R v Cluse - [2014] SADC 26

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLUSE
Criminal Trial by Judge Alone
[2014] SADC 26
Reasons for the Verdicts of His Honour Judge Barrett
19 February 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
The accused was charged with aggravated serious criminal trespass in a place of residence and two counts of aggravated endangering life. It was alleged he and other Hell's Angels associates went to the house of a member of the Finks where windows were smashed from the outside and where two people broke into the front door and fired shots into a bedroom where there were two boys aged 11 and 10. One boy was injured. The prosecution adduced evidence of motive, hostility between the Hell's Angels and Finks, opportunity and forensic evidence, glass and DNA.
Evidence of motorcycle gang culture and rivalry admitted through police familiar with gang culture. Scope of joint enterprise considered.
Held: The accused is guilty of all three charges on the basis of being part of a joint enterprise with the people who entered the house and fired shots.
Evidence Act 1929 s 34K, s 34KA, s 34KB, referred to.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - SCOPE OF AGREEMENT
R v Zappia (2002) 84 SASR 206; Anderson v R (1992) 60 SASR 90; R v Fazio (1997) 69 SASR 54; R v Morrison [2002] SASC 399; Varley v The Queen (1976) 51 ALJR 243; Markby v The Queen (1978) 140 CLR 108; R v Reid (1976) 62 C App R 109; R v Cozzi (1999) 73 SASR 374, considered.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL
R v Baker (1998) 34 A Crim R 141; R v Vinayagamoorthy and Ors [2008] VSC 599; R v Hawi and Ors (No 1) [2001] NSWSC 1647; Weal v Bottom (1966-7) 40 ALR 436, considered.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - IN GENERAL
Evidence Act s 34P, referred to.
R v C, NC [2013] SASCFC 44; R v Maiolo (No 2) [2013] SASCFC 36, considered.

R v CLUSE
[2014] SADC 26

The accused is charged with committing three offences on 30 September 2011 at Semaphore. Those offences are:
Aggravated serious criminal trespass in a residence;
Aggravated endanger life (of “M”);
Aggravated endanger life (of “A”).
It is alleged that at about 10.15 pm on Friday 30 September 2011 the accused and others went to the home of Mr Mark Sandery. Mr Sandery was not at home at the time. His then partner was home looking after his four children, two of whom were in bed in a room at the front of the house. They were boys aged 11 and 10. There were two other sons aged 7 and 6 in the house at the time. One was in the other front bedroom with Mr Sandery’s partner across the hall from the bedroom where the two elder boys were in bed. The whereabouts of the fourth son is unclear. He may have been in a bedroom further towards the back of the house or he might have been in the hallway.
Someone smashed windows at the front and the northern side of the house. A hammer appears to have come through one of the windows on the northern side of the house. The hammer was found in a lounge room which abutted windows on the north side. Someone broke down the front door of the house, came into the hallway and fired four shots into the front bedroom where the two elder boys were in bed. It appears that two shots were fired in the direction of one single bed, hitting the 11 year old boy in the leg, and a further two shots were fired in the direction of the other single bed. The 10 year old boy in that bed was not injured. It appears likely that two people broke through the front door, but only one fired the shots. The bullets and shells appear to have come from just one gun. After shooting into the bedroom, the people immediately left back through the front door.
The Crown case is not that the accused was one of the people who broke into the house and fired the shots into the bedroom. The Crown case is that he was part of a joint enterprise with those who did. The Crown case is that the accused was one of those smashing windows on the northern side of the house. The Crown case is that he was the man who wielded the hammer. The Crown case is that his DNA was found on the hammer located in the lounge room and that glass from one of the lounge room windows was found in a balaclava seized from the accused’s bedroom.
The aggravating factors alleged, in respect of count 1, are that the accused knew that occupants were in the house, that he was in company and that a hammer and firearm were used in the commission of the crime.
In respect of counts 2 and 3, the alleged aggravating factors are that the accused was in company and that a firearm was used.
The defence case is that the accused was not at the house. Further, the defence case is that even if, contrary to his denial, the accused was found to be at the house, it cannot be proved that he was part of a joint enterprise with those who broke into the house and fired the shots into the bedroom.
Onus of proof
Before I could find the accused guilty of any one of the three charges I must be satisfied beyond reasonable doubt of each ingredient of that charge. Being a case based on circumstantial evidence the accused must be acquitted of an individual count unless the prosecution has excluded in respect of that count any rational hypothesis consistent with his guilt. The prosecution must prove not only that the accused’s guilt is a rational hypothesis, but that his guilt is the only rational hypothesis.
Accused gave evidence
Although he was not obliged to, the accused gave evidence. He called no other witnesses. Several exhibits were tendered on his behalf. Although he was not obliged to, the accused answered police questions when they spoke to him on 15 December 2011, some ten weeks after the attack at the Sandery house. Essentially the accused told police that, although he had no clear recollection of where he was on the night of 30 September 2011, he was probably at home. In court he also said that he had no precise recollection of everything he did after work on 30 September but he was either at the Hells Angels clubhouse at the time of the shooting or he was on his way from that clubhouse to his own home. I will discuss his evidence in more detail later.
Circumstances of shooting
I analyse the evidence which elucidates some of the circumstances surrounding the shooting. Mr Mark Sandery had been resident in the house on the corner of Military Road and Company Street, Semaphore for some time. Exactly how long is not clear. As at 30 September he had been in a relationship with a Ms C for about two months. It appears that she had been living with him at that address for about that time. She spent most of her time at home looking after Mr Sandery’s four sons – A aged 11, M aged 10, B aged 7 and S aged 6.
Sandery was a very prominent member of the Finks Outlaw Motorcycle Gang (OMCG). He has many criminal convictions, including many for violence. His list of antecedents is Exhibit D59.
I will discuss in more detail later the significance of the evidence of how OMCGs operate and the hostility that exists between some of them, in particular, between the Hells Angels, with whom the accused is associated, and the Finks, with whom Mr Sandery is associated, but for the present I simply observe that Mr Sandery probably has many enemies. Those enemies include members of other OMCGs but I accept that he has enemies who are not so associated. The relevance of that observation for present purposes is that I am satisfied that the attack on his house was not a random, unpremeditated attack. Those who attacked his house did so because he lived there. Whether they expected him to be at home so that they could attack him, or whether they knew that routinely, he would be away from home on Friday nights at the Finks clubhouse, and they intended to attack his family, is a separate question. However I am satisfied that the attack was coordinated and launched on the house because Sandery lived there.
It is by no means clear how many people carried out the attack but I think it is reasonably clear from the evidence of neighbours that the attackers came in at least three cars. I will turn later to a more detailed discussion of the description of cars but I am satisfied that after the shooting, one car sped off in a northerly direction along Military Road and another in a southerly direction. I am satisfied that a third car went down Company Street. I am satisfied that two people broke into the house and that, at the very least, there was one more outside smashing windows. I think that more than one was smashing windows because the occupants speak of the windows being smashed simultaneously, not progressively along the front of the house. No one spoke of hearing the smashing of the windows on the northern side.
On one view of the evidence there might have been eight attackers, two getting into a car parked out the front of the house, two running down Company Street to the car there and four (or a “full” car) in a car parked before the shooting on the corner of Ansell Street. I make no finding to that effect, but there is plausible evidence that eight individuals arrived in the vicinity of the house and that at least five carried out the attack, the two who broke in and ran to a car parked out the front, two more running down Company Street and at least one in the other car heard speeding off along Military Road.
The accused is the only person who is presently charged with these offences.
Circumstantial evidence
The prosecution has adduced evidence suggesting that:
·The accused had the opportunity to commit the crime;
·The accused is linked with the crime by forensic evidence;
and,
·The accused had a motive to commit the crime.
The accused denies he was involved. He challenges aspects of the evidence and he disputes the inferences the prosecution seeks to draw from other evidence. I will consider the evidence under these three headings.
Opportunity
I find that the shooting occurred at about 10.15 pm on Friday 30 September 2011. Ms C, Mr Sandery’s then partner, rang him on a mobile phone at 10.19.35 to tell him of the attack. She had made another call immediately before that to someone else trying to locate Sandery. She said she made that first call two or three minutes after the shooting.[1]
[1] T56-7.
The prosecution submits that evidence of the accused’s mobile phone usage, of a Safe-T-Cam monitoring vehicles on Port Wakefield Road and police estimates of travel times combine to give the accused the opportunity to commit the crimes.
I recite the uncontested evidence on those three topics, and then consider the inferences that may be drawn.
The accused’s mobile phone records were tendered.[2] The accused was a prolific user of his mobile phone. On the evening of Friday 30 September there is a gap in his phone usage between 20.24.06 and 22.24.55.[3] The accused was not using his phone at 10.15 pm. He did not resume using it until about 9 minutes after the shooting.
[2] Exhibits P53, D84, D85 and MFI-P88.
[3] Exhibit P53, p 4.
The Safe-T-Cam on Port Wakefield Road at Globe Derby records the accused’s Mitsubishi Magna VUM677 travelling north at 10.43.01.[4] The clubrooms of the Hells Angels North Crew, with which the accused was associated, and where he says he was at times during the night, is at Trafford Street Mansfield Park. Police timed car journeys at about the speed limit between several locations. The journeys were recorded on Friday nights around 10 pm in an attempt to replicate the traffic conditions at about 10.15 pm on 30 September.[5]
[4] Exhibit P43.
[5] T467-8.
The journey from the Sandery house in Semaphore to the clubrooms in Mansfield Park took 11 minutes and 30 seconds. The journey from the clubrooms to the Safe-T-Cam site at Globe Derby took 10 minutes 55 seconds.[6]
[6] Detective Lienert agreed with a miscalculation put to him in examination-in-chief that the second leg of the journey took 11 minutes 25 seconds. If the first leg took 11 minutes 30 seconds and the whole journey took 22 minutes 25 second, the second leg took 10 minutes 55 seconds.
Taking those two journeys together, the evidence suggests that, going at the speed limit, it might take some 22 minutes to travel from the Sandery house to the Safe-T-Cam at Globe Derby going via the clubrooms.
The prosecution hypothesis is that the accused left Sandery’s house after the shooting and went back to the club rooms. He might have driven his own car and dropped off other co-offenders, or he might have been a passenger and picked up his own car from the clubrooms. He then drove to Port Wakefield “lying low” for a few hours. He rang his girlfriend at 10.24 pm, either en route to the clubrooms or, if he had been exceeding the speed limit and got to the clubrooms quicker than the police reconstruction would have it, he rang his girlfriend when he got to the clubrooms. He rang her to tell her that he would not be coming home.
The prosecution submits that the hypothesis gains strength from another aspect of the accused’s phone usage that night. Between 11.20 pm on Friday 30 September and 10 am Saturday 1 October, there are numerous telephone calls between the accused and other Hells Angels’ associates. The hypothesis is that the accused was communicating with them about the shooting. The pattern of phone calls on this Friday night is different from Friday nights in the previous and the succeeding month where there was little or no communication with Hells Angels’ associates. There was usually no need for the accused to contact Hells Angels’ associates by telephone then because on Friday nights he was usually at the Hells Angels clubrooms. The associates would be there as well.
The accused challenges that hypothesis. He submits it would be unlikely that he would be telephoning his girlfriend 9 minutes after being involved in the shooting. He says that it was unremarkable that he would ring friends through the night. He was a prolific phone user. He and some of his friends would stay up all night at weekends. The evidence of earlier phone use is incomplete and of limited duration. I will return to a more detailed discussion of the telephone evidence and the Crown’s hypothesis when I consider the accused’s evidence.
The accused did not file an alibi notice[7] but the prosecution does not claim to be prejudiced by none being provided. The accused’s alibi is that at 10.15 pm he was either at the Hells Angels’ clubrooms or was on his way home to pick up his girlfriend to drive to Port Wakefield.
[7] Exhibit P83 – Certificate of non receipt of alibi notice.
The evidence I have referred to allows time for the accused to have been at the Sandery house at 10.15 pm. The evidence of opportunity does not of course prove the accused’s guilt but, in my view, the telephone call to his girlfriend at 10.24 pm does not exculpate him, nor does his being at Globe Derby at 10.43 pm.
I will revisit the question of the weight that can be attached to the evidence that the accused had the opportunity to commit the crimes.
The forensic evidence
The Crown submits that two pieces of forensic evidence have, when combined, greater weight than the individual items. The prosecution’s hypothesis in this aspect of the case is that the accused smashed a window or windows on the northern side of the house. He did so using a hammer. The hammer went through one of the windows, either deliberately or accidentally. The hammer was later found by police on top of a pile of toys in a lounge room inside the smashed windows. The accused’s DNA was found on the handle of the hammer. While smashing the windows, the accused was wearing a balaclava. A balaclava with the accused’s DNA on it was found in a drawer in his bedroom. Embedded in that balaclava was a fragment of glass which was indistinguishable from glass from one of the northern windows. Using statistical analyses, there is, on one method of analysis of glass, support for the proposition that the fragment in the balaclava comes from the window.
Thus, putting this aspect of the Crown case at its highest, there is DNA evidence suggesting the accused deliberately or accidentally caused the hammer with which he was smashing a window to go through that window into the lounge room. In doing so a fragment of glass from that window, or one adjacent to it, became embedded in the balaclava he was wearing.
The accused challenges the glass evidence. He challenges the inferences which the Crown seeks to draw from both the DNA evidence and the glass evidence.
DNA evidence
The accused does not really dispute that his DNA might be on the handle of the hammer found in the lounge room but it is necessary to analyse the DNA evidence to appreciate its weight.
First, I bear in mind that the hammer is a portable item. It cannot have the forensic weight of a DNA sample from, say, a part of the Sandery house.
Second, it is necessary to understand the forensic limits of the DNA evidence. The forensic scientist, Ms Natasha Mitchell, gave evidence. She produced three reports dated 7 February 2012,[8] 23 July 2012,[9] and 28 August 2012.[10] The DNA profile from the material from the hammer is Exhibit P31.
[8] Exhibit P28.
[9] Exhibit P29.
[10] Exhibit P30.
From the first report, Exhibit P28, it appears that a tape lift from the handle of the hammer contained a mixed DNA profile with at least two contributors. The major component matched the DNA of the accused. The statistical weighting of that match means that it is greater than 1 in 1 billion probability that the accused is the major contributor rather than an unidentified member of the public with the same DNA profile. Exhibit P29 suggests that the accused’s brother, Kayne Cluse, is excluded as a possible minor contributor.
On the basis of the DNA evidence I am satisfied that the accused was a major contributor to the DNA found on the handle of the hammer in the lounge room in Mr Sandery’s house. Standing alone that evidence would be slight inculpation of the accused in the crime.
I turn to the glass evidence.
Glass evidence
Police went to the accused’s house on 15 December 2011, some ten weeks after the crimes. There they found two balaclavas, one in a drawer in the accused’s bedroom with a major DNA profile matching him, and another in the accused’s brother’s drawer with a major DNA profile matching the brother. Balaclavas have many innocent uses, but it is common for them to be used as disguises in the commission of crimes. It would be unremarkable if some of the assailants at the Sandery house wore balaclavas. I will refer to the two balaclavas by reference to the last two digits of the exhibit numbers given to them by the police. Balaclava 70 was found in the brother’s bedroom and balaclava 72 was found in the accused’s bedroom. For the purposes of this discussion I will refer to the balaclavas as belonging to the brother and the accused even though that fact must be proved. Fragments of glass were located on both balaclavas. Put at its highest for the prosecution, there is evidence which links the glass found on the balaclavas to glass from two of the broken windows on the northern side of the house. They are windows into the lounge room where the hammer was found.
However the accused challenges both the conclusion that can be drawn from the glass analyses and the weight that can be given to the evidence. It is necessary to closely examine the glass evidence to assess the weight, if any, that can be attributed to it.

Before turning to the analyses I refer to other findings concerning glass. Police searched the accused’s Mitsubishi car on 15 December 2011. They retrieved fragments of glass from the driver’s seat cover and floor mat and the front passenger seat cover and floor mat. At first it appeared that there might be a link between glass found in the accused’s car and glass found at the crime scene, but on closer analysis that link all but disappears. The circumstances of that closer analysis inform the weight that can be given to the glass evidence from the balaclavas. I will now turn to that closer analysis.
The first caution about window pane glass is that it is not unique. For forensic purposes glass evidence is different from DNA evidence. Ultimately it is thought that the DNA of each individual is unique. While forensic science is not so discriminating as to be able to prove a link between a control sample of DNA and a crime scene sample, the combination of DNA analyses and statistical calculations permits very high estimates of the probability of such a link, often over one billion to one.
Glass evidence is capable of very much less discrimination. There has apparently been a tendency in the last 20 years or so for glass manufacturers to achieve a high degree of uniformity in their product. The so called “float” method of production has brought about a more standardised way of making glass. Further, the number of manufacturers has diminished.[11]
[11] Ms Redman T795-6.
It would appear that Mr Sandery’s house might have been built in the late 19^th or early 20^th century, but that would not necessarily mean that the window glass is from that period.
Glass evidence is presented first by analysis of the glass, then by an estimate of the probability of two samples coming from the same source. In this case the glass was subjected to two different sorts of analysis – the refractive index analysis and the laser ablation analysis.
Before dealing with the two sorts of analyses, I deal with the frequency evidence.
The Forensic Science Centre keeps a database of glass samples retrieved predominantly from within South Australia.[12] It is not known whether the glass retrieved from South Australia was manufactured in South Australia.
[12] T798.
The purpose of keeping the database is to enable evidence to be given of the probability of a suspect sample of glass coming from a crime scene. That process is analogous to the statistical evidence produced to establish the probability of an accused being a contributor of DNA at a crime scene. While the process with glass is analogous to the DNA process, the results from glass frequency assessment are much less discriminating than with DNA. The South Australia database contains some 2,500 entries of glass analyses using the refractive index method. Apparently the South Australia database is the largest of its type in Australia. The entries include different types of glass – 58 per cent is window glass, 26 per cent is vehicle glass, about 8 per cent is container glass and about 7 percent is glass from “other” sources.[13]
[13] T721.
After the glass from the crime scene and the suspect glass had been analysed, the results are subjected to a two stage process to determine the likelihood that the two pieces of glass come from the same source.
The first stage is to arrive at a numerical calculation. This is called a “likelihood ratio”.[14] Ms Redman from the State Forensic Science Centre said that the numerical calculation is described as the “Welsh” test, a statistical calculation used world-wide.
[14] T744.
The likelihood ratio compares two alternative hypotheses - first that the accused’s clothing was close to the glass when it broke, and second, that the accused’s clothing had never been near the crime scene glass; the glass on the clothing has come from an unknown source which, by chance, has the same refractive index (or whatever analysis has been used). In other words there is a random match.[15]
[15] T745.
The likelihood ratio takes into account a number of variables:
·How much glass is deposited on the suspect clothing,
·Where the glass is located, eg an upper, middle or lower garment,
·The commonality of the glass,
and
·The time between the commission of the offence and the location of the garment.
The results from samples of glass found in the two balaclavas were subjected to this likelihood ratio calculation. The results from the glass found in the accused’s car, the seats and the floor mats, were not subjected to this analysis. That is because the variables referred to above cannot be applied to items such as car seats and floor mats. They can only be applied to garments. In the case of the car samples all that could be determined was whether there was a match or not.
The second stage of the frequency assessment is to translate the numerical likelihood ratio into a verbal scale. The verbal scale ranges from “no supporting evidence” for the suspect sample coming from the crime scene to “very strong support”. The range is as follows:
0:     no supporting evidence
                   1:     inconclusive
             1-10:     slight support
         10-100:     support
     100-1000:     strong support
1000 – 10000:   very strong support
When the refractive index results for the balaclavas were subjected to the frequency assessment the results were:
Balaclava 70 (brother) 4 - slight support (one fragment from window 35)
Balaclava 72(accused) 36 - support (one fragment from sample window 35)
In summary then the glass which was analysed using the refractive index method showed that there was found on each of the accused’s balaclava and that of his brother, one fragment of glass which was indistinguishable from glass from a smashed window on the northern side of Mr Sandery’s house, a window to the lounge room where the hammer was found. There was “support” for the proposition that the fragment in the accused’s balaclava came from that window, and “slight support” that the fragment in the brother’s balaclava came from that window.
In addition to the balaclava evidence, there was evidence suggesting links between the accused’s car and the crime scene glass. In all, thirteen panes of glass at Sandery’s house were broken. There were nine panes broken at the western front of the house. Four of those panes were in each of the windows of the two front bedrooms and one pane was beside the front door.
On the northern side of the house four panes were broken.[16] One pane was from a window to a room next to the lounge room towards the rear of the house. The other three panes were from windows to the lounge room. One was a pane from the leadlight section of a door on the western side of the lounge room from the return verandah. The other two panes were from windows to the lounge room on the northern side of the room. The two panes were the lower panes of a pair of nearly abutting sash windows divided by some masonry. One pane was to the east, marked 35, and the other to the west, marked 34. The two fragments on the balaclavas were indistinguishable from the glass from the eastern window (35) of the two on the northern side of the house. Glass indistinguishable from the pane marked 34 was found on the driver’s seat cover and floor mat and on the passenger seat cover. There was one fragment on the driver’s floor mat and seat cover and two fragments from the passenger’s seat cover. In addition there were four fragments, indistinguishable from the leadlight window in the door marked 33. Three were marked 33A and one was marked 33B.
[16] See Exhibit P62A.
Glass analysed by the refractive index method
This method involves the glass being crushed and immersed in oil. Light is passed into the mixture. An instrument known as “Grim” then determines the refractive index of the glass. This method of analysis is used routinely in the Forensic Science Centre of South Australia and elsewhere in Australia and overseas. This was the method of analysis conducted by the Forensic Science Centre and presented in report and declaration forms as part of the prosecution case. Evidence of the glass analysis and frequency assessment were given by Ms Kahlee Redman who is the acting team leader of the chemistry group of the Trace Evidence section of the Forensic Science Centre.[17]
[17] Curriculum Vitae Exhibit P60.
The trial began on 16 September and proceeded until 24 September 2013. On 24 September I was told that the defence sought to have the glass subjected to a different form of analysis, the laser ablation method. This method analyses the chemical makeup of the glass. Agreement was reached between the prosecution and the defence that the glass lodged with the Forensic Science Centre would be made available for the laser ablation analysis. The trial was adjourned to 2 December to enable that further analysis.
The further analysis was conducted by Ms Redman at the premises of a private organisation called Adelaide Microscopy with the assistance of Dr Benjamin Wade from that organisation. It was understood by the prosecution and the defence that in the course of subjecting the glass to the laser ablation process, the glass samples would be destroyed. In the course of this process a laser is applied to the glass, vaporising it. The vapour passes into an instrument which analyses its composition.[18] Ms Redman agreed that the laser ablation method was capable of producing a more discriminating result than the refractive index method, although she maintained that the refractive index method was reliable and routinely used in Forensic Science Centres in Australia.
[18] T759.
The results of the laser ablation testing are set out in Exhibit P68. For reasons that are unknown, it was discovered that the glass fragment from balaclava 72, from the accused’s bedroom, had disappeared. As a result that fragment could not be subjected to the laser ablation test. The other balaclava marked 70, from the brother’s bedroom, was tested and was found again to be indistinguishable from crime scene sample 35, the lounge room window. While the two samples from the two balaclavas were found to be indistinguishable from each other using the refractive index method, it is not suggested that I should find that the two would be found indistinguishable using the laser ablation method. The confirmation of one does not mean that the other would be confirmed.
The samples of glass from the car which were found indistinguishable from the crime scene samples were also subjected to the laser ablation test. Here the result was different from the refractive index results. The five fragments from the driver’s floor mat found by the refractive index method to be indistinguishable from windows 33 and 34 were now all found to be different from the window samples and were, in fact, found to be different from each other. The one sample recovered from the driver’s seat cover was once again found to be indistinguishable from window 34.
The results from the more discriminating Laser Ablation testing therefore confirmed the refractive index results in respect of balaclava 70 and the driver’s seat cover fragments.
There is support for the proposition that a fragment of glass recovered from the balaclava found in the accused’s bedroom came from the lounge window of the Sandery house, but that conclusion comes from the less discriminating method of analysis.
It is true that there is confirmation by the laser ablation method of the refractive index analysis of the balaclava found in the brother’s bedroom. It is true that those two samples were found by the refractive index method to be indistinguishable among themselves. It is also true that the driver’s seat cover fragment was confirmed. However the similarities between all five of the fragments from the driver’s floor mat became dissimilarities under the more discriminating testing.
I remind myself that the similarities between the fragment from the driver’s seat and the crime scene window cannot be subjected to frequency assessment. The frequency of the possible match cannot be determined. That diminishes the weight that can be attached to the seat cover evidence.
I will revisit the question of the weight that can be attached to the glass evidence when I consider the accused’s evidence about his association with the balaclava found in his bedroom and his association with the car. For the present I assess the weight of the glass evidence standing alone and unexplained by the accused.
I accept the evidence of Ms Redman that the refractive index method is a reliable and recognised method of testing glass. I also accept her evidence about the frequency assessment. In combination, those processes lead to the conclusion that there is scientific support for the proposition that a fragment of glass recovered from a balaclava retrieved from the accused’s bedroom (and bearing DNA matching his) came from the window marked 35 of Sandery’s lounge room. In addition, a fragment of glass recovered from the accused’s driver’s seat was indistinguishable from glass from the neighbouring window, number 34 of that same lounge room.
That evidence is of some weight implicating the accused in the commission of the crime. The evidence is inculpatory as opposed to exculpatory. The more discriminating testing has mixed effects on the conclusions that can be drawn from the earlier testing. The exclusion of the formerly included driver’s floor mat fragments might weaken reliance on the earlier testing. The confirmation of the results on the other balaclava and the seat cover might strengthen the reliance on the earlier testing. I conclude that the glass evidence relating to balaclava 72 and to a lesser extent the driver’s seat cover has some weight as circumstantial evidence implicating the accused in the commission of the crime.
Glass and DNA evidence
Standing alone the glass evidence would be of slight weight in proof of the accused’s guilt. However the glass evidence does not stand alone. The glass evidence has to be seen in conjunction with the DNA evidence. The hammer with the accused’s DNA on it was in the lounge room whose windows were smashed. The glass evidence assumes more weight because of its association with two of the windows of that room. Window 34 is associated with the driver’s seat cover and window 35 is associated with the balaclava found in the accused’s bedroom.
In combination the DNA and the glass evidence have some weight in implicating the accused. That weight will have to be reviewed in the light of the accused’s evidence which I will discuss later.
Motive
The prosecution case is that it is just not a disinterested member of the public who had the opportunity to commit the crime and whom forensic evidence implicates. The prosecution case is that the accused was someone who had a motive to commit the crime. The accused had a motive because of his close association with the Hells Angels OMCG which is hostile to the Finks, of which Mr Sandery was then prominently associated. Further, Sandery had shortly before the crime, brazenly antagonised the Hells Angels by coming to their clubrooms and either throwing something over the clubroom perimeter fence or getting into their premises and chasing people around with a hammer. Not only was the accused aware of those actions by Sandery, but he had footage of Sandery arriving at the Hells Angels clubrooms on his mobile telephone.
Before the trial the prosecution filed a notice pursuant to s 34P(4) of the Evidence Act that it sought to adduce evidence of discreditable conduct on the accused’s part. The evidence was proposed to be given by a police officer who was a member of the Crime Gangs Taskforce. The evidence related to:
·The accused’s association with the Hells Angels OMCG;
·Mr Sandery’s association with the Finks OMCG;
·The nature, constitution and characteristics of outlaw motorcycle gangs, in particular the Hells Angels and the Finks
·The nature and extent of the ongoing conflict between the two organisations.
The prosecution submitted that the evidence would demonstrate a motive for the accused to commit this crime. It would also explain why an individual might engage in such unprovoked antisocial behaviour. Another way of putting that submission is that the evidence about the gangs and their mutual hostility might make explicable behaviour that might otherwise be inexplicable, or at least barely explicable.
By a Rule 15 notice the accused opposed both the leading of the evidence on those topics and the manner in which it was to be lead. The topics were said to lack relevance and to be more prejudicial than probative. The evidence was said to be hearsay and, in part, based on opinion evidence of the proposed witness. Opinion evidence of this type was not admissible because:
·There is no recognised area of expertise; and
·if there is such an area of expertise, the witness is not qualified to give it; and
·even if he is an expert, the witness should not be permitted to give the evidence because he was involved in the investigation of the matter.
The officer gave evidence on the voir dire.
On 17 May 2013 I published reasons for permitting the prosecution to lead the proposed evidence. I indicated that I would hear any objections to specific parts of the evidence as they arose. In the event, the parties agreed during the trial that the officer’s evidence on the voir dire should be received at the trial without the officer being called to give further evidence. That was, of course, without prejudice to the accused’s objection to its admission.
I elaborate on the reasons I published at the end of the voir dire.
It seems to me entirely relevant to the issues in the trial to hear evidence that the accused might have a motive to take part in the attack at the Sandery house, not because he had any personal animosity towards Sandery or members of his family, but because he and Mr Sandery belong to two organisations which are hostile to each other.
Further it seems to me entirely relevant to hear evidence about the makeup of such organisations. Are they organisations like, say, the Boy Scouts where it would be completely surprising to find rival scout troops resorting to inter-troop violence, or are they organisations where violence between rival groups might not be so surprising?
It is not difficult to appreciate the potential prejudicial effect of such evidence. The evidence is only admissible if I am able to keep sufficiently separate and distinct the permissible and impermissible uses of such evidence (s 34P(3)) and that the probative value of the evidence for a permissible purpose substantially outweighs any prejudicial effect (s 34P(2)(a)). The evidence is not sought to be led to establish a propensity or disposition. So Placitum (b) does not apply.[19]
[19] See generally R v C, CN [2013] SASCFC 44 per White J at [22]-[26]. And R v Maiolo (No 2) [2013] SASCFC 36 per Peek J at [68]-[76].
The impermissible uses include reasoning that simply because the accused was associated with the Hells Angels he was of bad character, or disposed to violence, or committed these offences. I bear these matters in mind when I consider the permissible uses.
I turn to the challenges to the manner in which the evidence was to be led. That is, there is no area of expertise, Brevet Sergeant Featherby is not qualified as an expert and he is disqualified by reason of being involved in the investigation of the matter. I adopt, but add to rather than repeat, the reasons I gave at the end of the voir dire.
It became clearer as the evidence of Brevet Sergeant Featherby unfolded that there were aspects of the culture of motorcycle gangs which would be unknown to lay fact finders. They were unknown to me. It may be that gang culture is not the subject of extensive academic study but, as with the drug culture or drug trade, there is a body of knowledge and experience gained by police officers working in the area. Evidence of practices in the drug trade is routinely admitted through police officers experienced in the area.

In R v Baker (1998) 34 A Crim R 141 at 143 King CJ observed that evidence of this sort is not really opinion evidence at all. It is evidence of facts that an experienced officer observes in the course of their experience. Other authorities for the admission of evidence of this sort in relation to the drug trade are Anderson v R (1992) 60 SASR 90 per Mullighan J at 108, R v Fazio (1997) 69 SASR 54 per Bleby J at 62-64 and R v Morrison [2002] SASC 399 per Gray J at [18]-[28].
That sort of evidence has been recognised as admissible in the case of people experienced in the causes of road accidents.[20]
[20] Weal v Bottom (1966-7) 40 ALJR 436 per Barwick CJ at 438.
In those circumstances it is unsurprising that there is in more recent times authority for the admissibility of evidence given by police officers experienced in the investigation of gang related crimes. Evidence of that sort was accepted in the cases of R v Vinayagamoorthy and Ors [2008] VSC 599 at [57]-[59] per Coghlan J and R v Hawi and Ors (No 1) [2011] NSWSC 1647.
Brevet Sergeant Featherby is an officer experienced in policing crimes committed by gang members. I conclude that there is a recognised area of expertise and that Featherby is qualified to give expert evidence. Little of his evidence amounted to opinion evidence. Overwhelmingly it was evidence of practices or events he had either observed himself, or which had come to police intelligence. Just as practices in the drug trade become familiar to officers investigating drug offences, so practices and specific events come to be known to police officers investigating gang related offences.
Necessarily there is a hearsay aspect to the acquisition of some of that knowledge, but that is true of any area of expertise.
I do not think that Brevet Sergeant Featherby should be disqualified from giving evidence because he was involved in this investigation. The defence was not able to point to any conflicts which might disqualify him.
As events turned out, very little of the substance of the officer’s evidence was challenged in cross-examination. Rather the defence challenges the conclusions that should be drawn from that evidence. For example, there was no suggestion that the accused had been involved in any of the confrontations between the Hells Angels and the Finks.
What became clear from the evidence of Brevet Sergeant Featherby is that motorcycle gangs have features in common with many other organisations. They have memberships, hierarchies, constitutions, rules, distinctive apparel and clubrooms. Like some other organisations, aspiring members must serve a period of probation to demonstrate their acceptability. It is the accused’s own evidence that before you can become a member of the Hells Angels, you have to serve a period as a “prospect” and carry out menial tasks for the club. He became a prospect sometime in 2011. His father was a member resident in Darwin. He and his siblings frequented the Hells Angels’ clubrooms and events from their youth. He wore apparel appropriate to his status as a prospect.
Motorcycle gangs in South Australia however have features that are not shared with most other organisations. There is a culture of violence within them. Some members, although not the accused, wear tattoos extolling violence. Some members, although not the accused, are associated with firearms. Members have been prosecuted for firearms offences and firearms have been found at club premises. There are violent confrontations between the groups seen on CCTV footage and public television footage. Gang members who are victims of violence will not cooperate with police investigations. Associates who break the law and are imprisoned do not face expulsion on that account. They are referred to as belonging to the “big house crew”.[21] There is a culture of disregard for social norms and law enforcement. The accused himself agreed that the Hells Angels call themselves “one percenters”, meaning one percent who are above the law or outlaws.[22] The accused acknowledged that, as at September 2011, he was aware of hostility between the Hells Angels and the Finks.[23] He knew it was part of the history of the two organisations.[24] He agreed that, as at September 2011, the two groups were enemies.[25] He knew that there had been fights between members of each gang. He knew some of the people involved in those fights.[26]
[21] Per the accused at T1009.
[22] T1007.
[23] T1018.
[24] T1016.
[25] T1015.
[26] T1017-9
I turn to articulate the permissible uses and the probative weight of that evidence. The accused has been associated with the Hells Angels from his teens through his father’s association. It was part of his upbringing. He wanted to become more closely associated as he became an adult. He aspired to become a prospect in 2011. He went regularly to club meetings on Friday nights. He was aware of the violent culture of motorcycle gangs, including his own and the Finks. He was aware of the fact, and the level, of hostility between the groups leading up to September 2011.
There is no evidence that the accused had any personal animosity towards Mr Sandery or his family. The accused said he did not even know who Sandery was as at September 2011. I reject that assertion for reasons that I will come to, but there is no evidence of any personal animosity towards Sandery. However, the accused’s association with the Hells Angels provides him with a motive shared with other members of the Hells Angels towards Mr Sandery. Sandery was a prominent member of a rival like group. Further, I find the level of violence perpetrated against Mr Sandery’s household is not so surprising from a group such as the Hells Angels as it might be from a different sort of organisation.
In my view those findings are permissible uses to which the discreditable conduct evidence may be put. In my view those findings are also amply demonstrated by the evidence. I describe those two findings as evidence of motive and perhaps less precisely, as “context” merely for the purpose of expressing the limits to the probative weight of such evidence. Evidence of motive and context cannot, and does not, prove the accused’s guilt. Those items of evidence are, however, items of circumstantial evidence which tend to negate an innocent explanation for other items of circumstantial evidence such as evidence of opportunity and forensic evidence.
There is a further piece of evidence suggesting a link between the accused and Mr Sandery. There was found on the accused’s mobile telephone some footage showing Sandery approaching the perimeter fence of the Hells Angels’ clubrooms. There was expert evidence that the footage came to be on the accused mobile telephone no later than Saturday 17 September 2011, some 13 days before the shooting. The footage was in the photo gallery section of the accused’s telephone. The footage appears to have been captured by one of the security cameras around the clubrooms. There are voices commenting on the images. It was put to the accused that his was one of the male voices and his girlfriend’s the female voice. He denied both allegations.
It was put to him that the other male voice was that of Luke Kokotis, a friend and fellow Hells Angels associate. The accused said that the voice said to be Kokotis’s was familiar but he was not sure.[27] I make no finding about the voices.
[27] T1027.
From other evidence it is not disputed that what is shown on the footage is Mr Sandery arriving at the Hells Angels’ club rooms about two weeks before the shooting. He was in Ms C’s car. Ms C identified the occasion on which Sandery had arrived home on a Friday night in an intoxicated and angry state.[28] Sandery had left the house in her car, taking with him a hammer. He had been uttering threats towards the Hells Angels.[29] It is not clear what Sandery did at the Hells Angels’ clubrooms. There were hearsay accounts of him chasing people around inside the premises. Ms C said that when he came home he told her that he had chased two Hells Angels around in the clubrooms.[30]
[28] T418.
[29] T427.
[30] T464.
I can make no finding about what Mr Sandery did but it is beyond dispute that he went to the Hells Angels clubrooms about two weeks before the shooting and there got out of the car and approached the perimeter of the premises. He made his presence felt. He was being provocative. His presence was caught on the Hells Angels’ security cameras. That footage was on the accused’s telephone. The accused regularly went to the Hells Angels’ clubrooms on a Friday night. I think it likely that these events occurred over night between Friday 16 and Saturday 17 September 2011.
I will later discuss the accused’s explanation for the presence of that footage on his phone.
The Defence case
The defence case is that the accused was not at the Sandery house on Friday 30 September 2011. At the time of the shooting, at about 10.15 pm, he was either at the Hells Angels’ North Crew clubrooms at Mansfield Park or he was on his way home to Burton. If, despite his denials, the accused is found to have been at the Sandery house at the time of the shooting, the defence case is that it cannot be proved beyond reasonable doubt that he was part of a joint enterprise with the two people who went into the house to trespass and to endanger the lives of the Sandery children by shooting into their bedroom.
I will examine the defence case and the evidence of the accused in some detail.
The accused was born in Adelaide on 28 February 1990. He has a sister 3 years younger and a brother, Kayne, 5 years younger. That brother died in January 2014. His parents separated when he was 10 or 11. His father moved to Darwin. His father is a member of Hells Angels. The accused maintained contact with his father, visiting him occasionally in Darwin, and spending time with him in Adelaide when the father came to Adelaide. The accused said that from 14, he and his siblings would sometimes go with their father to the Hells Angels’ clubrooms. His friends included people who were associated with the Hells Angels, although he had some who were not so associated. The accused said he wanted to be a member of Hells Angels with his father.[31] After leaving school he had two jobs over 18 months then began working at Visyboard at Gepps Cross in 2007. He remained working there until his arrest for these offences in February 2012. He started as a labourer and became a machine operator.
[31] T939.
The accused has been in a relationship with a woman called Jessica Parish since about when he started working at Visyboard. She was present in court through most of the trial. The accused’s antecedents were tendered by the prosecution but by consent.[32] He has very few antecedents. None involves firearms or weapons. There is an aggravated assault committed in February 2009 for which he was sentenced on 24 May 2010, and a disorderly behaviour committed in July 2010, for which he was sentenced on 30 August 2010. No conviction was recorded for either offence and he was fined.
[32] Exhibit P58.
By contrast Mr Sandery’s antecedents[33] are extensive and include many offences of violence. There are some firearms offences as well. Mr Sandery is in his early 40s.
[33] Exhibit P59.
The accused was not very forthcoming about when he became a prospect of the Hells Angels. In examination-in-chief he said it was when he was 21. When I asked him if that was in 2011, he said it was. When I asked if it was before or after his birthday on 28 February, he said it was after, but he could not remember the date.[34]
[34] T933.
In cross-examination he said he became a prospect towards the end of 2011. He thought it was somewhere around his girlfriend’s birthday which is on 4 November. He said it was after 30 September, but he denied that he was allowed to become a prospect as a result of being involved in the Sandery incident.[35]
[35] T1007.
The accused said that a week or so before he gave evidence (on 30 November 2013) he had arranged for a Hells Angels’ member, Terry Polly to visit him in prison so that he could withdraw his association with the club. The accused denied that he had done that so that he could say in the witness box that he was no longer associated with the club. He said that his reason for withdrawing from the club was that he hoped he would be out of prison shortly and “this is not what I want the rest of my life to be”.[36] He said he understood that because of his father’s continuing membership of the Hells Angels he, himself, was being permitted to leave the club on good terms. He said that he did not know if the club had rules about leaving.
[36] T1009.
In September 2011 the accused was living at Burton in the house where he had been brought up. He lived there with his mother, his brother and sister and Ms Parish.
He said he has no clear recollection of what he was doing on 30 September. For the most part his evidence about his movements on that day was in the language of reconstruction, eg “I would have done x...”. I drew this to the attention of his counsel, Mr Anders, in case the language was unintentional.[37] For a time thereafter the accused’s evidence became more direct[38] but it very shortly reverted to the language of reconstruction. I take as an instance of the return to that language questions and answers in examination-in-chief concerning the accused’s return home after driving to Port Wakefield on the night of 30 September[39]:
Q On your arrival at home, what, if anything, did you do?
AI’m not sure, I can’t really remember, but by looking over all the ... the things I have been given is I went home and I have gone back out again.
QHow long were you at home?
AI’m not sure.
QWhere did you go back out again to?
AMost probably, definitely, would have went back to the club.
[37] T961-2 and T965.
[38] eg T963-64.
[39] T965.
I do not conclude from what I have described as the language of reconstruction that that evidence is for that reason alone, untruthful or unreliable. I accept that much of what we regard as memory is from reconstructing events in our minds. I accept that we may consciously or unconsciously reconstruct whole events from partial certainty. I also accept that the accused should not suffer adverse findings of credit because of his lack of articulation. That all said, I got the clear impression that, having accepted the reliability of objective evidence such as the Safe-T-Cam , phone and ATM records, the accused fitted his account of events on the night to the story they told.
That would not necessarily tell against the accused’s credit either. If the evening had no special significance for him, it would be unsurprising if, after a while, he had no reliable recollection of events.
He was not spoken to by the police about the events of 30 September until 15 December, some 10 weeks later. If he had no particular reason before then to reflect on his movements of 30 September it might not be remarkable that he has to rely on reconstruction.
I will set out the accused’s account of what he did on 30 September as if he gave it in direct language, but that is certainly not how he gave his evidence.
Confirming the accuracy of his work timesheet,[40] the accused said he left work at 8.46 pm. It was his habit, and that of other employees, to leave work 15 minutes early on Fridays without pay.
[40] Exhibit P26.
He drove to the Hells Angels’ clubrooms at Mansfield Park. The journey took him 5 to 10 minutes. He did not use his telephone between 8.24 pm and 10.24 pm. He does not remember what he did at the clubrooms. It was the usual practice of the Hells Angels North Crew to have their meetings on Friday nights beginning around 8 or 8.30 pm. The practice was that the members would have their meeting first. Others were excluded from that meeting. The members meeting might go for an hour or two. Then the prospect would come into the meeting. They might be there for an hour or so. After that, friends could join in. During meetings, telephones had to be left outside the meeting room.[41]
[41] T940-2.
While the accused had no specific recollection of what happened at the clubrooms he denied there was any talk about an attack at the Sandery house.
The accused had driven his recently acquired green Mitsubishi Magna on 30 September. He had had a purple Hyundai Excel for about a year before that but he gave that car to his sister. He had bought the Magna for $1,500 from a friend. The Magna had been transferred into his name four days earlier, on 26 September 2011.
The accused accepts that he went through the Safe-T-Cam at Globe Derby at 10.43 pm heading north. He thinks it might have taken him about 15 minutes to get from the clubrooms to the Safe-T-Cam at Globe Derby. That would suggest he left the clubrooms at around 10.28 pm.
The accused accepts the telephone records which suggest he rang Ms Parish at 10.24 pm. He has no recollection of making that call.[42]
[42] T956.
A bank record of him making a withdrawal of $80 from an ATM at Port Wakefield prompts a recollection of what he did that night. He believes he and Ms Parish had an argument. Because they lived with his mother, the couple would normally leave the house when they argued. They would normally go for a drive. On this occasion they drove to Port Wakefield. They have done that before when having an argument.[43]
[43] T960.
When the accused got home to pick up Ms Parish his mother was home but he was not sure about his brother and sister. Accepting that he went through the Safe-T-Cam at 10.43 pm, travelling north, the accused estimates it would have taken him a further 10 to 15 minutes to get home. That suggests he might have reached the house at about 10.45 or 10.50 pm. He estimates it would then have taken him about 45 minutes to get to Port Wakefield. The ATM withdrawal was at 11.48 pm. He does not remember what that withdrawal was for. He thinks they could have spent about 20 minutes at Port Wakefield.
At 11.07 pm there is a voice message from the accused to Ms Parish. In cross-examination the accused was really at a loss to explain that message.[44]
[44] T1040-44.
The accused accepts that there is a phone record suggesting he accessed the internet on his phone at 11.22 pm. He does not know why he was accessing the internet but he denied it was to see if there was publicity about the shooting.
He accepts the phone records which suggest he spoke to a friend and Hells Angels associate, Husain Alzuain for one minute 49 seconds at 11.25 pm. That would appear to be while he was on the way to Port Wakefield. He has no recollection of that call but he said it was not unusual to make and receive phone calls while arguing with his girlfriend.[45] He accepts the phone records which suggest that he and Hasain Alzuain were trying to contact each other by phone before making the connection at 11.25 pm. There was an attempted call by the accused from Dublin at 11.20 pm. Both these calls would appear to be on the way to Port Wakefield. As I have said the accused believes that he might have spent 20 minutes at Port Wakefield although he acknowledges that he has no real basis for nominating 20 minutes.[46]
[45] T1046.
[46] T1054.
The accused says that he believes that he took Ms Parish home after the trip to Port Wakefield.[47] He accepts that he made a telephone call from the Parafield Gardens area at 1.31 am on 1 October and that he rang a Hells Angels member, Dale Willingham, at 4.28 am from Kilkenny.[48] The accused said that, although he had no recollection of going back to the Hells Angels’ clubrooms after the Port Wakefield trip, he must have done so because Exhibit P88, the phone records, suggests the call to Willingham at 4.28 am was made from Kilkenny. He believes that is the general area of the clubrooms. The accused said it was not unusual for him to ring Willingham at that time of the morning.[49] He said that at times he would spend the whole weekend at the clubrooms.
[47] T1055.
[48] T1056.
[49] T1056.

Consequently the accused believes that after dropping Ms Parish home he went to the clubrooms. He probably spent part, at least, of the rest of the weekend there. He could not remember whether there were people partying at the clubrooms when he got there.[50]
[50] T1058.
In cross-examination the accused accepted from the phone records, in particular the colour coded version of the phone records, Exhibit P88, that from 11.25 pm on Friday 30 September to 10.00 am the following day he has called or attempted to call four Hells Angels’ associates – Hasain Alzuain, Musa Alzuain, Dale Willingham and Darryl Polly. He also accepts that that is not the pattern of his telephone contacts on other Friday nights/Saturday mornings from Friday 2 September to Friday 21 October.
The accused was unable to explain making calls to Hasain Alzuain at 12.08 and 12.30 pm on Saturday 1 October, apparently from Two Wells. He accepts that Darryl Polly, a Hells Angels member, lives at Two Wells. He does not recollect visiting him on 1 October. He has no specific recollection of going to the clubrooms after going to Port Wakefield or what he was doing at the clubrooms.[51]
[51] T1073.
The accused said that very shortly after the shooting, within 24 hours, he saw publicity of the shooting. The publicity referred to Mr Sandery and his involvement with the Finks.[52] He said that was the first he had ever heard of Mr Sandery. He denied ever discussing the shooting with Hells Angels members to see what they knew about it - “It’s got nothing to do with me. I didn’t want to know about it”.[53]
[52] T1001.
[53] T1001.
The accused acknowledges that footage of Mr Sandery coming to the Hells Angels clubrooms was on his mobile telephone. He was unsure how it came to be there although he agreed that he transferred the footage to the photo album on his phone.[54] He was not sure why he did that.[55] He said that someone sent him the footage. He did not know who that might be. He said in examination-in-chief that he believed it must have been sent to his phone as part as a group transfer –
... the only way I can explain how the footage came to my phone was it was sent to me, but it was not sent directly to me. There is an application on iPhone where I’ve got an iPhone and five people in the room have got an iPhone, you can send it to all five people with one message. I remember using that a few times to send pictures, songs, a few things and that’s the only reason I can explain for it to be sent to me, because there is no reason for it to be sent directly to me.[56]
[54] T1022.
[55] T1023.
[56] T984.
The accused said he had no specific recollection of receiving that footage on 17 September 2011.
Dr Simon, an IT expert, analysed the accused’s phone. He said he had never heard of an application behaving in a way described by the accused. There was much cross-examination of Dr Simon about mechanisms by which such a transfer might take place but the accused does not say that the transfer occurred in the ways canvassed with Dr Simon.
I do not accept the accused’s evidence about him not knowing who Sandery was before the post-shooting publicity. I find that, given the accused’s association with the Hells Angels and Sandery’s prominence in the Finks, the accused knew who Sandery was well before the shooting. Having the footage of Sandery’s visit to the Hells Angels clubrooms in the photo album of his phone confirms that view. His explanations for the footage being on his phone add to my certainty of the accused’s prior knowledge about who Sandery was. Of course the accused bears no burden of proof. An adverse finding of credit on this topic does not necessarily affect the accused’s credit generally. However I am certain that the accused was not truthful on this topic. I do not use that finding as evidence of his guilt. It goes only to his credit.
Police went to the accused’s house on 8 December 2011 for an unrelated drug investigation. They returned and searched his house on 15 December. On that occasion they spoke to him at his work place. He answered police questions for a while after the caution, but then exercised his right not to answer further questions until he had spoken to his lawyer. I draw no adverse inference from the accused exercising that right. Before exercising that right the accused denied any involvement in the shooting. When asked where he was at about 10.30 pm on 30 September, he said he would probably have been at home. He said he usually went straight home after work. In examination-in-chief he said, in answer to a leading question, that it was his belief at the time that he was probably at home:
Q     You told police that “it would have been home, probably home”, that’s correct.
A     Yes.
Q     That’s what you said to police.
AYes.
QWas that your belief at the time.
AYes, it was.
QDid you tell police that usually you go home.
AYes.[57]
[57] T977.
Later in his examination-in-chief the accused explained why he did not mention going to the club. He said at T978:
I thought if I said to the police I went to the club I might get into trouble or something.
It is of course unclear from those two passages in examination-in-chief whether the accused actually believed at the time he was at home or whether he was aware that he had gone to the club after work but did not say so for fear of incriminating himself. That ambiguity was put to the accused in cross-examination,[58] but was not explained. The accused denied lying to the police but was unable to reconcile that denial with the evidence about his reason for not mentioning the club.
[58] T1029-31.
I refer to a number of discrete topics which arise from the accused’s evidence. I deal first with the balaclava. The accused did not dispute that police may have seen a balaclava in his bedroom drawer when they visited his house for the drug matter on 8 December.[59] He said that he got the balaclava from his brother’s room. He used it himself for riding his motorcycle at night. He also wore it fishing.[60] He thought he might have had it for a year or so. He said that he nevertheless thought that his brother used it.[61]
[59] T990.
[60] T988.
[61] T989.
I discuss the accused’s evidence about cars. He said he purchased the green Mitsubishi Magna shortly before 30 September replacing his purple Hyundai Excel which he gave to his sister. Neither of the cars fits the descriptions of the cars given by witnesses at the scene although not all the evidence relating to cars is especially strong. I think it likely that the car heard accelerating down Company Street was associated with the crime. The witness who heard this car, but did not see it, thought it was a diesel powered car. He had one himself. Neither of the accused’s cars was a diesel.
I think the observations of a witness who saw a car travelling south on Military Road were reliable. For reasons completely unrelated to the shooting, she was anxious about a car going slowly past her house several times. She looked out from her window and saw it. She described the car as being a car like a Nissan Pulsar, which was a hatchback with louvres. It was a four cylinder car.
She thought it was a manual and was brushed silver in colour. She described the car as being “full”. She both saw and heard this car. She saw that car travelling south along Military Road before the shooting. I do not believe that car can have been the accused’s. I do believe it was associated with the shooting.
Another witness, SZ, merely heard a car going north towards Semaphore Road after the shooting. She described it as having a deep throaty sound. I do not accept the submission by Mr Anders that that evidence excludes the accused’s car particularly the Mitsubishi, but it certainly could not be evidence used to identify his car.
One of the two boys, M, said that he saw a car parked out the front of his house into which the two men who had come into the house, fled. While his statement is not entirely easy to follow, I take him to be saying that that car was parked on the other side of the road from his house and facing in the wrong direction. That suggests that the car was facing south. However, I take his evidence to be that when the car moved off after the shooting, it did a u-turn and headed in the opposite direction towards the roundabout. There is a roundabout at the intersection of Hart Street and Military Road which are to the south of the Sandery house. M described that car as being a Holden or Ford in shape, a black silvery colour with mag wheels, a broken mirror on the driver’s side, a wing on the back and having a registration number ending 516 or 519. It may be, as Mr Anders submitted, that that car is the one heard by the witness SZ who heard a car with a deep throaty sound. I am unsure about that. While there might be a consistency between those two descriptions, I am not sure that the car seen by M did a u-turn and went north rather than going south towards the roundabout at Hart Street. I am also not sure how reliable the unsworn statement of a 10 year old boy who has just been shot at would be, but insofar as his statement has any evidentiary weight, it is plainly exclusory. The description does not fit the accused’s car.
In summary then, there is no evidence about cars at the scene which suggests that the accused’s car was there.
I discuss the evidence relating to the hammer with the DNA matching the accused’s found in the lounge room. The accused said that at times before 30 September he was doing handyman work at the Hells Angels club rooms using a hammer. The defence hypothesis is that, if in fact Hells Angels associates did attack the Sandery house, and one of them caused the hammer to go through the lounge room window, then it could be the hammer the accused had been using at the clubrooms.
The prosecution does not dispute that there were various tools kept at the clubrooms and that from time to time building work was carried out there. The accused went into some detail about the building work he had done using a hammer.[62] In cross-examination there was some ambiguity about whether the accused had done some of the work he claimed to have done before 30 September[63] but that is a matter of small moment.
[62] T933-37.
[63] Compare examination-in-chief at T934 and cross-examination T998.
The fact remains that the hammer is a mobile object. The DNA evidence cannot have the same inculpatory weight as would be the case if the accused’s DNA were detected on some part of the Sandery house.
I turn to consider the “evidence” of the two boys who were in the bedroom when the shots were fired.
Police video-interviewed all four of the children in the house in early October 2011, a week or so after the shooting. I admitted the disks of the two elder boys’ interviews pursuant to s 34KA of the Evidence Act. The disks of the interview of A (aged 11 when interviewed) and M (aged 10) became respectively Exhibits P69 and P71. The transcripts of the disks were marked respectively for identification MFI-P69A and MFI-P71A. The admission of the statements was opposed. For reasons I published on 17 May 2013, I admitted the statements. I will not canvas the reasons for their admission save to explain that Mr Sandery would not permit the children to be called as witnesses. In my view their evidence became admissible pursuant to s 34KA of the Evidence Act which was then a recent amendment to the Act. The boys’ out of court statements are capable of being used as evidence of the matters stated, ie evidence of the truth of their contents, by virtue of s 34KB.
As it now appears, the defence does not, in material respects, dispute the boys’ statements. In fact the defence relies on aspects of their statements as being exculpatory. I have already referred to the exculpatory description by M of the car to which the people who came into the house fled.
A, the elder of the two boys, then aged 11, said he saw four “guys” running out the front gate after the shooting.[64] One of them was carrying a baseball bat. He wore a balaclava and black gloves. He was “skinnyish”.[65] Insofar as the observation of build can be relied upon, it excludes the accused.
[64] MFI-P69A, pp 11 and 14.
[65] MFI-P69A p 11.
M, then 10, said the man holding the hand gun wore a hood.[66] Although it is not possible to see how M could have seen out the back of the house, or anywhere else except out the front door after the shooting, M says that there were two “guys” out by the back stairs. He said there were two “guys” at each of the windows to their bedroom, or perhaps he meant there was just one at each of their windows.[67] The gunman wore a hood and a bandana.[68] M claimed to have hit the gunman in the face with a “skeleton thing” or a brick.[69] M said he saw two men get into the car parked across the road.[70] He said the man who had the gun was short.[71] Insofar as that evidence of description can be relied upon it excludes the accused.
[66] MFI-P71A, p 6.
[67] MFI-P71A, p 7.
[68] MFI-P71A, p 11.
[69] MFI-P71A, p 11.
[70] MFI-P71A, p 18.
[71] MFI-P71A, p 22.
In all, M said that he saw four people.[72] Two of them ran from the side of the house. One of those wore long army coloured shorts.[73] One of the men out the back looked as if he was aged about 45.[74] One of the men outside a window (it is not clear which window) had a balaclava which had stripes in the fabric,[75] by which he appears to mean not coloured stripes but stripes in the texture of the fabric. Neither of the balaclavas found at the accused’s house was of that sort. M said one of the men out the back had a white beard.[76]
[72] MFI-P71A, p 26.
[73] MFI-P71A, pp 27-28.
[74] MFI-P71A, p 28.
[75] MFI-P71A, pp 28-29.
[76] MFI-P71A, p 29.
I think the statement of M has to be approached with some caution but insofar as he describes people, a balaclava and a car out the front of the house, his evidence does not identify the accused.
I refer to the accused’s not calling his partner Ms Parish to give evidence. She was available to give evidence. She was present in court for most of the trial. She was in a position to confirm the trip to Port Wakefield. Nevertheless I do not draw an inference that her evidence would not have helped the accused. There may be a number of reasons why she was not called.
Assessment of the accused’s evidence
I turn to assess the accused’s evidence. In my view the accused was an unsatisfactory witness whose evidence I do not believe. He bears no onus of proof. The prosecution must prove his guilt beyond reasonable doubt. Even though I do not believe the accused’s evidence, that does not prove his guilt. It is as if he has not given evidence. I then determine whether the prosecution has proved its case beyond reasonable doubt on the evidence it has adduced.
I explain why I do not believe the accused’s evidence.
I deal first with the accused’s evidence of his movements on the night of 30 September 2011. I have already referred to the accused’s using the language for reconstruction. I would not reject his evidence on that account. It would be understandable that the accused might rely on reconstruction from known events if he had no occasion to remember what he had been doing on the night. If he had not had cause to reflect on his movements until he was questioned by the police 10 weeks later, it would be unsurprising if he had difficulty remembering what he was doing. He might reasonably need to refresh a memory of what he did by reference to individual events he could remember himself, or to rely on events he accepted had occurred. If he accepted the telephone, Safe-T-Cam and ATM records then it would be reasonable for him to refresh a memory from those events.
But I do not believe the accused gave no thought to the events of 30 September until police spoke to him on 15 December. I believe he became very conscious of the attack at the Sandery house within, at most, 24 hours of it happening. I do not believe he did not know who Sandery was. I believe he knew who Sandery was and he knew that the Hells Angels would be thought by many, rightly or wrongly, to be involved. I do not believe that he did not discuss that event with other Hells Angels’ associates. I believe he did just that at least on the day following the shooting. He was talking to Hells Angels’ associates that day. He was at the club. He would have had occasion to remember where he was the night before, particularly if he had had an argument with his girlfriend and driven to Port Wakefield to sort it out.
For all he knew that trip might have afforded him an alibi. In my view it is no answer to that observation to say that because he was not involved he would have forgotten where he was. However that is precisely his answer. He says that he has no real recollection of the events of the night. He did not know who Sandery was. He had no interest in the event. It did not concern him. His explanations for the phone calls or messages to his girlfriend and Hells Angels’ associates during the night are implausible. His convoluted explanations for the Sandery footage being on his phone are implausible.
While of less significance, the accused’s attempts to distance himself from the balaclava (by reference to his brother) and the hammer (by reference to the handy work) lack credibility. So, too, his ties to the Hells Angels. He had no recollection of when he became a prospect until pressed. He then recollected it was about the time of his girlfriend’s birthday on 4 November 2011. He knew nothing about the club’s rules about disengaging from the club.
The accused’s evidence does not assist his defence. It does not however assist the prosecution in proving its case.
I turn to consider the adequacy of the evidence led by the prosecution.
Assessment of the prosecution evidence
I must acquit the accused unless the prosecution excludes any rational hypothesis consistent with his innocence. His guilt must be, not only a rational hypothesis, it must be the only rational hypothesis. In the course of examining the prosecution evidence I bear in mind the defence criticisms of the evidence itself and the inferences that are sought to be drawn from the evidence.
Discussion
I will discuss the evidence in two stages – first, the evidence suggesting the accused was present at the attack and, second, the evidence implicating the accused in a joint enterprise with others to trespass and endanger life.
The Crown case is not that the accused was one of the two going into the house. Rather it is that he was smashing, with a hammer, the window or windows into the lounge room on the northern side of the house. In doing that he caused the hammer to go into the lounge room. He was so close to the window that fragments of glass became imbedded in the balaclava he was wearing. I have already found that the combined weight of the glass and DNA evidence is greater than the weight of either of those items standing alone. However the combined glass and DNA evidence standing on its own could not exclude a hypothesis consistent with the accused’s innocence.
I turn to consider the evidence of motive. The Crown case is that the accused went with other Hells Angels’ associates to attack the Sandery house as payback for Mr Sandery’s provocative visit to their clubrooms on 17 September 2011. There are several stands to this aspect of the Crown case. One strand is the hostility between the Hells Angels and the Finks. Allied to that strand is the level of the violence of that hostility. There is a history of violent confrontation between the groups and also between individuals in the groups.
The group violence was seen in the Royal Pines incident in Queensland on 18 March 2006. The defection of one Christopher Hudson from the Finks to the Hells Angels was the source of hostility. There developed at a boxing match, an affray, between the two groups in which gun shots were fired and people were stabbed.
On 15 April 2007 there was a fight between the two groups at the Adelaide Airport. There is no report of weapons being used.

On 29 May 2011 there was a violent brawl between the two groups at an Adelaide nightclub in which opportunistic weapons such as bar stools, bottles, glasses, a metal pole and a knife were used. Twenty-two members or associates of both groups were arrested for riot and affray.
There are also individual confrontations. On 3 September 20011 Finks’ members Mark Sandery and Dyllon Hall approached a male wearing the colours of the Red Devils motorcycle gang which is an affiliate of the Hells Angels. The incident occurred at a petrol station in Bolivar. Hall was captured on CCTV footage assaulting the male while Sandery stood nearby. The male who was assaulted did not report the matter. On 9 September 2011 Hall and Sandery were in a car which was stopped by police. Hall was in possession of a hand gun for which he was prosecuted and sentenced.
On 6 September 2011 there was an attempted arson on the hydroponics store owned by Hells Angels’ member Luke Kokodis. Luke Kokodis was a friend of the accused. There was evidence linking Mr Sandery to that offence but police thought the evidence was insufficient to charge him.
On 17 September 2011 there was an attempted arson on the car of Fink’s nominee Dyllon Hall. No charges have been laid in regard to this incident.
On the same day Mr Sandery visited the Hells Angels’ clubrooms.
While the next events occurred after the shooting at Sandery’s house on 30 September, and no charges have been laid against any person, it is not altogether irrelevant to note that on 17 December 2011, two days after there was publicity about the accused being investigated for the Sandery shooting, shots were fired through the front window of the accused’s house. No one was home at the time.
On 13 January 2012 there was arson at the accused’s house. No one was home at that time either. These incidents are referred to in the statement of Brevet Sergeant Featherby.[77]
[77] Exhibit P54, appendix A.
The strands of the Crown case suggested are therefore these:
·Hostility between the groups;
·The hostility includes violent confrontations, occasionally involving weapons such as guns;
·There were confrontations in the months leading up to 30 September 2011.
It is important to avoid guilt by association; to avoid drawing the inference of the accused’s guilt by reason simply of his association with the Hells Angels and by their sometimes violent hostility to Sandery’s group. That caution does not however render irrelevant, or of no weight, the accused’s association with the Hells Angels and their hostility to the Finks. It is some evidence of motive, evidence which would be lacking if, for example, the accused was a member of a peaceable association which had cordial relations with Sandery’s group.
Another strand of the motive evidence is the nature of the Hells Angels. I have already made the observation that the Hells Angels do not hold themselves out to be a peaceable organisations. The accused concedes that there is a lawless aspect of the group’s culture and he cannot deny the history of violent confrontations.
Yet another strand is the level of the accused’s own association with the group. He has been effectively brought up associated with the group through his father’s membership. He wanted to become a prospect. He wanted to become a member. He became a prospect shortly after the shooting. The organisation, like many other organisations, admits as members people who have demonstrated their loyalty and commitment to the organisation. What distinguishes the Hells Angels from many other organisations is that lawlessness, imprisonment and violence do not necessarily lead to exclusion. While imprisonment might lead to suspension or exclusion from some groups, imprisonment admits Hells Angels’ associates to what is described as the Big House Crew.
Mr Anders points out correctly that there is no evidence that the accused was involved in any of the above confrontations. With some force he submits that, while firearms have been used in and have been peripherally associated with, some confrontations it would be a totally disproportionate response to Sandery’s provocative visit to the Hells Angels on 17 September for the Hells Angels to attack his house by shooting into his children’s bedroom.
I have already accepted Mr Anders submission that Mr Sandery probably had many enemies who were not Hells Angels members. Those enemies might be individuals but they might well include other motorcycle gang members apart from the Hells Angels.
Recognising the force of these submissions the fact remains that the accused had in the photo album of his phone the footage of Sandery’s visit to the Hells Angels clubrooms on 17 September 2011. In my view that is powerful evidence of the Hells Angels hostility to Sandery, and to the accused’s sharing that hostility. I reject the accused’s explanations for the footage being on his phone and I reject his evidence of him having no interest in the footage.
Mr Anders submits that in several important respects the accused’s behaviour after the shooting is inconsistent with his being involved. The accused has done nothing to change his appearance. His car transfer documentation is all in order. He did nothing to change his phone. He did not dispose of the balaclava in his bedroom. The accused did not leave his house and he stayed at his job. The accused did not flee after the police spoke to him, first on 8 December about the drug matter, then on 15 December when they told him he was suspected of involvement in the shooting.
I acknowledge that these matters have some exculpatory weight. On the other hand, if the accused were to dispense with his phone or change his car or his appearance or flee he might well think that he would draw attention to himself.
Finding about the accused’s presence at the Sandery house
I am satisfied beyond reasonable doubt that the accused was part of the attack on Sandery’s house. I find his presence the only rational hypothesis. I do so by combining together items of circumstantial evidence of which I am satisfied. I leave aside for the moment the question of the accused’s knowledge of, and complicity in, the shooting. The accused’s presence at the attack is itself a piece of circumstantial evidence in proof of his complicity in the shooting. His presence is a necessary pre-condition to that complicity. I must be, and I am, satisfied beyond reasonable doubt of his presence at the house.
The reasons for my being so satisfied are as follows:
I am satisfied that the accused had the opportunity to be at the house at 10.15 pm when I find the attack occurred. I reject the suggestion that the phone call the accused made to Ms Parish at 10.24 pm exculpates him. I do not necessarily think he drove his own car or anyone else’s car from the scene. He could therefore have rung her before he got to the clubrooms. I reject the suggestion that it would be simply not the sort of thing that someone involved in the attack would have done. It might well be that the trip to Port Wakefield had not been planned. Someone with the accused’s tendency to use their phone so frequently might well have thought to ring his girlfriend straightaway. It is true that it is difficult to explain why he would leave a further message for her at 11.07 pm. However I do not believe that that in any way negates the hypothesis that he drove to Port Wakefield without her. The accused himself cannot explain that message. I am satisfied that he did not go to Port Wakefield while having an argument with Ms Parish. The trip was related to the shooting, possibly just to lie low. The lack of telephone calls between 8.24 and 10.24 pm is uncharacteristic for the accused at that time. It adds to the Crown hypothesis that, during that time, the accused was preparing for, then carrying out, the attack at the Sandery house. The accused had sufficient time to get from the Sandery house at 10.15 pm to the Globe Derby Safe-T-Cam at 10.43 pm. I find he was on his way to Port Wakefield where he made the ATM withdrawal at 11.48 pm.
The relatively uncharacteristic calls to fellow Hells Angels’ associates between 11.20 pm on Friday 30 September and 10 am on 1 October tend also to confirm the Crown case that the accused was keeping in touch with Hells Angels’ members who would ordinarily be in his company on Fridays at the clubrooms. The accused was talking to them, I find, about the shooting.
The forensic evidence links the accused to the Sandery house. The combination of the DNA and glass evidence makes each item less likely a coincidence. Together they add to the hypothesis of guilt. The evidence of motive is in this case substantial. The accused was aspiring to become a member of the Hells Angels and he became a prospect shortly after the shooting. I find the accused well knew who Sandery was. He had footage on his phone of Sandery at the Hells Angels’ perimeter two weeks earlier. Sandery was being provocative. The hostility between the two groups was increasing as at September 2011. The hostility had been violent. The growing hostility and Sandery’s provocations provided the collective motive for the Hells Angels to attack Sandery’s house. The accused’s loyalty to the Hells Angels and his aspirations to become a member combined to cause him to share that collective motive. The culture of the Hells Angels and the Finks and the hostility between them is such that an attack of the sort that occurred at Sandery’s house is not so unlikely as might be the case between two different sorts of groups.
I am satisfied beyond reasonable doubt that the accused went with others from the Hells Angels to attack Sandery’s house on 30 September 2011.
The accused’s complicity in the shooting
I turn to the question of whether the accused was complicit in the trespass and the shooting. It is not disputed that the shooting endangered the lives of the two boys. The shots were fired into their bedroom immediately following the breaking down of the front door. The shots were fired from the hallway where the lights were on into a bedroom where the lights were off. Two shots were fired at each bed. One boy was shot in the leg.
Mr Anders submits that if, contrary to the defence case, I were to find that the accused went to the house, I would so find on the basis that he was not one of the people who broke into the western front of the house, but rather, he was one of those who smashed windows to the lounge room on the northern side of the house. I agree with that submission.
I find that the accused, probably with others, smashed windows at the house and, at least at one stage, he smashed a window into the lounge room, causing the hammer to go into the room.
Mr Anders went on to submit that I should not find that the accused was complicit in the shooting. There are several factual bases for that submission. As Mr Anders graphically puts it, it is one thing to smash windows and quite another to shoot at children. Such a shooting would be totally disproportionate to Sandery’s provocation. Nevertheless, that shooting did occur. The ballistics evidence suggests that the firearm used was a hand gun which could be concealed before being used. The two who entered the house did so from the front of the house, some distance around the corner of the house from the northern windows.
Those submissions all have some weight. Mr Anders added that if, contrary to the defence case, the assailants were all associates of the Hells Angels, then they might, by their nature, be liable to act independently of each other. They are non-conformists. A number might be expected to have an agenda of their own.
Before discussing the evidence I turn to the legal principles governing joint enterprise. They were discussed by Doyle CJ (with whom Lander and Martin JJ agreed) in R v Zappia (2002) 84 SASR 206 at 220-8. The facts of that case were different from this but the legal principles, and the authorities discussed there, are apt here. In that case two men were alleged to be responsible for the deaths of a man and a woman. One, Kamleh shot the two victims in an apartment. Zappia was present. Zappia had gone to the apartment with Kamleh knowing Kamleh was carrying a loaded firearm. Zappia believed Kamleh’s purpose in taking the gun to the apartment was to threaten the male victim. The court held that if the joint enterprise was that Kamleh would use the loaded firearm to threaten the victim, then, given the volatile relationship between Kamleh and the victim, Kamleh’s forming an intention to kill the victim might be regarded as “no more than an unexpected incident in the carrying out of the common design”.[78] It did not matter in the circumstances of that case whether Kamleh formed the intention to kill when he went to the apartment or during the confrontation.[79]
[78] [82].
[79] [83].
The court upheld the verdict of manslaughter in respect of the male victim but allowed the appeal in respect of the female victim because the trial judge’s directions on common enterprise had not been sufficiently directed to the second homicide.
Doyle CJ emphasised the importance of directing the relevant principles to the facts in issue.[80] More particularly he said that the fact finder’s attention should be drawn to the “... scope of the joint enterprise and the possibility of a departure from that joint enterprise ...”.[81]
[80] [82].
[81] [85].
His Honour began his analysis of the cases by referring to the English case of R v Anderson (1966) 2 QB 110. That case concerned the liability for murder of a man who had stood by while his fellow attacker first punched, then stabbed the victim. The critical question was whether the accused could be convicted of manslaughter if he did not know of the presence of the knife. The court said:
... where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise, but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act.
The court said further:
It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.
In Varley v The Queen (1976) 51 ALJR 243 the High Court considered Anderson in the context of an appeal against a verdict of manslaughter where the accused and two others went to the victim’s house to beat him up. It appears the two others administered the fatal beating using a cosh or baton. The trial judge directed the jury that the accused could be convicted of manslaughter even if the level of violence used by the other two was unexpected and the accused was not aware that batons, as opposed to fists, might be used. Barwick CJ upheld the direction. Doyle CJ summarised Barwick CJ’s reasoning in these terms:
The basic concept identified by Barwick CJ was that of liability for what was no more than “an unexpected incident in carrying out the common design”. The common design was to give a beating, and the use of batons was within the scope of that common design, although not contemplated.[82]
[82] [73].
The High Court had occasion to consider Anderson and Varley in Markby v The Queen (1978) 140 CLR 108. There two men had gone to rob a third. One shot the third with a gun which both knew was being carried to the robbery. Gibbs ACJ stated the principle of joint enterprise thus:
When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed. If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter. The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example "has used a weapon and acted in a way which no party to that common design could suspect", the inactive participant is not guilty of either murder or manslaughter. If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter.
Gibbs ACJ approved the statement of principle in R v Reid (1976) 62 C App R 109:
... When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.
Doyle CJ referred to the Court of Criminal Appeal decision in R v Cozzi (1999) 73 SASR 374 in which the court applied the principles stated in Markby. His Honour said:
Finally, I refer to the decision of this court in R v Cozzi (1999) 73 SASR 374. In his reasons Martin J with whom the other members of the court agreed, applied the principle stated in Markby and in particular contrasted an act going completely beyond the scope of the common design, a participant acting in a way which no party to the common design could suspect, and on the other hand an act that was no more than an unexpected incident in the carrying out of the common design ...[83]
[83] [81].
Thus the accused’s liability depends upon the scope of the common design and the extent, if any, to which the principal assailants have gone beyond the scope of the common design. Paraphrasing the example given by Gibbs ACJ in Markby, have the principal assailants gone completely beyond the scope of a common design and, say, used a weapon and acted in a way which no party to that common design could suspect?
I must determine whether the prosecution has proved beyond reasonable doubt that the common design of those who went to the Sandery house was such that the shooting was not so unexpected an outcome that the accused could not have expected it.
I am satisfied that the attack on Sandery’s house was launched by Hells Angels’ associates. It was a corporate decision. I do not know precisely what specific motivation or motivations there might have been, but the evidence discloses a number. There was hostility between the Hells Angels and the Finks as groups. The fact that some of the earlier group hostilities were years before does not diminish their effect. There had been ongoing hostilities.

There was a spate of smaller confrontations in 2011 leading up to 30 September. Finally there was Sandery’s provocative visit to the Hells Angels’ clubrooms on 17 September.
The attack on 30 September was an escalation in the confrontations. It was on Sandery’s house, not for example, the premises of the Finks. A number of people went to the house. I find there were at least four but probably more. There may have been as many as eight people who went to the house. I find that at least three cars were driven to the scene. There was a degree of planning involved. I find that the three cars were parked so that, after the attack, the three went off in different directions, one in each direction along the Military Road, and one down Company Street. Disguises were worn by some.
While I think it likely that the Hells Angels’ associates would have expected Sandery to be away from the house at his clubrooms on Friday nights, they had no reason to believe that his family would not be at home. In other words the attackers contemplated that family members would be home whether or not Sandery was there.
These factors indicate that the attack was a very serious attack on people, not just property.
I find that the accused took a hammer. I find that the other or others who were smashing windows also had weapons to help cause damage. One of the boys speaks of seeing a baseball bat.
There is no evidence to suggest anyone other than the shooter had a gun. I accept that the gun was small enough to be concealed before use.
I find that the attack was planned and coordinated. It was planned that the smashing of the front door and the windows was to occur at about the same time. I find that the object was to terrorise and confuse the occupants.
I find that the object and plan of the shooter and his immediate accomplice was to shoot into the front bedroom. I so find because the evidence is that the two people who smashed in the front door went straight to the bedroom door and shot inside it. They did not go further into the house before or after the shooting. They went straight to the bedroom door, fired into it, then left by the front door.
There is other evidence suggesting that there was a disciplined approach to the attack. The evidence of some of the neighbours was that the area was fairly quiet at that time. Notwithstanding that Military Road is a major road, the neighbours speak of it being quiet at around 10 pm that Friday.
Only one neighbour was alerted to a car before the shooting. She was alert because of an unrelated anxiety. She heard, then got up and saw, the small car going past her house on Military Road. She had heard it going past slowly several times.
The first noise the occupants of the Sandery house heard was the clicking of the front gate. Several attackers had got themselves to their allocated positions without being seen or heard. After the shooting they all got away quickly with minimal opportunity for them to be observed.
The accused’s culpability in the shooting involves considering several questions:
·Did he know the shooter had a gun?
·Did he know anyone was going into the house, with or without a gun?
·If he knew the shooter had a gun, what did he contemplate might be done with it?
I am satisfied that the common purpose of the group was to strike fear into the occupants of the house. It was a coordinated attack with that purpose. I find that it was part of the plan to take weapons. I find that the accused had a hammer and another had a baseball bat. Plainly the two who went into the house knew about the gun. It is plain that they intended going into the house and shooting into the bedroom. It is not as if they met resistance and one fired in fear or panic.
The hypothesis consistent with the accused’s innocence is that the accused knew nothing of the gun and possibly knew nothing of a plan to break into the house. The hypothesis must be that the accused knew only of a plan to smash windows from the outside. The accused did not foresee that the two would break in or that one would endanger the lives of the occupants by shooting into the bedroom.
I am satisfied that the plan agreed to by the group was to attack the house in various ways simultaneously. The evidence suggests that the windows at the front were smashed at the same time as the front door was smashed in. No one spoke of hearing separately the smashing of the windows on the northern side. I find the reason for that is that those windows were being smashed at the same time as the windows at the front. I find that the purpose of smashing the windows was only partly to do damage. It was also directed at confusing and distracting the occupants from the front door where entry was to be made.
While I think it possible that the attackers thought Sandery might not be home, I think it unlikely that they would break into the house certain that they would meet no resistance. The hall light was still on. There was reason to think that someone was still up. They did not wait until the house was in darkness.
I find that those who took part in the attack knew that one at least of those who went into the house would have a gun and might fire it. If that were not so, the entry into the house exposed all of the participants to a violent response if it happened that Mr Sandery, or someone other than his partner and children, was home. The attackers might expect that Sandery would resort to a firearm if he could. They were ready to meet that contingency.
Further, I find implausible that the undisciplined individualism of a Hells Angels’ associate would be such that he would shoot into that bedroom without the others knowing he might do that. I reject the hypothesis that the accused and the other or others who were smashing windows knew nothing of the plan of the shooter to break in and start firing. It may be that they did not know that he was going to fire at beds in the bedroom. It may be that the shooter himself did not know he was shooting at children. But he must certainly have known that firing into a darkened bedroom was going to endanger someone’s life.
I reject as a reasonable hypothesis that the other attackers did not foresee that that is what the shooter might do. I reject as a rational hypothesis that the accused, even though his task was to smash a window or windows on the northern side, knew nothing of the shooter’s intentions. I find the only rational hypothesis is that the accused did know that the shooter might endanger the lives of the occupants. It does not matter that he might not have known who those occupants were.
I find that the accused was not one of the two who broke into the house. Nevertheless I am satisfied beyond reasonable doubt that he knew that one, at least, of the group was going to go into the house prepared to fire a gun. In those circumstances the accused was part of a joint enterprise with the shooter to enter the house and endanger the lives of the two boys who were in the front bedroom.
Conclusion
I deliver the following verdicts:
Count 1Aggravated serious criminal trespass in a place of residence       Guilty
I find proved beyond reasonable doubt the two aggravating factors as charged
Count 2Aggravated endangering the life of M  Guilty
I find proved beyond reasonable doubt the two aggravating factors as charged.
Count 3Aggravated endangering the life of A  Guilty
I find proved beyond reasonable doubt the two aggravating factors as charged.