R v Colson
[2021] SADC 150
•17 December 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COLSON
[2021] SADC 150
Reasons for the Verdicts of her Honour Judge Davison
17 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - FALSE IMPRISONMENT AND UNLAWFUL DETENTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
In the early hours of 5 September 2008, the complainants were at their home in Northgate with their young daughter. It is alleged that the accused unlawfully entered their home and committed a series of offences whilst armed with a small silver handgun. It is alleged that the accused left the premises with the complainants' car.
The question in this trial is whether the prosecution have proven beyond reasonable doubt that it was the accused who committed the charged offences. Proof of the identity of the offender is based upon circumstantial evidence.
The accused did not give evidence but called evidence in relation to the results of DNA testing and the interpretation of the profiles.
Verdicts: Guilty of all charges.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 48, 56, 60(a), 137(1), 170(1), referred to.
Shephard v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82; Knight v The Queen (1992) 175 CLR 495; R v Hillier (2007) 228 CLR 618; Nguyen v The Queen [2020] HCA 23; Barry v Police (SA) (2009) 197 A Crim R 445, applied.
R v COLSON
[2021] SADC 150Criminal
Introduction
In the early hours of 5 September 2008, the complainants were at their home in Northgate with their young daughter. WH was asleep in bed. HH was awake, working on her laptop. Their daughter was asleep in her own bed.
At about 4:00am HH went to the garage to have a cigarette. As she opened the door from the house to the garage, she was confronted by a male standing with both arms outstretched and his palms together. She ran back into the house to her daughter’s room. The male entered the master bedroom and thereafter committed a series of acts whilst ransacking the house. There is no dispute that a male unlawfully entered the premises of the complainants and committed a series of offences whilst armed with a small silver handgun. He left the premises in a car he stole from their garage.
The question in this trial is whether the prosecution have proven beyond reasonable doubt that it was the accused who committed the charged offences. Proof of the identity of the offender is based upon circumstantial evidence. The accused did not give evidence but called evidence in relation to the results of DNA testing and the interpretation of the profiles.
The accused elected for trial by judge alone.[1] The trial was conducted without a jury.
[1] Juries Act 1927 (SA) s 7.
The charges
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, entered or remained in the place of residence of WH and HH as a trespasser, with the intention of committing an offence therein, namely theft.
It is further alleged that Clinton John Colson used or threatened to use an offensive weapon, namely a handgun, to commit or when committing the offence.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and Clinton John Colson knew of the other’s presence or was reckless about whether anyone was in the said place.
Second Count
Statement of Offence
False Imprisonment. (Common Law).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, unlawfully imprisoned WH and detained him against his will.
Third Count
Statement of Offence
False Imprisonment. (Common Law).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, unlawfully imprisoned HH and detained her against her will.
Fourth Count
Statement of Offence
False Imprisonment. (Common Law).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, unlawfully imprisoned TH and detained her against her will.
Fifth Count
Statement of Offence
Aggravated Procuring Sexual Intercourse by Threats or Intimidation. (Section 60(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, by threats or intimidation, procured WH to have sexual intercourse with HH.
It is further alleged that Clinton John Colson used or threatened to use an offensive weapon, namely a handgun, to commit or when committing the offence.
Sixth Count
Statement of Offence
Aggravated Procuring Sexual Intercourse by Threats or Intimidation. (Section 60(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, by threats or intimidation, procured WH to have sexual intercourse with HH.
It is further alleged that Clinton John Colson used or threatened to use an offensive weapon, namely a handgun, to commit or when committing the offence.
Seventh Count
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate had sexual intercourse with HH by inserting an object into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
Eighth Count
Statement of Offence
Aggravated Procuring Sexual Intercourse by Threats or Intimidation. (Section 60(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, by threats or intimidation, procured HH to have sexual intercourse with WH.
It is further alleged that Clinton John Colson used or threatened to use an offensive weapon, namely a handgun, to commit or when committing the offence.
Ninth Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, indecently assaulted HH by touching her breast.
It is further alleged that Clinton John Colson used or threatened to use an offensive weapon, namely a handgun, to commit or when committing the offence.
Tenth Count
Statement of Offence
Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Clinton John Colson on the 5th day of September 2008 at Northgate, used or threatened to use force against WH in order to commit the theft of a Ford Fortuna Registration […], mobile telephones, a laptop computer, digital cameras, jewellery, bank cards, cigarettes and other personal items and the force was used, or the threat was made, at the time of, or immediately before, the theft.
It is further alleged that Clinton John Colson used or threatened to use an offensive weapon, namely a handgun and hammer, to commit or when committing the offence.
Elements
Each element must be proved beyond reasonable doubt.
Aggravated Serious Criminal Trespass in a Place of Residence
1.The accused entered (or remained) in a place of residence.
2.The accused entered (or remained) in the place of residence intentionally as a trespasser. That is, without the consent of the occupier, knowing that he did not have that consent, or being recklessly indifferent as to whether or not he had that consent.
3.The accused entered (or remained) in the place of residence with the intention to commit the offence of theft.
(The elements of theft are noted below in relation to the offence of aggravated robbery).
4.In relation to the aggravating feature, the accused is guilty of the aggravated offence if:
a.another person was lawfully present in the place of residence when the offence was committed, and the accused knew of the other’s presence or was reckless about whether anyone was in the place of residence; and/or
b.he used, or threatened to use, an offensive weapon, namely a handgun, to commit, or when committing, the offence.
False imprisonment
False imprisonment is a common law offence.
1.The accused deprived the complainant of his or her liberty, without their consent and against their will.
2.The accused deliberately and intentionally deprived the complainant of his or her liberty.
This element can be established through actions and words. An actual physical barrier or physical force is not required. Deprivation of liberty through threats or intimidating conduct on the part of the accused is sufficient.
3.The accused has no lawful excuse to deprive the complainant of his or her liberty.
Aggravated procuring sexual intercourse by threats or intimidation
1.The accused threatened or intimidated the complainant.
2.By those threats or acts of intimidation, the accused procured the complainant to engage in an act of sexual intercourse.
3.The act engaged in amounts of sexual intercourse.
4.In relation to the aggravating feature, the accused is guilty of the aggravated offence if he used, or threatened to use, an offensive weapon, namely a handgun, to commit, or when committing, the offence.
Rape
1.The accused had sexual intercourse with the complainant.
2.The complainant did not consent to that act of sexual intercourse.
3.The accused knew that the complainant did not consent to having sexual intercourse, or was recklessly indifferent as to whether the complainant consented in sexual intercourse.
Aggravated indecent assault
1.The accused assaulted the complainant.
2.The assault is accompanied by, or occurred in, circumstances of indecency.
3.In relation to the aggravating feature, the accused is guilty of the aggravated offence if he used, or threatened to use, an offensive weapon, namely a handgun, to commit, or when committing, the offence.
Aggravated robbery
1.The accused committed a theft.
A theft is committed if the accused has dishonestly dealt with property, without the consent of the owner, intending to deprive the owner permanently of their proprietary rights, or to make a serious encroachment on the owner’s proprietary rights.
2.The accused used force, or threatened to use force, against a person in order to commit that theft.
3.The force used, or threat made, was at the time of, or immediately before, the theft.
4.In relation to the aggravating feature, the accused is guilty of the aggravated offence if he used, or threatened to use, an offensive weapon, namely a handgun and hammer, to commit, or when committing, the offence.
It has not been suggested that any of the elements of the individual offences have not been made out. Nevertheless, I have considered each of the offences separately and determined whether the elements of each have been proven beyond reasonable doubt.
General directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the word proved, established, or satisfied then I have meant in each case to an extent that excludes reasonable doubt.
The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt. If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then he remains innocent, and I must return a verdict of not guilty.
There are 10 charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence. In this case the statements of numerous witnesses were tendered by consent. I must still consider each of these statements and determine whether I accept the assertions made in them.
The accused did not give evidence. That was his right. I cannot and do not draw any adverse inference against him or the case he presents for declining to give evidence.
In this case, witnesses said to be experts in particular fields, have been called to give evidence. The ordinary rule is that witnesses may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. That opinion must be relevant to their particular areas of expertise and that opinion must be based wholly or substantially on their knowledge, training or experience. As I am a sole judge of the facts, I am entitled to accept or reject any opinion evidence as I see fit. Before rejecting that evidence, I must give it consideration, and consider how it fits with any other evidence that I have heard and accepted on that topic.
I must bring an open and unprejudiced mind to the case. This is particularly important in this case where some of the allegations are so serious. I must make my decision without sympathy, without prejudice, or fear and not influenced be by public opinion.
Circumstantial evidence
The prosecution relies here upon circumstantial evidence to prove the identity of the offender. Before the accused can be convicted on this evidence, his guilt must be the only rational inference which can be drawn from the circumstantial evidence.[2]
[2] Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82.
When a case against an accused person rests wholly or substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. If an inference or hypothesis consistent with innocence is open on the evidence, an accused person must be given the benefit of the doubt necessarily created by those circumstances.[3] If there is a reasonable explanation for the circumstances which is consistent with innocence, then the accused must be found not guilty, this is because a reasonable doubt would necessarily arise where any other inference consistent with innocence is reasonably open on the evidence.
[3] Knight v The Queen (1992) 175 CLR 495.
In determining whether an inference is reasonable, I am to consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference. I am not required to analyse each circumstance individually, none of which by itself would support an inference of guilt. While guilt must be established beyond reasonable doubt, the individual primary facts used to establish guilt need not themselves each be proved beyond reasonable doubt.[4]
[4] Shepherd v The Queen (1990) 170 CLR 573, 575, 585.
I do not have to reject one circumstance because, considered alone, no reasonable inference can be drawn from it. I must consider the weight which is to be given to the united force of all the circumstances. One piece of evidence may resolve a doubt about another.[5]
[5] R v Hillier (2007) 228 CLR 618.
It is not for the defence either to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts which would tend to support such inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation, then the accused is entitled to be acquitted.
Forensic disadvantage
These offences are alleged to have occurred in September 2008. At that time, the accused was a person of interest but was not arrested or charged with the offences. He was charged after advancements in relation to the testing for DNA enabled more specific results to be obtained in respect of some evidentiary samples in this case. There was also further evidence obtained in relation to the use of a mobile phone alleged to have been in the possession of the accused at the relevant time.
As a consequence of the delay between the time of the alleged offences and the trial of the accused, I am satisfied that he has suffered a significant forensic disadvantage. The memories of individuals associated with the case are in some instances not as good as they may otherwise have been, resulting in a difficulty for the accused challenging various aspects of the evidence. It also includes the fact that many of the items that were seized by the police during their initial investigations have now been returned to the complainants, destroyed or returned to other individuals. Although a comprehensive exhibit log was maintained, it is no longer possible for the accused to view these items or to have any items tested other than the hat, the camera, the SD card and one of the mobile phones that was seized.
In addition to this, swabs that were taken from some items have been subsequently destroyed or returned and although many of the items have been tested by Forensic Science, there were some that were not tested at the time and now by reason of the items not being available or there being insufficient material to conduct further testing, the accused is not able to request that testing be conducted. It is now not known what the result would have been of any subsequent testing or investigations that may have been conducted by the accused.
I will take into account the disadvantage suffered by the accused by reason of delay.
Overview of prosecution case
The prosecution case is that it is the accused who entered the home of the complainants in the early hours of 5 September 2008. He has not been identified by either complainant. The person who entered their home was unknown to them and disguised with a scarf wrapped around his face, so that only his eyes were visible. He was wearing a hat and gloves throughout the time he was in their presence. He had a small silver handgun. The prosecution proposes to prove the identity of the offender by means of five broad categories of circumstantial evidence.
The first category relates to the use of a telephone number 0428 878 267 that is alleged to have been used by the accused at all relevant times.
The second category is the connection of the accused to a person by the name of Stacey Borsi-Watson who at the relevant time resided at Morley Street West Richmond. It was at this property that items that had been removed from the complainants’ home were located. There is also evidence connecting the accused with Stacey Borsi-Watson and a telephone number 0450 419 136 and contact made between the telephone alleged to be in the possession of the accused and the telephone allegedly used by Ms Borsi-Watson at the relevant time.
The third category of evidence is the accused’s possession of a small silver handgun and black knitted gloves. The offender is alleged to have had a small silver handgun throughout the course of the offences and was wearing black knitted gloves at that time. The accused was located on 9 September 2008 in possession of a small silver handgun and black knitted gloves.
The fourth category of evidence is DNA evidence. This DNA evidence relates in particular to DNA located in a hat worn by the offender and left at the scene of the crime. DNA was analysed and an opinion given of a statistical weighting of 62 billion, being extremely strong support, in favour of inclusion of Mr Colson in that mixed DNA profile. There is also a mixed DNA profile obtained from the steering wheel and the gear lever of the complainants’ car, that was stolen by the offender, from which Mr Colson cannot be excluded.
The fifth category of evidence is the consistencies between the descriptions of the offender by the complainants and the appearance of the accused in 2008.
Overview of the defence case
The defence position is that although it is accepted that the offender committed all the offences with which the accused is charged, there is a reasonable doubt as to the identity of that offender being the accused. Whilst they accept each of the categories of evidence upon which the prosecution rely for proof, they submit that it has not been proven beyond reasonable doubt that the accused was the offender. They submit that there are three scenarios that provide a rational hypothesis consistent with the innocence of the accused in relation to this matter. I bear in mind that they do not need to prove any one of these rather the prosecution must disprove them.
The first scenario is that the accused attended at the complainants’ premises at the relevant time but did not go into the bedroom of the premises. It is submitted that it is possible that the true offender was somebody associated with the accused and it is that person who went into the bedroom of the premises. Further that the accused travelled in the stolen motor vehicle with the true offender until it was left at Brompton and that the accused and the true offender, who both have an association with Stacey Borsi-Watson, leave the scene.
The second scenario is that the accused was in the vicinity of the Walkley Heights telephone tower at 11:33pm on 4 September 2008. He did not go to the complainants’ address however he later met the true offender, and they travelled to Brompton in the stolen Ford and that the accused has an association with Stacey Borsi-Watson as does the true offender.
The third scenario is that the accused was in the vicinity of the Walkley Heights tower at 11:33pm on 4 September 2008. He did not go to the complainants’ address but met the true offender at Brompton. Further, that the accused and the true offender have an association with Stacey Borsi-Watson.
It is the defence submission that the descriptions given by the complainants are inconsistent with the accused being the true offender. The defence particularly rely upon the description by both complainants, that the offender is Caucasian. The accused is indigenous. They also point to the inconsistency of WH’s observation that the offender has very large feet, possibly wearing size 12 shoes, when the accused was issued size 9 shoes while in custody.
Where the DNA evidence differs between the expert called by the prosecution, Ms Harkin and the expert called by the defence, Ms Gerhard, the defence submission is that I should prefer the evidence of the prosecution witness. I will return to this topic in due course.
Prosecution case
On the night of Thursday 4 September 2008, and early morning of Friday 5 September 2008, the complainants were at their home address in Northgate.[6]
[6] Exhibits P2a, P3a.
WH had arrived home on 4 September 2008 at about 11:30pm. He parked his Ford Falcon in the garage. He later went to the outdoor garden shed to get a hammer he needed for work the following day. He then put the hammer in his car and returned into the house. He locked the external garage door[7] but left the door to the hallway unlocked as he knew his wife would go into the garage to have cigarettes. At around midnight, WH went to bed.[8]
[7] The door was later found to have a fault with the deadlock bolt, such that the deadbolt would not fully extend into the striker plate to complete the locking cycle; see Exhibit P69 [16].
[8] Exhibit P3b [13]-[14].
HH had been working on her laptop in the living room from about 11:00pm that evening. Occasionally, she would move to the garage to have a cigarette and take her laptop with her each time. She went into the garage through the door that led from the hallway of the house and closed that door behind her each time she went out and returned. The garage roller door was closed, and HH believed that the external garage door, which led to the backyard, was locked.[9]
[9] Exhibit P2a [8]-[14].
The complainants’ young daughter was asleep in her bedroom.[10]
[10] Exhibit P2a [7].
Shortly after 4:00am on Friday 5 September 2008, HH went to the garage to have another cigarette. She took her laptop with her. As HH opened the door from the hallway, she observed a male standing in the garage with both arms outstretched and his palms together. (Count 1) She was unsure whether he was holding anything. HH said that the male had a face covering on, such that she could only see his eyes. She described seeing black on his hands but did not know whether they were gloves. HH screamed and ran back into the hallway into her daughter’s bedroom. She picked up her daughter. HH then heard the male saying something to the effect of ‘come here’ or ‘tell her to come here’. She heard her husband tell her to come into the main bedroom, which she did.[11]
[11] Exhibit P3b [23]-[28].
WH said he heard banging coming from the garage at around 4:00am, and then saw his wife enter the bedroom carrying their daughter. The male was yelling at her. He then saw a male walk into the bedroom holding a small silver handgun. The gun was pointing at WH. WH had been sleeping naked and tried to put on a pair of trousers. The male said ‘no, just get down’.[12]
[12] Exhibits P3a [1]-[2], P3b [21],[24].
The male told the complainants to lie face down on the carpet of the main bedroom. (Counts 2-4) WH saw him go through cupboards and drawers.[13] HH could hear him pulling drawers out and throwing items around. The male also asked for money. He found a small safe in the walk-in wardrobe. HH provided him the combination.[14] After a short time, the offender found several pornographic DVDs in the bedroom. He said something to the effect of ‘you like this stuff?’, or ‘do you like fucking? Does your wife like fucking?’.[15]
[13] Exhibit P3b [27]-[30].
[14] See ibid [30], P3a, 2.
[15] Exhibits P2a [31], P3a, 3.
The male told HH to remove her clothing. She removed her clothing, including underwear, and then returned to the floor still holding her daughter.[16]
[16] See ibid [32], P3b [36].
The male then told the complainants to get on the bed. They did so and laid face down on the bed. HH was holding her daughter at this time. The male then found a vibrator from WH’s bedside drawer. He told WH to use the vibrator on his wife. WH resisted and said that HH would be dry, and that it would hurt her. The male said to do it anyway. HH told her husband to do it, so that the male would leave them alone. She rolled onto her side, and WH put the vibrator slightly into her vagina.[17] (Count 5)
[17] See ibid [34], P3b [51]-[54].
HH described the offender walked past the bed and pushed her buttocks or upper leg on the right side. He then told WH to ‘push it harder’ or ‘push it all the way in’. WH hesitated, and he described the offender putting his hand over his hand and pushing the vibrator into HH’s vagina. (Count 7) HH had her eyes closed and cried out in pain.[18]
[18] Ibid.
The male told WH to ‘lick’ HH. He licked her vagina. (Count 6) The vibrator was still resting slightly inside her vagina.[19]
[19] Exhibits P2a [37], P3b [54].
The male told HH to ‘suck her husband’. She placed her daughter at the top of the bed, so that WH could hold her. She turned around so that her head was at the bottom of the bed and put WH’s penis inside her mouth. (Count 8) WH continued to lick her vagina. The male took HH’s hair from the back of her head and shoved her head forward two or three times to make WH’s penis go in and out of her mouth, saying things like ‘you like this don’t you’, or ‘you like this, do you like this?’, and ‘suck it hard’. Their daughter remained seated in between them. At one point she began crying.[20]
[20] See ibid [38]-[40], P3b [59]-[60].
While this was occurring, the male continued to rummage through the bedroom drawers. He then started to go in and out of the bedroom and would close the door when he left the room.[21] He turned lights in the bedroom on and off. Each time the male left the room, the couple would cease sexual activity. They would resume each time he re-entered. Some of the times the male re‑entered, he would grab HH’s hair and push her head forwards, as described above.[22] On one occasion, he grabbed her left breast for about five seconds saying, ‘is this nice?’ or ‘do you like it?’.[23] (Count 9)
[21] Exhibits P3a, 3, P3b [64].
[22] Exhibit P2a [40]-[45].
[23] See ibid [48], P2d [12].
HH said that she eventually heard the sound of a car unlocking in the garage. The male came back into the bedroom and told WH to start the car for him. The car needed a code to be entered to enable it to start. WH tried to put a pair of pants on, but the male told him not to.[24] The offender was holding the hammer which WH kept in his car in his left hand and the firearm in his right hand. WH walked out of the bedroom into the garage and the male followed. WH started the car by typing in the code. The male returned to the bedroom with WH and made him lie back onto the bed. He then went out and closed both the bedroom door and garage door behind him.[25] (Count 10)
[24] See ibid [49]-[51].
[25] Exhibits P3a, 3-4, P3b [70]-[73].
WH heard the car reverse out of the garage. He got off the bed and pressed the panic button on the alarm panel.[26] A short time later, the security company phoned. HH answered the phone. She told the security company that they had just been robbed, and to call the police.[27]
[26] Exhibit P3b [73].
[27] Ibid [52]-[53].
It is an agreed fact that the duress alarm was activated at 4:48am. Police were tasked at 4:52am[28] and arrived at 4:58am. Police located a hammer on the front lawn and a set of keys with a black remote control. At 4:59am, a second patrol arrived and drove around the surrounding areas for about 10 minutes searching for the Ford vehicle and the offender. A further search of the Northfield area was conducted by the police for approximately 20-30 minutes at 7:30am. Searches were conducted of surrounding premises. Nothing of interest was located. There were no signs of forced entry at the complainants’ property.[29]
[28] Exhibit P69, agreed fact 2.
[29] Ibid.
HH said when she went to turn on the outside light for police, she observed it was not working. She later discovered the light was hanging from a cord as though someone had pulled it down.[30]
[30] Exhibit P3b [54]-[55].
The complainants identified several items that had been stolen, including:[31]
·Several items of jewellery which had sentimental value;
·Dell laptop belonging to HH;
·Digital camera;
·Carton of [Marlboro] cigarettes;
·Black handbag containing perfume, and HH’s wallet containing her bank and credit cards and driver’s licence;
·WH’s briefcase;
·Two mobile phones belonging to the complainants.
[31] Exhibits P2a, P2e, P3b.
WH gave his first statement to the police at about 5:01am on the same morning, 5 September 2008.[32] He described the male as being 5’11, stocky build, Caucasian, wearing a white floppy wide brim hat with no writing on it, having a black scarf on his face, and wearing a black Adidas tracksuit jacket with three white stripes on each sleeve that went about halfway down the length of each arm. He also described him wearing black Adidas tracksuit pants, matching the jacket with three white stripes down to the knee on each leg. He also appeared to be wearing something under the jacket to keep him warm, it may have made him look bigger. He was wearing black knitted gloves on both hands. He was wearing old worn white sandshoes that were large, at least a size 12.
[32] Exhibit P3a.
Later that same day, he gave a more extensive interview to Detective Brevet Sergeant Peglar.[33] In that statement he described seeing just eyes and a face wrapped in a black scarf with a white floppy cricketer’s hat. His voice being very aggressive, very demanding and quite deep. That he was wearing a black Adidas tracksuit with a zipper front that was all the way up and an impression that he was wearing something underneath to keep warm, a knitted wool scarf wrapped around his face and neck with clean ends, no tassels or anything else on it. The tracksuit having three white stripes down each sleeve but only halfway down and the same on the trousers having three white stripes down to about knee length, very large white dirty sort-of tennis shoes, about size 12 feet, black knitted woollen gloves that possibly were matching the scarf. Having a loud and gruff voice very forceful and aggressive, being about 25-30 years old based on his size and depth of his voice. Being no more than 6-foot tall, not obese or fat but looking big. He may have had a slight beer-gut but it was hard to tell whether it was that or padding underneath his jacket, not broad shoulders but a solid build and that he could not smell anything like tobacco or cigarettes but said it was hard to tell another smoker as he smoked himself.
[33] Exhibit P3b.
In May 2021, WH gave a further statement[34] and he referred to his conversation with Detective Pegler in Exhibit P3b, saying that ‘he was slightly taller than me an inch taller than me at the most’ and describing himself as being 5’10” tall. He said that he has now been measured and is in fact 174 cm tall equating to 5’8½ inches.
[34] Exhibit P3h.
HH gave her first statement to the police later in the day on 5 September 2008 to Senior Constable Hamden.[35] She described the intruder saying she remembers his face, his two eyes and a black thing around it covering it, not knowing whether it was a mask or a scarf. She described a man who was a stocky build and had black on his hand not knowing if they were gloves. When describing his stocky build, she was not sure if he was chubby or stocky because he was muscular. She did not see any hair, just all black. She said he had fair skin like European or Caucasian skin. He sounded Australian and had a very deep gruff voice. She is 5 ft tall and said that when he was in the garage, she felt she was looking directly at him but was not sure if he was bending or standing up straight and was therefore not able to say how tall he was. She cannot remember whether he had a hat on or not, does not know the colour of his eyes and was not sure whether when his hands were outstretched towards her in the garage, he was holding something but thought ‘what’s he holding?’ at that time.
[35] Exhibit P2a.
Gs’ evidence
In 2008 the Gs lived at Springbank Court Northgate. This address is within 500 m of the complainants’ home. They slept in an upstairs bedroom. They were asleep when the doorbell rang. In a statement that was tendered, RG said that it rang twice at 3:30am. She noticed the time because she looked at a clock. She and her husband got up and went towards the front door. She stayed at the top of the stairs whilst her husband went to the front door.[36]
[36] Exhibit P12.
AG gave evidence that the front door has a transparent glass panel. The lights were on a sensor and there were two downlights. AG saw a male outside his front door. His initial view was obscured because the man was on the side. AG asked him who he was and the male turned around and said, ‘Can you tell me the way to Holden Hill?’. AG gave him the directions to Holden Hill through the glass. Once he had pointed him in that direction, the male asked for a glass of water. AG’s wife told him to say no and he did. He told the male he could not help him. The male turned and walked away. The conversation lasted about 10‑15 seconds. As the male walked away towards Lakeside Circuit, AG then went to his balcony with his wife to ensure the male had not gone to the back of the house. Their house overlooks a reserve at the back. The left-hand side of Lakeside Circuit is a dead end. Northgate Parade is on the right side. The male walked towards Northgate Parade. He saw the male walk away until he lost sight of him. He called the police about 10 minutes after the male had left at 3:41am on 5 September 2008.[37]
[37] Exhibit P69, agreed fact 1.
AG described the man as being of Aboriginal descent with dark skin, bushy eyebrows and broad features. He said he was ‘quite dark but not African dark’. He was close to AG’s height between 5’8 to 5’10 and had a stocky build. He looked athletic and strong. He estimated his age between 25-28 years. He had dark ‘curlish’ hair and described it as ‘not totally curly like an African curl, but not straight’. It was not long but fell past his ears. He does not remember facial hair. He described the male’s eyes as intense. They were ‘clear, not turning away and looked bright’. He could not recall any discerning marks. He said the male was wearing blue or black trackpants and a hoodie covering his head. When the male turned around, he pulled the hood down. The pants were loose and baggy. AG did not notice any other features or colours other than the pants being dark. The top was also a dark colour, either blue or black. He described the material as synthetic. He said the male was wearing dark coloured sneakers. He believed the male had an item in his hand. He could not see what it was. AG described it as a ‘dark piece of equipment probably a fabric item’. He said it may have been a beanie. He described the male as being polite, courteous, and having a flat ‘matter of fact’ voice. He was not high pitched or whispering. He said the male’s overall personality was slightly intimidating because he was strongly built and from the way he was standing with his back to the front door.
RG in her statement described the male as a heavily built Aboriginal man wearing dark clothing who appeared to be not very tall. She said he had trackpants and a loose-fitting top.[38]
[38] Exhibit P12.
On 11 October 2008, AG participated in a photographic identification procedure that was video recorded. He selected photo number 6 in the folder, but said he was only about 60% sure. That male was the closest based upon his recollection that he saw on the night. He also signed photo number 3 saying ‘it could have been the male, but he was less certain than he was about number 6’. Neither of these is the accused. AG cannot now say whether there were any features about the male selected that are consistent with the male he saw. He said the male in photograph 3 had eyes and lips inconsistent with the male he saw. After that process, AG participated in a computer-generated image that was tendered as Exhibit P42. That image records that AG assigned 70% resemblance to the male.
In evidence he was asked whether this is consistent with what he thought at the time. He confirmed that it is but now thinks the person seems too dark and of more African descent. He acknowledged however that it is difficult because of the time that has passed.
In cross-examination, AG was shown photographs that were tendered as Exhibit D43. These photographs were taken with a camera that was seized from Morley Street West Richmond. That camera had been stolen from the complainants’ home. On the night of 11-12 September 2008, a series of photographs had been taken. Photograph 1 shows a male who is not the accused.
QCould you look at the photographs now produced, a booklet containing 60 photos. [AG], if you just look at the first page of the photographs, can you see the man in the top photograph.
AYep, yep.
QDoes that man have any features that are similar to the man that was at your home between 3 and 3.30 in the morning in September of 2008.
AWhen I look at this picture here, as I said I cannot recollect exactly, but he has got certain features here which stood out at that time. What still stands out in my mind, one of them is bushy eyebrows, clear eyes, Aboriginal features, strong jawline, curly hair. So all these features, I still see that and a very broad forehead. So I see these features, yes, they are here also, but I do not recollect exactly if this is the same person who came to my door on that day.
QToday you couldn’t say whether that man was the same man that was at your home at Northgate –
ANot today I can’t say that, not today.
Q- in 2008.
AI can just talk about certain features, which still stand in my memory as correct.
QBecause you wouldn’t recognise that man if you saw him today.
AAt that point in time yes, I would have, not today.
QI take you to p.2 please. I want you to assume it’s the same man in those two photographs on p.2. Is your situation the same, that he has some similar features that you could not say whether that was the man was at your home –
ANo, I can’t.
QAnd it wouldn’t matter, would it, irrespective of what photograph I showed you, there might be some similarities in features that you would not be able to identify them.
AThat’s right.[39]
[39] T280-1.
He was cross-examined about the tracksuit pants. He said he does not recall seeing any stripes, nothing stood out to him. He was asked about the Adidas brand. He said the Adidas stripes could have been there. He said he is not 100% sure whether there were side stripes but there could have been. He said no one had asked him before whether the pants had side stripes. He agreed that he had not described on any earlier occasion the top having any stripes. He was asked whether anyone had confirmed the clothing having stripes as being an issue in the trial, and denied this, saying no one had ever asked him about stripes.
The outdoor lights at the Gs’ residence were LED ceiling lights. On 6 September 2008, AG conducted checks of the lights outside his house. The sensor lights immediately outside his main door light up that area. On the side of the house, there are two sensor lights. AG noticed the two side sensor lights were loose and were not turning on. To access the side lights, a person would have to open the side gate to get through. These lights have a separate sensor. Although it is not clear it does not appear that the damage done to the lights at the Gs’ home was similar to the interference with the front lights at the complainants’ house.
The defence suggest that the person who attended at the Gs’ house is the offender at the complainants’ home. They submit that there are similarities between the person in Exhibit D43 and the description and evidence given by AG. They also submit that the person described by Patricia Deluca and James Evans (who observed a male in Brompton) is similar in description to the person at the Gs’ house and in Exhibit D43. In addition to this they point to the unlikelihood of two different people acting suspiciously in the area in the early hours of the morning.[40]
[40] T652.
The prosecution submit that there is a particular feature of the male in Exhibit D43 that excludes him from being the offender at the complainants’ home, that is the offender is described as being Caucasian by both complainants. HH describes him as having fair skin. The male in Exhibit D43 is in contrast very dark skinned and whilst it is difficult to discern from the photos does not appear to be stocky.[41]
[41] T604.
The prosecution submit that it is not necessary for proof of their case to find that the person who attended the Gs’ house is the offender. Whilst the events occurred about 30 minutes apart, in the same locale and there is evidence of tampering with the lights, there are also distinct differences. The male at the Gs’ house makes no effort to disguise himself, he alerts the occupants to his presence, he is polite and walks away. There are also differences in the descriptions of the clothing including the shoes between the man at the Gs’ house and the offender. However, the description of the physical appearance of the man and the accused has some consistencies including a number of facial features.
I do not place much weight on AG being shown photos of one person, in court, 13 years after the incident at his home. However, I have taken into account that AG does not reject the suggestion that it is the same man who attended his house who is in Exhibit D43.
I consider it unlikely that the person at the Gs’ house is the person in Exhibit D43. Other than this person being in photos taken at the home of Stacey Borsi‑Watson six days after the offending, that he appears to be indigenous and aged between 22‑30 and having some similarities to the description, to my mind there is one feature that is very distinctive about him, to which AG has not referred at all. He has very distinctive teeth ‑ very white, straight and clearly visible in all photos in Exhibit D43 in which he is a participant.
Property
The red Ford Falcon belonging to the complainants was located at 9:13am on 5 September 2008 outside the Brompton Primary School, in Gosport Street Renown Park. This is about 8.5 km from the complainants’ house and depending on the traffic conditions that journey would take about 16 minutes.
It was parked alongside the gutter. The car had suffered significant damage. The rear passenger side was flat and had come off its rim. The glass from the passenger side window was missing and the housing for the mirror had a hole in it. There were numerous items strewn throughout the vehicle. Inside the school grounds, the police located a number of items that had stolen from the complainants’ house. A crime scene investigator attended at 10:15am and photographed the vehicle and surrounding area.[42]
[42] Exhibit P7.
Other property belonging to the complainants was located in the Brompton area.
At about 5:00am on Friday 5 September 2008, Sharon Palmer was asleep in the front room of her unit at Fifth Street Brompton. Her dog was barking. She got up and opened the front door and saw a male running from the back of the units in a southerly direction. She was about six metres from him and because he was running, she only saw a glimpse of him. She described him as being 165‑170 cm tall, skinny build, Caucasian, dark hair probably black, dark clothes, black windcheater and black tracksuit. About a minute or two later, the same male returned and ran down the driveway in the opposite direction. She then heard a series of ‘bangs’ that sounded like the male jumping fences from her yard into the yard behind.
At about 4:00-5:00am on 5 September 2008, another resident, Ashley Summers, was asleep in his unit at Fifth Street Brompton. He was woken by footsteps running up and down the side of his place. He thought nothing of it at the time. A couple minutes later, he heard the footsteps coming through again. The first time they ran in from Fifth Street through to a small enclosure where the bins are stored. The second time the person returned, it sounded ‘like they jumped the fence’ but he did not get up and investigate. At about 9:00am that morning, he went outside and found a driver’s licence lying upside-down in the grass area where the bins are stored. This was the driver’s licence of HH. A couple of days later, he found a wallet belonging to the complainants. This wallet was not in the same location as the licence. It was over his fence in his back garden. There is no access to the backyard from the driveway, meaning that the wallet would either have to be thrown over the fence or the person who dropped it there had been jumping the fence.[43]
[43] Exhibits P14, P15.
At about 5:30am on 5 September 2008, a resident at Fifth Street Brompton left home to drive his wife to work. When he returned at 6:00am, there was a police officer with a torch at the end of his driveway. The resident then went to bed. At about 11:00am he went to check his letterbox at the front of the unit. On the ground near the letterboxes, he found a number of discarded items belonging to the complainants. He telephoned the police and then took these items to the Parks Police Station.
Patricia Deluca lives at Wattle Street Brompton. This property shares the back boundary with the property at Fifth Street Brompton. At about 5:50am on 5 September 2008, Ms Deluca was getting ready to go for a run. She let her dog out through the side door that leads to the driveway under a carport. Shortly afterwards, the dog started barking. She went to the door and saw a male person standing in her driveway with his back to her. She yelled out to him and he ran to the rear of her yard. She went inside and telephoned the police. Shortly thereafter, uniformed police arrived and inspected her garden. She later saw scuff marks to the top of the fence behind her garage and said that these were not there before this incident. Her carport was locked prior to this incident, meaning that the male could not have gained access from the front of her premises and must have entered from the rear of her yard.
She did not see the male from the front and said in her statement that she is not able to provide a detailed description but described him as being stocky in build, not being skinny or big. She said he was about 5’8 in height and had dark curly collar length hair. He was dressed in all dark clothing. His top had long sleeves with other colours that were possibly red or white, the top was possibly a jacket. He was not wearing a hat and she did not see him carrying anything.[44]
[44] Exhibit P16.
Police attended at 5:56am and searched the area. They found some marks at Wattle Street consistent with footprints in the dewy grass. However, they did not locate a person said to be running and jumping fences.[45]
[45] Exhibits P18, P19.
At about 11:30am on the same day, a resident walked out of his unit at Chief Street Brompton and saw two cards with banking details adjacent to his wheelie bin. He then opened the bin and saw a number of items that he collected. These were also items belonging to the complainants.
On 24 September 2008 police attended at Morley Street West Richmond. Stacey Borsi-Watson and a young male were present. In the driveway they located a BMW that belonged to the accused. They also located a number of items of property that had been stolen from the complainants including a camera that had been used to take a number of photographs on 11 and 12 September that were subsequently produced.[46] A mobile phone belonging to WH was also located. Stacey Borsi‑Watson had started using it on 6 September 2008. A backpack belonging to the complainants was also located with various items in it. Subsequent forensic testing of the backpack provides support for inclusion of Stacey Borsi‑Watson in the profile obtained but exclusion of the accused.
The firearm
[46] Exhibit D43.
Evidence of the complainants in relation to the firearm
HH did not describe seeing the firearm in her statements. She described seeing the male in the garage with his arms outstretched and palms together.[47] She participated in a firearm identification procedure on 8 October 2008 and was unable to identify any particular gun as being a gun she had seen during the incident.[48]
[47] Exhibit P2a [23].
[48] Exhibit P2c.
WH described seeing the offender holding a ‘small silver handgun’.[49] He described the firearm as small with an almost ‘squarish’ barrel with a ‘squarish’ little hole in it. He only saw it briefly but could tell it was a gun as he could see that the male was holding the trigger. The firearm had a silver trigger guard.[50]
[49] Exhibit P3a, 1.
[50] Exhibit P3b [24].
On 8 October 2008, WH participated in a firearm identification procedure.[51] The footage of the procedure was tendered as Exhibit P48, through Sergeant Plummer. The disc was played at trial. WH selected the firearm tagged number 5 as being similar to the firearm he had seen in the possession of the offender. The firearm seized from the accused on 9 September 2008 had been tagged as number 6.[52]
[51] Exhibit P3d.
[52] Exhibit P69, agreed fact 2 [65]-[68].
Evidence of Maxine Warren
Maxine Warren is a relative of the accused. She has known him for many years. Ms Warren gave evidence at trial that she previously lived at West Avenue Northfield. Towards the end of August 2008, she moved to an address at Frome Avenue Hampstead Gardens.[53]
[53] T405-7.
Ms Warren described an occasion after she had moved to the Frome Avenue address when the accused came to visit her. She believed it was days after she moved. On that occasion, Mr Colson came at around dinner time. Also present at the house were Ms Warren’s cousin Beverley, and her friend George, who were in one of the bedrooms. Ms Warren was not sure how the accused got there but said that he probably walked as he looked tired. The accused did not say where he had been. He was wearing black tracksuit pants with white stripes on the side, starting at about the knee down the legs. He was also wearing a greyish, black jacket with a Sean John logo at the top of the jacket. Mr Colson was wearing a top underneath his jacket, which Ms Warren could see because the buttons were open.[54]
[54] T407-9.
Mr Colson had a dark blue bum bag underneath his jacket. He was wearing it underneath his arm. When he arrived, he sat on Ms Warren’s lounge. She was cleaning up and then went and sat with him, as he looked stressed. As she went over, Ms Warren said that she observed Mr Colson with a gun in his hand, on the side of his legs. He was fiddling around with it. Ms Warren remembers seeing the brown handle of the gun, and a bit of the top which was silver. The gun was about the length of her hand.[55]
[55] T409-12.
Ms Warren saw Mr Colson with the gun once. She did not want to look at it again and did not say anything about it. She described Mr Colson as ‘mucking around’ with the gun. Ms Warren was not sure if Mr Colson saw her looking at the gun when she entered the room, but she did not see it again.[56]
[56] T411.
Mr Colson stayed at the house for about 20‑30 minutes before Ms Warren told him to go. She believed he walked from the house as she did not see him after then.[57]
[57] T412.
Ms Warren was asked whether a police officer had come to her house and asked her to provide a statement. She gave evidence that she believed it was about an hour after the accused had left. She recalled telling the detectives at the door that she had seen the accused about half an hour prior.[58]
[58] Ibid.
In cross-examination, Ms Warren confirmed that the occasion she had described was the first time the accused had visited the Frome Avenue address. It was suggested that the police came to her house three days after Mr Colson attended, and that it might not have been the same day. Ms Warren accepted that it could have been three days, as she had young children at the time and did not take notice of the days. She could not remember whether it was at the end of the first week of September 2008 but accepted that it may have been.[59]
[59] T413.
Ms Warren was asked whether the accused came to her house at lunchtime. She denied this and said it would have been dinnertime. It was suggested to Ms Warren that her earlier statement, which she signed on 28 September 2008, said that she saw the accused at around midday to 1:00pm. She did not remember whether her statement said she saw the accused at midday and reasserted her belief that it was dinnertime.
Ms Warren later said that the police came to talk to her about the accused three separate times. She did not see the accused again after the incident with the gun. She believed this was because he was arrested.[60]
[60] T418.
The accused was arrested in relation to the possession of the firearm on 9 September 2008. While Ms Warren’s evidence was inconsistent at times, and she had a limited memory as to specific dates, I accept her evidence that she observed the accused with a silver pistol. It is to be expected that after 13 years, Ms Warren would forget certain aspects in relation to timing. I found her to be a truthful witness.
Detective Byers gave evidence as to the phone records of the service being used by the accused on 9 September 2008. The mobile phone was seized from the accused upon his arrest on that day. The records indicate that the accused’s service number made connection with the North Adelaide, Melbourne Street and Norwood NW (or north-west) cell service towers on 9 September 2008, at 10:34am, 11:08am and 12:03pm respectively. The connections with the towers are not consistent with the accused having been at Ms Warren’s address in Hampstead Gardens that morning.[61] Further, in light of the remarks made by the accused to police as to his movements on the day, which are consistent with the locations identified in the phone records, the accused could not have attended at Ms Warren’s house at Hampstead Gardens on 9 September 2008.
[61] T473-5.
I am satisfied on this basis of Ms Warren’s evidence that the accused came to her house at dinnertime and the evidence as to the location of the accused earlier in the day, that the accused did not visit Ms Warren on 9 September before he was arrested. Therefore, Ms Warren could not have observed the accused with the firearm on the morning of 9 September 2008, before his arrest but had done so at an earlier stage. Ms Warren therefore must have observed the accused with the firearm sometime between the end of August 2008 and 8 September 2008.
9 September 2008 – 621 Regency Road Broadview
On 9 September 2008, police were called to an adult bookshop at 621 Regency Road Broadview. Brevet Sergeant Neil Stevenson gave evidence at trial that he arrived at the store at about 1:06pm. He directed the accused to leave the store so that he could speak with him and conduct a search of his person. The accused was wearing sneakers, jeans, and a black hooded top, with the hood up over a green peaked beanie, as well as black gloves. Upon exiting the store, he removed the hood and dropped his beanie to the ground. He produced a mobile phone, a pair of black sunglasses and a set of keys.
Detective Stevenson asked the accused to place his hands on the boot of the police vehicle so that he could conduct a search of his person. Detective Stevenson located some paper and a lighter inside the accused’s jumper pocket.[62]
[62] T106.
While searching across the accused’s back, Detective Stevenson felt the strap of a bum bag going over his right shoulder and coming under his left arm. He felt something hard inside the bag, so unclipped the bag and removed it through the left side of the accused’s jumper. Inside the larger compartment of the blue bum bag there was a soft light blue cloth bag. Within that bag, Detective Stevenson located a small silver handgun with a brown handle. The accused was arrested and cautioned. Detective Stevenson contacted other officers from the Criminal Investigation Branch.[63]
[63] T108-9.
Mr Rowe, a now-retired SAPOL officer, gave evidence at trial that he attended at about 1:55pm and photographed items seized. The photographs were tendered as Exhibit P26. Photographs 13-16 show the small silver pistol seized from the accused.[64]
[64] T32-3.
Conversation in relation to the firearm
The following statements made by the accused were elicited in examination‑in-chief and cross-examination of Detective Stevenson, as well as in the agreed facts tendered as Exhibit P69.
While waiting for the other officers to arrive, the accused gave his name as Clinton Colson. He told Detective Stevenson that he had seen him previously at a house at West Richmond several months ago. Detective Stevenson had no recollection of having seen the accused previously.[65]
[65] T103-9.
The accused told him he knew him through his Uncle George, that he had seen him several months before at West Richmond and that he did not own the handgun. He said that the handgun belonged to somebody else.[66]
[66] T110-1.
The accused and police had the following conversation outside the shop.[67]
[67] Exhibit P69 [46].
QAlright. Alright well Clinton, how did you get here today?
AI walked from, I caught the 208 bus from the city and jumped off it on North East Road near on this side of um, the ABC building.
QOh, so you got off by the ABC building?
AYeah, cause the 208 didn’t come along Hampstead Road, not this, not down to my cousins. So I had to walk up, or wait near there, or walk up to Hampstead Road and catch the bus that goes down, down Bridge Road way.
QOkay, so where you heading to then?
AUm, to Pooraka.
QPooraka?
AJust off Bridge Road.
The accused was asked whether he had a mobile, and he indicated ‘yeah, it’s there’, referring to the mobile telephone he had produced from his person.[68]
[68] Ibid [47].
It is unclear in which order the various statements were made, due to the way the evidence was led at trial. However, I am satisfied they were part of the same conversation had after the accused had been arrested and cautioned.
Admissibility of the statement made by the accused as to the ownership of the firearm
In relation to the statement made by the accused to Detective Stevenson that he did not own the handgun and that it belonged to someone else, counsel for the accused in closing address, argued it is admissible as a mixed statement – in that the accused made inculpatory and exculpatory remarks, by not denying possession but denying ownership of the firearm.[69]
[69] T663.
In closing, the prosecution argued the out of court statement is admissible if it is a part of a mixed statement made by the accused soon after he was arrested, led in the context of a conversation about his association with West Richmond.[70]
[70] T607.
The denial of ownership is an exculpatory statement not made on oath that has not been the subject of cross-examination. However, I am satisfied it was made as part of a conversation about the accused’s involvement with a West Richmond address and that the statement contained both inculpatory and exculpatory remarks. It is admissible as a mixed statement and was properly led and relied upon by both the prosecution and the defence. The fact that part of the statement was led in examination-in-chief, and that part was led in cross-examination does not affect its admissibility.[71]
[71] See Nguyen v The Queen [2020] HCA 23; Barry v Police (SA) (2009) 197 A Crim R 445, 463.
Whether the firearm was in fact owned by another person is of little relevance in the circumstances of this case. I note that it was concealed on the accused’s person at the time, demonstrating an intention to maintain possession of it and avoid detection. I am satisfied that the accused had possession of the firearm on 9 September 2008, proximate in time to the charged offending, and that it was more than a fleeting possession. This is supported by the evidence given at trial by Maxine Warren that she had seen the accused with a gun that was described in a very similar way at a time between the end of August and 8 September 2008.
Findings in relation to the firearm
The firearm selected by WH, labelled number 5 and the firearm seized from the accused are very similar in appearance. The significant difference between the two is the colour of the handle, which WH would not have been able to clearly see, given the accused was holding the firearm at all relevant times. The firearms appear to be approximately the same size, colour (aside from the handle) and shape.
The firearm which was seized from the accused matches the description given by Ms Warren. She gave evidence at the trial that she had attended at a firearm identification procedure but that she did not recall selecting a firearm that she had observed in the accused’s possession. The identification procedure with Ms Warren was not led at trial.
In light of the above, I am satisfied firstly that the accused had possession of a small silver handgun between the end of August and 9 September 2008. Secondly, he had possession of that handgun on 9 September 2008.
In addition to having the firearm in his possession on 9 September 2008, the accused also had a pair of black woollen gloves that have a similar description to that given by WH as being worn by the offender at all times during the offending on 5 September 2008.
Phone Evidence
A Vodafone service with the number 0424 878 267 was connected on 17 March 2008 under the customer name ‘Clinton Closon’ of Salisbury Street West Richmond.[72] On 9 September 2008 when the accused was arrested by the police at the adult bookstore at 621 Regency Road Broadview, he had a mobile phone in his possession that had the international mobile equipment identifier (‘IMEI’) number 359 727 008 469 467. Using that number, it is possible to identify that the accused was using the mobile phone with the number 0424 878 267.[73] During this conversation with the police, he made admissions to the effect that in that phone he had stored the name of his girlfriend at the time, Taree Campbell, and the police obtained her number from that phone. The accused was also connected to the address at Salisbury Street where the police observed a document addressed to Taree Campbell.
[72] Exhibit P56.
[73] T371.
I am satisfied that the accused was using the handset with the IMEI 359 727 008 469 467 and number 0424 878 267 between at least 1 September 2008 – 10 September 2008.
A mobile phone service with the number 0488 769 134 was subscribed through Vodafone by a ‘Ms Caree Campbell’ of Tasman Avenue Gilles Plains with a connection date of 28 August 2008. Taree Campbell was associated with that address and when the police attended on 12 September 2008, photographs of the accused were also observed at that address. Maxine Warren, the cousin of the accused, gave evidence that as at early September 2008 Taree Campbell was the partner of the accused and she was living at Gilles Plains. In addition to this, it is an agreed fact that the prisoner telephone system at Yatala Labour Prison for the period from 25 September – 30 September 2008 show that the only telephone calls made by the accused were to Taree Campbell on the mobile telephone number 0488 769 134.[74]
[74] Exhibit P69.
I am satisfied that Taree Campbell was using the telephone number 0488 769 134 at all relevant times in this matter.
The mobile phone number 0450 419 136 was on the prosecution case associated with Stacey Borsi-Watson. A subscriber check was not available for this number. There was contact made every day from 28 August 2008 – 8 September 2008 between this number and the accused’s service. Police systems show that this number was associated with Stacey Borsi-Watson until October 2008.
A handset using that service was found by the police at Morley Street West Richmond on 24 September 2008. Stacey Borsi‑Watson was present at the time of the police attendance. At that time, the number was utilising a handset that had been stolen from WH on 5 September 2008. That handset started using the number 0450 419 136 on 6 September 2008. On 24 September 2008 when the police searched the premises at Morley Street, they obtained documentation dated 9 September 2008 in which this telephone number was said to be the telephone number of Stacey Borsi-Watson. I am satisfied that the phone number 0450 419 136 is associated with and was used by Stacey Borsi-Watson at the relevant time.
It is alleged that during the relevant period, the Vodafone call charge records for the mobile service 0424 878 267 show it regularly called the services said to belong to Taree Campbell and Stacey Borsi-Watson. The call charge records (‘CCR’) and reverse call charge records (‘RCCR’) were tendered in a booklet, Exhibit P56. In interpreting these records, it is important to note that as they are billing records, they do not record calls coming from mobile phone services other than Vodafone, except where a message is left from them.
In the days leading up to 5 September 2008, there is contact made between the phone alleged to have been in the possession of the accused and the phones allegedly used by Taree Campbell and Stacey Borsi‑Watson.
Phone activity on 4-5 September 2008
The phone records paint a picture in relation to the location of the phone being used by the accused and his activities at the relevant time. In particular, the records show that he was in the vicinity of the complainants’ home on the evening of 4 September 2008, that he was awake and moving around and that others were attempting to or were contacting him prior to the offending. They show that during the time of the offending the accused does not use his phone to make calls or send texts. However, there is a possibility that calls were received from Telstra or Optus services that are not recorded in the CCR or RCCR. At the time after the offender left the complainants’ home there is phone activity in the vicinity of the location of the stolen property from number 0424 878 267 to the Borsi‑Watson phone.
The prosecution called Detective Brevet Sergeant Byers who is currently stationed at Major Crime Investigation with SAPOL. He works closely with the SAPOL telecommunications interception service and is authorised to speak on the section’s behalf. His current role is based on interpreting CCRs, RCCRs and cell tower site records.
He gave evidence in relation to the Vodafone CCRs for the service number 0424 878 267, and interpreted the data focusing on the location of the handset from late in the evening on 4 September 2008 to the morning of 5 September 2008.[75] He explained in his evidence an apparent anomaly being that the records sometimes showed a cell tower location reported as being in New South Wales close in time to locations in South Australia. His opinion as to this anomaly and the explanation for it was not challenged by the defence.
[75] T357.
The CCRs in respect of the three mobile phones were tendered as Exhibit P56. An aide memoire in relation to the terminology was tendered as Exhibit P58.
I accept the evidence given by Detective Brevet Sergeant Byers as to the interpretation of each of the locations of the relevant towers and the cell sectors, as he explained, each having their own unique identifier. A significant amount of evidence was given by Detective Byers in relation to the records showing a number of phone towers in New South Wales. I accept his explanation that as a result of numbers that were attributed to those towers being very similar to South Australian towers this anomaly arises. There was no dispute in this trial that although the numbers had misallocated the towers, the explanation was that the towers were in fact in South Australia and identifiable by a process of reasoning using the allocated numbers and looking at the towers through which the calls had gone at about the same time.
I am satisfied that the phone being used by Mr Colson utilised towers in South Australia and in particular those nominated by Detective Brevet Sergeant Byers. Further, I am satisfied that Detective Brevet Sergeant Byers was able on occasions to isolate the cell at a particular tower that that phone has utilised and by so doing it is possible to place the user of the phone within an area of an arc from the tower.
In respect of the Walkley Heights tower, Detective Byers reached a conclusion using the location description and the location code, that the Colson phone connected at 23:33:37 on 4 September 2008, with antenna 20605, being the antenna at 190 degrees and this was demonstrated on Exhibit P64. That being so, the user of the phone at that time was likely to be north of Grand Junction Road within the arc that had been placed on Exhibit P64. This area includes a residential area, open space and Yatala Labour Prison. The distance from the Walkley Heights tower to the complainants’ house is 1.6 km.
There was contact between the phone used by the accused and the Stacey Borsi-Watson phone between 23:35 on 4 September and 2:57am on 5 September. The location of the towers used by Stacey Borsi-Watson’s phone indicates that the phone is mobile. That phone contact ceases between 2:57am and 5:38am. This may indicate that the phone users are together during that time or that they have simply stopped communicating at that that time.
From 5:38am contact resumes indicating that if they were together, they have now separated. The Colson phone contacts the Borsi-Watson phone seven times between 5:38am and 6:31am. During that time the Colson phone is utilising the towers at Ovingham, Ridleyton, Mile End and Marleston indicating that the user is mobile but within a relatively confined area in the south western suburbs of Adelaide.
At 5:38am, the Colson phone calls Borsi-Watson’s phone. The call connects through the Ovingham tower. The cell to which it connects, in the opinion of Detective Brevet Sergeant Byers, is one that provides coverage to Chief, Wattle and Fifth Streets in Brompton. This is the area in which reports are received of a man running through properties, jumping fences and some of the complainants’ property is later located. There are three calls in quick succession, the third being for nearly three minutes, all through the same tower.
The vehicle driven from the complainants’ house was undrivable after it was dumped. Exactly what time it arrived there is not clear, however the location of the items belonging to the complainants is consistent with the offender being the person observed and heard in the vicinity of Fifth, Wattle and Chief Streets dropping items as they attempt to flee.
Call Charge Records Summary Table
Time Initiating Service Action (Duration) Receiving Service 4 September 2008 23:26:59 Borsi-Watson SMS Colson 23:33:37 Colson (Walkley Heights) 45 sec B74 23:35:10 Borsi-Watson SMS Colson 23:36:15 Borsi-Watson SMS Colson 5 September 2008 00:47:45 Borsi-Watson SMS Colson 01:11:56 Borsi-Watson (Mawson Lakes) Call (9 sec) Colson 02:00:10 Borsi-Watson (Gepps Cross) Call (1 sec) Colson 02:19:40 Borsi-Watson (Prospect) Attempts to call (10 sec) Colson 02:19:41 Borsi-Watson (Prospect) Call (9 sec) Colson 02:57:44 Borsi-Watson (Prospect) Call (111 sec) Colson 05:38:50 Colson (Ovingham) Call (7 sec) Borsi-Watson 05:39:41 Colson (Ovingham) Call (4 sec) Borsi-Watson 05:40:11 Colson (Ovingham) Call (157 sec) Borsi-Watson 05:52:20 Colson (Ovingham) 43 sec CB7B 06:25:24 Colson (Ridleyton) Call (26 sec) Borsi-Watson 06:26:21 Colson (Ridleyton) Call (88 sec) Borsi-Watson 06:28:14 Colson (Mile End) Call (8 sec) Borsi-Watson 06:22:17 Colson (Ovingham) 44 sec CC9C6 06:31:50 Colson (Marleston) Call (324 sec) Borsi-Watson 07:16:29 Colson (Brooklyn Park) Call (25 sec) 83950297 07:17:21 Colson (Mile End South) Call (15 sec) 83690295 07:18:25 Colson (Mile End South) Call (45 sec) Campbell 08:06:03 Colson (Enfield) Call (63 sec) Borsi-Watson 08:30:30 Colson (Mile End) Call (5 sec) Borsi-Watson 09:11:30 Colson (Adelaide Airport) Call (328 sec) Campbell 10:34:07 Colson (Mile End South) Call (33 sec) Campbell 11:11:35 Colson SMS 19754040 11:11:44 Colson (Mile End South) Call (28 sec) Campbell 12:31:07 Colson (CBD West) Call (52 sec) Borsi-Watson 13:40:06 Borsi-Watson SMS Colson 13:40:11 Borsi-Watson SMS Colson 16:01:10 Colson (CBD North) Call (193 sec) Borsi-Watson 16:05:49 Colson SMS 19754040 17:46:28 Colson SMS +61412610610 20:12:49 Colson SMS 19754040 DNA Evidence
The prosecution called Louise Harkin. She is employed as a forensic scientist within the biology section at Forensic Science SA (‘FSSA’). Her current role is that of a reporting officer. Her role is to oversee the examinations that take place within a case including reviewing what is submitted to Forensic Science for testing and making decisions on what will be tested and then putting those requests to biology staff. These requests include analysing exhibits, generating profiles and then ultimately, the reporting officer’s role is to examine the results that are obtained, to analyse them, make interpretations and provide a report on the results.
Ms Harkin was awarded a Bachelor of Science with Honours from the University of Adelaide in 1992, and a Masters in Science in 1995. She has worked in research positions in the Department of Clinical and Experimental Pharmacology at the University of Adelaide, the Department of Haematology at Flinders University and the Department of Genetic Medicine at the Women’s and Children’s Hospital. Each of these roles involved looking at DNA with respect to various disease states.
In 2005, she commenced working as a scientist at the Forensic Science Centre specialising in DNA analysis. Since that time, she has undertaken both internal and external training and kept up to date with the large body of material that is published in forensic biology in the field of DNA interpretation and statistics.
Ms Harkin is also required to undertake regular proficiency training where she is provided with a case or mock sample from an external provider that she then works on as if it was one of the regular cases. Samples are submitted and tested in the laboratory and the results are then analysed and reported on. They do this on an annual basis.
FSSA is accredited through the National Association of Testing Authorities. This is an independent body that audits the organisation, reviews practices, reviews documentation and training records and ensures that equipment maintenance records are kept up to date. They also ensure that appropriate procedures are in place and that staff are adequately trained.
In addition to this, Ms Harkin is a member of the Australian and New Zealand Forensic Science Society.
Ms Harkin commenced work on the case in question in 2008. In March 2009, she provided her first report. In 2018, FSSA was approached by SAPOL and asked if it would be possible to undertake further DNA work as there had been advancements in technology between 2009 and 2018. These advances were both in terms of the generation of a DNA profile and the interpretation. As a result of further analysis, she reported in relation to the matter again on 18 September 2019, Exhibit P35. To assist the court and counsel in relation to the DNA results and the interpretation, an aide memoire was prepared incorporating the results from 2008 and 2019, Exhibit P36.
During her evidence, Ms Harkin explained the different DNA amplification kits that had been used from 2008 to 2019. In 2008, they used kits known as Profiler Plus and YFiler. Since 2014, a kit called GlobalFiler has been used. GlobalFiler is still being used at FSSA. It looks at 24 regions of DNA as opposed to Profiler Plus that looked at 10 regions. Because there are now more regions, they have a greater ability to differentiate between individuals. GlobalFiler, being more sensitive than the Profiler Plus kit, allows for detection of lower levels of DNA.[76] YFiler is a kit that looks specifically for the Y‑chromosome to detect male DNA. YFiler has a general use to try to assess whether male DNA had been swamped by female DNA. It also sometimes has an advantage in analysing as a way to establish if there is more than one male person contributing to a profile.
[76] T121.
FSSA now uses STRmix to interpret samples. This technology was developed by Dr Duncan Taylor in conjunction with New Zealand’s Institute of Environmental Science and Research. It has been used continuously since August 2012. It replaced the system where scientists looked at a profile and did what was called a manual interpretation. STRmix is now taking the place of the scientist and can do so with a greater level of sophistication. This software can look at the mixtures which are now closer together in proportions and assign weightings for the likelihood of certain information belonging to different contributors. This advancement means profiles that previously could not be analysed, such as more complex mixtures and mixtures to which people are contributing to similar amounts of DNA, can now be analysed and compared.
Ms Harkin’s training on STRmix started in 2012, and since that time, she has been involved in a large volume of cases, she estimated as being in the thousands. She has also given evidence in the Supreme and District Courts in relation to it. When a report is prepared in FSSA, it is peer reviewed. Dr Taylor is still working with FSSA and has peer reviewed some of the results obtained in this matter. A chart has been prepared and tendered, Exhibit P37, that sets out the testing and the individuals who peer reviewed the tests.
Jae Gerhard was called by the defence. She received a Bachelor of Science in Biomedical Science with Honours from the University of Technology in Sydney in 2002. She also has a Certificate IV in Crime Scene Examination from the Canberra Institute of Technology facilitated through New South Wales Police Force (‘NSW Police’). She is an Industry Fellow of the Centre of Forensic Science at the University of Technology in Sydney.
A tape-lift of the entire outer surface was taken. This was given number 189‑36.C. It was analysed using Profiler Plus and GlobalFiler. A profile was obtained that was too complex for analysis with five or more contributors.
A swab of the gold chain and the back of the earring stud was taken. It was given the number 189‑36.1.A. There was insufficient DNA obtained for profiling.
In cross-examination, Ms Harkin confirmed that the hammer that was submitted on 7 October 2008 was not subject to DNA testing. This was because the information they had was that the offender wore gloves while handling the object. Some work was done by the chemistry section in relation to fibre transfer but she was not aware of the results.[89] She also confirmed that there was no request for DNA analysis of the shoes taken from Clinton Colson on 9 September 2008. It was put to her that there was a possibility that there could have been secondary transfer of DNA from the complainants’ home to his shoes if he had had contact with them. However, Ms Harkin said that the ability to detect DNA in that situation would be very rare or limited unless a person had come into direct contact with the shoes or handled them in some way.[90]
[89] T322.
[90] T327-8.
I found Ms Harkin to be a most impressive witness. Her evidence was comprehensive, cogent and balanced. She has practical and ongoing experience in the use of the profiling kits and STRmix that she uses on a daily basis. Her work has been peer reviewed by at least one but on most occasions two other experienced reporting officers from FSSA. Her analysis appears to be thorough, consistent and fair.
In contrast, I found Ms Gerhard’s evidence to be lacking in detail, inconsistent and when challenged in relation to statements she had made, she reneged and conceded on occasions that they were wrong. The explanation that she proffered in relation to errors was unimpressive. She said she had little time to prepare the report dated 18 May 2021 and since that time, had not reviewed the report. This was despite the fact that she had been sent the evidence that Ms Harkin gave in court and had been given notice effectively of each of the areas in her report that were challenged prior to her giving evidence. Her practical experience in relation to STRmix and Profiler Plus is limited. Her terminology is outdated and when necessary she did not ask for material to check or cross-reference what she perceived to be deficiencies in the material provided to her.
In summary, I accept the evidence of Ms Harkin and where there are disputes in relation to her evidence with Ms Gerhard, I accept Ms Harkin’s evidence.
The defence suggest that there are five live issues in relation to the DNA evidence. Firstly, the lack of conclusive evidence from the analysis of the swabs from the sexual assault kit; secondly, the mixed and incomplete profiles from the swabs of the steering wheel from the Ford car; thirdly, the mixed and incomplete profile from the swabs from the gear lever from the Ford car; fourthly, the unaccounted for contributors to some of the evidence samples; and fifthly, the issue of secondary and tertiary transfer in relation to the DNA in the hat. They take no issue with my conclusion that were there is a divergence in opinions expressed by Ms Gerhard to those of Ms Harkin, I should accept the evidence given by Ms Harkin.
Turning firstly to the lack of conclusive evidence relating to the swabs from the sexual assault investigation kit, the defence say it is clear from both the complainants that there was contact between the offender and HH including touching of the breast. It was not limited to that, it also included two occasions where she described the offender touching her hair and an occasion where he touched her right thigh. The results of the analysis are inconclusive. With respect to one sample, it contained insufficient DNA for amplification and analysis and Ms Harkin has conceded it is possible that there is only one male contributor. In this regard, they are referring to sample 189‑20.D. They submit that there was no DNA evidence to establish the accused has contributed to those samples so there is no link between the accused and the samples from the sexual assault investigation kit.
In relation to the mixed and incomplete profiles from the steering wheel and the gear lever, they were described by Ms Harkin as being uninformative because they were at such low levels, but they are informative to the extent that Mr Colson is not excluded from them. Mr Allen accepts that that is so. The reason for the low levels may include an explanation of the use of gloves by the offender.
In terms of the backpack, the significance of it on the defence case is that it contained proceeds from the robbery including jewellery, pearls, war medals and other items of value. There is an inference to be drawn, said Mr Allen, that once the Ford car becomes inoperative at Brompton, the perpetrator of the robbery has selected the valuables and taken them from the car. Those valuables were in the backpack and they were ultimately located at Stacey Borsi-Watson’s house. The results of the analysis in relation to the backpack are that there is a mixed DNA profile with five contributors. These include the complainants, there is extremely strong support for Stacey Borsi-Watson being a contributor and extremely strong support for the accused not being a contributor on the inner surface, and two unaccounted for contributors. There is a second male, on the evidence, that is not identified in relation to the swab from the backpack. The defence say that if it was the accused who was the person who committed the robbery, it was the accused who would take the proceeds of the robbery. These proceeds were in part in the backpack. On the DNA evidence there is strong support for the accused not being a contributor and the lack of DNA being explained by the wearing of gloves would have meant that the offender would have to wear gloves not only from the time he left the Ford with the backpack, but even when he was at Morley Street with the backpack. That, the defence suggest, is fanciful. It supports the scenario that the true offender has an association with Stacey Borsi-Watson but is not the accused.
In relation to the DNA detected on the hat, the defence submit that it is impossible to say how that DNA came to be on the hat in terms of whether it was primary, secondary or tertiary transfer. The evidence is consistent with it occurring as a consequence of a secondary or tertiary transfer. There is no way of determining the method of transfer and the fact of the higher ratio does not result necessarily in the conclusion that there was a direct transfer of DNA onto it. Mr Allen illustrates this point with the very high level of DNA contribution from HH. He submits that the DNA detected on the tape-lift from the inside of the hat suggest how readily there may be a secondary transfer of DNA. If that is so, then the accused may be a contributor to the DNA profile that was located if he has an association with somebody who owned the hat, or a person that the accused knows having lent the hat to him, or the accused for some other reason for having put the hat on his head at some stage.
Findings of fact
I make the following findings of fact.
A male person rang the doorbell of the Gs’ house at about 3:30am. That person was travelling on foot at that stage. He asked for directions to Holden Hill and then a glass of water. That person was aged between 25‑28 years, stocky build, 5’8‑5’10”, indigenous in appearance with bushy eyebrows, broad features and quite dark skin colour. He had dark ‘curlish’ hair that fell past his ears. His eyes were very intense. He was wearing loose baggy trackpants and a hoodie that were either blue or black but in any event dark. He had something dark in his hand that was probably fabric. He was wearing dark coloured sneakers. The entire incident at the front door lasted 10‑15 seconds and took place through the glass at the side of the door. AG had been woken from his sleep when he went downstairs. He felt intimidated. AG indicated two people in a photo ID. Neither were the accused. AG did an identikit in which he expressed 70% likeness to the person who attended his house.
This incident occurred within about 30 minutes of the commencement of the charged offences, in the early hours of the morning and the location is within about 500 m, easy walking distance. The person walks off in the direction of the complainants’ house. The description of this person whilst it has some similarities with that of the offender also has some differences. The person makes no effort to disguise themselves, he is not described as wearing gloves although he is described as having something in his hands that appears to be dark and fabric and does not seem to have a scarf or a white floppy hat. He did not threaten or deliberately intimidate, does not appear to be angry and simply walks away. His complexion is described as being ‘quite dark not African black’, but the offender is described as Caucasian. The two men selected in the photo identification, Exhibit P40, by AG look very different from each other. Although there are some similarities to the accused and the person at position six, I do not place any weight on this.
At about 4:00am on 5 September 2008, a male with a gun and wearing gloves entered the home of the complainants, through an access door into the garage. Consistent with the fabric marks found on the back fence from Charlick Square[91] and the location of the access door, he jumped the back fence into the backyard before entering the house. HH was awake, there were lights on in the house, and it was plain the premises was occupied. After the offender had entered the garage, HH went to the garage entering through a door from the house. She was confronted by a male with his arms outstretched. She saw him, he saw her. She ran to her daughter’s bedroom. The male went into the house and went into the master bedroom where WH was asleep.
[91] T36.
That male person was wearing a white floppy sunhat, a black Adidas tracksuit jacket, black Adidas trackpants, white dirty sandshoes and black woollen gloves. He had wrapped around his face a black woollen scarf so that only his eyes were visible and the band of skin between his eyes and the hat. At some stage whilst he was in the premises, the scarf fell down so that some facial hair was visible. He was holding a small silver handgun.
HH had a limited opportunity to see the offender as she was terrified protecting her child and subjected to serious sexual assaults whilst completely naked. WH had a better opportunity to observe the male but did so from a very vulnerable position where he too, was naked, subjected to sexual assaults and required to perform sexual assaults upon his wife in circumstances where he knew he was hurting her. At all stages in the bedroom, their young child was present.
I am satisfied that the offender entered intending to commit offences of dishonesty, in particular theft, but when he saw DVDs of a pornographic nature and sexual aides, he threatened and demanded that the complainants engage in sexual activity in the bedroom of the home. He also physically participated to the extent of assaulting HH and causing the vibrator to be inserted into vagina.
I am satisfied that the offender had a small silver handgun in one of his hands and used it to threaten and intimidate the occupants. I am satisfied that the offender was in the house for about 45 minutes. During that time, he ransacked the house looking for valuables whilst causing the complainants to continue to engage in sexual activity. I am satisfied that at some stage the offender’s hat became dislodged and was left at the home.
The offender looking for an escape route and needing to transport a significant amount of stolen items, determined to steal the red Ford Falcon. He located a hammer that had been placed in that car earlier in the night by WH. He took the hammer, and threatened WH with it in order to steal the car. He took the car, disposed of the hammer on the front lawn, along with a set of keys to another vehicle and drove from the premises.
After the offender had been heard to drive away the duress alarm was activated at 4:48am.
I find there was no other party to the offending who entered or waited outside the premises and the offender acted alone. I can see no evidence from which an inference can be drawn that there was any other person in or about the premises. At no stage, was there any discussion, talking, whispering or sighting of any other individual. The offender did not speak about or to anyone else whilst in the company or earshot of the complainants. No car doors were heard, no other car was heard driving off. I find that it is not reasonably possible that another party was present and remained silent and out of sight for the entirety of the offending that occupied about 45 minutes.
Having left the premises, I find that the offender drove the red Ford Falcon to the Brompton area arriving at about 5:30am, enroute the car was damaged probably as a result of erratic driving and became undrivable. It was dumped on Gosport Street Brompton. The offender took what possessions he could at that time, attempted to decamp, was unfamiliar with the area, ran through driveways and jumped fences, dropping various items from the complainants’ household. The descriptions of the person seen in the Brompton area are broadly consistent with the exception of Sharon Palmer who describes a skinny Caucasian man.[92]
[92] Exhibit P13.
Items from the complainants’ household were also found at Morley Street West Richmond on 24 September 2008 however this did not include all items that had been stolen. A car belonging to the accused was also located at that premises at that time. Stacey Borsi-Watson was present at the house on that day. She appeared to live there. She had contact with the accused by phone on 4 and 5 September 2008 at the relevant times. Stacey Borsi-Watson was using the handset stolen from the complainants’ house from 6 September 2008.
The accused has some familiarity with the general area in which the offences were committed. His cousin, Ms Warren, lived on West Avenue Northfield before moving in August 2008 to Frome Avenue Hampstead Gardens. His girlfriend lived at Gilles Plains and he often walked from her house to his cousin’s house.
The accused was in an area north of Grand Junction Road but south of the Walkley Heights phone tower at 23:33 on 4 September 2008 when his phone signal contacted with that tower. He was mobile, using his phone and in contact with Stacey Borsi-Watson between 23:26 on 4 September 2008 and 2:57am on 5 September 2008. During that time he remained awake and active. The Borsi‑Watson phone moved from an area in the vicinity of the Mawson Lakes tower to the Prospect tower (at Officeworks on Main North Road) between 1:11am and 2:19am and then remained in that area until at least 2:57am. The accused had contact by phone with the Borsi-Watson phone at 2:57am for just under two minutes. There were no phone calls or text messages made or sent from the accused’s phone between 4:00‑5:00am on 5 September 2008. However, they recommence at 5:38:50 when he makes a phone call to the Borsi‑Watson phone that goes through the Ovingham phone tower. This is about 50 minutes after the offender has left the complainants’ house and at a time when reports are made of a person running through the Fifth and Wattle Streets area in Brompton, where some stolen items are located.
The offender was wearing a white floppy hat. This hat was located in the house whilst the complainants were cleaning up. DNA from the accused was located on the inner headband of that hat. Although it is not possible to be sure whether the deposit of DNA on the hat was by primary, secondary or even tertiary transfer what is clear is that the profile is complete and also present when a second tape-lift is taken about 10 years later.
It is also very likely that both the complainants handled the hat during the course of cleaning up the crime scene. The photos show that their home was ransacked and left as a complete mess with drawers and cupboards upturned. A photo taken on the morning of the offending shows the hat inside the walk‑in wardrobe on top of bedding but by the time the police seize the hat it is on some shoes. I accept that it was during the process of cleaning up, that the DNA of the complainants was transferred or deposited on the hat. The police had had no contact with the accused at the time that the hat was seized. Contamination was not suggested by the defence. I have, however, considered and rejected it as a reasonable possibility.
This hat is quite distinctive. It is sometimes referred to as a Greg Chappell hat. It is unlikely to be the sort of hat that is passed around such as a baseball cap might be. DNA from an unknown fourth contributor was also located in the hat but that contribution was a very small percentage compared to the accused’s contribution. The name ‘P. Kenny’ appears in the hat. P. Kenny has not been found. No explanation has been given for the accused’s DNA being in the hat. Obvious explanations are that he has worn the hat, handled the hat or had close contact with a person who did. DNA profiles from the steering wheel and gearstick from the car do not exclude the accused as a contributor. I accept the evidence of Ms Harkin regarding the potential for false inclusion of the accused.
When the accused was arrested on 9 September 2008, he was wearing black woollen gloves. A single source DNA profile of the accused was generated from the inner palm and cuff of the left glove. While this is not unexpected as the accused was wearing them it does make it unlikely that that glove had been shared with others.
The accused was seen with a small silver gun by his cousin, Ms Warren, between the end of August and 8 September 2008. The accused was in possession of a small silver gun and black knitted gloves on 9 September 2008 (four days after the offending) at a shop on the corner of Hampstead and Regency Roads at Broadview. That the accused at that time was about 5’8 when wearing shoes, a stocky build, had thick dark hair, bushy eyebrows, a wide nose, facial hair, hazel eyes, 28 years old and a skin tone that could be described as darker than fair but not dark skin.
The prosecution case is that the accused is the offender who entered and committed the offences in the home of the complainants. The defence suggest that there is a reasonable hypothesis consistent with the innocence of the accused. This rests primarily on the differences in the description between the accused and the offender and the possibility of others being involved in the offending having some links to Stacey Borsi-Watson and the accused, but it not being the accused who enters the premises. In particular they suggest that the person who was photographed in Exhibit D43 could be the person at the Gs’ house and the offender.
I know little about the person in Exhibit D43. No one has given any evidence as to his identity. It is only by reason of the photographs that he seems to be associated with Stacey Borsi-Watson. From his appearance in the photographs, he appears to be indigenous, young, perhaps tall but that is difficult to tell.
The stolen property from the complainants’ house included the camera on which the photos were taken. It was located on 24 September 2008. The photographs were taken on 11 and 12 September 2008, by that stage the accused was in custody having been arrested on 9 September 2008.
I make the following observations about the person in Exhibit D43. His skin colour appears to be very dark. His teeth appear to be a very distinctive feature of his face. He is not the only male in those photographs. Although AG did not exclude the possibility that it was this man who came to his house the limitations in relation to his evidence are clear. He was shown a photo of one person on one occasion, 13 years after the relevant event.[93]
[93] See above [60].
Hypothesis consistent with innocence
I have borne firmly in mind that there is no onus of proof upon the accused. It is not for the defence to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts that would tend to support such an inference. It is for the prosecution to disprove any hypothesis.
I have considered each of the hypotheses put forward by the defence.
Scenario 1
1AThe accused attends [the complainants’ address] at 4:00am on 4 September 2008 but he does not go into the bedroom of the premises.
1BThe true offender is somebody who is associated with the accused and it is that person who goes into the bedroom of the premises.
1CThe accused travels in the stolen Ford with the true offender, until it is left at Brompton.
1DThe accused and the true offender are at Brompton.
1EThe accused has an association with Stacey Borsi-Watson.
1FThe true offender has an association with Stacey Borsi-Watson.
Scenario 2
2AThe accused is somewhere around Walkley Heights at 11:33pm on 4 September 2008.
2BHe does not go to [the complainants’ address].
2CHe meets the true offender and they travel to Brompton in the stolen Ford.
2DThe accused has an association with Stacey Borsi-Watson.
2EThe true offender has an association with Stacey Borsi-Watson.
Scenario 3
3AThe accused is somewhere around Walkley Heights at 11:33pm on 4 September 2008.
3BHe does not go to [the complainants’ address].
3CHe meets the true offender at Brompton.
3DThe accused has an association with Stacey Borsi-Watson.
3EThe true offender has an association with Stacey Borsi-Watson.
Having considered the evidence as a whole as I am required to do, I reject each of these scenarios as being a rational hypothesis when all the circumstances are weighed. There is no evidence of a second person being at the complainants’ premises. He may have met another person after the offences. That person may have an association with Stacey Borsi-Watson. It may even have been Stacey Borsi-Watson because he calls her phone many times after 5:38am.
The real question is whether the evidence that I accept satisfies me beyond reasonable doubt that the accused is the offender who attended at the complainants’ house. I can only be satisfied beyond reasonable doubt of that if there is no other rational hypothesis that is consistent with the innocence of the accused.
Discussion
The accused generally matches the description given by AG. I accept he has not been identified by AG and that there are some differences in the description of the clothing given by AG and the complainants. I accept that there is a possibility that it was not the accused who attended at the Gs’ premises. However, for the reasons that follow this does not cause me to have a reasonable doubt that the accused is the offender who committed the charged offences at the complainants’ home.
I find that the accused was in the vicinity of the complainants’ home late in the evening of 4 September 2008. That the phone records prove that he was awake and active in the early hours on 5 September 2008.
The accused generally matches the description given by the complainants of the offender. There are differences in relation to his height and shoe size. However, these differences are explicable given the circumstances in which they found themselves and the limited opportunity they had to make observations. An estimate of shoe size is often dependant on the style of the shoe, the nature and circumstances of the observations. The offender told them on numerous occasions not to look at him and he was disguised.
He was described as Caucasian by both. As a result of the scarf, hat and gloves very little of his skin was ever visible to them. They could see his eyes and the area between his eyes to his hat. The accused’s skin tone is not very dark. His eyes are hazel. Taking into account those visible features alone it is not inconsistent to describe the accused as Caucasian.
Heights are notoriously difficult to judge. An estimate given by a person confronted by a stranger in their house in the early hours of the morning as HH was, could only ever be a guide. The estimates are not inconsistent with the accused’s height of 5’8 in shoes.
The accused’s DNA was in the hat worn by the offender. The DNA was in an area of the hat where you might expect to find it if it had been worn by him. The hat was found inside the house. The contribution to the DNA profile by the fourth contributor is a very small percentage of the total contribution.
Four days after the offending, the accused was in possession of a silver handgun that is in all senses identical to that described and identified by WH with the exception of the handle, that WH would not have had an opportunity to see in any event. The accused had had this handgun in his possession for some time prior to 9 September 2008. It had been seen in his possession by his cousin at a time prior to that.
I find that the offender was wearing gloves thus had limited opportunity to leave his DNA or fingerprints in the premises. I find that the accused’s DNA is not excluded from the DNA located on the steering wheel and the gear lever of the car, and although that is not a significant consideration, it is a part of the circumstantial case. Although DNA from the accused was not found on the backpack at Stacey Borsi-Watson’s house, this is explicable if the offender was wearing gloves and had a limited opportunity to go through the bag. When the accused was arrested on 9 September 2008, he was wearing black woollen gloves and he remained in custody between that date and 24 September 2008.
The complainants’ car is dumped at Brompton. Further, that the accused matches general descriptions, with the exception of one of the people who describes a tall skinny man at Brompton, running through the units and that the phone usage of the accused fits the pattern of a person who having absconded, panics and is in the general area of Brompton at the time when he makes a series of phone calls.
That his car was located at the Borsi-Watson premises and that he is associated with Stacey Borsi-Watson in a number of ways.
Conclusion
The proven circumstances of this case when considered as a whole satisfy me beyond reasonable doubt that the accused is the offender. The fact that the accused was in the area on that night, his DNA is in a hat used to disguise the offender and left at the scene inside the walk-in wardrobe. That the accused generally matches the description of the offender given by the complainants. That the accused has an identical gun and woollen gloves four days later and has had that gun in the days or weeks prior to being arrested. That he is connected to Stacey Borsi‑Watson where some of the property was found and that she was using the phone stolen from the complainants the following day. That the accused was in contact with her on the night of and early hours after the offending. That there does not appear to be any phone usage by the accused during the offending but that at a time when a person is running around in Brompton and dropping items from the thefts at the complainants’ house, he is making phone calls in rapid succession from that area. That the phone usage and location support a finding that he has driven away from that area but maintained contact with Stacey Borsi-Watson over the next few hours.
I am satisfied that there is no rational hypothesis consistent with the innocence of the accused.
I am satisfied beyond reasonable doubt that the accused committed each of the charged acts, and further that the evidence proves each of the elements of the charged acts beyond reasonable doubt.
I, therefore, find the accused, Clinton Colson, guilty as charged.
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