R v Fitzgerald & Fleming - [2021] SADC 157

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FITZGERALD & FLEMING
Criminal Trial by Judge Alone
[2021] SADC 157
Reasons for the Verdicts of his Honour Judge Cuthbertson
23 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
UNLAWFUL TRESPASS - CIRCUMSTANTIAL EVIDENCE
The two defendants are charged with Aggravated Serious Criminal Trespass in a Place of Residence and Discharging a Firearm to Injure, Annoy or Frighten.
It is alleged that the defendants committed the offences on the night of 24 May 2019 at the victim's house in Paralowie. It is alleged that the defendants entered the victim's premises and after chasing the victim into a nearby reserve discharged a firearm.
In the absence of identification evidence, the prosecution relies on circumstantial evidence which places the two defendants at the scene of the crime. Much of the evidence shows that both defendants were involved to the extent of helping, but not that both defendants were in the car that attended at the crime scene, a necessary prerequisite for the prosecution case as particularised.
Held: The prosecution failed to prove beyond reasonable doubt that the two defendants were present during the offending.
Verdicts of not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 170(1), 32AA; Evidence Act 1929 (SA) s 34KA, referred to.
Shephard v The Queen (1990) 170 CLR 573, considered.

R v FITZGERALD & FLEMING
[2021] SADC 157

Introduction

The defendants stand charged with one count of Aggravated Serious Criminal Trespass in a Place of Residence contrary to s 170(1) of the Criminal Law Consolidation Act 1935 and one count of Discharging a Firearm to Injure, Annoy of Frighten contrary to s 32AA of the Criminal Law Consolidation Act 1935.
Aggravated Serious Criminal Trespass in A Place of Residence
The prosecution must prove the following elements beyond reasonable doubt:
1.The accused entered or remained in a place of residence. In this case 13 Parkfield Loop, Paralowie, the premises of the victim.
2.They entered or remained intentionally as trespassers.
3.They entered or remained in the place of residence with the intent to commit the offence of assault.
4.They used or threatened to use an offensive weapon namely a handgun or crowbars to commit or when committing the offence.
5.Further, they committed the offence in company with one another and with other persons.
Discharging a Firearm to Injure, Annoy or Frighten
The prosecution must prove the following elements beyond reasonable doubt.
1.That the accused discharged a firearm.
2.That they did so without lawful excuse.
3.They intended to injure, annoy or frighten the victim.
Onus of proof
There is a presumption of innocence and the defendants are regarded as innocent unless or until guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charges lies wholly upon the prosecution. The defendants do not have to prove anything.
Separate consideration of counts
The defendants are charged with separate counts and each must be considered on its own merit. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be verdict of guilty or not guilty in relation to the other count.
I am not to reason that because the defendant is guilty of a particular count it is proved against him that he has committed the other count.
The same is so between defendants. A verdict of guilty or not guilty in relation to one defendant does not mean the verdict must be the same in relation to the other defendant.
Defendants did not give evidence
In this matter the defendants did not give evidence. This is not to be taken as any evidence of guilt.
The prosecution must still prove its case beyond reasonable doubt.
Circumstantial evidence
The evidence against the defendants is entirely circumstantial evidence as there is no direct evidence of anyone having seen them present and committing either offence.
There is no particular standard of proof that applies to items of circumstantial evidence and I am permitted to act on items of circumstantial evidence if I accept the evidence without needing to decide whether those matters are proved beyond reasonable doubt, so long as, at the end of the day, guilt is proved beyond reasonable doubt.
I am also entitled to draw logical inferences from the evidence without needing to apply the standard of proof beyond reasonable doubt in relation to these inferences as long as they are not indispensable intermediate inferences for a conviction.
If any evidence involves an intermediate fact as an indispensable basis for an inference of guilt, that is a fact which is essential to a conviction then I cannot act on that fact unless it is proved beyond reasonable doubt (Shephard v The Queen).[1]
[1] (1990) 170 CLR 573.
I direct myself that since the case is one based wholly on circumstantial evidence, guilt must not only be a rational inference but must be the only rational inference from the circumstances proved and I cannot be satisfied of guilt unless I can exclude beyond reasonable doubt any hypothesis consistent with innocence.
The prosecution case is that five offenders, including the two defendants committed the offences of:
i Serious Criminal Trespass in a Place of Residence; and
ii Discharging a Firearm with the Intention to Injure or Frighten.
Both offences were committed at Paralowie on 24 May 2019 in the evening.
It is the prosecution case that the two defendants were criminally involved in the crimes by their direct presence and involvement. Somewhat surprisingly the prosecution eschews any reliance on criminal complicity other than by presence and participation at the crime scene.[2]
[2] T572. 1-11
Summary of case
1.There was animosity between the male victim and or his brothers, and the group of men that attacked them.
2.The group of attackers were alleged to be:
Fitzgerald;
Fleming;
Fowler;
Ayres; and
Mani.
These five all have in common the following:
1.They were associated with the Rebels Outlaw Motorcycle Club.
2.They were all known to each other, or were clearly associating with each other, at or about the time of the offending.
3.They all had a motive.
4.They had all been to the Pulse Apartments in the hours leading up to the offence and in the hours following the offence.
5.They all arrived in a vehicle to prosecute the attack.
The motive
The motive for the attack is said to be:
iAn altercation between Ben Devries and a person associated with the Rebels, Bradley Daniele, in May 2018.[3]
iiAn altercation between Dylan and Daniel Devries and Daniele on the Salisbury Highway, Mawson Lakes between 16.30 and 17.30 pm on the afternoon of the alleged offending.[4] An account of the incident given by Dylan Devries to police is admissible evidence.[5]
[3]     T321.38-325.7 and Exhibit P8 USB (38 Edmond Altercation).
[4]     T162.30-37 and Exhibit D58.
[5]     Evidence Act 1929 (SA) s34KA and Exhibit D58.
Daniele was in the area at the relevant time,[6] consistent with him being the subject of the attack by the Devries brother based on GPS tracking of his ankle bracelet. This puts Daniele in the vicinity of the Salisbury highway incident.[7]
[6] T344.25-345.9 and Exhibit P71.
[7] Ibid.
The text conversation after the incident confirming the motive
Shortly after the incident on Salisbury Highway between the Devries brothers and Daniele, Fowler and Fleming engage in the following text conversation at 17.43:
Fleming: “Who is devries”
Fowler: “Used to be part if club bro now there in rock machine”
Fleming: “Fucking dogs”
Fowler: “Fucking dogs” [8] [sic]
Evidence that this was a conversation between Fleming and Fowler is as follows:
[8] T189.5-16 and Exhibit P55 picture 042.
This text conversation was photographed on a mobile phone which was seized from Fleming’s premises of 15 Jeffrey Road, Munno Para.[9]
[9] Exhibit P48 and Exhibit P55 picture 042.
The text conversation occurred a short time before the offences (22.38 hours) which is indicative that Daniele must have communicated with Fleming or Fowler about the incident on Salisbury Highway soon after it happened, and that both Fleming and Fowler as well as Daniele had a hostile opinion of the Devries brothers and that the incident on Salisbury Highway was on their minds and related to the crimes the subject of the charges that followed.
Crux of the Prosecution Case
The prosecution case involves evidence by video at the victim’s premises of five individuals alighting from a Holden Astra motor vehicle to commence an attack on the victims.[10]
[10] Exhibit P8 USB (13 Parkfield Loop, Paralowie) Video 2.
The prosecution say that the two defendants were among the five persons who alighted from the vehicle to commence the attack and that the other three persons were their accomplices in the crime. The prosecution alleges that Fitzgerald got out of the front passenger’s seat and Fleming from the driver’s seat of the vehicle.
It is difficult to identify any particular person who alighted from the vehicle as all persons were wearing masks or a balaclava and in order to identify the perpetrators, the prosecution seek to rely on circumstantial evidence.
There is no doubt that the offences were committed by those alighting from the vehicle.
Because none of the attackers can be identified by direct evidence alighting from the Holden Astra to commence the attack, in order to identify them the police rely on the identification of the two defendants and the three others by photos taken on their arrest by a police officer who knows them and hence, is able to recognise them and by comparison with photos taken of the defendants, a task I am required to perform without expertise or use of scientific equipment to enhance photographic images apart from a magnifying glass.
A significant difficulty is that the video of the attack is in black and white making any comparison of clothing between individuals and the video footage of those individuals in other circumstances are somewhat difficult.
Circumstantial evidence involving Fitzgerald in the offending in respect of which I am satisfied on the balance of probabilities.
1.He was involved with the Rebels Motorcycle Club.[11]
[11] T384.31-385.5.
2.Shortly after the altercation with the Devries brothers, he attended with others at Pulse Apartments.[12]
[12] Exhibit P74 p1 and Exhibit P8 USB (Pulse Apartments-Mawson Lakes) Video 1.
3.Fitzgerald can be seen wearing a white jumper with black or dark blue and red sleeves. A similar jumper was seized from the laundry of his premises.[13]   He was also wearing a navy-blue hat with the logo NY in white text.[14] The hat is similar in appearance to the one seized from Fitzgerald’s address.[15] Consistent clothing and comparison with his arrest photos means I can conclude that it was probably Fitzgerald.
[13]   T171.28-30 and Exhibit P50.
[14] T520.21-27 and Exhibit P51.
[15]   T520.19-25.
4.Masks similar to the masks worn by the offenders were located at Fitzgerald’s parents’ home.[16]
[16] T114.8-18 and Exhibit P21 p2-8.
5.Fitzgerald had at his premises similar calibre ammunition to the ammunition that was used in the offending.[17]
[17] T172.23 – 173.19, T335.34 – 336.12 Exhibit P15 and Exhibit P49. p9-11.
6.The Nissan Navara that was used in the convoy to the victim’s premises returned to the home address of Fitzgerald, 3 Vitana Avenue after the offending.[18]
[18] Exhibit P8 USB (3 Vitana Ave, Ingle Farm, Video: 1), Exhibit P61 and P76 p4.
7.The Navara contained firearm residue.[19]
[19] T295.17-31 and Exhibit P64.
8.At 1.40 am a white ute possibly the Volkswagen Amarok ute owned by Fitzgerald drove into the street where the Holden Astra that was used to drive to the crime scene was abandoned.[20]
[20] T488.6-489.22, and Exhibit P8 USB (Huhtamaki- 65 Langford St. Pooraka) Video 3, and Exhibit P74 p30-31.
9.The male who alighted from the front passenger side at the scene of the crime was wearing a balaclava.[21] A similar balaclava was located at Fitzgerald’s parent’s premises.[22]
[21] Exhibit P8 USB (13 Parkfield Loop, Paralowie) Video 2.
[22]   T116.13-30 and Exhibit P25.
10.One of the offenders at the crime scene was a wearing a black hooded unusual jumper with a white or light sash.[23] Fitzgerald was wearing a similar jumper at his home four days earlier.[24]
[23] T515.32-37 and Exhibit P78 p20.
[24] Exhibit P8 USB (Further Vitana footage) and Exhibit P78 p25.
11.Following the offending a male with a somewhat similar jumper with a white sash is seen at Fitzgerald’s residence at 3 Vitana Ave at 11.23pm.[25]
[25]   T522.27-36 and Exhibit P8 USB (3 Vitana Ave, Ingle Farm) Video 1 and Exhibit P78 p26.
12.The same offender was also wearing dark coloured sneakers with a white midsole.[26] Fitzgerald was wearing a similar looking pair of shoes four hours earlier at the Pulse Apartments.[27]
[26]   Exhibit P78 p23.
[27]   Ibid.
13.Gloves were located at the address of Fitzgerald’s parents,[28] and within Fitzgerald’s Amarok ute which are consistent with gloves used by the offenders.[29]
[28]   T114.17-18 and Exhibit P21 p8-9.
[29] T177.2-31 and Exhibit P53p.7.
14.Gunshot residue was detected on some of the gloves in the home and in the vehicle.[30]
[30] T290.25-38, 292.23-32 and Exhibit P64 (Exhibit 3.01, 5.02 & 5.03).
Circumstantial evidence involving Fleming in the offending in respect of which I am satisfied on the balance of probabilities
1.He was involved with the Rebels Motorcycle Club.[31]
2.He was involved in a text message in which he agreed with the description of Devries as a “fucking dog” providing a motive for the offending.[32]
3.The phone with the message was recovered at the search of his premises. This was before a text message exchange with Mani in which Fleming said “Go to b” an inferred request or order to go to the premises of Daniele.[33]
4.Shortly following the altercation, intermittently Fleming and others attended the apartment complex where it may be inferred, the arrangements for the attack were made. [34]
Fleming can be identified on the balance of probabilities by a comparison with his arrest photos.[35]
5.A reconnaissance trip past the premises of the victims was conducted in a vehicle with a missing right rear wheel embellishment.[36] An associate of Fleming, Ms Emma Tassle owns a similar vehicle with a consistent right rear wheel embellishment.[37] The vehicle of Ms Emma Tassle is a Holden Cruze.[38]
6.One can infer that the reconnaissance was done in the Holden Cruze of Ms Tassle due to the coincidence that the vehicle used for the reconnaissance had the same type of wheel embellishment and the same missing right rear wheel embellishment as the car of Ms Tassle. The evidence of the association between Ms Tassle and Fleming is that Ms Tassle arrived during the search of Fleming’s premises and stayed with the other occupant Kayla Brown.[39]
7.One can further infer it was a reconnaissance drive as the vehicle occupants appear to concentrate on the victim’s address, pulling into the next-door neighbour’s driveway and then down the cul-de-sac.[40] There seemed to be no other purpose for the drive past the victim’s premises.
[31]   T385.6-8.
[32] T189.3-19 and Exhibit P55 picture 42.
[33]   Exhibit P55 picture 36.
[34]   Exhibit P74 p1-4.
[35] Exhibit P42.
[36]   Exhibit P8 USB (13 Parkfield Loop, Paralowie Cruze drive by 5).
[37]   Exhibit P56, P57.
[38] Ibid.
[39] T178.38-179.7.
[40]   Exhibit P8 USB (13 Parafield Loop, Paralowie, Video: 13 Parkfield Loop Paralowie Cruze Drive by) Videos 1-6.
Note that none of the above items of circumstantial evidence need to be proved beyond reasonable doubt.
Difficulty in establishing the involvement of Fitzgerald and Fleming in the attack
As observed, there is a considerable body of circumstantial evidence demonstrating the involvement of Fitzgerald and Fleming in the arrangements to attack the victim’s premises by their presence at the Pulse Apartments during the relevant time frame and by providing assistance to those present at the attack.
But the prosecution do not pitch their case on the basis of criminal complicity other than by presence at the scene of the crime. All such circumstantial evidence must be established beyond reasonable doubt (Shephard v The Queen).[41]
[41] (1990) 170 CLR 573.
This makes their case far more difficult to establish as the only evidence of the defendants actually being present at the crime is video footage which is black and white and extremely poor quality showing persons getting out of a motor vehicle to commence an attack in circumstances where the participants all had their faces covered.
It is not only Fitzgerald and Fleming who had a motive and participated in the preparations for an attack. There were a number of other people who, the evidence establishes, did that too.
For that reason, having a motive and assisting in the preparations for the attack does not necessarily imply that any particular person was present for the attack. There were a number of people who had a motive and who participated in preparations for the attack who were not present. Only five persons got out of the car.
The case for the prosecution is that the person who got out of the front passenger side of the car was Fitzgerald and the person who got out of the front driver’s side of the car was Fleming.
Evidence of presence at the scene
Fitzgerald
Poor quality black and white footage shows a person getting out of the front passenger seat of the Holden Astra to commence an attack on the victims.[42]
[42] Exhibit P8 USB (13 Parkfield Loop, Paralowie) Video 2.
Can I say beyond reasonable doubt that this person getting out of the front passenger seat is the defendant Fitzgerald? I cannot identify him from the video as I cannot see his face.
He appears to be wearing a jumper with a hood with a balaclava and sneakers with white mid-soles.[43]
[43] Ibid
The prosecution say it is relevant that he is seen wearing sneakers with white mid-soles earlier that night at the Pulse Apartments[44] and that a black balaclava was found at his parent’s place subsequently when the police searched it.[45]
[44] Exhibit P8 (Pulse Apartments-Mawson Lakes) Video 1 and 2.
[45] Exhibit P25.
The jumper this attacker is wearing appears to have a lighter, or white coloured sash coming down from the left shoulder similar to a sash worn on the Glenelg or Richmond Football Club uniforms but shortened considerably and not running to the lower opposite side of the chest.
The prosecution assert that the same jumper is worn by the defendant in CCTV footage taken at Fitzgerald’s premises some four days earlier to the offending.[46]
[46] T522.18-36.
That footage is very much clearer and in colour. I am satisfied it shows Fitzgerald and that the jumper being worn then is black, the sash is white and there is a red motif in the middle of the chest. No expert evidence was led as to the probable range of colours that the black and white footage of the attackers at the scene may indicate.
In the footage at the crime scene I cannot identify any colours of the jumper being worn or whether there is a motif in the middle of the chest, red or otherwise. But I can identify the light, or white coloured, sash.

After the offending a white Navara ute returned to Fitzgerald’s premises with probably some of the offenders in it.[47]
[47] Exhibit P8 USB (3 Vitana Ave, Ingle Farm).
One of them, the prosecution assert was Fitzgerald still wearing the same jumper as at the crime scene.
I cannot be satisfied of what this person was wearing or even identify beyond reasonable doubt this person as Fitzgerald as the video quality is too poor.
I can just make out on one of the persons standing at the back of the vehicle a jumper with a light coloured sash but I cannot make out any red motif in the middle of the chest.[48]
[48] Ibid.
The prosecution case is that Fitzgerald was wearing a jumper at his home four days earlier,[49] and was still wearing it after the offences when he came with others in the Navara back to his home after the offending. The person wearing it at the scene of the crime must therefore be Fitzgerald. But I can’t be satisfied that the person in the Navara that went to Fitzgerald’s house after the offending was Fitzgerald let alone that he was wearing the same jumper worn by the person alighting from the front passenger seat.
[49] Exhibit P8 USB (Vitana Recovered Footage) Recover 1, time 4.11
I note that the jumper appears to have draw strings to tighten the hood. The draw strings of the jumper of the person standing behind the vehicle at Fitzgerald’s premises appears to be a lighter colour than the jumper.[50] The jumper being worn at the scene of the crime appears to have draw strings of a lighter colour than the jumper itself.[51] The jumper worn four days earlier appears to have draw strings the same colour as the jumper.[52]
[50] Exhibit P8 USB (3 Vitana Ave, Ingle Farm) Recover1_trim.
[51] Exhibit P8 USB (13 Parkfield Loop, Paralowie) Video 2, time 0.04.
[52] Exhibit P8 USB (Vitana Recovered Footage) Recover1, time 4.11.
Does there remain any hypothesis reasonably open consistent with innocence?
One hypothesis is that the jumper that Fitzgerald was wearing four days earlier was not the same jumper as the offender was wearing at the scene. I cannot say the colour was the same or that the jumpers both had a central motif, red, coloured or otherwise. Is it possible they were different jumpers?
Another hypothesis is that a different person to Fitzgerald wore the same jumper at the scene that had been worn by Fitzgerald four days earlier. The assumption that it was the same person is not a safe basis for a conviction.
Another hypothesis is that there were two similar jumpers, one worn by Fitzgerald four days earlier and the other by the offender at the scene.
I cannot be satisfied beyond reasonable doubt of guilt. I cannot be satisfied beyond reasonable doubt that the jumper worn by the front passenger was the same jumper as was worn by the defendant at his home four days earlier or that the same person wore it at the scene of the crime namely Fitzgerald.
I cannot be so satisfied beyond reasonable doubt as to guilt and so I must acquit.
The other circumstantial evidence against Fitzgerald is evidence as to his involvement but not as to his presence at the crime.
Fleming
The prosecution say that Fleming is the person who got out of the car at the scene of the crimes from the driver’s side door.
I cannot be satisfied that this person was Fleming by comparing this video with the arrest photographs of Fleming because I cannot see his face.
The prosecution say it is him because he is wearing a jumper with the wording “Hilfiger” emblazoned on the front of it and that he had worn it earlier.
I can make out some of the shapes on the jumper but not sufficient to be able to say that the wording emblazoned on the front of the jumper of the person getting out of the driver’s seat was “Hilfiger” beyond reasonable doubt. Because the video footage is in black and white, I have no indication as to the colour of the jumper.
This evidence would only be helpful to convict if I could be satisfied beyond reasonable doubt that the person in earlier CCTV footage leaving the Pulse Apartments and wearing a jumper with the wording “Hilfiger” emblazoned across it was the accused Fleming as asserted by the prosecution.[53] This person has a hood and probably a grey jumper with the word ‘Hilfiger’. This is probably Fleming but I can’t say beyond reasonable doubt it is Fleming.
[53] Exhibit P8 USB (Pulse Apartments – Mawson Lakes) Video:23.
I cannot be satisfied beyond reasonable doubt that that person leaving Pulse Apartments with a jumper emblazoned with the word “Hilfiger” was Fleming. I cannot be satisfied that the person wearing the jumper who got out of the car at the scene of the crime was Fleming even if I could be satisfied that that person was wearing a jumper with the word “Hilfiger” emblazed on it.
I cannot be satisfied beyond reasonable doubt that Fleming was present in the car with the attackers. Other circumstantial evidence helps prove his involvement in the crime but not his presence at the scene of the crimes.
Verdicts
Accordingly, I return verdicts of not guilty in respect of both defendants as the prosecution has defined guilt by presence at the scene of the crime and that is not established beyond reasonable doubt.[54]
[54] T527.1-11.
Fitzgerald                 Count 1             Not Guilty
Count 2             Not Guilty
Fleming  Count 1             Not Guilty
Count 2             Not Guilty