R v Dudley

[2025] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v DUDLEY

Criminal Trial by Judge Alone

[2025] SADC 87

Reasons for the Verdicts of his Honour Judge Handshin 

11 July 2025

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – TRESPASS TO LAND – GENERALLY

CRIMINAL LAW – PARTICULAR OFFENCES – BURGLARY, HOUSEBREAKING AND LIKE OFFENCES – ENTERING AS A TRESPASSER WITH INTENT OR BEING FOUND WITH INTENT

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – ROBBERY – GENERALLY

CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – GENERALLY

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – THEFT

The accused is charged with two counts of aggravated serious criminal trespass in a place of residence, three counts of theft, one count of aggravated robbery and one count of attempted aggravated robbery, to which he pleaded not guilty at the commencement of trial. The charges arise out of a series of crimes committed on the morning of 8 January 2023 within the Salisbury, Salisbury Downs, Elizabeth South and Elizabeth Vale areas. It is alleged that the accused committed two home invasions in company with a Caucasian male, RM. The home invasions were committed at two premises under 2km apart, and were apparently opportunistic crimes, albeit committed in very different manners. One involved no confrontation as between the perpetrators and the home owners; in the other, two men confronted the home owners whilst one was armed with a knife (allegedly, the accused).

The victim of the first home invasion did not see anyone inside their residence but saw two men – one of Aboriginal appearance and one Caucasian - running 60-100m from their house shortly after what, on the prosecution case, was the commission of two offences. The victim subsequently went looking for the males and came across them 10-15 minutes later at which time it was alleged the Caucasian male admitted having taken and then discarded the victim’s wallet. The victim was unable to identify the accused as one of the people he had seen and identified someone other than RM as the Caucasian male.

The second home invasion was committed around 30 minutes later. The prosecution case was that the accused entered various bedrooms of the house and, armed with a knife, confronted the victims, demanding various items, whilst a co-offender rummaged through the kitchen. It was alleged the accused and the co-offender then stole two Mitsubishi SUVs from the property.  One of the victims later identified a photograph of the accused as bearing 50% likeness to the man he had seen in his bedroom with a knife. The two vehicles were seen not long after the home invasion 6km away by a resident of a street in Hillbank who gave evidence that he saw an Aboriginal or Mediterranean male with a beard rummaging through the glovebox of a Mitsubishi whilst a Caucasian male sat in the driver’s seat of another Mitsubishi SUV. The accused did not have a beard as at 8 January 2023.

The accused was further charged with and pleaded guilty to using a motor vehicle without consent, theft and being unlawfully on premises. These offences were committed after the home invasions and, on the prosecution case, after the accused and his co-offender had disposed of the two vehicles stolen during the second home invasion. The admitted commission of these offences was said to be circumstantial evidence that placed the accused in various places of interest after the home invasions.

The accused was arrested around two hours after the second home invasion. He had possession of a wallet kept in one of the cars stolen during the second home invasion. He also had possession of cash of a different amount to that said to have been in the wallet. The accused was in an apparently intoxicated or drug affected state at the time of his arrest.

It was not in dispute that the offences had been committed. The forensic contest was whether the prosecution had proved that the accused was one of the men involved. The case against the accused was circumstantial and relied on the accused’s presence in the area of the offences at around the time of their commission, in the company of another male who was said to be connected to one of the cars taken from the second scene through DNA and fingerprint evidence; DNA evidence linking the accused to the other car stolen during the second home invasion and his possession of a wallet that was in that car; descriptions of the man with the knife at the second home invasion as an Aboriginal male in his 20’s (consistent with the accused’s appearance); and CCTV footage that captured the accused’s movements in the general area throughout the relevant morning and clothing he was wearing at relevant times.

Held: The prosecution case as to counts 1 and 2 depended on the drawing of an inference that the two men seen running 60-100m from the scene had committed the offences pursuant to a joint enterprise. There was insufficient evidence of an agreement to commit, and commission of those offences, pursuant to any such agreement. Accordingly, no reliance could be placed on the admission said to have been made by the Caucasian male which, in any event, implicated only the Caucasian male in the commission of any offence. In circumstances where the accused was not found to be in possession of any items stolen from that residence and the hypothesis that the Caucasian male had committed the offences by himself could not be excluded, the prosecution had failed to prove the charges.

As to counts 3 to 7, the circumstantial evidence rendered it likely that the accused was complicit in the offending. However, the evidence of the appearance of the offenders given by the victims of the second home invasion was, in material respects, inconsistent with the appearance of the accused and the alleged co-offender. None of the victims mentioned a particularly prominent tan coloured jacket that the accused had been seen wearing at all other material times throughout the morning and whilst there were explanations for these inconsistencies, they necessarily affected the overall cogency of the prosecution case. The observations of the Hillbank resident that the Aboriginal or Mediterranean male he saw rummaging through one of the stolen cars had a beard was also inconsistent with the accused’s appearance, although not necessarily inexplicable. The discovery of the wallet in the accused’s possession some hours after the home invasion was highly probative, particularly when viewed in combination with the DNA evidence linking the accused to one of the cars. However, whilst that evidence gave rise to the inference that the accused had some connection with one of the cars, the combined force of the evidence did not exclude the hypotheses that the accused was connected with the car ex post facto or through others who carried out the offending, leaving open the possibility of an innocent explanation for his DNA and the possession of the wallet.

However, by receiving what was clearly a stolen wallet (and much of its contents), and retaining the wallet with the obvious intention of depriving the owner permanently of it or making a serious encroachment on their proprietary rights, it was proved beyond reasonable doubt that the accused committed theft by receiving.

Verdicts: Not guilty of counts 1 to 6; guilty of count 7 on the limited basis of theft of the wallet (and much of its contents) by receiving; guilty of counts 8 to 10 on account of the accused’s pleas. 

Criminal Law Consolidation Act 1935 (SA) ss 17(1), 86A(1), 134(1), 137(1), 170(1) and 270A, referred to.
De Marchi v The King [2024] SASCA 49; Bristow v The King (2020) 137 SASR 449; R v Hillier (2007) 228 CLR 618; R v Baden-Clay (2016) 258 CLR 308; Barca v The Queen (1975) 133 CLR 82; R v Smith (2017) 129 SASR 237; Catanzariti v The Queen [2021] SASCA 110, applied.

R v DUDLEY

Criminal Jurisdiction

1. On the morning of 8 January 2023, two home invasions and other property related offences were committed in the Salisbury, Salisbury Downs, Elizabeth South and Elizabeth Vale areas within the space of a few hours. The home invasions appear to have involved the opportunistic entry into places of residence for the purpose of committing theft or robbery.

2. One of the home invasions was committed without any confrontation as between the offender or offenders and the occupants of the house; the other involved a direct confrontation between the offenders, one of whom was armed with a knife, and the occupants.

3. As a result of these events, the accused, Jamahl Dudley, is charged with two counts of aggravated serious criminal trespass in a place of residence; three counts of theft; one count of aggravated robbery and one count of attempted aggravated robbery.

4. There is no dispute that the offences were committed by one or more people. The question for determination is whether the accused was one of the offenders.

   Overview of the prosecution case

5. The first home invasion occurred at around 6am at the house of Mr TV and Mrs CV on Thompson Avenue, Salisbury Downs.

6. The prosecution case is that the accused and / or his co-offender, entered the V residence through a sliding door and stole a number of items from the open plan kitchen / dining area (counts 1 and 2).

7. After hearing a noise he associated with the side gate to the property being opened, TV, who was in bed at the time, went to investigate. As he made his way to the front of his property, he saw two males running on Thompson Avenue, around 60-100m from his house. He did not see either of the males in his home or on his property.

8. After returning inside and discovering that a number of items (including mobile phones) had been stolen, TV got in his car and went searching for the males. Around 10-15 minutes later, he found two males who, on the prosecution case, were the same males he had seen running on Thompson Avenue. Closed circuit television footage obtained from a property on Shamrock Place, Salisbury Downs, not far from the V residence, shows Mr V approaching the two males in his car at around 6:30am.

9. One of the males was Caucasian and after being spoken to by Mr V, made what the prosecution say was an admission to having taken and then discarded Mr V’s wallet.

10. The second male was of Aboriginal appearance and, on the prosecution case, was the accused. He was carrying, amongst other things, something white and was wearing a particularly distinctive tan and black coloured jacket.

11. The prosecution allege that the accused, and the Caucasian male, who is said to be a man by the name of RM, committed the offences of aggravated serious criminal trespass in a place of residence and theft of the V’s property pursuant to a joint criminal enterprise. 

12. TV subsequently participated in a photographic identification procedure. He was unable to identify the Aboriginal man he saw running on Thompson Avenue and Shamrock Place. He positively identified someone other than the man RM as the Caucasian male he had spoken with in Shamrock Place.

13. At around 7am, at a residence on Kimber Court, Salisbury, some 1.3km from Thompson Avenue, the A family were beginning their day. Their property, which was surrounded by perimeter fencing in the order of 1.6-1.7m high including a 1.6m high automated front sliding gate that required a remote to operate, had been secured by one of the occupants, AA, after he saw his wife off at around 5:30am for her morning walk. 

14. The prosecution case is that two men, said to be the accused and the Caucasian male RM, entered the house in a manner unknown and confronted a number of occupants of the house (count 3).

15. It is alleged that the accused was armed with a knife which he used in a menacing or threatening way in order to facilitate the theft or robbery of various items from the As including the keys to two white Mitsubishi SUVs (one an ASX; the other an Outlander) in their driveway (one of which contained the wallet of AA’s brother, SLA, and $1200 to $1400 cash, as well as various personal cards such as Medicare cards and Metro Cards) and the mobile phone of AA and his bankcard (count 4), which were kept together. The accused also demanded money from SLA’s mother-in-law, KBD, in an attempted aggravated robbery (count 5). As will be seen, the evidence of the occupants of the Kimber Court house as to the appearance of the two male offenders is somewhat disparate and, in a number of respects, is said to be inconsistent with the accused’s appearance and clothing at or around the time of the offending.

16. The offenders left the Kimber Court residence in the two Mitsubishis belonging to the As (counts 6 and 7), driving through the front gate in order to make good their escape.

17. The prosecution case is that the two white SUVs were seen a short time later some 6km away on Marian Crescent, Hillbank by a resident, TC. Mr C observed there to be a Caucasian male in one of the cars and an Aboriginal or Mediterranean looking male with a beard or facial hair going through the glove box of the other. The accused did not have a beard or facial hair beyond a ‘5 o’clock shadow’ at the time of these events. Having made these observations, Mr C went back inside his house to retrieve his mobile phone but when he returned to the street, both vehicles were gone. He noticed some Pokémon cards on the road. There were Pokémon cards in the Outlander stolen from Kimber Court. The prosecution case is that Mr C observed the two stolen vehicles from Kimber Court and the people responsible for their theft.

18. The Mitsubishi ASX taken from Kimber Court was subsequently captured by CCTV cameras on Jeffries Road, Elizabeth South just before 8am. The same cameras captured the accused and a Caucasian male a few minutes later. Indeed, the accused thereafter committed three property offences in the area to which he has pleaded guilty – two on Jeffries Road (counts 8 and 9) and one on nearby Plaitford Street (count 10) - over the next 45 minutes. A bankcard in the name of SLA was found near to where the accused committed count 10.

19. At the time the accused committed these offences in the Elizabeth Vale and Elizabeth South area, he was still wearing the tan and black jacket to which I earlier referred.

20. The accused was arrested at around 9am. He was searched and found to have in his possession a number of items said to implicate him in the commission of the home invasion at Kimber Court, including SLA’s wallet; $925; and various cards in the name of SLA, his wife, children and mother-in-law.

21. Following the accused’s arrest, a bankcard in the name of AA was used to conduct several transactions. As he was then in police custody, the accused, plainly enough, could not have been responsible for these transactions.

22. The two Mitsubishis stolen from Kimber Court were recovered by police on the morning of 8 January 2023. Forensic examination of the Outlander uncovered a multi-contributor DNA profile on the steering wheel. There is extremely strong support for the hypothesis that the accused was a contributor to the mixed profile. 

23. In the ASX, police found a black handled bread knife. Multi-contributor DNA profiles were extracted from the blade and handle of the knife. There is extremely strong support for the hypothesis that the Caucasian male RM is a contributor to those profiles, as well as mixed profiles found on a portion of a disposable glove found in the car and the steering wheel of the ASX. The prosecution say that this evidence implicates RM in the commission of the Kimber Court offences and also the accused, by virtue of his association with RM on this particular morning – both on Shamrock Place and Jeffries Road. There is support for the hypothesis that the accused is excluded as a contributor to the mixed profiles found throughout the ASX.

24. Not long after the events of 8 January 2023, SLA and AA participated in photographic identification procedures. AA was unable to identify anyone involved in the home invasion. SLA picked a photograph of the accused as bearing a 50% likeness to the male who confronted him in his house with a knife.

25. The defence case is that the accused was not involved in any of the offending to which I have referred, save for those offences to which he has pleaded guilty. The defence argue that the evidence led in support of the Thompson Avenue offending is incapable of establishing that the males seen running on Thompson Avenue by Mr V were responsible for the trespass and theft. Indeed, the defence say that there is insufficient evidence that the accused was in fact one of those men and that the two men Mr V came across 10-15 minutes later, may not have been the same men previously seen on Thompson Avenue. The defence contend further, and in any event, that there is insufficient evidence to prove that the men were responsible for the offences at the V household or, if they were, that the offences were committed pursuant to a joint criminal enterprise between the two men. This is said to have the additional effect that the ‘admission’ alleged to have been made by the Caucasian male on Shamrock Place is not admissible against the accused.

26. As to the Kimber Court offending, the defence case is that the descriptions of the offenders provided by the occupants of the house, viewed together with the outcomes of the photographic identification procedures, are such as to exclude the accused as one of the perpetrators or at least to leave a doubt as to his involvement. The defence say that if the evidence of the occupants is reliable, it contraindicates the accused’s involvement; and if the evidence of the occupants is unreliable, there is no satisfactory evidence of the appearance of the offenders.

27. The defence say further that the DNA evidence linking the accused to the car is explicable on the basis of secondary or tertiary transfer or post offence contact by the accused with the car and, similarly, it is argued that the accused’s possession of SLA’s wallet and related items can only link him with the car, or someone who had access to the car, and not the home invasion itself. The defence point to the chronology of events in support of this proposition and in particular that there were around 2 hours between the Kimber Court offences being committed and the accused’s arrest by the police, providing ample time for the accused to have received the property or otherwise come into possession of it without having necessarily been involved in the home invasion.

    The charges

28. The charges the accused now faces on Information dated 9 February 2024, are as follows:

    Count 1:

    Offence Details:

    Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Salisbury Downs, entered or remained in the place of residence of [TV] and [CLV] as a trespasser, with the intention of committing an offence therein, namely theft.

    Circumstances of aggravation

    It is further alleged that another person was lawfully present in the place of residence when the offence was committed and Jamahl Lynton Dudley knew of the other’s presence or was reckless about whether anyone was in the said place.

    It is further alleged that Jamahl Lynton Lyle Dudley committed the offence while in company with another.

    Count 2:

    Offence Details:

    Theft. (Section 134(1) of the Criminal Law Consolidation Act, 1935).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Salisbury Downs, dishonestly dealt with property, namely two mobile phones, a wallet, Pokemon cards, without the consent of [TMV], the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on his proprietary rights.

    Count 3:

    Offence Details:

    Aggravated Serious Criminal Trespass in a Place of Residence. (Ibid).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Salisbury, entered or remained in the place of residence of [SLA] and [KMA] as a trespasser, with the intention of committing an offence therein, namely theft.

    Circumstances of aggravation

    It is further alleged that another person was lawfully present in the place of residence when the offence was committed and Jamahl Lynton Dudley knew of the other’s presence or was reckless about whether anyone was in the said place.

    It is further alleged that Jamahl Lynton Lyle Dudley committed the offence while in company with another.

    Count 4:

    Offence Details:

    Aggravated Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Salisbury, used or threatened to use force against [AA] in order to commit theft of a mobile phone, and the force was used, or the threat was made, at the time of, or immediately after the theft.

    Circumstances of aggravation

    It is further alleged that Jamahl Lynton Lyle Dudley committed the offence while in company with another.

    It is further alleged that Jamahl Lynton Lyle Dudley used or threatened to use an offensive weapon, namely a knife, to commit or when committing the offence.

    Count 5:

    Offence Details:

    Attempted Aggravated Robbery. (Sections 137(1) and 270A of the Criminal Law Consolidation Act, 1935).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Salisbury, attempted to commit theft of money by using or threatening to use force against [KBD], and the force was used or the threat was made at the time of, or immediately before, the attempted theft.

    Circumstances of aggravation

    It is further alleged that Jamahl Lynton Lyle Dudley committed the offence while in company with another.

    It is further alleged that Jamahl Lynton Lyle Dudley used or threatened to use an offensive weapon, namely a knife, to commit or when committing the offence.

    Count 6:

    Offence Details:

    Theft. (Ibid).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Salisbury, dishonestly dealt with property, namely a 2021 Mitsubishi ASX South Australian registration S506CSP without the consent of [AA], the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on his proprietary rights.

    Count 7:

    Offence Details:

    Theft. (Ibid).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Salisbury, dishonestly dealt with property, namely a 2018 Mitsubishi Outlander South Australian registration S225CJA and contents without the consent of [KMA], the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on his proprietary rights.

    Count 8:

    Offence Details:

    Using Motor Vehicle Without Consent. Section 86A(1) of the Criminal Law Consolidation Act, 1935).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Elizabeth South, on a road or elsewhere, drove, used, or interfered with a motor vehicle without first obtaining the consent of the owner of the vehicle, [RCF].

    Count 9:

    Offence Details:

    Theft. (Ibid).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Elizabeth South, dishonestly dealt with property, namely a Bullet electric scooter 1000W, without the consent of [DAWR], the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on his proprietary rights.

    Count 10:

    Offence Details:

    Unlawfully on Premises. (Section 17(1) of the Summary Offences Act, 1953).

    Particulars

    Jamahl Lynton Lyle Dudley on the 8^th day of January 2023 at Elizabeth Vale, entered, or was present on, premises at [XX] Plaitford Street Elizabeth Vale for an unlawful purpose or without lawful excuse.

1. The accused elected to be tried by a judge sitting without a jury. He pleaded not guilty to counts 1-7, but guilty to counts 8, 9 and 10 when arraigned at the outset of the trial.

2. By his pleas of guilty to counts 8, 9 and 10, the accused admitted the elements of those offences, relevantly, that he was in the Elizabeth South and Elizabeth Vale areas within a few hours of the home invasions. The clothing that he was wearing at the time of the commission of count 8 – which was recorded on CCTV footage – and at the time of his arrest at 9am is also relevant to the identity of the men seen by Mr V on Shamrock Place and to whether the accused was the man with the knife during the Kimber Court offending.

   The issues and standard directions

3. As I have said, the identity of the people responsible for the commission of these offences was the only issue at trial. It was not disputed that the offences were committed by one or more people.

4. The credibility of the witnesses called by the prosecution was not challenged. The reliability of aspects of the witnesses’ evidence were challenged; in other respects, the witnesses were embraced by counsel for the accused as reliable.

5. The prosecution did not suggest that the evidence going to any of the offences, or the pleas of guilty, was cross admissible in relation to any other count save to demonstrate (depending on the findings I make) that the accused was in a particular area at a particular time; in a particular person’s company; or wearing particular clothes. The prosecution expressly disavowed any reliance on propensity reasoning and did not suggest that any other non-propensity use could be made of the evidence as to each count or group of offending apropos the others.[1] I direct myself as to the permissible use of the evidence accordingly and remind myself that I cannot reason from any of the evidence, or the accused’s admissions with respect to counts 8 to 10, that the accused is a bad person or the sort of person likely to commit crimes in general or property or dishonesty offences.

   [1]     T244-245.

6. Before turning to a review of the evidence and explanation of my findings and reasons, I remind myself of some fundamental matters.

7. The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charges unless and until the prosecution proves each element of the offence under consideration beyond reasonable doubt.

8. As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. I may find a witness to be credible or reliable with respect to some but not all of their evidence. As I have said, there was no challenge to the credibility of the prosecution witnesses.

9. As there are multiple charges, I must give each count separate consideration by reference only to the evidence admissible in relation to particular counts. The charges do not rise or fall together. I may find the accused guilty of some, all or none of the charges; I may find the accused not guilty of all or some charges, but guilty of others. My verdict in relation to one count cannot dictate my verdicts in relation to any other counts. Having said that, from a practical perspective, if it has not been proved beyond reasonable doubt that the accused was the man with the knife during the Kimber Court offending – that being the prosecution case – my verdicts in relation to counts 3 to 7 would (subject to one matter relating to count 7 alone) have to be not guilty because the failure to prove that fundamental fact would necessarily mean the prosecution case on those counts (again, with the possible exception of count 7 for reasons I will come to) must fail.

10. The prosecution case that the accused was one of the offenders involved in the home invasions is essentially circumstantial. The accused was not positively identified by any of the witnesses.

11. An assessment of circumstantial evidence is to be conducted holistically. Individual items of circumstantial evidence are not to be discarded or ignored in the fact-finding process because, viewed in isolation, they are incapable of sustaining an inference for which the prosecution contend.[2] My task is to identify the evidence which I accept; the facts which I find established by the evidence and the rational, reasonable and logical inferences I am prepared to draw from those facts and ask whether I am satisfied beyond reasonable doubt of the elements of the offences.

    [2]     R v Hillier (2007) 228 CLR 618, [48]; R v Baden-Clay (2016) 258 CLR 308, [47].

12. When considering whether an inference can reasonably be drawn from what I consider to be established intermediate facts, I am to have regard to the whole of the evidence and the facts I find to be proved by the evidence. It may not be reasonable to draw a particular inference from one intermediate fact or circumstance; but such an inference may be reasonably drawn from the combined effect of the facts I find to be established.

13. I emphasise that intermediate facts that are not indispensable to proof of an accused’s guilt, need not be proved beyond reasonable doubt.

14. It is a by-product of the burden of proof that, in a case that depends on circumstantial evidence, the prosecution will have failed to prove the offence or offences beyond reasonable doubt unless any and all reasonable explanations arising on the evidence consistent with the accused’s innocence are excluded.[3] Here, the primary defence hypotheses are that someone other than the accused was involved in the home invasions and to the extent that the accused was found in possession of incriminating items and his DNA was detected on the steering wheel of the Outlander, the evidence does not exclude that he came into possession of the relevant items after the offences had been committed or that his DNA was innocently deposited on the steering wheel.

    [3]     Barca v The Queen (1975) 133 CLR 82, 104.

15. It is not for the accused to persuade me that an inference or inferences other than that he was complicit in the offending should be drawn and it is not for the accused to prove any facts in support of a hypothesis consistent with innocence. Of course, for any such hypothesis to give rise to a doubt as to the accused’s guilt, it must be a hypothesis that reasonably arises on the evidence. A circumstantial case is not defeated because it is possible to articulate an alternative hypothesis, not grounded in the evidence, but which would be inconsistent with guilt.[4]  

    [4]     R v Baden-Clay (2016) 258 CLR 308, [47], [55].

16. At the end of the prosecution case, the accused indicated he would neither give nor call evidence. This was his right, and I draw no adverse inference from its exercise. I have not used the accused’s silence as a make weight or to fill any gaps or deficiencies in the prosecution case. To do otherwise would undermine the accused’s right. Plainly enough, the fact that the accused elected not to give evidence does not alter the burden of proof which remains fixed on the prosecution; nor does it affect the weight that must be given to the presumption of innocence.

17. As there was no dispute that the offences with which the accused is charged were committed by one or more people, I will summarise the elements of the offences briefly.

18. To prove an aggravated serious criminal trespass in a place of residence (counts 1 and 3), the prosecution must establish the following elements beyond reasonable doubt:

    1.The accused entered or remained in a private place - that is, a place that is not open to the public.

    Places that are open to the public include retail outlets, museums, art galleries and the like, in contrast to private places like a home, which members of the public only have access to if they are invited.

    2.The place the accused entered or remained in is a place of residence.

    A place of residence is a building, structure or part of a building or structure that is used as a place of residence.

    3.The accused entered or remained in the residence as a trespasser.

    A trespasser is a person who deliberately enters a place of residence without authority or permission to do so.

    4.The accused knew he was a trespasser or was reckless as to whether he was a trespasser.

    The prosecution must prove beyond reasonable doubt that the accused knew he did not have permission or consent to enter (or remain in) the Thompson Avenue and Kimber Court residences.

    5.The accused entered or remained in the residence with the intention of committing the offence of theft.

    6.The offence was committed in one or more of the circumstances of aggravation alleged, namely:

    a.    The accused committed the offence while another person was lawfully present in the place of residence and the accused knew or was reckless about whether anyone was present.

    b.    The offence was committed while the accused was in company with another.

19. To prove an aggravated robbery (count 4), the prosecution must establish the following elements beyond reasonable doubt:

    1.The accused committed ‘theft’.

    In order to prove that the accused committed theft, the prosecution must establish beyond reasonable doubt the following sub-elements:

    a.   The accused ‘dealt’ with property.

    A person may ‘deal’ with another’s property by taking that property or by ‘receiving’ property.

    b.     The accused’s dealing with the property was ‘dishonest’.

    A person dishonestly takes another’s property where the conduct of the accused in taking that property was dishonest according to the standards of ordinary people and the accused knew as much.

    c.   The accused dealt with the property without the owner’s consent.

    d.     The accused intended to permanently deprive the owner of the property that was dealt with or intended to seriously encroach on the owner’s rights in the property.

    If the accused intends that the owner will not get their property back, that would amount to a permanent deprivation.

    Alternatively, the law recognises three ways in which an accused can intend to seriously encroach on the owner’s rights in the property.

    The first is if the accused intends to treat the property as his own to dispose of, regardless of the owner’s rights.

    The second is if the accused intends to deal with the property in a way that creates a substantial risk that the owner will not get it back, and the accused is aware of that substantial risk.

    The third is if the accused intends to deal with the property in a way that creates a substantial risk that, when the owner gets the property back, its value will be substantially impaired, and the accused is aware of that substantial risk.

    2.The accused used or threatened to use force against AA in order to commit the theft.

    3.The force was used or the threat to use force was made at the time of, or immediately before or after the theft.

    The focus of this element is on the time in the sequence of events at which any force was used or threat to use force was made.

    The use of force must occur at the time of, immediately before, or immediately after the theft.

    4.The offence was committed in one or more of circumstances of aggravation alleged, namely:

    a.   The offence was committed using an offensive weapon, namely a knife.

    b.   The offence was committed while the accused was in company with another.

    5.The offence was committed while the accused was in company with another person.

20. To prove an attempted aggravated robbery (count 5) – which in this case relates to the demands made of KBD to hand over money - the prosecution must prove that the accused intended to commit aggravated robbery as I have just explained it and that he engaged in conduct that was sufficiently proximate to, and more than merely preparatory to, the commission of an offence of aggravated robbery. 

21. To prove the offences of theft (counts 2, 6 and 7), the prosecution must prove beyond reasonable doubt what I have identified as element 1 and its sub-elements when setting out the offence of aggravated robbery. The offences of theft here relate to the mobile phones, wallet and Pokémon cards taken from the V residence (count 2); the cars taken from Kimber Court (counts 6 and 7) and the contents of the Outlander (count 7).

    Pleas of guilty to counts 8, 9 and 10

22. It is convenient to begin with the findings that can be made as a result of the accused’s guilty pleas to counts 8, 9 and 10. The factual basis of this offending was established by agreed facts (P27) and CCTV footage (P19 and P19A).

23. The agreed facts were as follows:

    35.At around 7.49 am on 8 January 2023 Jamahl Dudley damaged a Toyota Celica with South Australian registration WML240 parked outside 21 Jeffries Road, Elizabeth South [count 8].

    36.On the morning of 8 January 2023 Jamahl Dudley took an electric scooter without the owner’s consent from the boot of a Toyota Kluger with South Australian registration S278BBL parked outside 15 Jeffries Road, Elizabeth South [count 9].

    37.At around 8.35 am on 8 January 2023 Jamahl Dudley entered the backyard at 14 Plaitford Street, Elizabeth Vale, without a lawful excuse [count 10].

24. The combined effect of the agreed facts and the accused’s pleas of guilty is to establish that the accused was present on Jeffries Road, Elizabeth South at 7:49am on 8 January 2023 and on Plaitford Street, Elizabeth Vale at 8:35am, and wearing the clothes depicted in the footage.

25. These two locations are several kilometres from Thompson Avenue and Kimber Court.

    Counts 1 and 2 – Aggravated Serious Criminal Trespass and Theft – V Residence

26. I move then to a summary of the evidence adduced as part of the prosecution case on counts 1 and 2.

27. As at 8 January 2023, TV was living at [suppressed] Thompson Avenue, Salisbury Downs. Just after 6am that morning, Mr V heard the access gate on the front left hand side (looking at the property from the street) of the house open. The gate, which did not have a lock on it at the time, made a distinctive squeaking noise when opened. Mr V got out of bed to investigate and saw a sliding glass door that provided external access into the living room of the house was open.[5] Mrs V, who had woken earlier than Mr V this particular morning, had gone out to the backyard at around 6am and had left the sliding door unlocked.[6]

    [5]     T21-22.

    [6]     T42.

28. Mr V made his way to the side gate, which he observed to be open, and saw two figures running around the intersection of Thompson Avenue and an adjoining street, the name of which he could not remember.

29. Mr V described the people running as follows:[7]

    [7]     T23.

    AWhen I first saw them they were running around the corner. The one guy had all black on and the other guy had a tanned jacket on. So that's all I could see as they were running around the corner.

    QWhere were you positioned.

    ABasically I walked out the side gate out to the front of the footpath of the run.

    HIS HONOUR

    QYou described the people as guys. From where you were when you first saw them were you able to tell whether they were male or female.

    AYes, they were both definitely male.

    XN

    QRoughly how far away were you.

    AI would say 60-100 m tops, yeah.

    QYou mentioned they went around the corner. Which street did they turn onto.

    AWithout a map I'm not sure.

    QOther than the two people being men, one dressed in all black and the other wearing a tan jacket, was there anything else about their appearance that you can recall.

    AOnly that one was Aborigine. No, sorry that's all I could see. All I saw was one had a tan jacket on and one was in black, so that's all I saw at the moment.

30. Mr V returned inside and noticed that his wallet, mobile phone, his wife’s mobile phone and some Pokémon cards were missing. The phones, Pokémon cards and Mr V’s wallet were kept in the dining area of the house, depicted in photograph 7 of P2. He spoke with his wife and then changed and went out looking for the males.[8]

    [8]     T23-24.

31. Around 10-15 minutes later,[9] he saw the two males on Mayo Crescent. Mr V said he then observed that one of the males was ‘an Australian white person’ and the other was Aboriginal. He followed them around a corner, into what must have been Shamrock Place, and then had an exchange with the ‘Australian guy’ from within his car:[10]

    [9]     T24.

    [10]   T25-26.

    QWhat were the words that you exchanged with him.

    A‘I want my wallet. Can you please', not please, 'I want my wallet. Where's my wallet. Give me my wallet' and then I asked him to tip his bag out but he didn't and that's when I thought to myself there's nothing I can do so that's when the Aborigine guy walked around the front of my car and the both of them walked off down the street and I thought I can't do anything else so I drove home.

    QDid the Caucasian man saying anything to you.

    AYes. I told him when I said ‘Where's my wallet. I'll be calling the police' and he said 'Don't call the police because I'm homeless' and then he rummaged through his bag that he had and that was the last of it and from then on I drove off.

    QHow would you describe the bag he was carrying.

    AIt was a yellow like a calico, like the cheap yellow shopping bag that the shops like drugs supply. Like probably ones with the cheap handles on that was what he was rummaging through when I asked him for my wallet and I forgot about my phones.

    QDid he say anything about your wallet.

    AYes. When I asked him for my wallet he said to me that he tossed my wallet away, like threw it away and I thought that was strange but he said he doesn't have my wallet.

32. The other male remained on the passenger side of the vehicle.

33. Mr V supplemented his earlier description of the men at this point in his evidence:[11]

    [11]   T25-26.

    QCan you provide any more detail about what the Australian guy was wearing.

    AHe was all black. I think it was a black tracksuit pants and a black windcheater with a hood. He had his hood on. I think he had a logo on, some sort of logo on. He was medium height but skinny build and he had blond hair, blond like spiky hair - not spiky but unkempt.

    …

    QOther than the yellow calico bag was he carrying anything else.

    AI think he was carrying a black - black bag as well, like a black handbag.

    QWhat about the other man you described as being Aboriginal, was he carrying anything.

    AI do remember it was a blue bag with fluff around it, like teddy bear fluff and I thought that was strange and I think he also had a second bag.

    QOther than what you described as a tan jacket, can you recall what else he was wearing.

    ANo, I can't. Not properly, no.

    QIn terms of shoes or what covered his legs.

    ANo.

    QWas there anything about his build, or face, or hair that you can recall.

    AHe was stocky build. He was not a skinny fellow. He was fairly stocky. I would say doesn't have a long neck, like more hunched, not hunched but more solid. Medium to solid build and that's about it.

    QWhat about his height.

    AI would have said average height, 5'9, 5'10, about average.

    QCan you recall his hair.

    AYeah, I think it was short hair at that stage.

    QWhat colour.

    ANo, I can't honestly say.

34. Mr V did not speak with the Aboriginal man and only observed him for 10-20 seconds. He did not get a good look at the Aboriginal man.[12]

    [12]   T27.

35. The interaction came to an end because Mr V realised that there was nothing further he could do. He returned home and revisited the area where he thought the two males would have passed through after seeing them running around Thompson Avenue. He discovered his wallet on a dead-end road.[13]

    [13]   T27-28.

1. It was an agreed fact that police attended Mr V’s property at around 6:49am on 8 January 2023.

   P3 – CCTV footage

2. CCTV footage obtained from 4B Shamrock Place was played to Mr V and he confirmed that he was the driver of the vehicle that can be seen in that footage at 6:30:50am.[14]

   [14]   T31. The time stamp on this footage was agreed to be accurate: P27, [14].

3. Three still images from the footage were also tendered (P3A). The combined effect of the footage and the stills was said by the prosecution to demonstrate that:

   ·The male wearing the ‘tan jacket’ was the accused.

   ·The accused could be seen holding a white rectangular shaped bag that the prosecution submitted was of similar appearance to a white Chanel handbag found in the carport of the Kimber Court residence that was the subject of the second home invasion to which I will come.

4. The footage shows two males walking and then running down Shamrock Place as a dark coloured SUV appears to pursue them at considerable speed.

5. The two males in the footage may be described as follows:

6. One male (Male 1) was of Caucasian appearance. He was wearing black tracksuit pants with a white pattern or lines down the outside of the legs; a black jumper which may have had a hood, although it is difficult to tell, with a white coloured insignia or marking on the left pectoral; white coloured sneakers or sand shoes; a black hat with what appear to be sunglasses resting on the brim. The male was wearing a black surgical mask and carrying a yellow item in his left arm.

7. The second male (Male 2) was of Aboriginal appearance. He was wearing black shorts; a black t-shirt with a white or light coloured motif on the chest; black sneakers or sand shoes; and a tan coloured jacket with what appeared to be a black hood. The jacket had black colouring to the lapel however the most striking feature of the jacket is its overwhelmingly tan colour which assumes some significance when considering counts 3-7. The male was carrying a number of items in his right hand, one of which appears to be a black carry bag. He was also carrying a white coloured item but, despite reviewing the footage repeatedly, I am unable to discern whether it appeared to be a white handbag. I cannot identify the nature of what seems to me to be the third item in the male’s right hand – it appears to be a purple coloured bag of some description, but I cannot be confident about that.

   Photographic Identification Procedure – 8 June 2023

8. On 8 June 2023, Mr V participated in two photographic identification procedures. In the first procedure, Mr V was shown a booklet of photographs (P4A – TV1) containing 7 images of apparently Aboriginal males. When shown the folder, Mr V said that he was ‘not sure’. He said further ‘it’s between two but I don’t know. I didn’t have much to do with the Aborigine character…It’s between 3 and 6 but other than that, like I said I didn’t see this guy much’.

9. It is an agreed fact that a photo of the accused was at position number 3 of the photo-pack shown to TV.[15]

   [15]   P27, [17].

10. Mr V was also shown a booklet of photographs (P4B – TV2) containing seven images of Caucasian males. Mr V confidently identified a photograph of the person depicted in photograph number 6. It was an agreed fact that the person depicted in photograph number 6 was not RM, who the prosecution alleged was the Caucasian male in the company of the accused in the footage from Shamrock Place[16] and throughout the events of the morning. I will return to this issue.

    [16]   P27, [18].

    Cross examination

11. In cross examination, Mr V said that when he first saw the males on Thompson Avenue, he did not see them holding anything as ‘…all I saw [was] them flash around the corner’.[17]

    [17]   T35.

12. He denied that he had simply presumed that the two males he saw on Shamrock Place were the same males he had seen running on Thompson Avenue. He agreed however that in a statement he provided to police an hour or so after making his observations on 8 January 2023, he described the Aboriginal male as wearing long pants,[18]  in contradistinction to the CCTV footage which clearly shows the person said to be the accused wearing shorts.

    [18]   T39.

    The accused’s appearance at the time he committed counts 8, 9 and 10

13. As I earlier mentioned, the accused pleaded guilty to counts 8, 9 and 10 at the commencement of the trial. These offences were committed on Jeffries Road at around 7:49am and Plaitford Street at around 8:35am.

14. The commission of the offence at 21 Jeffries Road (count 8) was captured by CCTV footage (P19).

15. In the footage P19 and still images P19A, the accused can be seen wearing a tan coloured jacket with a black hood and black colouring to the lapel and shoulder areas; black shorts and black sneakers or sandshoes. He also appears to be carrying a black bag or back-pack.

16. The footage suggests the accused may have then been in the company of a Caucasian male who the prosecution say is RM.

17. In P19 and P19A, the person said to be RM is wearing a black coloured t-shirt with significant coloured writing or a motif on the chest; what appear to be black three-quarter pants or shorts or perhaps full length pants rolled up to the shins; black sneakers or sandshoes; and a black cap.

18. I leave the summary of the evidence relating directly to counts 1 to 2, and my analysis of the evidence, to set out the prosecution case as to counts 3 to 7.

    Counts 3, 4, 5, 6 and 7 – Aggravated Serious Criminal Trespass, Aggravated Robbery, Attempted Aggravated Robbery, Theft – ‘A Residence’

19. The residence the subject of counts 3 to 7 was located at [suppressed] Kimber Court, Salisbury which was 1.3km from Thompson Avenue and an approximately 18 minute walk.[19]

    [19]   P27, [25].

20. As at January 2023, the four bedroom Kimber Court house was occupied by SLA, his wife KMA, and their children; KMA’s parents, including her mother KBD; AA (SLA’s brother), his wife BA and their children.

21. The property was enclosed by perimeter fencing around 1.6-1.7m high. To access the property in a conventional way required the automated front swing gates (also around 1.6m in height) to be activated by a remote control. The gates could not be opened manually and there was no pedestrian access gate at the front of the house.

22. The front gate was kept locked between 6pm and 8:30am.[20]

    [20]   T47.

23. To help frame the chronology of this home invasion in relation to that carried out at Mr V’s house, it is an agreed fact that police attended Kimber Court at 7:13am.[21]

    [21]   P27, [32].

    SLA

24. SLA gave evidence that on the morning of 8 January 2023, he was woken by a ‘big bang’ - the sound of the door to his bedroom, which was always kept locked, being damaged.[22] He saw a man standing at the doorway to his room, holding a knife in his right hand.[23] SLA began screaming ‘police’ and ‘help’.

    [22]T49.

    [23]   T61.

25. SLA’s wife, KMA, and their five and seven year old daughters, were also in the bedroom.[24]

    [24]   T59.

26. SLA described the male with a knife, and the lighting conditions in his room, in the following way:[25]

    [25]   T49.30-51.2.

    QCan you tell us as best as you remember what the man with the knife looked like.

    ATall, tall man, yeah. Because I don't remember. I mean, so he's not white colour like a black, like that. So he's tall.

    HIS HONOUR

    QDo you know how tall you are.

    A5'3, 5'4. He is taller than me. He is close to the length of the door. So he's taller than me, yeah.

    XN

    QWhat sorts of clothes was he wearing.

    AJust black. That's what I saw.

    QWas it dark in your room.

    AYes, dark, yes.

    QCan you remember whether the sun was up or down at that time.

    AThe morning as is morning but as my room lies on the west side, so the morning sun doesn't really impact because I'm on the opposite side, the western side of my house my room so still very much not dark as night is morning but the morning sun doesn't give as much light as the other room so it is still -

    QWas there any light coming from outside into your room at that time that you saw the man.

    AIt is natural light or artificial light.

    QLight from outside.

    ANo, I don't remember. I don't notice.

    QHow far away from you was the man roughly.

    A1.5 m, like that.

    QDid he come into the room.

    ANo, just once the door broken he stand on the doorway.

    QDid he do anything with the knife.

    ANo, he didn't do anything with the knife just he was holding the knife but that was enough to scare us a lot.

    QWas he wearing anything on his head.

    AI don't remember.

    QCould you see his hair.

    AI saw his head but I was completely scream like that, I notice I mean completely yeah, I was shocked so I don't really remember. So, until he comes out from out of my house and he went to the car and then only I saw him. So when he was standing on the doorway my eyes was blurry like that, so I'm really not 100%. I can remember his face, his looks because I suddenly saw it and scream. That's how I call police 'Help'. That comes suddenly. That's not my plan. So I was shocked.

    QHow long was that man standing in your doorway.

    ATwo to three minutes.

27. It is an agreed fact that the accused is 170cm tall.[26]

    [26]   P27, [2].

28. When asked whether he saw anyone else in the house, SLA said:[27]

    [27]   T52.8-.38.

    QDid you see any other people at your home that morning who weren't supposed to be there.

    ANo. Only two people, that's it.

    QWhen you say 'two people'.

    AOther than my family I mean.

    Q.    Where did you see the other person.

    AThe other person just behind somewhere because I was completely locked in my room until they leave. So as - from the door. So when the first person was holding the knife and behind there, so but that's not 100% because as I already mentioned I was completely shocked and screamed so like that, so. So when the big sound comes the other person also like that (INDICATES) but that's not 100% because I was completely shocked. That's what I, might not be the second person, only the first person, but that's it.

    QDid you see one or more than one person inside your house.

    AIn the doorway, one person, one person.

    QDid you see more than one person anywhere else inside your house during the incident.

    ANo. Just I - the second person, behind the first person, but that not 100%, because I was completely shocked.

    QAre you saying you're not sure whether the second person -

    ANot sure with the second person, but I'm 100% sure with the first person. I'm 100% sure with the first person because he's standing under my doorway but the second person I'm not sure, so, because I was completely shocked, I was freeze, like that.

29. After the man with the knife left the doorway, KMA barricaded the door with a bag. SLA then made observations of the carport through his bedroom window. He saw the man from his bedroom look at him through the window, so he closed the curtain.[28] SLA said however that he saw the man from his room get into his car (a Mitsubishi Outlander), which was parked in the carport.[29] The topic of the man’s appearance was then revisited, and SLA described him wearing black clothes with something on his head which he described as ‘a scarf or a hat, the wrong way maybe, not the normal one, but still I’m not sure if it’s a hat or the clothe[sic], but something on top’.[30]

    [28]   T51.

    [29]   T52.

    [30]   T53.

30. SLA said he saw two people in his carport when he looked through his bedroom window.[31] The second person – also a male – went to his brother’s car (a Mitsubishi ASX). The second male was ‘…shorter than the first man, that’s it. So very much same cultural background people, so whoever, because their ethnicity are the same but shorter than the first man.’[32] When asked to explain what he meant by ‘cultural background’, SLA said ‘I mean like ethnic people, local native people, local native people of Australia’.[33]

    [31]   T53.

    [32]   T53.

    [33]   T54.

31. After the men got into the two vehicles, SLA heard a ‘big sound’ which, he inferred from subsequent observations he made, was the sound of a car being driven through his front gate, which photographs taken later that morning by police indicate was significantly damaged. The Mitsubishi ASX was parked closer to the gate than SLA’s Outlander.[34]

    [34]   T54.

32. SLA said he had a bracelet and his wallet, which contained $1200-$1400 cash, in his car at the time it was stolen.[35]

    [35]   T54-55.

33. He said further that a bread knife was found to be missing from the kitchen which was a ‘big mess’, with every drawer opened and items scattered around.[36] The keys to the cars, kept in a basket in the kitchen, were missing.[37] SLA was uncertain whether the knife the male had was the missing bread knife. He said it might have been because the size of the knife was similar, at around 15-20cm.[38]

    [36]   T56.

    [37]   T56.

    [38]   T55.

34. SLA was asked about some photographs P6, which were taken by police on the morning of 8 January 2023. Photographs 6 to 18 depict a left foot white Nike sneaker; a white ‘Chanel’ handbag; black headphones; and a blue / black crocodile skin patterned bag or box in the carport of [suppressed] Kimber Court. SLA said none of the items belonged to members of the A family,[39] but he subsequently said in cross examination that the blue / black crocodile item may have been his son’s lunchbox.[40]

    [39]   T57, 72.

    [40]   T72.

35. This was said by the prosecution to be significant in that it could be inferred that, with the exception of the blue / black crocodile bag or box, the items had been left behind by those responsible for breaking into the house and stealing SLA and AA’s vehicles.

36. As I have earlier indicated, the CCTV footage from Shamrock Place is not clear enough for me to make a finding that the accused was then carrying a white Chanel bag or a bag of similar appearance. I accept that the accused is carrying something white in the footage, but I am unable to make any more precise finding.

    Recovery of the Outlander

37. At around 8am on 8 January 2023,[41] SLA’s Outlander was recovered by police. A plastic bag and a bundle of ‘Pokémon’ cards were located in the driver’s seat footwell. SLA was unsure of the provenance of the plastic bag but said the Pokémon cards belonged to his children. In the front passenger seat footwell, police located a right foot white Nike sneaker (which SLA said was not his)[42] of the same or very similar appearance to the left foot white Nike sneaker found in the carport at Kimber Court.

    [41]   P27, [33].

    [42]   T65.

    Photographic identification procedures

38. On 22 January 2023, SLA participated in a photographic identification procedure.[43] In the folder of photographs marked SA2 (P7A), a photograph of the accused was at position 3.[44] SLA identified the accused’s photograph and remarked ‘I’m not 100% sure but I feel this one’. When asked how sure he was, SLA responded ‘50’, and then confirmed he meant ‘50%’ sure.

    [43]   P7, MFIP7A, P7B, P7C.

    [44]   P27.

    Cross examination

39. In cross examination, SLA gave the following evidence about the photographic identification procedure and his selection of the accused’s photograph:[45]

    [45]   T76.3-77.4.

    QAnd then in relation to the second photographic lot of pictures you picked out someone, didn't you.

    AYes, I did.

    QBut you weren't, you were only 50% sure.

    AYes.

    QAnd only 50% meaning you weren't sure that it was the right man, you just thought it looked a bit like him.

    AYes.

    QNo more than looking a bit like him.

    AThat's 50% because, in my opinion, what I believe I don't want to blame anyone, so the photo and the real person are different, and even I was in the very terrible condition so I can't relate that image and that photo together. As I said earlier I have been going for therapies, counselling many things, so my brain wasn't still working, so I put the condition 50%. That's the reason.

    QSo, I'm just trying to be clear about this. You saw some differences between the picture and the person you thought was holding the knife at your house.

    AYeah, I found 50% closeness.

    QSo they looked similar but you couldn't actually say that was that man who had been at your house.

    AYes, that's what the 50% means, I don't know. I've given the 50% no more.

    QReally what it means is because you didn't see the person at the door very well, did you.

    ANo.

    QYou didn't see the person in the carport very well.

    ANo.

    QSo you really couldn't be sure whether the person -

    AYes.

    Q- the person in the photographs was actually the person at your house.

    AI agree with you.

    QAnd you were trying to help the police by saying 'Well, I'm not sure but it's 50%'.

    AYes, 50%, yes.

    QIs that right, it could be, may not be.

    A50% means yes.

40. When shown a folder (SA2) containing 7 photographs of Caucasian men, SLA remarked ‘I don’t have any idea’ or words to that effect. This is perhaps unsurprising given, on SLA’s evidence, the second male was also a ‘dark skinned’, ‘local native Australian’, to use SLA’s words.

41. Returning to his descriptions of the offenders, SLA confirmed that the man he saw standing in the doorway to his bedroom with the knife was a ‘tall man’ whose height was very close to the top of the door.[46]

    [46]   T67, 70.

42. SLA said he assumed the man was wearing a black top. When asked to explain why he assumed this, he responded ‘[b]ecause I was shocked everything, because I can’t give 100% he had something on top like that…’[47]

    [47]   T67-68.

43. SLA said the male was ‘[n]ot a big man. Not a slim man. So normal, the medium’.[48]

    [48]   T68.

44. SLA agreed that when he spoke to the police on the day of the alleged offending, he was unsure whether there was one man or two at his door. He also agreed that he told the police the male with the knife was wearing a long sleeved top with blue and other coloured patterns on it and dark coloured long pants.[49]

    [49]   T69.

45. SLA agreed further that he told the police that the male he saw getting into his vehicle had long hair. He said that he saw either long hair or ‘the cloth, I don’t know, but in that condition, I’ve seen something on the top which the hair or the black cloth, I don’t know, but something, something on top of head that was black so might be hair or the clothes I don’t know but looks like the hair, or clothes, I don’t know.’[50]

    [50]   T70.

46. When it was put to SLA that he did not get a very good look at the person he saw in the carport, he explained:[51]

    [51]   T71.2-72.2.

    ABecause I was suffering, I was suffering, I wasn't in the good condition, so I was suffering, it's a good day for me because I myself and all my family safe. So I was completely certain and shaking like that, so I was in a different mood. So very terrible time.

    QI understand and accept that but you couldn't - sorry, you don't remember any real detail about the man that was getting in your car, about what he looked like.

    AI don't agree with that one. I do remember but, but the way how I look and expression is very difficult, but as I said, taller than me, shorter than the door frame. So he exactly fit, I mean not - his head didn't touch the door frame, he was like that (INDICATES), there was a gap like that. He wasn't ethnic people of Australia like that, so that's more than enough, that's what I believe. So other than that I didn't remember because I was terrible condition.

    QBut the man you saw in the carport, you don't remember what clothing he was wearing.

    ASo, he didn't, he wasn't with a singlet, he was with the clothes. He wasn't in a singlet, he was with the clothes, I remember that.

    QAnd that's all you remember.

    AYes.

    HIS HONOUR

    QI'm not sure I follow that. He wasn't wearing a singlet, is that what you said.

    AI mean he wasn't with the singlet, he wasn't jacket. I mean he had some clothes on top, that's what I mean.

    QBut you can't describe what kind of clothing he had on his top half.

    ANo.

    XXN

    QNor the bottom half. You couldn't describe the clothing on his bottom half either.

    AI believe trousers, long-sleeved trousers, not with -

    QBy that you mean trousers that go down to the ankles.

    AYes.

1. SLA said that after the male (or two males) moved away from his bedroom door, he heard his brother crying. His brother was lying on the floor in front of bedrooms 2 and 3 as depicted on P5.[52]

   [52]   T74.

2. As to P9, which was a photograph of SLA’s bankcard, SLA said that the card was kept in his wallet with other cards. His wallet was in his car at the time of the home invasion.[53]

   [53]   T77.

   KMA

3. KMA gave evidence that at around 7am, she heard knocking on her bedroom door, which she occupied with her husband SLA and daughters. The knocking subsided and around five minutes later, the door was forcefully opened and KMA saw two men in the doorway. The men were screaming.[54]

   [54]   T81.

4. She was unable to describe the appearance of the men other than to say she assumed they were from ‘Aboriginal background’.[55]

   [55]   T81-82

5. One of the men was holding a knife that was ‘not too long…with a wooden handle’.[56] He was wearing a ‘hoodie’ that ‘was not a light colour’. She said she assumed the hoodie was only one colour and when asked why she ‘assumed’ as much, she explained: ‘It has been a long time. My memories are not that strong. All I remember is that it was a dull colour and a bright shiny colour’.[57]

   [56]   T82. KMA indicated the length of the knife was around 12-15cm.

   [57]   T83.

6. KMA said it was light in the bedroom at this time.[58]

   [58]   T84.

7. By reference to photograph 64 of P6, KMA said the height of the male with the knife was ‘in the middle of the [light] switch and the top of the door’. There was no evidence before me, or agreement, as to the height of the light switch and / or the door in SLA and KMA’s bedroom.[59]

   [59]   T85.

8. KMA said further that the male was ‘skinny’.[60]

   [60]   T85.

9. KMA assumed the second male was the same height as the first male but she could not remember clearly. She was unable to describe his clothing but said he was carrying a black backpack.[61]

   [61]   T85.

10. After a few minutes, the men left the doorway and SLA rang the police. Through the window in the en-suite, KMA saw the two men ‘trying to open our cars’ but she did not look at the man with the knife carefully because she was concerned he would return to the house.[62]

    [62]   T86.

11. KMA said that after the men left the house, she did not immediately notice anything to be missing. However, police subsequently returned a ‘bread cutter knife’ and ‘scissors’.[63] She said the knife that was returned was not the knife being held by the male in the bedroom doorway.[64]

    [63]   T90.

    [64]   T90.

12. KMA said that the blue / black crocodile skin bag or box found in the carport by police was her son’s lunch box.[65]

    [65]   T91.

    Cross examination

13. In cross examination, KMA confirmed that the hoodie worn by the man with the knife was dark. With respect to his height, she agreed that he ‘was more towards the top’ of the door than the light switch.[66]

    [66]   T95.

14. She said that after shutting the bedroom door when the males moved outside, she joined her husband in the en-suite and made observations of the carport through the en-suite window.[67]

    [67]   T94.

15. KMA thought that between the male entering the bedroom and cars being driven away, around eight to nine minutes had elapsed.[68]

    [68]   T95.

16. KMA said that the white Chanel handbag found in the carport did not belong to her; nor did the black headphones or white Nike sneaker.[69]

    [69]   T95-96.

    AA (count 4)

17. At around 5am on 8 January 2023, AA woke to help his wife get ready for a morning walk. AA’s wife left the house at 5:30am. Using the remote control for the sliding gate, AA closed the gate after his wife had left the property.[70] He locked the front door of the house and re-entered via a rear sliding door. He locked the rear sliding door. He returned to his bedroom and went back to sleep.[71]

    [70]   T106.

    [71]   T106.

18. AA was subsequently woken by a stranger shaking and pulling at his pillows. He opened his eyes and saw a male holding a knife. The male told him to ‘close your eyes’ and moved the knife towards his throat.[72] Later in his evidence AA said that the knife touched his throat.[73] AA froze. He ‘woke up again’ after a few minutes and saw a male with a knife in his hand and AA’s mobile phone in the other. The male told him to ‘close your eyes’ and was threatening him with a knife and asking where his wallet and cash were. AA told the male he did not have cash. He could see someone else ‘opening the cabinet door’ and telling his daughter ‘It’s okay you sleep, you sleep’. The person talking to AA’s daughter, who sounded like a male, was also in the bedroom but AA was unable to see him.[74] When AA opened his eyes one or two minutes later and sat up in his bed, he again saw the male holding a mobile phone and the knife.[75]

    [72]   T106-107.

    [73]   T109.

    [74]   T107, 110-111.

    [75]   T109. AA’s evidence in cross examination was to the same effect and I do not propose to set it out: T121-122.

19. He described the knife as a kitchen knife with a black handle.[76]

    [76]   T109.

20. AA did not know what then happened but after a ‘few minutes, a few seconds’, he heard his brother’s mother-in-law (KBD) scream. He then made his way to the rear sliding door to the house and around to the carport, and began shouting ‘help, police, police’. He saw people standing in between his car and his brother’s car. A person yelled at him ‘get back get back’ and moved towards him. AA ran back into the house and laid down until police arrived.[77]

    [77]   T113, 116.

21. When asked how many people were in the carport, AA said ‘more than two people’. The person who said ‘get back’ was wearing a cap or ‘something like that’ and AA could not see ‘his’ face. He could not say whether it was the same person he had seen in his room with the knife.[78] He thought another person must have been inside his car because the brake lights were on.[79]

    [78]   T114.

    [79]   T115, 125.

22. AA provided the following description of the male with the knife:[80]

    [80]   T107.28-108.33.

    AThe man holding the knife I would describe him was an Aboriginal man in his late 20s with a dark colour skin.

    QWas anything covering his head.

    AI couldn't remember. I couldn't see much like the face, because I could only see more like the arms and he was not with the long sleeves, he was with like the half sleeves and I could see one hand, knife in one hand and the mobile. So I been asked lots of times to close my eyes and sleep.

    QCould you see the man's hair.

    ANo.

    QCould you see the man's clothing.

    AClothing, not properly but I could still he has not a long sleeve because I could see both arms. Short sleeves, something like that.

    QWhat colour was the short sleeved top.

    ANo, I don't know.

    QCould you see what he was wearing on the bottom half of his body.

    ANo.

    QDid you get a look at his shoes.

    ANo.

    QHow tall was he roughly.

    APretty much my same height, pretty much but I can't tell. Like I don't have - I can't tell how tall he is. Wasn't much taller than me or something like that. When I just say he was not much tall.

    QHow tall are you.

    AI don't know.

    QSo he was roughly your height.

    AYes.

    HIS HONOUR

    QCan I ask you this: who is taller out of you and your brother.

    AWe are pretty much same, may be a little taller than me.

    QYou are about the same height.

    AYes.

    QThough he might be a tiny bit taller.

    AYes.

    XN

    QWhat build did the man have.

    ASorry?

    Q.    What build did the man have.

    A.    Slim, slim build.

23. When asked how the knife he saw compared to the knife visible on page 10 of P8 and which was found in his Mitsubishi ASX when it was recovered, AA said ‘[m]ight be this one but I can’t confirm because I could only see the handle black part end when he was holding it and bringing it towards me’.[81]

    [81]   T118.

24. AA participated in photographic identification procedures but was unable to identify anyone involved in the alleged offending.[82]

    [82]   T119-120; P10A.

25. When shown a folder of photographs of Caucasian men, AA said ‘Not sure because I haven’t seen faces at the time of the incident.’[83]

    [83]   P27, [21].

26. When shown a folder of photographs of Aboriginal men, AA said ‘not sure whether they are there or not’.[84]

    [84]   P27, [22].

27. AA said his mobile phone, which had been taken on the morning of 8 January, was not recovered.[85]

    [85]   T120.

    Cross examination

28. In cross examination, AA agreed that when he was first woken by the man with the knife he was lying down and the man was standing over him. When he opened his eyes for the second time, AA sat up on the bed but did not stand up.[86] The purpose of this cross examination, as I apprehend it, was to cast doubt on the reliability of AA’s evidence about the man’s height, which it was later suggested might have been distorted because of their relative positions. When it was put to AA that the man with the knife may have been taller than him, he responded ‘[i]t could be either I don’t know’.[87]

    [86]   T122.

    [87]   T124.

29. AA said he did not see a hat on anyone in his bedroom because ‘I couldn’t see the face in the bedroom, I could only see the arm’ because he was unable to turn to his left (presumably because the knife was touching his throat).[88]

    [88]   T125-126.

30. As to the events in the carport, AA agreed that he could not say whether any of the people he saw (and he confirmed he could not say how many there were) were the people from his bedroom.[89]

    [89]   T126.

31. AA agreed that the white Chanel bag found in the carport by police did not belong to any of the occupants of Kimber Court; nor did the black headphones or the white Nike sneaker.[90]

    [90]   T127.

32. AA said that he had tried to cancel his bankcard, which had been taken as it was with his mobile phone, but was unable to remember his log on details until his wife assisted him. He then discovered that his bankcard had been used on 8 January 2023. Other evidence confirmed the bank card had been used well after it had been stolen and, as will be seen, after the accused was apprehended by police.[91]

    [91]   T129-130, 225.

    KBD (count 5)

33. KBD, the mother-in-law of SLA, lived at Kimber Court in January 2023 with her husband. She had only recently woken on the morning of 8 January when her bedroom door opened suddenly and a man entered, approached her bed, raised a knife and said ‘money money’. KBD did not know what he meant. She screamed and the man raised his knife.[92]

    [92]   T182.

34. KBD was unable to say what the man looked like or what clothing he was wearing as she shut her eyes and was scared.[93]

    [93]   T182-183.

35. She indicated the size of the knife to be around 10cm in length but could not otherwise describe its appearance.[94]

    [94]   T183.

36. KBD was unable to say whether anything was taken from her bedroom.[95]

    [95]   T184.

37. There was no cross examination of KBD.

    Fixing the timeline

38. It is an agreed fact that police attended Kimber Court at around 7:13am and spoke with the occupants.[96]

    [96]   P27, [32].

39. CCTV footage obtained from premises around the corner from Kimber Court show the two stolen SUV’s being driven away at 7:14am. However, that time is calculated on the basis of a reverse engineering of what was found to be the inaccurate time setting of the CCTV system that recorded the footage and it seemed to be common ground – obviously enough – that the cars must have been driven away from Kimber Court sometime before the police arrived. Accordingly, the home invasion would appear to have come to an end at least a few minutes before 7:13am.

    The Marian Crescent Observations

40. In January 2023, TC was living on Marian Crescent, Hillbank which was 6.6km from Kimber Court and an approximately 10 minute drive.[97]

    [97]   P27, [26].

41. At around 7-7:30am on the morning of 8 January 2023, Mr C heard a loud bang and left his residence to investigate. He saw a piece of log railing that bordered a paddock or reserve near his property had been dislodged and was laying across his neighbour’s driveway. There were two cars in the street facing in opposite directions. Both vehicles were white and looked like Mitsubishi Outlanders.[98]

    [98]   T131-132.

42. Mr C saw a male apparently going through the glove box of one of the vehicles whilst a male in the other vehicle said words to the effect of ‘come on’ and ‘quick’.[99] Mr C returned to his house to retrieve his mobile phone but by the time he did this, the males in the street had departed.[100]

    [99]   T131.

    [100] T131.

43. Mr C described the male rummaging through the glove box of one of the vehicles as ‘Aboriginal maybe or Mediterranean type’. He did not think he had anything on his head but could not remember. He thought the male had dark ‘curlyish’ hair that was not particularly long.[101] The man appeared to have a beard or some facial hair, although he could not say anything about its thickness because ‘it sort of happened really quick’.[102] Mr C had the man under observation for around 2 to 4 minutes.[103] He could not say anything more about the man’s appearance.[104]

    [101] T132-133.

    [102] T133.

    [103] T133.

    [104] T139.

44. The other male was ‘a white man…wearing a blue hat, baseball cap’.[105] Other than to say that the man with the cap appeared to have short dark hair and a blue or dark coloured top, Mr C was unable to provide any further description.

    [105] T132.

45. Mr C went back inside to retrieve his mobile phone and when he returned to the street, the cars were gone. He saw some Pokémon cards and a pair of broken sunglasses on Marian Crescent.[106] The prosecution contend that it is open to infer that the Pokémon cards had come from one of the white vehicles and that, in light of SLA’s evidence that his children’s Pokémon cards were in his car, it is likely they came from the Outlander.

    [106] T133.

    Forensic evidence

46. It was agreed that no suitable fingerprints were identified on the exterior or interior surfaces of the Kimber Court house.

47. A fingerprint impression located on the internal surface of the driver’s door of the ASX was identified as being made by the right thumb of RM.

48. Police also located fingerprint impressions on the rear driver’s side window and front passenger side door frame of the Outlander. The accused is excluded as being the source of these impressions.[107]

    [107] P27, [10]-[12].

49. Dr Patricia King, a forensic scientist working in the biology section of the Forensic Science Centre, gave evidence about DNA analyses conducted in respect of the stolen vehicle and a number of items found in the ASX.

50. DNA profiles were recovered from these items and compared to known DNA samples provided by SLA and AA, RM and the accused.

51. After giving uncontroversial evidence about DNA, how it can be transferred or deposited, and the procedures used to recover DNA profiles from items, Dr King gave the following evidence about the results of testing carried out:[108]

    [108] P13. The statistical weightings are set out in P13, but I will use the verbal equivalence ratings set out on page four of the report when summarising the results.

    6.Portion of disposable glove (one finger) from the driver’s seat of the Mitsubishi ASX[109] – mixed DNA profile with four contributors:

    [109] P27, [24](d).

    (a)Accused – slight support for the hypothesis that he was not a contributor.

    (b)AA – extremely strong support for the hypothesis that he was a contributor.

    (c)SLA – strong support for the hypothesis that he was not a contributor.

    (d)RM – extremely strong support for the hypothesis that he was a contributor.

    7.Steering wheel swab (Mitsubishi ASX) – mixed DNA profile with five contributors (including AA):

    (a)Accused – moderate support for the hypothesis that he was not a contributor.

    (b)SLA – strong support for the hypothesis that he was not a contributor.

    (c)RM – extremely strong support for the hypothesis that he was a contributor.

    8.Steering wheel swab (Mitsubishi Outlander) – mixed DNA profile with five contributors (including SLA):

    (a)Accused – extremely strong support for the hypothesis that he was a contributor.

    (b)AA – extremely strong support for the hypothesis that he was not a contributor.

    (c)RM – very strong support for the hypothesis that he was not a contributor.

    9.Knife (footwell of ASX):

    (a)Handle – mixed DNA profile with four contributors:

    i.Accused – moderate support for the hypothesis that he was not a contributor.

    ii.AA – extremely strong support for the hypothesis that he was a contributor.

    iii.SLA – extremely strong support for the hypothesis that he was not a contributor.

    iv.RM – extremely strong support for the hypothesis that he was a contributor.

    (b)Blade – mixed DNA profile with two to three contributors:

    i.Accused – very strong support for the hypothesis that he was not a contributor.

    ii.AA – strong support for the hypothesis that he was a contributor.

    iii.SLA – moderate support for the hypothesis that he was not a contributor.

    iv.RM – extremely strong support for the hypothesis that he was a contributor.

    10.Chanel bag – mixed DNA profile – not analysed due to profile complexity.

    11.Black headphones – mixed DNA profile – not analysed due to profile complexity.

52. The effect of Dr King’s evidence and the results of the analysis undertaken is that there is extremely strong support for the proposition that the accused was a contributor to a mixed DNA profile taken from the steering wheel of the Outlander.

53. In cross examination, Dr King accepted that there are two independent questions to be addressed with respect to DNA evidence: one, whose it might be and two, how and when it got where it did.[110] Dr King accepted that the results of DNA analysis could not ‘…give us an idea of how it actually got there’.[111]

    [110] T157.

    [111] T157.

54. As to the test results concerning the steering wheel sample from the Outlander, Dr King gave the following evidence:[112]

    [112] T163.

    QBut, again, given your previous evidence that doesn't mean than Mr Dudley ever touched the steering wheel.

    ANo, that's correct, yes.

    QDoesn't mean he had ever been in the car.

    AThat's right.

    QHe could have touched an item and the person that picked up an item that he'd touched could have transferred his DNA, or the cells, to the steering wheel.

    AYes, that's correct, that may have happened.

    QHe could have known a person who was involved and touched the steering wheel.

    AThat's correct, yes.

    QAnd he could have known that person an hour before, or a day before, or a week before.

    AYes.

    QAnd even longer, it could have been three months, six months.

    AHe could have, yes, indeed.

    QAnd that's where at this time there is no knowledge as to say how long DNA can remain on a particular item that he might have touched.

    AThat's correct, yes. We are not sure.

    Police evidence

55. Senior Constable Patrikis was on duty on the morning of 8 January 2023. At around 7:30am, she attended the scene of a vehicle fire on June Street, Parafield Gardens and thereafter was tasked to attend at the V’s residence.[113]

    [113] T170-171.

56. June Street is in close proximity to Thompson Avenue and Kimber Court.

57. An Aboriginal male with a full beard was subsequently arrested and charged with the offending at June Street,[114] which subsequent evidence confirmed involved a residential break-in and theft as well as interference with a motor vehicle.

    [114] T227.

58. At around 8:10am, Senior Constable Patrikis attended at Jeffries Road, Elizabeth South in relation to a suspected offence of illegal interference with a motor vehicle. On a grassed area opposite 21 Jeffries Road, Senior Constable Patrikis observed a white Mitsubishi ASX that she understood had been stolen that morning and which was, in fact, one of the vehicles taken from [suppressed] Kimber Court. Photographs of the ASX (P14) show a black handled serrated kitchen knife in the style of a bread knife in the footwell of the driver’s seat. The prosecution did not suggest that the bread knife was the knife used during the home invasion at [suppressed] Kimber Court,[115] although I note that SLA and AA’s evidence, was that the knife the male presented during the home invasion, might have been the bread knife from the house, but they could not confidently say. If the knife in the ASX was the knife used in the home invasion, it is curious that it has RM’s DNA on it but not the accused’s DNA.

    [115] T252.

1. I turn then to the findings that I consider I can make based on the circumstantial evidence which, as I have said, was generally not in dispute.

   Findings - Counts 1 and 2

2. The prosecution case is that the two men who were seen running on Thompson Avenue by Mr V were the same two men he came across 10-15 minutes later on Mayo Crescent and Shamrock Place. The prosecution contend that the fact the men were seen running on Thompson Avenue, a short distance from Mr V’s residence, proximate to when he heard the side gate open (or close) which, it was submitted, denoted the point in time at which access was taken to the property or those responsible for committing the offending left via the side gate; and that there were no other people in the vicinity when Mr V saw the two men, is a sufficient basis to infer that the two men were responsible for the aggravated trespass and theft.

   Mr V’s description of the males

3. The description of Males 1 and 2 given by Mr V does not assist to any great extent save that the clothing he describes being worn by the males when he first saw them at a distance of 60-100m is consistent with the clothing being worn by the males captured on the Shamrock Place CCTV footage. This affords some circumstantial evidence that the two males depicted in that footage were the same two males that Mr V had seen running around the corner. Mr V’s observations that one of the males was wearing a tan coloured jacket is, in particular, a solid foundation to infer that the males seen in the footage were the same males seen by Mr V 10-15 minutes earlier.

   The photographic identification procedures, CCTV footage and the still images

4. The Shamrock Place CCTV footage, and the still images taken from the footage, are of reasonable quality but, without more, they would not provide a sufficient basis upon which I could conclude that the accused was one of the men depicted.

5. However, comparison of the footage and the stills with P19 and P19A, which are CCTV footage and stills depicting the commission of an offence to which the accused pleaded guilty, show that he was then wearing clothes which are strikingly similar to those being worn by Male 2 in P3 and P3A. In addition to the tan coloured jacket being worn by the accused at the time he committed count 8, which appears to be indistinguishable from the tan coloured jacket being worn by Male 2 in P3 and P3A, the accused was also wearing black shorts bearing a very distinctive marking on the outer thighs when he committed count 8. The same style of marking can be clearly seen on the outer left thigh of the shorts being worn by Male 2 in P3 and P3A. The video of the accused’s arrest at around 9am on 8 January 2023, and photographs of the clothing he was then wearing (and the clothes themselves which were also tendered), support the conclusion that the accused is the male depicted in P3 and P3A.

6. The physical characteristics of Male 2 and those of the accused are also similar although, without more, their general resemblance would not have been sufficient for me to conclude that Male 2 was the accused.

7. I am satisfied beyond reasonable doubt that the accused was the male wearing the tan coloured jacket as shown in P3 and P3A.

8. I accept Mr V’s evidence that one of the men he saw running on Thompson Avenue was wearing a tan jacket. It is true that Mr V did not thereafter see who he said were the same two males for some 10-15 minutes. However, it is inherently unlikely that there was another male in the general vicinity of Mr V’s house, at that time of the morning, who was also wearing a tan jacket. That is to say, I discount the possibility that the male wearing a tan jacket who Mr V saw running on Thompson Avenue was a different person to Male 2, who is recorded on the CCTV footage P3 wearing a tan jacket in Shamrock Place.

9. In reaching this conclusion, I have considered whether Mr V’s memory of the clothing being worn by the males he saw running on Thompson Avenue and his general description of the males was effectively ‘displaced’ as a result of the subsequent observations he made on Shamrock Place. I reject the submission that Mr V’s evidence that one of the males he saw running on Thompson Avenue was wearing a tan jacket is the product of subconscious contamination of his memory on account of the events in Shamrock Place.

10. I am satisfied that the accused was one of the men who Mr V saw on Thompson Avenue and that the accused was then in the company of Male 1, whose clothing matches the description given by Mr V of the ‘other’ male he saw running on Thompson Avenue. I reject as a reasonable possibility that Mr V’s description of the ‘other’ male he saw running on Thompson Avenue was coloured or contaminated by his interaction with Male 1 in Shamrock Place.

    Was Male 1 RM

11. I am, however, unable to find that Male 1 was the same person in whose company the accused was at the time he committed counts 8, 9 and 10. The clothing being worn by the male said to be RM when those offences were committed is, in several respects, different to and inconsistent with the clothing being worn by Male 1. I acknowledge that there are some similarities in the pants being worn by the person the prosecution say is RM and the pants being worn by Male 1, save that, as I earlier mentioned, RM’ pants appear to be either three quarter pants or shorts or at least long pants rolled up to the shins. I accept further that the hat being worn by RM is of similar appearance to the hat being worn by Male 1; but, that is to say no more than that both hats are black. There are no distinguishing features that enable me to say anything beyond that.

12. In addition, Mr V confidently and positively identified someone other than RM as the Caucasian male (Male 1) he observed running around the corner from his house.

13. Accordingly, I am unable to find that the accused was in the company of RM in Shamrock Place after the alleged commission of counts 1 and 2. This is perhaps of more significance for counts 3-7 than it is to proof of counts 1 and 2, however the premise of the prosecution case was that it was the accused and RM who committed all of the offences with which the accused is charged or has pleaded guilty to on this particular date.

14. Of course, proof that Male 1 was RM is not indispensable to proof of counts 1 and 2. If I am satisfied beyond reasonable doubt that the accused did everything necessary to commit those offences himself or was otherwise party to a joint enterprise with Male 1 to commit those offences and, pursuant to that agreement in which the accused participated, the accused and / or Male 1 did everything necessary to commit those offences, the identity of Male 1 is essentially immaterial.

    Conclusion – counts 1 and 2

15. There is no direct evidence that either the accused and / or Male 1 entered the residence of Mr V and his wife. The prosecution case rests on the premise that the entry must have been made proximately to when Mr V heard his gate squeak, shortly after which the sliding door to the dining / living area was found to be open. It was then that Mr V made his way to the front of his property and saw the two males running on Thompson Avenue.

16. The prosecution did not suggest that the evidence of the males running amounted to flight indicative of a consciousness of guilt. Mr Macura submitted however that the fact the males were seen running on Thompson Avenue was some circumstantial evidence that they had committed counts 1 and 2 because it placed the two men in close proximity to the residence at or very shortly after the home invasion in circumstances where Mr V did not suggest that there were any other people nearby.[182] I accept that the presence of the two men some 60-100m from [suppressed] Thompson Avenue shortly after Mr V heard the side gate open places the two males in a class of people who could have been responsible for the trespass and theft.

    [182] T242. See, eg, De Marchi v The King [2024] SASCA 49; Bristow v The King (2020) 137 SASR 449.

17. When arrested, the accused did not have in his possession any of the items stolen from Thompson Avenue.

18. The prosecution also relied on what was said to be an admission made by Male 1 when Mr V caught up with him in Shamrock Place.

19. It will be recalled that Mr V told Male 1 that he wanted his wallet back, to which Male 1 said that he had tossed or thrown the wallet away.

20. The prosecution submitted that this constituted an admission by Male 1 that he had possession of Mr V’s wallet until it was discarded, which was evidence upon which I could rely to find that the accused and Male 1 were responsible for the trespass and theft.

21. The use of Male 1’s out of court statement for this purpose in the case against the accused requires the prosecution to establish that the conditions for reliance on the co-conspirator’s rule were here satisfied. The principle has been recently stated in these terms:

    The co-conspirator’s rule is an exception to the exclusion of hearsay evidence and allows the acts and statements of the conspirators or co-offenders engaged in a joint enterprise to be admitted as evidence of the truth of that which is done and stated in the course of and in furtherance of the conspiracy or joint enterprise. The admissibility of that conduct and those statements is dependent on a prior finding by the Judge that there is reasonable evidence, independently of the statements, the admissibility of which is in question, of the existence of the joint enterprise.[183]

    [183] Catanzariti v The Queen [2021] SASCA 110, [161].

22. The only evidence that might conceivably be capable of demonstrating pre-concert is that the accused and Male 1 were seen running on Thompson Avenue and remained in each other’s company some 10-15 minutes later when Mr V caught up with them in Shamrock Place.

23. That evidence, to my mind, falls well short of reasonable evidence of pre-concert to commit trespass and theft. It is capable of demonstrating only that the accused and Male 1 were in each other’s company for a period of say 10-15 minutes after the alleged commission of counts 1 and 2.

24. In any event, it may be doubted whether the comment made by Male 1 could reasonably be described as having been made in furtherance of any agreement that was on foot, given it took place 10-15 minutes after the alleged offending.

25. For these reasons, I reject the submission that the ‘admission’ by Male 1 can be used against the accused in any way and I reject the submission that the prosecution have proved the existence of a joint criminal enterprise between the accused and Male 1 to commit counts 1 and 2. I repeat that, at the time of his arrest, the accused was not in possession of any items stolen from the V residence.

26. As the prosecution have failed to prove a joint enterprise and cannot say whether the accused himself entered the residence of Mr and Mrs V and stole their belongings, there is no basis upon which the accused can be found guilty.

27. I find the accused not guilty of counts 1 and 2.

    Conclusion - Counts 3 to 7

28. In making my findings with respect to these counts, I am to have regard to the whole of the evidence.

29. I am satisfied on the combined strength of the evidence of SLA, KMA and AA that the man with a knife was an Aboriginal man. I have reservations as to whether I can accept as accurate AA’s evidence that the man was in his late 20’s, given what he acknowledged to be his limited view of the man’s face and the fact that he had his eyes closed throughout much of the incident.

30. Although I have earlier said that I generally preferred the evidence of SLA where it was in conflict with KMA and AA’s evidence, the preponderance of the evidence is that the man had a slim build. Whilst this does not necessarily exclude the accused as the man with the knife, I agree with the submission of Mr Charman that one would not necessarily describe the accused as ‘slim’.

31. There is too much disparity in the evidence for me to make confident, comprehensive findings about what the man was wearing, but having regard to the combined effect of SLA and KMA’s evidence, I find that the man with the knife was wearing dark coloured clothing on his top half and likely something with a hood. This too is somewhat problematic because the prosecution case is that the accused was wearing a very noticeable tan coloured jacket on Shamrock Place and again on Jeffries Road and again at the time of his arrest, yet none of the occupants at Kimber Court suggest the man with a knife was wearing a light coloured jacket.

32. It is true, as Mr Macura submitted, that the accused may have removed the jacket for the purpose of committing that offence; but that creates an issue with respect to the evidence that the man was wearing a hoodie because the accused was wearing a crew neck t-shirt without a hood under his jacket.[184] It is striking that none of the occupants of Kimber Court suggest that the man with the knife was wearing a tan coloured jacket. As I have said, one constant feature of the accused’s presentation on the CCTV footage from the morning of 8 January and at the time of his arrest is that he was wearing the tan coloured jacket. It is of course possible that the accused removed his jacket for the purpose of committing the home invasion (whether to de-identify himself or for some other reason), but that gives rise to other issues and it would also be curious given that the accused is seen wearing the tan coloured jacket at all other relevant times that morning, including on the prosecution case, when committing offences.

    [184] P24.

33. Based on SLA’s evidence, there is also a possibility that the man with the knife was wearing long pants, although I acknowledge a lack of certainty in his evidence on this point. Footage of the accused from Shamrock Place not long before the home invasion at Kimber Court shows that he was wearing shorts. When the accused was arrested, he was not wearing, nor is there any evidence to suggest that he had in his backpack a pair of, long pants. What appear to be a pair of long pants were however abandoned at 14 Plaitford Street.

34. The evidence of SLA and, to a lesser extent KMA, about the height of the man is also something that cannot be ignored. As I have said, I found SLA to be the most persuasive of the occupants who gave evidence, and he described the man with the knife as a tall man. Perceptions of height, particularly in a context such as this, are always going to be liable to distortion, but this is something of an anomaly on the prosecution case.

35. I am further troubled by SLA’s evidence that the second male was, by inference, also Aboriginal. Again, there are reasons why SLA may well have been mistaken, including environmental and observational obstructions as well as the pressure of the events. I have given careful consideration to whether the effect of the DNA evidence and the accused’s possession of SLA’s wallet, in combination with the accused’s found or admitted presence in the general vicinity of these events, helps to remove any misgivings I have in this regard.

36. As Mr Charman submitted, even if one were able to conclude that the evidence given by the A’s about the physical characteristics of the male with the knife; his clothing; and the second male, was unreliable because of the circumstances in which their observations were made, that leaves a damaging lacuna in the prosecution case as there would be no evidence of the appearance of the offenders. Conversely, if the evidence given by the witnesses is reliable, this too is problematic. As I have said, whilst I accept as reliable the evidence that the man with the knife was dark skinned or Aboriginal given that SLA, KMA and AA so described him, there was otherwise a general lack of consistency in the descriptions of physical appearance and clothing.

37. The findings that I am prepared to make about the physical appearance of the man with the knife would, plainly enough, not be sufficient for me to conclude beyond reasonable doubt that the accused was one of the offenders. However, the descriptions given by the occupants of the house is just part of the circumstantial evidence said by the prosecution to implicate the accused and, as I said at the outset, it is necessary to examine the collective strength of the evidence.

38. Moreover, aspects of the evidence given by the occupants of the house do not exclude the accused as being one of the offenders.

39. I am satisfied on the evidence that there were at least two men involved in the home invasion. I find that there were two men that went inside the Kimber Court house.

40. I accept the evidence of SLA, AA and KBD about the matters stolen or demanded from them. In particular, I accept SLA’s evidence that his wallet was in the Outlander and that it contained between $1200 and $1400 cash and a variety of bank (including that depicted in P9) and other personal cards.

41. I accept KBD’s evidence that a man with a knife demanded money from her. I accept AA’s that a man with a knife stole his mobile phone and his bankcard, which was subsequently used to conduct unauthorised transactions after the accused’s arrest.

42. As I have indicated, I find that the two vehicles were seen not long after the home invasion on Marian Crescent. I am troubled by Mr C’s evidence that the Aboriginal or Mediterranean male he saw had a beard or facial hair. Granted he was 8-10m away which introduces the prospect of error, and the male was leaning into the car; but he did say he had the male under observation for between two and four minutes. Again, I have reflected on the totality of the evidence when considering whether this concern might be resolved by the strength of the prosecution case overall.

43. I am highly suspicious that the accused was complicit in these very serious offences. In fact, I consider it likely that he was. The accused’s possession of items linked to Kimber Court in combination with the DNA are significant pieces of evidence. However, as I have said, the wallet was in the Outlander, not inside the house, and given the accused was not detected with it until 2 hours after the home invasion, the strength of the inference to be drawn from what might otherwise be termed his recent possession, in combination with the other evidence, is, to my mind, commensurately weaker. On the prosecution case, the accused was responsible for stealing AA’s mobile phone and bankcard yet the bankcard was used well after the accused’s arrest. On the prosecution case, it is possible the accused handed the bankcard (and AA’s mobile phone) over to an accomplice; but it makes little sense that he would do that yet hold on to a variety of less valuable cards such as Metro Cards and Medicare cards. Again, it is significant, in my view, that the accused was found in possession of items associated with the Outlander; but not the two items stolen from inside the house itself.

44. Even viewed together with the DNA evidence; the evidence establishing opportunity and association with another person; I am unable to exclude the possibilities that the accused came into possession of SLA’s wallet and related items after the fact and that his DNA on the steering wheel of the Outlander is accounted for by post offence contact with or access to the car or by indirect deposition. Bearing firmly in mind the need to view the evidence collectively, which is what I have done, does not assist me in resolving these doubts.

45. Fundamentally, I am unable to conclude beyond reasonable doubt that the accused was the man with the knife, notwithstanding a careful reflection on the whole of the evidence.

46. However, I am satisfied beyond reasonable doubt that the accused was in possession of SLA’s wallet and much of its contents at the time of his arrest. As counsel for the accused submitted,[185] he may well have received the wallet and its contents from others involved in the home invasion. 

    [185] T272, 283, 284.

47. If the accused received the wallet from another or others and retained the wallet and its contents dishonestly, without the owner’s consent, and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights, that too would amount to theft.

1. Although the prosecution case as to count 7 was put on the basis that the accused was responsible for the theft of the Outlander and its contents by virtue of his participation in the home invasion, the accused is liable to a verdict of guilty on count 7 if it is proved beyond reasonable doubt that he committed theft of at least some of the particularised property by receiving the property from the car after the home invasion was committed.

2. Section 134(1) of the Criminal Law Consolidation Act provides that a person is guilty of theft if the person deals with property dishonestly, without the owner’s consent and intending to deprive the owner permanently of the property or make a serious encroachment on the owner’s proprietary rights. Section 130 defines dealing with property to include taking, obtaining or receiving.

3. Section 134(5) provides that theft committed by receiving stolen property amounts to the offence of receiving but may be described as theft or receiving in an instrument of charge and is, in any event, punishable as a species of theft. Section 134(6) provides further that if a person is charged with receiving, they may be found guilty of theft. The effect of these provisions, in combination with the extended definition of dealing with property to include ‘receiving’, is that receiving stolen property, knowing it to be stolen and with a state of mind prescribed by s 134(1)(c), is ‘theft’.

4. Accordingly, whilst I must find the accused not guilty of counts 3 to 6 inclusive, notwithstanding the fact that I harbour deep suspicions as to the accused’s involvement, I am satisfied beyond reasonable doubt that the accused committed theft of SLA’s wallet by dishonestly receiving it. I am satisfied beyond reasonable doubt that the accused dishonestly dealt with the wallet, without the owner’s consent, intending to deprive the owner permanently of the wallet and what was in it or to make a serious encroachment on the owner’s proprietary rights.

   Verdicts

5. I find the accused not guilty of counts 1 through to 6.

6. I find the accused guilty of count 7 on the limited basis that he committed theft by receiving SLA’s stolen wallet and much of its contents.

7. The accused will be remanded for sentence on his pleas of guilty to counts 8, 9 and 10 and the finding of guilt on count 7.