time he left his premises in Smithfield Plains to the time he said he left the Property and, in my view, it is inherently unbelievable.
I find that the accused arrived at the Property in company with two other men, armed with the wooden baton, Exhibit P1, with the intention of assaulting the complainant, and did so in the laundry of the dwelling. Insofar as the complainant said that he thought there was an object like a screwdriver attached to the wooden baton, he was mistaken.
The accused said he was selling cannabis to Ms Clough before 12 November 2017 but that she did not owe him money for those drugs. He denied providing drugs to the complainant in the month leading up to 12 November. He said the complainant did not owe him a drug debt and in particular did not owe a drug debt that started at $400 and went up to about $900 with interest.[95] I do not accept the accused’s evidence that he was not selling drugs to the complainant and Ms Clough apart from cannabis. I am unable to be satisfied as to whether the complainant and/or Ms Clough owed the accused a drug debt.
[95] T204.32-205.29.
SMS Messages
The accused said in evidence that he did not know what he intended to do to the person referred to in the message to Mr Cox in Exhibit P6 sent

8 November 2017 at 18:21, saying ‘…you able to help me go fuck this prick up or not’. I do not accept that refers to the complainant and I accept the accused’s evidence that the words were anger words.
However, on 12 November 2017 there is an incoming text from Mr Cox at 9.00am ‘I’m ready mate how long will you be’ and then again at 12.54pm ‘everything ok bro’. I cannot be satisfied that those communications related to the accused making arrangements to collect the two men who accompanied him to the Property for the purposes of assaulting the complainant. Nevertheless, that does not affect my finding that the accused arrived at the Property at approximately 10.00am in company with two other men.
Kelly-Anne Clough

Ms Clough made two statements. Neither statement was tendered in evidence but parts of her first statement made on 28 January 2018 were read to her.
As at November 2017, Ms Clough said she had been in a relationship with the complainant for approximately 6-7 years. She said the relationship was bad and she suffered from domestic violence at the hands of the complainant. On occasions she was required to go to domestic violence houses or refuges for women. On one occasion the complainant had split her head open.[96] I accept that evidence.
[96] T237.32-239.1.
On 25 September 2017, Ms Clough took out an intervention order against the complainant and another intervention order was taken out on 20 May 2019. She suffered from a lot of domestic violence instances but did not ring the police because she was too scared.[97] I accept Ms Clough was subjected to domestic violence and that her relationship with the complainant was characterised by violence towards her. I accept she lived in fear of the complainant.
[97] T239.2-13.
Ms Clough confirmed that both she and the complainant were taking drugs during the period leading up to November 2017. Ms Clough said she would use marijuana but did not source it from the accused.[98] That evidence is directly contrary to the evidence of the accused and I reject it.
[98] T239.31-240.2.
She said that on the day in question in November 2017, both she and the complainant used drugs and said they both used cannabis together. That is contrary to the complainant’s evidence and I reject it.
On the day of the assault, Ms Clough said she was sitting on the back steps, when she got up and walked out of the rear yard through the gate in the fence towards the front of the Property passing three people who were entering or had entered the rear yard as she did so. When she got to the front of the Property she heard the laundry door being forced open and the complainant screaming.
She was getting off the steps when she saw the three people. She did not see her father as one of the three people and did not look at those people because she was looking down.[99] I do not accept that evidence and consider it inherently unlikely.
[99] T243.10-27.
She denies the descriptions given in her first statement were her own observations, saying that the complainant told her to give those descriptions.[100] I do not accept that evidence.
[100] T274.1-5.
Ms Clough said she knows the accused has a maroon coloured van but did not look to see if the accused’s vehicle was parked at the Property. [101] I do not accept that she did not look to see if the accused’s vehicle was parked at the Property as she walked out of the rear yard through the open gate in the fence.
[101] T243.36-244.4.
Ms Clough said she went to the front door of the dwelling and kept banging on the door until Ms Freeman let her in. She does not remember what happened when she went into the house. She said that after the assault, the complainant went around to the front of the house to tell Ms Clough that ‘it was your dad. Tell the police it was your dad or I am going to kill your daughter’. Ms Clough said she did not reply or she would have been beaten up. She said that the complainant looked angry and had a black eye. She said that the complainant has multiple personality disorder, that he threatened her and said that she had to say ‘it was her father’.[102] I do not accept that the complainant said to her that she had to tell the police it was her father or he was going to kill her daughter. It may be that Ms Freeman let Ms Clough into the dwelling by the front door but if she did so, I find it was after the accused and the two other men left.
[102] T245.1-33.
She said that she spoke to her father a couple of months before November 2017 about the assaults from the complainant and asked him if he knew anywhere she should go or if the accused could help her because she needed to get out of the domestic violence situation. She said in evidence that the accused said there was not much he could do if she kept going back to the complainant. Ms Clough said that the accused had told her to go to the police but she was too scared. She does not recall having a conversation with her father the day before the incident telling him to come to the house and does not recall him coming to the house in November 2017. She does not recall at any time the accused coming to the house in order to take her to the police station.[103] I accept Ms Clough spoke to the accused a couple of months prior to 12 November 2017 and that he said he could not assist her if she kept going back to the complainant, but I do not accept the accused told her to go to the police. I find the accused did not speak to

Ms Clough the day before the incident.
Prior Inconsistent Statements
[103] T240.37-241.26.
Ms Clough confirmed she had made two statements to police. She said in evidence that the second statement to police was made 25 March 2019 because when she made the first statement in January 2018 she was under duress and the complainant forced her to identify particular people who were involved in the incident, when as a matter of fact she does not know who it was that went to the house. She said that the duress she was under was because of domestic violence from the complainant.[104]
[104] T286.11-28.
She said in evidence that she was prompted to go back and make the second statement to police because she was no longer scared of the complainant.

Ms Clough said the March 2019 statement was made approximately three months after she and the complainant broke up. She agrees the second statement was very different from the first statement. She did not think it was fair to her father that she lied in the first statement so she made the second statement. She said that she did not make the second statement because of anything the accused had said to her or anyone else on behalf of the accused, and said she has not spoken to him.[105]
[105] T251.22-252.7.
Under cross-examination Ms Clough confirmed that she has no loyalty to the complainant and hates him.[106] I do not accept that in her second statement

Ms Clough was telling the truth.
[106] T250.11-251.9.
I am unable to find whether or not the accused or someone on his behalf spoke to Ms Clough.
She said that when she gave both statements, that is, the one in

January 2018 and the one in March 2019, she read through them quickly before signing them. She asserts that her ‘correct’ version of events is in her second statement. She says that she did not see her father with a bit of wood (contrary to her first statement and the accused’s evidence) and did not see the three men forcing open the laundry door. She said that she was not scared of her father but was scared of the complainant, such that she helped the complainant because she was not sure if she would be assaulted. She did not see the three men drive off together.[107]
[107] T264.1-267.14.
She agreed that she said in her first statement that one of the three men was her father and denies saying he was 55 in the statement. She said she gave the description of the accused that the complainant told her to give.[108] I do not accept that evidence.
[108] T256.2-31.
She said that the complainant spoke to her on two occasions about what she had to say, once on the day and once a couple of days later. On the second occasion, she said the complainant gave the details of the car to her. Ms Clough said that the first time she spoke to the police about the incident was on

28 January 2018. It was at that time that Ms Clough said she told police what the complainant had told her to say in November 2017. She said she was able to remember everything the complainant had told her to say and did not write down notes. Rather, she said, the complainant had drilled it into her head.[109]
[109] T269.1-270.5.
I do not accept Ms Clough did not see her father and the two men drive off together and I do not accept that the complainant told Ms Clough what to say.
Ms Clough denied there was a drug debt that she had to her father and believes that her father was against drugs which is why she and her father do not get on. She has no knowledge of any drug debt owed by the complainant to the accused and she and the complainant did not discuss any such drug debt.[110] She said she did not know that her father was in gaol for selling drugs and asserted that he had never sold drugs to her. I do not accept her evidence as to the accused’s attitude towards drugs and his current incarceration and find it unbelievable.
[110] T247.15-22.
I am unable to find as to whether or not a drug debt existed as between the complainant, and/or Ms Clough and the accused.
Discussion and Findings
Witnesses
I have already indicated that I accept Ms Freeman as a witness of truth.
The Complainant
The complainant is a witness whose evidence I approach with a great deal of caution. His past criminal history and his demeanour whilst giving evidence suggests he is a witness who is prepared to be untruthful if it suits him. As I have indicated, I consider that in a number of respects, he was being uncooperative when he answered that he could not remember things. He was also aggressive and abusive towards cross-examining counsel.
In considering his evidence, I take into account his evidence that at 6.00am on the morning of the incident he had taken an ‘8-ball’ of methamphetamine. Nonetheless, his evidence is corroborated in a number of aspects by his mother, Ms Freeman, and I have no evidence to suggest that he was so intoxicated that I should not accept any part of his evidence.
Against that background, there are a number of aspects of his evidence which I accept as being true. In particular, his evidence of matters that may not assist his case was given candidly and he was also able to give evidence of peripheral matters which tended to support the truth of what he was saying. By way of example only, his evidence that he could not see through the laundry window to the outside and therefore could not see what the three men were doing, and that without his glasses he is legally blind, does not assist his case. However, that must be seen against his evidence that he lost his glasses upon being struck on the head by the accused shortly after the accused entered the laundry. That is a detail which has the ring of truth about it. True it is, there were some inconsistencies in his evidence but they are explicable by the passage of time and the speed with which the incident occurred.
Although I accept that his description of the piece of wood was wrong and he did not recognise the wooden baton, Exhibit P1, nonetheless he identified the object as piece of wood which was accurate. He was clearly wrong about a screw driver being attached to the end of the piece of wood but said it was ‘like a screwdriver’. The fact that there was no evidence of any screwdriver or like object having been attached to the wooden baton does not cause me doubt that the complainant was hit on the head by the accused using the wooden baton.
The Accused
I also treat the evidence of the accused with a great deal of caution and I do not accept the accused as a witness of truth. His version of the facts was unbelievable and, in my view, a fabrication designed to avoid conviction. When the accused’s evidence conflicts with that of the complainant and/or

Ms Freeman, unless otherwise noted, I prefer the evidence of the complainant and/or Ms Freeman. The accused comes to the Court as a sentenced prisoner in relation to drug trafficking charges which have been dealt with in this Court.[111] He accepted that as at November 2017 he was selling drugs and that he was in custody in relation to offences to do with trafficking.
[111] T180.33-181.1.
When giving his evidence he attempted to bully prosecution counsel and I formed the view he had developed a version of the facts to suit his defence and was not going to deviate from it. There were a number of inconsistencies in his evidence not explicable by the passage of time, particularly his evidence about his interaction with Ms Clough on the day of the incident. His version of the facts that he attended the Property with a wooden baton for protection, by himself and for the purpose of collecting Ms Clough to take her to the police, despite there being no prior arrangement to do so, is not credible and I do not accept it.
I remind myself that a rejection of the accused’s version of events does not lead to a finding of guilt. Having rejected the accused’s version I must still assess the prosecution evidence to see whether the prosecution evidence proves each and every element of the offence beyond reasonable doubt.
Ms Clough
I do not accept Ms Clough as a witness of truth and overall I do not accept her evidence. In my view, Ms Clough’s evidence was tailored to assist the accused’s defence to the charges.
Elements of the Offences
I deal with the elements of the offence below and set out my findings, notwithstanding I may repeat earlier findings.
Aggravated Serious Criminal Trespass in a Place of Residence
The accused entered or remained in a place of residence
‘Place of residence’ is defined in s 170(3) of the Criminal Law Consolidation Act 1935 as:
place of residence means a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel used as a place of residence.
I find that the accused attended the Property at about 10.00am on

12 November 2017 in company with two other men and entered and/or remained in the dwelling for the purpose of assaulting the complainant with a wooden baton.
I find the accused and the two men accompanying him entered the rear yard of the dwelling through the open gate before proceeding to force open the laundry door after which the accused was the first person to enter into the laundry. I find the accused struck the complainant on the head at least once, causing the complainant to suffer injury. Thereafter, I find the other two men assaulted the complainant in the laundry whilst he was on the laundry floor by stomping on him.
As to the laundry door being forced open, I cannot be satisfied that it was the accused who forced open the laundry door, however I find that after the laundry door was forced open, the first person to enter the laundry was the accused armed with the wooden baton, Exhibit P1.
The complainant’s evidence which I accept, is that whilst he was in the laundry, the accused struck him on the head with a piece of wood. In order to do that, part of the accused must have entered the laundry, even fractionally. The door to the laundry swings inwards. It was forced open and swung open on its hinges. There is clear evidence of the door being forced. The complainant must have been at least the width of the door inside the laundry when it was forced open and there is no evidence he was hit by the door.
That reinforces my view that the accused or part of him must have been inside the laundry when he struck the complainant.[112]
[112] See R v Nemeth [2008] SADC 112, [28].
I find that when Ms Freeman appeared at the laundry door from the kitchen, she and the accused looked at each other, at which time they both recognised each other. I find the accused then said to the other two men ‘let’s go’. After saying those words, I find the accused left the Property in company with the other two men in the accused’s vehicle.
I cannot be satisfied that the accused attended the Property and entered or remained in the dwelling because of a drug debt or because he had become aware of the complainant’s violence towards his daughter but I am satisfied beyond reasonable doubt that he entered and/or remained in the dwelling with the intention of assaulting the complainant.
Accordingly, I find the first element proved beyond reasonable doubt.
The entry into the premises and/or remaining on the premises was intentional
For the reasons I have set out, I find the entry into and/or remaining in the dwelling was intentional and was for the purpose of committing an assault on the complainant. Accordingly, I find the second element proved beyond reasonable doubt.
The entry was as a trespasser
Mr Moen, counsel for the accused, submitted that there was a question as to why it was that the accused went to the Property in the first place. It is the defence case that the accused had been given a licence to attend the dwelling.[113] Mr Moen submitted that the accused was licenced to enter the Property and/or the dwelling because his daughter was living there, that he had spoken with Mr Ritchie and it was Ms Freeman who wanted him to come around and remove his daughter from the house.
[113] T304.37-305.34.
The difficulty with that submission is that the accused had given evidence that he was unable to assist his daughter with accommodation whilst she remained with the complainant. It also presupposes that every occasion on which the accused visited the property he had an implied licence merely because of the presence or potential presence of his daughter at the Property. I do not accept that submission. At all times the question of whether there is an implied licence must be determined by reference to the purpose for which the accused entered onto the Property or into the dwelling.
In Barker v The Queen,[114] the High Court considered the question of trespass in the context of an offence against s 76(1) of the Crimes Act 1958 (Vic) which made it an offence of burglary if a person ‘…enters any building or part of a building as a trespasser with intent – (a) to steal anything in the building…’. Mason J (as he then was) said that the word ‘trespass’ in the context of the offence bore its ordinary common law meaning, that is: [115]
The essence of trespass by wrongful entry consists in an entry without right or authority by one person on to the land of another who is in possession, using that word in its strict sense so as to include a person entitled to immediate and exclusive possession. If the right or authority to enter is limited in scope then an entry which is unrelated to the right or authority will amount to a trespass. Thus a person who has an invitation or permission to enter the land of another for a specific purpose commits a trespass if he enters for any other purpose, especially if that other purpose be an unlawful purpose. For good reason he stands in no better position than the person who enters without any permission at all. So much is established by the cases (citations omitted).
[114] (1983) 153 CLR 338.
[115] Ibid pp 341-342.
His Honour continued in relation to the finding of the jury that:[116]
…the applicant entered the building with the intention of stealing, a purpose alien to the authority given to him. His entry was quite unrelated to the invitation or licence which he had with the result that he entered without any right or authority.
[116] Ibid 348.
In Halliday v Nevill & Anor the High Court observed[117] in relation to whether a police officer was trespassing on a property:
While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked (citations omitted)…
[117] (1984) 57 ALR 331, 333.
In this matter I find that there was no express licence extended to the accused to attend the Property or enter into the dwelling on that day for the purpose of collecting Ms Clough to take her to the police. There may well have been an implied licence to attend at the Property for the purposes of visiting

Ms Clough or even for the purpose of removing her to a police station, however, I find that the purpose for which the accused entered onto the Property and entered into and/or remained in the dwelling on 12 November 2017 was for a purpose alien to any authority that may have been given to him and quite unrelated to any invitation or licence which he may have had, such that he entered without any right or authority.

It follows that the accused had no licence to enter onto the Property or into the dwelling and was thus a trespasser.
Accordingly, I find the third element proved beyond reasonable doubt.
The accused knew he did not have consent or was recklessly indifferent about that
In view of my factual findings, I find this element proved beyond reasonable doubt.
The accused entered or remained on the property with the intent to commit an offence namely an offence against the person
I find that the accused entered the laundry of the dwelling and struck the complainant on the head with the wooden baton on at least one occasion, causing injury to the complainant.
I find this element proved beyond reasonable doubt.
Aggravating Circumstances
As to the alleged aggravating circumstances of the serious criminal trespass, the prosecution has alleged three aggravating factors:
1The residents were at home and the accused knew of their presence;
2The offence was committed in company with others; and
3An offensive weapon, namely the wooden baton, Exhibit P1 was used.
Section 5AA of the Criminal Law Consolidation Act 1935 deals with aggravated offences. It is in the following terms:
(1) Subject to this section, an aggravated offence is an offence is committed in 1 or more of the following circumstances:
(a)…
(b)the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;
(c)…
(h) except in the case of an offence against Part 3A, the offender committed the offence in company with 1 or more other persons (including persons who are children);
…
As to each of those three alleged aggravating circumstances:
1There is no dispute that the residents were at home at the time. It is not suggested by the defence that I could find there was no person living there at the relevant time and Mr Moen properly accepted that it is clear from the accused’s evidence that he attended the Property knowing his daughter lived there and certainly knew the complainant as well as Ms Freeman lived there.[118]
[118] T312.4-12.
I am satisfied beyond reasonable doubt that the first aggravating circumstance is established;
2The offence was committed in company with others.
I have found that the accused entered onto the Property and entered into and/or remained in the laundry of the dwelling in company with two other men. I am satisfied beyond reasonable doubt that the second aggravating circumstance is established;
3An offensive weapon was used.
‘Offensive weapon’ is defined in s 5 of the Criminal Law Consolidation Act 1935 as including:
(a)an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including –
(i)a firearm or imitation firearm (ie an article intended to be taken for a firearm); or
(ii)an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive); or
(b)an article or substance that a person has –
(i)for the purpose of causing personal injury or incapacity; or
(ii)in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity.
I am satisfied beyond reasonable doubt that the wooden baton,
Exhibit P1, was used by the accused to assault the complainant such that the article was used for the purpose of causing personal injury or incapacity to the complainant.

I am satisfied beyond reasonable doubt that the accused used the wooden baton Exhibit P1 to strike the complainant on the head at least once causing him injury. I am satisfied beyond reasonable doubt that an offensive weapon was used, such that the third aggravating circumstance is established.
Aggravated Assault Causing Harm
The accused intentionally applied force to the complainant
I refer to my findings set out above and I find this element proved beyond reasonable doubt.
The complainant did not consent to the assault
I refer to my findings set out above and I find this element proved beyond reasonable doubt.
The assault caused harm to the complainant
Exhibit P6, the Statement of Agreed Facts, records at paragraphs 15 and 16 that:
15. On 12^th November 2017, Adam Freeman was taken by ambulance to Lyell McEwin Hospital and seen by Dr Hassan at 10.48am.
16. On examination of Adam Freeman, Dr Hassan noted the following:
d.Head – two small haematoma on occipital area with skin tear and no active bleeding
e.Chest was clear, tender at left lower thoracic back
f.Limbs – left hand – mild swelling at distal 4^th and 5^th metacarpal bone, tender on palpation
Accordingly, I am satisfied beyond reasonable doubt that the assault caused harm to the complainant.
As to the alleged aggravating circumstances of the assault, the prosecution has alleged two aggravating factors:
1That the assault occurred in company; and
2That there was the use of an offensive weapon.
For the reasons I have set out, I am satisfied beyond reasonable doubt that the alleged aggravating circumstances have been established.
Conclusion
Accordingly, there will be verdicts as follows:
1Count One, aggravated serious criminal trespass in a place of residence – guilty;
2Count Two, aggravated assault causing harm – guilty.

Date	Time (Local)	Direction	From	To	Text
8/11/17	18:21	Outgoing	04*****155	I got raided today & arrested You able to help me go fuck this prick up or not
8/11/17	18:29	Incoming	04*****155	Wtf everything ok bro how are you? I’ll give you a call after work bro or tomorrow morning
8/11/17	18:31	Outgoing	04*****155	Kool I’ll wait for you to ring
8/11/17	22:12	Incoming	04*****155	We’ll sort it mate
12/11/17	8:34	Outgoing	04*****995	Yeah I’m out with 3 others trying to find this prick that got me raided that’s why I said catch up in the afternoon
12/11/17	9:00	Incoming	04*****155	I’m ready mate how long will you be
12/11/17	12:54	Incoming	04*****155	Everything ok bro