R v Fowler

[2019] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v FOWLER

Criminal Trial by Judge Alone

[2019] SADC 100

Reasons for the Verdicts of Her Honour Judge Schammer

31 July 2019

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS

CRIMINAL LAW - EVIDENCE - CREDIBILITY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - MOTIVE

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT IN COMPANY

The accused is charged with four counts; Aggravated Serious Criminal Trespass in a Place of Residence, Aggravated Causing Harm with Intent to Cause Harm, Aggravated Assault and Theft.

During the early hours of 22 March 2017 two masked men, apparently carrying rifles, gained entry to the first complainant’s Highbury home, while he and his son, the second complainant, were asleep (the incident).   

One of the men repeatedly struck the first complainant in the head using the butt of his rifle, while the other man stood at the end of the first complainant’s bed, pointing a rifle at him.

After the second complainant entered the first complainant’s bedroom, he was forced to lie on the floor and was later kicked in the face by one of the men.  During the incident one of the men said words to the effect that the first complainant had molested a young girl. The man may have described this girl as his niece.

The Highbury home was ransacked. After the incident the complainants reported certain items missing from the home, including a Kawasaki motorcycle and a distinctive engraved ring.

On 24 March 2017, Officers Donaldson and White drove past a property associated with suspected drug dealing at Salisbury North. They observed the accused alone in the front yard of the property, on the driveway, next to a motorcycle. As they arrived, Officer White received a personal phone call with respect to a family emergency and claims to have been distracted by that emergency during his attendance.  Officer Donaldson claims the accused told him the motorcycle was his. Officer White identified the motorcycle as the Kawasaki which had been reported as having been stolen from the Highbury home on 22 March 2017. Officer Donaldson claims the accused then attempted to explain the circumstances in which he came to be in possession of the motorcycle. Officer White did not hear either of the alleged admissions made by the accused to Officer Donaldson with respect to his possession of the motorcycle.

The accused was arrested for the illegal use of the Kawasaki. At or about this time, in response to something said by the accused, the accused’s partner came from the Salisbury North house, into the front yard, carrying a bag which she gave to the accused.  The accused said words to the effect of ‘Don’t leave my missus without a phone’. There was a mobile phone in the bag. On the mobile phone were images of a masked man pointing a gun and images of a partially naked, unmasked man, similar in appearance to the accused, pointing a gun.

On 28 March 2017 another police officer attended the Salisbury North address and spoke to the male occupant. The occupant told the officer that on 24 March 2017 the accused told him he was one of the offenders involved in the incident. The occupant was in possession of the distinctive engraved ring that had been reported as stolen during the incident. The occupant claimed the accused gave him (or his son) that ring on 24 March 2017.

At the time of the incident the first complainant was on bail for the indecent assault of a 17-year-old girl, KM. The accused has no known connection to KM.

The primary issue for determination was whether the accused was one of the offenders involved in the incident. 

Verdicts: Guilty on all counts.

Criminal Law Consolidation Act 1935 s 21, referred to.
Davies v Director of Public Prosecutions (UK) [1954] AC 378, considered.

R v FOWLER
[2019] SADC 100

Introduction

1. The accused, Desmond Fowler, is charged with four offences that are alleged to have occurred at Highbury on 22 March 2017 (the relevant date).

2. It is alleged that in the early hours of 22 March 2017, the accused and another male (the offenders) entered Russell Coulls’ home at Highbury, at a time when both Russell Coulls (the first complainant) and his son, Daniel Coulls (the second complainant) were present (count 1). It is alleged that the faces of each offender were covered by either a mask or balaclava and that each offender was carrying a rifle. Neither of the offenders were known to the complainants.

3. It is alleged the offenders entered the first complainant’s bedroom and one of them (male one) repeatedly struck the first complainant about the face, head and torso using the butt of a firearm, namely a rifle, while the other offender (male two) stood at the foot of the first complainant’s bed, holding a firearm, pointed at the first complainant (count 2).

4. It is further alleged that after the second complainant came into the bedroom to investigate, male one kicked the second complainant to the face, causing his lip to bleed profusely (count 3). Thereafter it was ascertained that various items of property had gone missing from the home including, but not limited to, a Kawasaki motorcycle and a gold ring engraved with the initials of the first complainant (count 4).

5. The (primary) issue to be determined at trial was whether the accused was one of the offenders.[1]

   [1]    Noting that whether the Kawasaki and/or the gold ring were stolen during the home invasion was also disputed.

6. The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.

7. After a voir dire held before another judge, the trial proceeded before me over six days commencing Tuesday 23 October 2018. I subsequently received and considered Prosecution’s Written Submissions dated 16 November 2018, a Response to Prosecution’s Written Submissions (undated, but received on 27 December 2018) and confirmation by email from the parties with respect to an agreed fact on 31 December 2018.

   The Charges

   First Count

   Statement of Offence

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

   Particulars of Offence

   Desmond Fowler on the 22nd day of March 2017 at Highbury, entered or remained in the place of residence of Russell Malcolm Coulls as a trespasser, with the intention of committing an offence therein, namely assault.

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

   It is further alleged that Desmond Fowler committed the offence in company with another person.

   Second Count

   Statement of Offence

   Aggravated Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Desmond Fowler on the 22nd day of March 2017 at Highbury, caused harm to Russell Malcolm Coulls, intending to cause him harm.

   It is further alleged that Desmond Fowler used or threatened to use an offensive weapon, namely a rifle, to commit or when committing the offence.

   It is further alleged that Desmond Fowler committed the offence in company with another person.

   Third Count

   Statement of Offence

   Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Desmond Fowler on the 22nd day of March 2017 at Highbury, assaulted Daniel Peter Coulls.

   It is further alleged that Desmond Fowler committed the offence in company with another person.

   Fourth Count

   Statement of Offence

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

   Particulars of Offence

   Desmond Fowler on the 22nd day of March 2017 at Highbury, dishonestly dealt with property, namely a Kawasaki motorcycle and a gold ring, without the consent of Russell Malcolm Coulls, the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on his proprietary rights.

   It is further alleged that Desmond Fowler committed the offence in company with another person.

   Elements of the Offences

   Count 1: Aggravated Serious Criminal Trespass in a Place of Residence

8. The prosecution must prove each of these four elements of the offence beyond reasonable doubt, namely:

   1That the accused entered or remained in a place of residence.

   2The accused did so intentionally as a trespasser. In other words, he entered or remained in a place of residence without the consent of the occupier, knowing that he did not have, or was recklessly indifferent to whether he had the consent of the occupier, and he entered or remained notwithstanding.

   3At the time of his trespass, the accused intended to commit an offence. In this case the offence alleged by the prosecution is assault.

   4The offence is aggravated if the accused, when committing the trespass, was in company with one or more other person, or if another person was lawfully present in the place of residence and the accused knew of that person’s presence or was reckless about whether anyone was in the place.

   Count 2: Aggravated Causing Harm with Intent to cause harm

9. The prosecution must prove each of these five elements of the offence beyond reasonable doubt, namely:

   1The accused caused harm to Russell Coulls. It must be proved that the accused’s conduct is the sole cause of the harm or that it substantially contributed to the harm. The harm which is caused may be physical or mental harm. Physical harm includes unconsciousness, pain, disfigurement and infection with a disease. Mental harm means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm.

   2The act or acts causing harm were deliberate, not accidental.

   3The accused intended to cause harm to Russell Coulls.

   4The act or acts causing harm were unlawful. In other words, the accused acted without the consent of Russell Coulls and without the nature of the harm and the purpose for which it was inflicted falling within limits that are generally accepted in the community as normal incidents of social interaction or community life. The act or acts causing harm would not be unlawful if the accused was acting in self-defence.[2]

   5The offence is aggravated if an offensive weapon is used or threatened to be used in the commission of the offence, or if the offence is committed in company of another person.

   [2]    There was no evidence in this case which raises as a possibility that the accused acted in self-defence with respect to this count.

10. There is an alternative verdict of aggravated causing harm being reckless as to the causing of harm. A person is reckless in causing harm to another if the person is aware of a substantial risk that his or her conduct could result in harm and engages in that conduct despite the risk and without adequate justification.[3]

    [3] Section 21, Criminal Law Consolidation Act 1935.

    Count 3: Aggravated Assault

11. The prosecution must prove each of the five elements of the offence beyond reasonable doubt:

    1The accused assaulted Daniel Coulls.

    An assault includes the intentional application of force (directly or indirectly) to Daniel Coulls.

    2The application of force was deliberate, not unintentional or accidental.

    3The accused acted without the consent of Daniel Coulls.

    4The accused must have acted unlawfully, in that the act was not legally justified in any way.[4]

    5The offence is aggravated if committed in company with another person.

    [4]    There was no evidence in this case which raises as a possibility that the accused acted in self-defence with respect to this count.

    Count 4: Aggravated Theft

12. The prosecution must prove each of the five elements of the offence beyond reasonable doubt:

    1The accused dealt with property, particularised as a Kawasaki motorcycle and a gold ring.

    2The accused dealt with the property without the owner’s consent.

    3In dealing with the property, the accused did so dishonestly. What is dishonest is to be determined in accordance with the standards of ordinary people, and the accused must have known that his dealing was dishonest in terms of those standards.

    4At the time the accused dealt with the property, he intended either to deprive the owner permanently of the property, or to make a serious encroachment on the owner’s proprietary rights.

    5The offence is aggravated if the accused commits it in company with another person.

    Witnesses

13. The Court heard evidence from both complainants and the following witnesses:

    1Brevet Sergeant Bayley Hill (‘Officer Hill’), the crime scene investigator;

    2Senior Constable Daniel Donaldson (‘Officer Donaldson’);

    3Detective Senior Sergeant Robert White (‘Officer White’);

    4Mr Steven Possingham;

    5Mr Daniel Burns; and

    6Detective Brevet Sergeant Thomas Dring (‘Officer Dring’).

14. The following witness statements were tendered by consent:

    (a)Ms Phillippa Hearnden, Forensic Scientist dated 12 September 2017.

    (b)Ms Phillippa Hearnden, Forensic Scientist dated 10 October 2018.

    (c)Dr Eu Ling Neo dated 28 September 2017.

    (d)Dr Farida Suplido dated 24 October 2017.

    (e)Ms Samantha Newsome dated 13 April 2018.

    (f)Brevet Sergeant Timothy Brooks dated 8 October 2018.[5]

    (g)KM dated 30 June 2016.[6]

    (h)KM dated 9 October 2018.[7]

    [5]    Statements (a)-(f) comprise Exhibit P31.

    [6]    Exhibit D33.

    [7]    Exhibit D34.

15. In addition a large volume of exhibits were tendered, including the evidence of Officer White given on the voir dire (Exhibit P36).

    Issues in Dispute

16. There was no real dispute that at approximately 3 am on 22 March 2017 the complainants were the victims of a violent home invasion (the incident) at the home they shared at 47 Amber Road, Highbury (the Highbury home) during which the both complainants suffered injuries.[8]

    [8]    Noting that only count 2 includes an allegation that harm was caused to the complainant.

17. A list of Agreed Facts was tendered as Exhibit D32. In addition, it was an agreed fact that at the time of the alleged offending the accused’s height was 174 cm.

18. The primary issues in dispute were:

    1Was the accused one of the two alleged male offenders who entered the Highbury home on 22 March 2017?

    2Was either a Kawasaki motorcycle (the Kawasaki) and/or a distinctive ring engraved with the first complainant’s initials (the ring) stolen by the offenders during the course of the incident?

    Summary of Prosecution Case

19. The prosecution case relied, substantially, on a combination of the following evidence:

    1Alleged admissions made by the accused to Mr Possingham on 24 March 2017 as to his involvement in the incident in circumstances where Mr Possingham had esoteric knowledge of the incident; and

    2Circumstantial evidence:

    (i)     as to the accused’s possession of the Kawasaki and a motorcycle helmet identified by the first complainant as his, on 24 March 2017, two days after the incident, including two alleged admissions made by the accused to Officer Donaldson as to his possession of the Kawasaki;

    (ii)    of an alleged statement made by the accused to Officers Donaldson and White following his arrest namely ‘Don’t leave my missus without a phone’ and the circumstances in which the statement was made (the phone request).

    (iii)   of the contents of a mobile phone found in a back pack brought to the accused at or about the time of his arrest by his partner, Vickey Michailidis. The prosecution case is that the accused regularly used that phone, although the service for the phone was registered in the name of Ms Michailidis. The contents of the phone included three images of a masked man holding and aiming a firearm and two images of a naked man, unmasked, holding and aiming a firearm.

    It is the prosecution case that the man in those five images is the accused and that the mask worn by the male in the former three images is consistent with that described by the second complainant as having been worn by each offender.

    Further it is the prosecution case that a phone call was made from that phone to another phone registered in the name of Ms Michailidis at 0:50:37 on 22 March 2017, from which it could be inferred that the user of that phone (on the prosecution case, the accused) was up and about, and not in the company of Ms Michailidis, at the time of that phone call, being consistent with him having the opportunity to commit the offence;

    (iv)   as to the accused’s alleged possession and use of a firearm matching the description of that used by the offenders; or in the alternative, as to the accused’s ability to access such a firearm;

    (v)     that the accused was a heroin user at the time of the offending, thus providing a possible motive for the offending (to steal to fund his heroin use);

    (vi)   of the fact the ring was in Mr Possingham’s possession on 28 March 2017, having regard to Mr Possingham’s evidence as to how he came to be in possession of it; and

    (vii)  as to the general descriptions of each offender given by the complainants, from which it is alleged the accused cannot be excluded as an offender.

20. It was submitted that irrespective of my findings with respect to Mr Possingham’s evidence as to the alleged admissions made to him by the accused, the combined effect of the strands of circumstantial evidence was such that the only rational inference that could be made from the evidence was that the accused was one of the two offenders.

    Defence Case

21. Counsel for the accused submitted that even if the facts relied upon by the prosecution as part of the circumstantial case against the accused were established, in the absence of Mr Possingham’s evidence as to the alleged admission also being accepted, there was simply insufficient evidence to prove beyond reasonable doubt that the accused was one of the offenders.

22. It was submitted that I simply could not rely on Mr Possingham’s evidence in this respect, having regard to the many inconsistencies in his evidence when compared with the other evidence (including some agreed facts) and internal inconsistencies in the evidence given by him. It was submitted that not only was Mr Possingham’s evidence unreliable but that he had lied with respect to certain matters in his evidence, such that his evidence lacked credibility generally.

23. It was submitted that in those circumstances, although a rational inference may possibly be drawn from the balance of the evidence that the accused knew the offenders and of the fact of the offending, or possibly may be guilty of theft by receiving, there was insufficient evidence to support a finding beyond reasonable doubt that he was one of the offenders who entered the Highbury home on 22 March 2017 and committed the offences as charged.

24. Counsel for the accused highlighted the following aspects of the evidence which should cause me to have a reasonable doubt that the accused was one of the offenders:

    1Any suggestion that the accused had a motive to commit the offences on the basis that he was a heroin user, was weak at best, given the large number of drug users in the community who theoretically also had that same motive.

    2Both complainants gave evidence that one of the offenders referred to the first complainant as a paedophile and the second complainant said he heard an offender saying something about a ‘15-year-old girl’ and that the girl was his niece. The first complainant was on bail at the time of the offending for the indecent assault of a 17-year-old girl, KM. There was no connection between the accused and KM.

    3Any suggestion that the accused had a motive for the offending being a need for transportation relied on the evidence of Mr Possingham and Mr Burns, which it was argued could not be accepted.

    4The complainants’ descriptions of the offenders did not assist in advancing the prosecution case against the accused, given the differences in the descriptions of the offenders as given by the complainants (in particular, on the issue of the type of mask worn by the offenders). In this respect, it was also submitted that the complainants had only a limited opportunity, in any event, to make the claimed observations given the offending occurred in the middle of the night, and the uncertainty as to the status of the lighting inside the Highbury home at the time of the offending.

    5The arrest photo of the accused taken on 24 March 2017 depicted him with a full moustache and otherwise relatively clean shaven being arguably inconsistent with the first complainant’s recollection of one of the offenders as having a light beard.

    6Mr Possingham described the accused’s face as being covered by blood, whereas neither complainant mentioned this.

    7The absence of evidence as to what, if anything, occurred between the incident on 22 March 2017 and the accused being arrested on 24 March 2017, meant that the prosecution could not exclude as a reasonable possibility that the accused simply knew of those responsible for the offending and had dealt with them in that intervening period, thus explaining any alleged possession by him of the Kawasaki.

    8The presence of the first complainant’s motorcycle helmet, the ring and other trinkets at the property where the accused was arrested on 24 March 2017 did not further advance the prosecution case, given the ease with which these items could be transported.

    9The evidence of Mr Burns as to the accused’s access to two firearms should be rejected, given the internal inconsistencies in that evidence and prior inconsistent statements made by him.

    10The evidence fell short of enabling there to be any finding that the firearm in the photographs relied upon by the prosecution was used in the offending.

    11Although the photographs on the mobile phone seized from the accused may show a link between him and the offenders, they fell short of establishing beyond reasonable doubt that he was one of the offenders. Insofar as the accused made the ‘phone request’, that similarly took the case no further than that.

    12The police investigation had been incorrectly focussed on the accused, such that other obvious lines of enquiry were not pursued.

    Legal Directions

    General

1. The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything and in particular it is not for the accused to prove that he did not commit the offence or offences as charged.

2. The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that each and every element of the offence as charged has been proven beyond reasonable doubt.

3. If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then the accused remains innocent and I must return a verdict of not guilty to that charge.

4. There are four charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.

5. With respect to each charge, if I am satisfied that there may be a rational explanation consistent with the innocence of the accused or I am unsure where the truth lies then I must find that the charge has not been proven to the standard required by the law and I must find the accused not guilty of that charge.

6. I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.

7. The accused elected not to give evidence. As a matter of law there can be no criticism of the accused for doing that. The accused has a right to decline to give evidence and because that is his legal right I must not draw any inference adverse to him or the case he has put forward because he has exercised that right. His silence in this Court does not constitute an admission against him and it cannot be used to fill any gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution has proven the elements of any offence beyond reasonable doubt.

8. In this case, statements were tendered from a number of experts.[9] The ordinary rule is that a witness may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. That opinion must be relevant to their particular areas of expertise and that opinion must be based wholly or substantially on their knowledge, training or experience. As I am a sole judge of the facts, I am entitled to accept or reject any opinion evidence as I see fit. Before rejecting that evidence, I must give it consideration, and consider how it fits with any other evidence that I have heard and accepted on that topic.

   [9]    Exhibit P31, save for the statement of Ms Newsome.

9. I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not influenced by public opinion in relation to this matter.

   Joint Criminal Enterprise

10. The evidence of the complainants was that there were two offenders, described in the transcript as ‘male one’ and ‘male two’.

11. Further, the evidence was that it was male one who used the butt of his firearm to strike the first complainant in the face, head and torso (count 2) and that it was male one who kicked the second complainant in the side of the head (count 3).

12. The prosecutor did not submit that the accused was male one, rather it was submitted he was one of the two offenders. In this respect, by necessity, if the prosecution establish beyond reasonable doubt that the accused was one of the two offenders, then to find the accused guilty of either counts 2 and/or 3, I must also find that the accused was joined with the other alleged offender in a criminal enterprise, such that the acts done in furtherance of that enterprise by either offender, are in law to be taken as the acts of the accused.

13. This extends to a finding that the offences as charged were within the offenders’ contemplation as an incident or outcome of that enterprise.

    Circumstantial Evidence/Inferences

14. The prosecution case rests substantially upon circumstantial evidence. I cannot return a verdict of guilty on a charge as against the accused unless the circumstances exclude any reasonable explanation consistent with his innocence with respect to that charge. Further, I must be satisfied not only that his guilt is a rational inference but that it is the only rational inference I can draw from the circumstances I find proved.

15. In approaching circumstantial evidence there are two steps. First, I must look at the facts on which the prosecution relies as circumstantial evidence in the case and decide which facts are established by the evidence. I must then consider what inference or inferences I am prepared to draw from those facts. This step requires me to consider the combined strength of all the relevant and established facts.

16. To properly draw an inference of guilt from the facts, it is not necessary that those facts be proved beyond reasonable doubt. However, insofar as it is necessary for me to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt.

    Description of Offenders

17. The complainants both gave evidence as to their observations of the offenders in terms of their appearance, build, height, voice, dress and the like.

18. The evidence was with respect to general matters relevant to the offenders’ appearance only and did not amount to an identification by either complainant of the accused as being an offender.

19. Nevertheless, I remind myself that I should approach this evidence with caution. The experience of the courts is that honest witnesses can be mistaken in their recollections pertaining to identification and miscarriages of justice have occurred as a result.

20. The ability to form and retain an accurate impression of an offender including his physical appearance and features, his dress or any other distinctive features, may be affected by many factors, including the witness’ involvement in the incident and any trauma arising therefrom, the witness’ state of mind at the time of observation, as well as the frailty of human observation and memory and a tendency to reconstruct events in the mind over a period of time.

21. The circumstances of the observations made by the complainants as to the offenders’ appearance are important considerations, including, but not limited to, the time during which the complainants had either offender under observation, at what distance, in what light and whether their view was obstructed in any way.

    Motive

22. The prosecutor submitted that the evidence gave rise to two possible motives for the offending namely:

    1As some sort of ‘payback’ in relation to an allegation of paedophilia committed by the first complainant, and

    2To steal property.

23. As to the first possible motive, it was an agreed fact that on 22 March 2017, being the date of the offending, the first complainant was on bail for the indecent assault of KM. KM was 17-years-old at the time of the alleged offending.[10]

    [10] Exhibit D34 [2].

24. The existence of a motive or possible motive of an accused to do what is alleged against him, cannot of itself prove that he did it. The existence of a motive or possible motive may, however, be one factor which, taken together with other factors, leads to a conclusion as to what the accused did and his intention in doing it.

25. Conversely, the absence of apparent motive does not disprove that the accused did what is alleged. A person's motives may be difficult to discover and crimes are sometimes committed without apparent motive. Absence of motive may, however, lead me to scrutinise the incriminating evidence more closely and, either by itself or with other factors, give rise to a reasonable doubt as to the accused’s guilt.

    Admissions/Consciousness of Guilt

26. Officer Donaldson gave evidence that he observed the accused working on a motorcycle in the driveway of a home at Salisbury North on 24 March 2017.

27. Officer Donaldson gave evidence that at that time he engaged in a casual conversation with the accused during which he enquired of the ownership of the motorcycle. He claimed the accused told him that the motorcycle was his (the first admission as to possession). Officer Donaldson also gave evidence that shortly thereafter, in response to Officer White informing him, within the accused’s earshot, that the motorcycle was stolen, the accused said to him words to the effect of ‘I bought it for $500, that’s the last time I trust black fellas’ (the second admission as to possession).

28. The only evidence in support of the making of the two admissions as to possession of the Kawasaki is that of Officer Donaldson.

29. Officer Donaldson’s notes made on or about 22 March 2017 include a reference to the second admission as to possession, but not to the first admission as to possession.

30. Both the first and second admissions as to possession were referred to by Officer Donaldson in his statement, which he commenced making on 27 March 2017 and signed on 17 April 2017.

31. Officer White gave no evidence as to hearing the accused make either the first or second admission as to possession. Neither his notes nor his statement contain any record of these alleged admissions.

32. I remind myself that as the accused has not admitted to making these admissions, I must give careful consideration to the dangers involved in convicting the accused in circumstances where the alleged admissions form part of a circumstantial case against him. Insofar as such a finding is essential to a finding of guilt, I must scrutinize the evidence of Officer Donaldson on this subject with great care before accepting it as the basis for the requisite degree of proof of guilt.

33. During her closing address, the prosecutor relied upon the second admission as to possession as being a lie told out of a consciousness of guilt and on the phone request as evidence of consciousness of guilt generally with respect to all four counts. Those submissions were withdrawn at paragraph 19 of the Prosecution’s Written Submissions dated 16 November 2018 and I have therefore disregarded the prosecutor’s oral submissions in this respect when making my findings.

    Discreditable Conduct

34. Evidence was led by the prosecutor tending to suggest that the accused had engaged in discreditable conduct, namely that he was, at times, in possession of illicit drugs, purchased by him from Mr Possingham and that he had previously spent time in custody. The evidence was led so as to explain the nature of the relationship between Mr Possingham and the accused and the circumstances in which the accused was at Mr Possingham’s home at Salisbury North on 24 March 2017. In addition evidence as to the accused’s alleged heroin use was relied upon in support of a possible motive for the accused to commit the offending, namely to steal items of property to fund his drug use.

35. I remind myself that if I accept this evidence, although the evidence can be used for those purposes, it is impermissible for me to reason that because the accused is a drug user, or has offended previously such that he has spent time in custody, he is more likely to have committed an offence or the offences as charged and/or that he is the type of person who may engage in such offending.

    Accomplice

36. Mr Possingham gave evidence of conduct by him which may amount to evidence that he has committed the offence of theft (by receiving) of the ring, such that he is an ‘accomplice’ within the second category as discussed in Davies v Director of Public Prosecutions (UK).[11]

    [11] [1954] AC 378, 400.

37. The experience of the courts has shown that the evidence of accomplices can be unreliable.

38. Accomplices often have interests of their own to serve. They may wish to implicate others out of malice. They may be seeking to shift the blame or part of the blame for the wrongdoing onto another. They might blame a particular person to shield another. They may curry favour with the authorities in order to improve their own situation.

39. Evidence from a person who himself was involved in the crime comes from a tainted source. As such I warn myself that it is dangerous to convict on the evidence of Mr Possingham unless that evidence is corroborated by evidence from a source independent of him which implicates the accused in the offence charged under consideration by tending to show both that the charged offence was committed and that the accused committed it.

40. It is my duty as the trier of fact to consider the evidence to determine whether there is evidence which corroborates Mr Possingham’s evidence.

41. There is no direct evidence, being evidence from a witness who was with Mr Possingham at the time of the alleged admission by the accused to Mr Possingham of his involvement in the incident.

42. Rather the prosecution relies on the circumstantial evidence, outlined above, to prove its case against the accused, together with the evidence of Mr Possingham.

43. If I find there is evidence to corroborate that of Mr Possingham, it is still necessary for me to examine Mr Possingham’s evidence with care, before being satisfied of its reliability and credibility.

    Motive to Lie

44. It was submitted by counsel for the accused that Mr Possingham had a motive to lie about the accused’s alleged admission that he was one of the offenders.

45. During cross-examination Mr Possingham gave evidence that he perceived the accused’s presence at his home was connected with the police attending at the home three times on 24 March 2017, as a result of which his partner Sary was arrested and the home searched. He agreed that he had been engaged in the business of trafficking in heroin and was on a suspended sentence bond with respect to earlier offending.

46. It was submitted that Mr Possingham knew that if he was found in possession of a traffickable quantity of drugs that he was at risk of incarceration and, possibly even at risk of his children being removed from his care by Families SA.

47. It was submitted that as such he was angry at the accused for exposing him to those risks, meaning he had a motive to lie.

48. Mr Possingham denied he was lying about the accused’s admission to him that he was one of the offenders.

    I must consider the possibility of a motive for Mr Possingham to lie, as this is a matter relevant to his credibility.

    However, if I was to reject any alleged motive for Mr Possingham to lie, the absence of a motive to lie does not strengthen the prosecution case, rather the position remains neutral, as the accused need not prove anything.

    Absence of Witnesses

49. Mr Possingham gave evidence that at the time the accused allegedly told him of his involvement in the incident there were three other adult males present and he named them.

50. None of those three potential witnesses were called to give evidence. It was an agreed fact that at a proofing at the DPP Office on 10 October 2018 Mr Possingham was asked if he would disclose the names of the other persons present at 7 Milford Avenue on 24 March 2017 and that he responded with words to the effect of ‘no, they wouldn’t give you statements anyway’.

51. Officer Dring gave evidence that when he spoke to Mr Possingham about the accused’s alleged admissions to him, Mr Possingham had told him that a man called Kurt Matsen was at the Milford Avenue property at the time the accused made the alleged admissions. Officer Dring gave evidence that he attempted to take a statement from Matsen at the Milford Avenue property on 28 March 2017 but did not do so.[12]

    [12]   T 409.32-410.14.

52. Officer Dring also gave evidence that other than identifying Matsen, Mr Possingham did not disclose to him the names of any other persons present at the Milford Avenue property at the time the accused made the alleged admissions with respect to the offending.[13]

    [13]   T 409.2-12.

53. I find that the first time the prosecution learned of the alleged identities of those three persons was upon hearing Mr Possingham’s evidence during the trial. The persons identified by him were Andy, Kim and his brother-in-law Tom.

54. I must not speculate about the nature of any evidence I have not heard. I should not presume that because those witnesses were not called, their evidence would have (or would not have) assisted either the prosecution or defence case.

55. I simply do not know what any of those witnesses may have said had they come to court to give evidence.

    The Evidence

    The Highbury home

56. Exhibit P6 is a plan of the Highbury home drawn by Officer Hill (not to scale).

57. Exhibits P3, P7, P8 and P10 are booklets of photographs taken by Officer Hill at (and in the vicinity of) the Highbury home, during her attendance there in her capacity as crime scene examiner from around 5.55 am to 9.25 am on the relevant date. Officer Hill explained that when she arrived a scene guard was in attendance and it was still dark. She did an initial ‘walk through’ the property before commencing to take photographs, make notes and collect relevant items to be seized.[14]

    [14]   Those items included a hammer seized from the driveway (Exhibit P4), the main body of a torch seized from the driveway (Exhibit P5).

58. The evidence of the complainants was that on the night of the incident the first complainant’s bedroom was that marked ‘bedroom 1’ on Exhibit P6 (the plan) and the second complainant’s bedroom was that marked ‘bedroom 2’. No one else was living at or staying at the home at that time.

59. Although there were two front doors to the house, only one was utilised, being that which led into the ‘front entry lounge’ (front door). The front door had a single key lock and could also be bolted from the inside. It could only be opened from the outside with a key.[15] Officer Hill said that this door was open when she arrived at the home.[16]

    [15]   T 66.2-12; T 111.22-27.

    [16]   T 30.12-19 and photographs on p 27 of Exhibit P3.

60. The other door at the front of the house (second front door) which led into the ‘hallway’ was usually kept deadlocked, and the area up against that door used for storage, effectively making entry through that door impossible.[17] Officer Hill said that door was locked upon her arrival, it did not appear to be in use and that there were rolls of carpet and other objects leaning up against the internal side of that door.[18]

    [17]   Bottom photographs on p 25 of Exhibit P3 and p 8 of Exhibit P7; T 65.16-18.

    [18]   T 30.1-7.

61. There was an air conditioning unit in bedroom 1 which meant the window to that room, which faced the driveway, was kept slightly open, but locked and bolted in that open position.[19]

    [19]   Bottom photograph on p 3 of Exhibit P3 and bottom photograph on p 1 of Exhibit P8; T 68.34-69.4.

62. At the end of the driveway there was a gate which led to the backyard.[20] The first complainant said that gate was usually kept latched shut, but that on the night of the incident it would not have been padlocked.[21] Officer Hill said that when she arrived this gate was open and the padlock was not in use, it simply hanging over the gate.[22]

    [20]   Bottom photographs on pp 10 and 11 of Exhibit P3.

    [21]   T 60.17-38.

    [22]   T 23.16-28 and photographs at bottom of p 11 and top of p 12 of Exhibit P3.

63. In the backyard there was a carport leading to a shed/workshop which was accessed through two roller doors.[23] There was an internal door leading from inside the workshop to a small office.[24] The first complainant said that the roller doors to the workshop ordinarily would be kept closed, but not always locked[25] and that he always kept the office door shut and padlocked.[26]

    [23]   Top photograph on p 14 and photographs on pp 16-17 of Exhibit P3.

    [24]   Bottom photograph on p 18 and photographs on pp 19-20 of Exhibit P3.

    [25]   T 62.31-63.14.

    [26]   T 62.27-30; T 79.36-80.7.

64. Officer Hill observed the left roller door was down and the right roller door was lifted slightly, such that she could duck underneath it.[27] She described the door which led from the workshop to the office as being damaged, as if it had been kicked in. It appeared to be splintered in half.[28] The first complainant said it had not been damaged prior to the relevant date and that ‘they smashed it’.[29]

    [27]   T 25.9-16.

    [28]   T 27.1-15; T 31.4-8.

    [29]   T 62.22-26.

1. The interior of the house could be accessed from the backyard via two different doors.

2. A door from the back verandah provided access to a laundry.[30] That door could be locked from the inside by pressing a button, meaning that if it was locked, it could only be opened from the outside by using a key. The first complainant said that it was his usual practice at night to lock that door by pressing the button and that he thought he had done so on the night of the incident but he could not remember doing so.[31] He said an additional deadlock on that door would only be used if the house was going to be unoccupied for any period of time.[32] The second complainant agreed that ‘generally’ the laundry door would be locked at night by his father, but not always.[33]

   [30]   Photographs on p 22 of Exhibit P3.

   [31]   T 64.8-15.

   [32]   T 63.24-64.15.

   [33]   T 112.4-9.

3. Officer Hill observed that the laundry door was unlocked and did not appear to have sustained any damage.[34]

   [34]   T 29.1-6.

4. There was a set of double doors leading from the poolroom into the backyard.[35] There were three locks on that set of doors. The first complainant said that both a deadlock and a padlock on that set of doors were only used if the house was to be unoccupied for any period of time,[36] noting the second complainant said that at times the padlock was used to keep him out, if he and his father were having an argument.[37]

   [35]   Photographs on p 23 of Exhibit P3.

   [36]   T 64.25-34.

   [37]   T 112.21-30.

5. The first complainant said it was his normal practice to lock those doors at night using the third button lock (similar to that on the laundry door) and he believed those doors were so locked on the night of the incident.[38]

   [38]   T 64.35-65.7.

6. The second complainant said that either he or his father would lock those doors at night, although he conceded that he could not say those doors were always locked.[39]

   [39]   T 112.33-113.2.

7. Officer Hill observed that the poolroom doors were unlocked, such that they could be opened by her from the outside of the home.[40]

   [40]   T 29.16-28.

8. The first complainant said that he would commonly enter the house either ‘through the back’ or by using the front door.[41]

   [41]   T 65.19-66.1.

9. To access the toilet from either bedroom 1 or bedroom 2 it was necessary to walk via the hallway, through the ‘small dining room’ (as marked ‘dining’ on Exhibit P6), then turn left at the entrance to the kitchen and walk down a passage which led to the toilet.[42]

   [42]   T 113.25-114.8.

   Personal property

10. The first complainant owned a generator and an electrical arc welder, both of which were ordinarily kept in the shed/workshop.[43] He owned a chainsaw, which was ordinarily kept in the office.[44]

    [43]   T 61.30-62.3; T 86.22-27; T 129.21-27; photographs on p 9, at bottom of p 14, and on p 15 of Exhibit P3.

    [44]   T 95.4, photographs on bottom of p 3 and top of p 4 of Exhibit P10.

11. He said he kept loose change in some small, plastic cups on a chest of drawers/tallboy to the left of the television in his bedroom.[45] In that same tallboy was a men’s jewellery box which contained some rings, including one with his initials ‘RMC’ engraved on it,[46] and some chains.[47]

    [45]   T 80.14-22; T 81.30-82.10; bottom photograph on p 1 of Exhibit P8.

    [46]   Exhibit P11.

    [47]   T 83.12-21; T 83.25-84.3.

12. The complainants gave evidence that the first complainant owned a motorcycle, being a 250 Kawasaki (the Kawasaki).

13. The first complainant said he had last seen the Kawasaki prior to the incident on the back verandah, in the area in front of a fold-up chair adjacent to the laundry door.[48] He said this was where he usually kept the Kawasaki, although it was sometimes left near the end of the back verandah or parked on the pathway near the garden hose outside of the French doors leading to the poolroom.[49] He used a number of old bed sheets to cover it.[50]

    [48]   T 87.28-29; T 88.4-20; top photograph on p 22 of Exhibit P3.

    [49]   T 88.21-26.

    [50]   T 87.17-18.

14. The first complainant identified the Kawasaki as the motorcycle depicted in the photographs contained in Exhibit P12.[51]

    [51]   T 90.17-19.

15. The second complainant said he also used the Kawasaki[52] which was usually kept near the back laundry door, covered by sheets, in an area in front of the bottles as depicted in the top photograph on page 22 of Exhibit P3.[53] He recognised the pink and blue items on the ground (depicted in the photographs on page 10 of Exhibit P3) as being the sheets which ‘would have been on the bike’.[54]

    [52]   T 131.37-38.

    [53]   T 132.1-133.10.

    [54]   T 133.11-20.

16. The first complainant also owned a black motorcycle helmet, some new gloves and some older racing gloves which he usually kept on a wooden chair near the door in the small dining room.[55] The helmet was a good one, with a full face visor.[56] He identified his helmet as that depicted on the left hand side of photograph 7 in Exhibit P12.[57]

    [55]   T 88.36-89.17; T 134.16-26.

    [56]   T 88.27-89.32.

    [57]   T 91.6-15.

17. In response to questions from me during cross-examination the first complainant said that the helmet was sometimes kept sitting on a Chesterfield in the poolroom.[58]

    [58]   T 100.37-101.6.

18. The first complainant said he had three sets of keys for the Kawasaki, all of which he kept in the drawer in the bedside table to the left of his bed (although a set of keys was sometimes kept on a hook in the kitchen).[59]

    [59]   T 93.29-94.8.

    21-22 March 2017 – at Highbury

    First Complainant’s Evidence

19. The first complainant gave evidence that he spent the day before the incident ‘probably in the workshop’[60] at the rear of his home, as that was what he normally did. He said that his son, the second complainant, was home that night, and he thought that they had eaten dinner together.

    [60]   T 58.7.

20. The first complainant believed he had then gone to bed at about 8 pm and had not left his bedroom again that night.[61] It was his usual practice not to go to sleep straight away, but to instead watch some television, before usually dozing off at about 11 pm. He usually had a few scotches beforehand and would sometimes take a glass to bed with him.[62] He had no memory now of what time he went to sleep that night.

    [61]   T 58.21-36; T 70.17-20.

    [62]   T 59.9-20.

21. The first complainant was asked whether he could remember if any other lights were on inside the house when he went to bed. He said that ordinarily when he went to bed he would turn all of the lights off in the rest of the house and that he would have done so on the night prior to the incident.[63] He said if his son was up watching television he may leave a light in the kitchen on, but he could not recall if his son was still up when he went to bed that night.[64] He could not recall any light coming in through the window or the corridor at the time the men came into his bedroom.[65]

    [63]   T 69.26-35.

    [64]   T 70.5-16.

    [65]   T 97.33-37.

22. The only light that may have been on in his bedroom was the ‘little bedside lamp’, but he doubted that lamp was on at the time he was awoken by intruders in his room and later he said he simply could not recall if that bedside lamp was on.[66] He thought the large screen television in his bedroom would have been off when he went to sleep.[67]

    [66]   T 71.31-34; T 97.29-32; T 98.1-2.

    [67]   T 71.16-30.

23. The first complainant remembered waking up in the early hours of the morning to see two men coming into his bedroom in a rush and said that within seconds he had a gun barrel thrust into his neck. He said both men had guns, one was standing to his right holding the gun so it was pushed into his neck (male one) and the other was standing at the end of the bed in front of the television (male two). He did not notice any difference in the two guns, and described male one as having a gun with a black barrel, around 800 mm long and a wooden stock.[68]

    [68]   T 72.2-73.5.

24. The first complainant described both males as being dressed the same, wearing ‘similar to army-type clothing, like combat clothing, camouflage clothing.’[69] He thought each male was wearing a cap[70] and male one was wearing gloves.[71]

    [69]   T 73.15-16.

    [70]   T 73.8-10.

    [71]   T 73.25-28.

25. By ‘camouflage clothing’ he meant it had a camouflage coloured pattern.[72] He was asked to compare the pattern on the offenders clothing with that on his own jacket depicted in the top photograph on page 14 of Exhibit P7 and said the pattern on his jacket was much larger and less detailed and the colours on the offenders’ jackets were deeper.[73]

    [72]   T 73.17-19.

    [73]   T 84.33-85.16.

26. The first complainant said male one was wearing gloves and that he could not see his face as it was covered by ‘a mask, and had like a bandana or something’.[74]

    [74]   T 73.37.

27. He described the mask as ‘one of those white and ugly looking things’[75] and said it was predominantly white, with painted in facial features, with goggles or eyes. He was not sure if the goggles were in-built or worn on the outside, but he could not see the male’s eyes.[76] In cross-examination, he said that both of the offenders’ masks were identical.[77]

    [75]   T 74.1.

    [76]   T 74.6-10; T 75.2-7.

    [77]   T 102.8.

28. He estimated male one was maybe 5’7’’ tall, although it was hard to tell from his position lying on the bed.[78] He described him as looking ‘reasonably fit and – just normal – seemed quite strong’.[79]

    [78]   T 75.9-12.

    [79]   T 78.28-29.

29. The first complainant said that male one had said something to him about ‘a woman, a girl, young girl’[80] and described the male’s voice as being mature (as in more than a teenager) and forceful, but not hysterical or screaming.[81]

    [80]   T 75.37-76.3.

    [81]   T 77.29-35.

30. He said he had replied by saying words to the effect of ‘there’s no, no young girl been here’ and ‘I think you got the wrong house mate and the wrong bloke’.[82] He recalled male one saying ‘Yes, you did’ or ‘yes you do’.[83] He had tried to get up and had used his right hand to push the gun up under male one’s neck and then dragged his mask down to about mouth level. When asked to further clarify this evidence he said he pulled the whole of the mask down, probably to about chin level.[84] He recalled feeling that male’s facial hair, which he described as being ‘a light beard’.[85] He could see part of male one’s face at that time, but not a lot, explaining that at that time he ‘was too busy trying to live’.[86]

    [82]   T 76.6-8.

    [83]   T 76.16-17; T 77.19-26.

    [84]   T 96.24-30.

    [85]   T 75.27-31.

    [86]   T 75.33.

31. The first complainant then remembered being ‘bashed and smashed’[87] with the butt of a gun. He tried to put his hands over his head to protect himself. He thought he had been hit around 15-20 times before being rendered unconscious and described getting a split lip, broken teeth and being bashed in the head. He said he had ‘holes’ in his head which he thought were from the sights at the front of the barrel.[88]

    [87]   T 76.16.

    [88]   T 76.28-29.

32. He had not paid much attention to male two, who he could only remember as standing at the end of the bed and pointing a rifle at him. However, he believed male two was slightly shorter and slimmer than male one.[89] He never saw male two’s face as at all times when he was conscious it was covered by a full face mask.[90] As to male two’s voice, he said ‘the other one never said anything’[91].

    [89]   T 78.23-25.

    [90]   T 99.12-13.

    [91]   T 78.8-10.

33. The first complainant said that within about a minute of the two men coming into his bedroom, the second complainant came into the room. He recalled male two butting his son as he walked through the door, causing his son to go ‘down like a sack of potatoes’.[92] The first complainant described himself as ‘not very good, sort of semi-conscious’ at this time.[93]

    [92]   T 78.38-79.21.

    [93]   T 79.24.

34. He could recall hearing one of the men tipping the coins he kept in the plastic cups on the tallboy into ‘his pockets, in his coat’,[94] of trying to protect himself and thinking he was going to die.

    [94]   T 80.26.

35. His next memory was of being in the ambulance. He agreed that his memory of events which occurred after he had been ‘bashed’ had been impacted by the bashing.[95] He said he had spent six days in hospital recovering from the injuries he had sustained including multiple head wounds, which had required between 30 to 35 stitches, a split lip, broken teeth and bruised ribs.

    [95]   T 97.17-21.

36. Exhibit P31 includes a statement from Dr Eu Ling Neo dated 28 September 2017, medical practitioner, who saw the first complainant at the Royal Adelaide Hospital at 9.40 am on 22 March 2017. The first complainant presented with cuts on his left forehead, left eye region, left scalp, left earlobe and lip, together with some loose teeth. X-rays showed multiple fractured ribs, a broken nose and a dislocation of the right 5^th finger. The first complainant reported he had sustained these injuries in a home invasion at which time he had been assaulted with butts of guns to his head, chest and abdomen.

37. Dr Neo reported the first complainant was discharged on 25 March 2017 and was expected to make a full recovery from his injuries.

    Second Complainant’s Evidence

38. The second complainant gave evidence that on the day prior to the incident he was not working and it was an unremarkable day. However, he recalled having a bit of an argument with his father and of going to bed early, before his father, around dinner time (between 6 to 8 pm).[96]

    [96]   T 109.23-110.14.

39. His last memory of what his father was doing was of wandering between the kitchen and his bedroom, drinking Scotch. He said his father was affected by alcohol.[97]

    [97]   T 110.21-34.

40. In cross-examination, the second complainant said that his father had been arrested following an altercation with him the night before the incident and that after his arrest his father had not returned home until late in the afternoon.[98] The first complainant was asked about this in cross-examination and he had no such recollection.[99]

    [98]   T 138.17-33.

    [99]   T 103.20-104.31.

41. Contrary to the first complainant’s evidence that no lights were routinely left on inside the house at night,[100] the second complainant gave evidence that there was a general practice adopted of leaving the kitchen light on, so that is someone got up in the night to go to the toilet some light would be cast into the hallway.[101] He was ‘pretty sure’ the kitchen light was still on when he went to bed, but uncertain as to whether the hallway light was on at that time.[102]

    [100] T 69.26-32.

    [101] T 113.7-21; T 114.29-115.1.

    [102] T 115.2-6.

42. The second complainant said he woke up and could hear thumping noises, yelling and his dad moaning. The noises were coming from his father’s bedroom. He got out of bed and walked towards his father’s bedroom. The door to that room was partially closed. He remembered there was some ‘dim’ light coming from the kitchen but could not remember if any other lights were on.[103]

    [103] T 117.5-22.

43. In cross-examination the second complainant said that he was ‘pretty sure the lamp was on in his bedroom’. He agreed this was an assumption he had made, prefacing it with a comment that if that lamp wasn’t on, neither he nor the offenders would have been able to see anything.[104]

    [104] T 142.9-18.

44. He saw a man standing at the end of the bed pointing a gun at his father (male two) and another man next to his father (male one), using the butt of his gun to beat him up.[105]

    [105] T 117.23-118.4.

45. As the second complainant made his way into his father’s bedroom, male two turned the gun he was holding so that it was facing him, instead of his father. He put his hands up, told him not to shoot and walked backwards out of the room, to his bedroom door. He described the gun as looking like an old rifle, maybe a 22, with a black barrel and ‘wood handles, stock’.[106] He was not asked about the type of gun male one was holding.

    [106] T 135.8-14.

46. He said male two followed him out into the hallway, keeping a distance of about one metre,[107] then told him to get up and go into his father’s bedroom and followed him back into that room. He described male two as ‘shaking’ and said ‘I think he was just as scared as I was.’[108] He saw his father sitting up in bed, still being beaten up by male one.[109]

    [107] T 118.14-36.

    [108] T119.15-17.

    [109] T 120.1-13.

47. Male two told the second complainant to lie down on his stomach at the end of the bed and to cover his head, so he did. He lay with his feet closest to the door.[110] From that point he could no longer see what was happening to his father, but he could hear what was happening in the room. He thought he was in this position for about 15 minutes, during which time male two stayed right next to him, making sure he did not get up or do anything.

    [110] T 143.26-33.

48. During this period of time he heard male one ‘saying something about a 15-year-old girl and it was his niece or something like that’.[111] Although he could not recall the exact words used he remembered something like ‘Do you like molesting’ and words to the effect of ‘Are you having sex with 15-year-old girls’, being words directed from male one to his father.[112] His father had replied with words to the effect that he did not know anything about what they were talking about.[113] In cross-examination the second complainant said he was ‘pretty sure’ that he heard male one describe the 15-year-old girl as his niece.[114]

    [111] T 120.34-36.

    [112] T 120.38-121.2.

    [113] T 121.5-6.

    [114] T 141.28-32.

49. The second complainant said he heard male one ask his father where his wallet and car keys were. His father had said his wallet was in the office and that a woman who had been there earlier in the week had stolen his car keys.[115] The two men then left the room and he could hear them rummaging through the house[116] and whistling to each other, in a similar way to how a dogman or crane man might communicate.[117]

    [115] T 122.22-26.

    [116] T 123.6-11.

    [117] T 123.33-124.21.

50. As male one left the bedroom he kicked the second complainant in the face, causing his lip to split open. The second complainant said that the staining depicted on the carpet in the bottom photograph on page 3 of Exhibit P8 was his blood from being kicked in the face.[118] I note the second complainant gave a similar history, namely that he had been kicked in the face, when he presented at the Emergency Department of the Royal Adelaide Hospital at about 5.22 am on 22 March 2017.[119]

    [118] T 123.18-31.

    [119] Exhibit P31, statement of Dr Farida Josephine Suplido dated 24 October 2017, and such injury is evident in the photographs taken by police of the second complainant, tendered as Exhibit P15.

51. The second complainant said that as he remained lying face down at the end of the bed in his father’s bedroom, he ‘saw the man that was next to me cleaning two guns’ in the hallway. By cleaning, he meant wiping them down with a leopard skin rug or blanket, being the item depicted on the floor in the hallway in the top photograph on page 1 of Exhibit P8.[120]

    [120] T 125.4-23.

52. He said male one asked him where his car keys were and he told him they were in the jeans pocket in his bedroom. He said, ‘most of the lights in the house were on at this stage’.[121] He looked up and saw male one. He described him as wearing a green mask, ‘like a scary Halloween mask type thing, full faced, demon looking’.[122] He did not see that male’s face.[123] He clarified that the mask was probably closer in colour to aqua than green,[124] that it was a full face mask which covered the whole of the wearer’s head[125] and he thought it may have had small horns on it, sticking up from the ‘forehead, top of the head’.[126]

    [121] T 126.27-28.

    [122] T 126.9-19.

    [123] T 140.26.

    [124] T 144.28-30.

    [125] T 148.1-3.

    [126] T 148.17-27.

53. The second complainant said that the first complainant had asked male one if he could have a cigarette, he did not see his father smoking thereafter but he heard the lighter.[127]

    [127] T 127.7-17.

54. After a while things had gone quiet, so he got up and saw that his father was in a really bad state, was drifting in and out of consciousness and there was blood everywhere.

1. He put on some pants and ran to a neighbour’s house for help. In an affidavit affirmed on 13 April 2018, Ms Newsome confirmed that she was woken at about 3 am on 22 March 2017 by one of the residents from the Highbury home knocking on her door. The resident was covered in blood, with obvious injures to his face. He said he had been home invaded, that the people who had come into his house had guns and his father had been badly beaten. Ms Newsome called ‘000’.[128]

   [128] Exhibit P31; affidavit of Samantha Angela Newsome sworn 13 April 2018.

2. The second complainant gave evidence that subsequently both police and ambulance personnel arrived at the home and he and his father were taken by ambulance to hospital. He was able to return home later that morning.

3. The second complainant had more contact with male two than male one and he said he saw his face.[129] He described male two as being slightly shorter than he was (and he estimated his height at 5’8”, 5’9”) and of average build. He said he was wearing dark ‘bogan looking’ clothing, which he further clarified as being ‘like black jeans, flannelette shirt type thing’.[130]

   [129] T 135.15-16.

   [130] T 135.1-7.

4. He thought male two had something on his head, which looked like a rolled-up mask or bandana. From the man’s facial features he thought he was of either Middle Eastern or Italian descent, his face was sort of ‘roundish’ and his eyes were ‘sort of close, close together’. He had black hair which was receding/balding, with facial hair, being of even length for both his moustache and beard, such that he looked like he had not had a shave for a while. He clarified that male two’s facial hair was a lot longer than his own at the moment, that he used clippers and had clipped his own facial hair about a week ago. He estimated male two’s age to be about the same as his own, namely 40.[131]

   [131] T 135.17-136.26; T 141.12-27; T 147.12-26.

5. In cross-examination the second complainant was asked how he could see male two’s hair if he had a rolled up mask or bandana on his head. He explained that male two had taken the mask properly off by the time he saw him cleaning his gun. At this time the second complainant was still lying face down on the ground in his father’s bedroom, at the foot of the bed, with his feet closest to the door. He described male two as ‘just standing pretty well next to me in the doorway’ and then said male two was crouching. He had been able to see male two from the position where he was, lying on the floor, in the area near the bloodstain depicted on page 3 of Exhibit P8, by turning his head to the right. He disagreed with a proposition that from this position he would not be able to see back to the door.[132]

   [132] T 143.3-144.19.

6. The second complainant described male one to be of ‘average’ height and ‘a bit stockier’ than male two. He said he had nothing on his face or head, other than the mask. He could not say anything about his clothing. He described him as appearing calm, said he spoke well and from his voice he estimated he was in his mid-30s.[133]

   [133]  T 136.34-137.18.

   Missing property

7. The first complainant was shown several photographs that had been taken both inside and outside of his home by Officer Hill in the hours shortly after the incident.

8. Although he did not actually see either man going through his bedroom drawers or the rest of his house and yard, he said that the drawer on the right side of his bed had not been left open by him,[134] the generator and arc welder had not been left in the backyard by him[135] and the small woven tray which ordinarily contained bits and pieces and knick knacks had not been left by him on the floor of the dining room, it being ordinarily kept on a coffee table in the kitchen.[136]

   [134] Bottom photograph on p 2 of Exhibit P8; T 81.22-27.

   [135] T 61.37-62.3; T 86.22-87.2; see also second complainant’s evidence at T 129.21-32 regarding the movement of the welder.

   [136] T 67.15-68.6; bottom photograph on p 14 and top photograph of p 15 of Exhibit P7.

9. The first complainant said that a hammer that police had found lying in the driveway had not been left there by him and was usually kept in the workshop.[137] He said he owned three or four torches which were similar to that which was discovered by police, in pieces, on the driveway. He identified that particular torch as the one which he usually kept in the workshop as it had grease on its handle.[138] A similar torch found under his bed, turned on, had not been turned on when he went to bed the night prior to the incident.[139] The lamp on his bedside table was usually kept upright, not on its side (as depicted in the photographs on page 2 of Exhibit P8) and he presumed he may have knocked the lamp over with his elbow during his scuffle with male one.[140]

   [137] T 85.17-86.1; bottom photograph on p 4 of Exhibit P3.

   [138] T 86.2-21; photographs on p 6 of Exhibit P3.

   [139] T 70.20-71.15; bottom photograph on p 5 of Exhibit P8.

   [140] T 81.15-21.

10. He identified the chainsaw depicted in the photographs on pages 3-4 of Exhibit P10 as being his chainsaw, which was usually kept in the office.[141]

    [141] T 95.4; T 96.9-14.

11. He said that when he returned home after being discharged from hospital he realised a number of items of his personal property were missing. This included loose change taken from the plastic cups on his bedroom tallboy, the contents of his jewellery box had been emptied and taken, binoculars and a camera. He said a ring his mother had given him which had his initials (RMC) engraved on it was also missing. [142] He identified that ring as Exhibit P11 (the ring).

    [142] T 82.12-14; T 83.10-84.3.

12. In cross-examination, the first complainant said he did not have a specific memory of when he had last seen the ring before the incident and it could have been more than a week before. He said he had last seen it in the jewellery box which he kept on the tallboy in his bedroom.[143]

    [143] T 99.17-31.

13. The first complainant agreed in cross-examination that prior to the incident prostitutes would, on occasions, frequent the house. It was suggested to him it was possible that one of those prostitutes had stolen the ring. The first complainant said he did not think so and explained that he never used bedroom 1 with prostitutes.[144]

    [144] T 102.15-103.16.

14. The second complainant was cross-examined as to his knowledge of prostitutes frequenting the house and he said that prostitutes had attended at the house in the 12 months leading up to the relevant date.[145]

    [145] T 137.20-37.

15. The first complainant said neither the Kawasaki, his motorcycle helmet nor his good gloves were at the home after the incident, although none of the three sets of keys he had for the Kawasaki were missing.[146] He had last seen the Kawasaki on his back verandah covered in old bed sheets.[147] When shown the bottom photograph on page 10 of Exhibit P3, he identified the pink and blue items on the ground near the gate as old bed sheets which he had not left in this position and which he assumed had been the ones he had used to keep the Kawasaki covered.[148]

    [146] T 89.31-38; T 93.29-94.10.

    [147] T 87.26-32.

    [148] T 87.3-21.

16. The second complainant also identified those sheets which were ordinarily used to cover the Kawasaki and said that if he had seen those sheets lying on the ground the day prior to the incident (as depicted in the photographs on page 10 of Exhibit P3), he would have picked them up.[149]

    [149] T 133.11-23.

17. The first complainant gave evidence that when he got the Kawasaki back from the police after the incident it was damaged. Specifically, the ignition switch was damaged and filed back and the lock which enabled the seat to lift up and the area under the seat to be accessed was also damaged.[150]

    [150] T 91.28-92.38.

18. In cross-examination, the first complainant said he only used the Kawasaki on rare occasions and that when it was not in use it would always be left covered on the back verandah. He could not remember when he had last used it, although it would have been less than a month before the incident.[151] He said that the second complainant also used the Kawasaki occasionally. He could not recall when the second complainant had last used it but said he always covered it up after he had used it ‘or he’d get told off’.[152]

    [151] T 100.12-17.

    [152] T 100.2-11.

19. When asked when he had physically laid eyes on the Kawasaki before the incident the first complainant said: ‘The day, that was it, I would have known if it was gone.’[153]

    [153] T 103.19.

20. The first complainant said that none of his keys had been taken during the incident. In cross-examination, he agreed with a proposition put to him that a set of his keys had gone missing from his kitchen about a week before the incident, at about the time he was visited by a lady who he said was uninvited, and used to work for an escort agency. Those keys comprised the keys to the two front doors, the laundry door and the French doors into the poolroom, but did not include keys for any vehicles.[154]

    [154] T 106.19-22; T 107.2-13.

21. The second complainant could not remember whether he had gone into the backyard on the day prior to the incident, so he could not say whether the Kawasaki was in its usual place that day. He said that if he had gone out the back he would have noticed if the Kawasaki was missing.[155] Similarly he said he would ‘probably notice’ if the motorcycle helmet was not in its usual spot in the dining room, but that he was not particularly looking for it on the day before the incident.[156]

    [155] T 134.6-15.

    [156] T 139.22-33.

22. The second complainant was asked in cross-examination if he had heard a motorcycle start up, or the engine noise from a motor cycle, at any time during the incident and said that he did not. He agreed he would have heard engine noise if the motorcycle was driven down the driveway while he was in his father’s bedroom.[157]

    [157] T 140.8-18.

23. The second complainant also gave evidence about items of his personal property that he realised were missing when he returned to the home after attending hospital. These included his phone, his jeans and his keys.[158] He said the belt which had been in his jeans was the belt depicted in the bottom photograph on page 5 of Exhibit P10, found by police during their attendance after the incident, lying on the verge of Amber Road near the intersection with Zircon Crescent.[159]

    [158] T 130.15-17.

    [159] T 130.12-14; T 130.20-24; T 52.15-22; T 53.37-54.7.

    24 March 2017 – at Salisbury North

24. The accused was arrested at an address in Milford Avenue, Salisbury North (the Milford Avenue property) on 24 March 2017, two days after the incident, for the illegal use of the Kawasaki. The arrest was conducted by Officers Donaldson and White, who at that time were stationed at Elizabeth Police Station working in the CIB tactical team.

25. Officers Donaldson and White gave evidence on a voir dire and at trial as to the circumstances surrounding and leading up to the accused’s arrest. Their evidence was inconsistent as to the sequence of events, being relevant to a consideration of aspects of the circumstantial case against the accused.

26. Further, only Officer Donaldson gave evidence as to the fact of the first and second alleged admissions by the accused.

27. On 24 March 2017 Officers Donaldson and White were conducting plain clothes investigations, in an unmarked vehicle, in their tactical area. Officer White was driving. At approximately 11.25 am he slowed down as they drove past a house in Milford Avenue, Salisbury North, being an address suspected to be associated with drug dealing.[160]

    [160] T 150.29-31; T 198.15-19.

28. Both officers observed a male in the driveway at the front of the home apparently working on a motorcycle. Neither officer knew of the incident, or its circumstances, at this time.

29. Officer Donaldson made his way on foot up the driveway to speak to that male. At or about this time Officer White received a personal phone call informing him of a medical emergency involving a family member. He stayed inside the vehicle for several minutes dealing with that call and other necessary calls and text messages to family members. He claims to have continued to receive calls and text messages relating to the family emergency during the attendance.

30. It was the prosecution case that insofar as there were any inconsistencies in the evidence of Officers Donaldson and White as to what occurred and the sequence of events, that could be explained by the fact that Officer White was distracted during his attendance at the Milford Avenue property, such that his recollection of events may not now be accurate. Further it was submitted that the notes Officer White made of the attendance may be absent certain details or inaccurate because of this.

    Evidence of Officer Donaldson

31. Officer Donaldson gave evidence that the male he observed in the driveway of the Milford Avenue property was hunched down and appeared to be looking under the seat of the motorcycle.[161] He said he walked up to the male and engaged in a casual conversation with him for a period of about 30 seconds.

    [161] T 151.28-33.

32. He recalled having a general conversation with the male wherein in addition to asking for his personal details he had enquired ‘Is it your bike?’ Although he could not recall the exact words used, the male communicated to him that the bike was his (the first alleged admission).[162]

    [162] T 153.2-5; T 154.1-6.

33. The male in question was the accused.

34. In cross-examination, the following exchange occurred:[163]

    [163] T 175.23-176.20.

    QWhen you had that initial conversation – before you found out the motorcycle was stolen, what were the exact words used by Mr Fowler to claim ownership of the bike.

    AI don’t recall the exact words, however typically I would ask if it was his bike.  I don’t recall the exact words, it’s some time ago.

    QWas it him responding to you asking a question or did he volunteer ‘This is my bike’.

    AIt was more so like I said, a relaxed conversation, yeah, and it was just a general chat.

    QDid he say ‘This is my bike’ or did he respond to your question and say –

    AHe responded to my question of ‘Is it your bike?’

    QDo you have a memory of that or is that what you typically would have done.

    ATypically what I would do, yes.

    QYou have no memory of it.

    AI don’t recall it 100%, no.

    QYou said yesterday afternoon the inference you got from the conversation was Fowler claimed that it was his bike.

    AYes.

    QWhen he responded to your question did he respond verbally or non-verbally.

    AIt would have been verbally.

    QWould have been.

    AI don’t recall.

    QCould have nodded.

    AMay have.

    QIt might not have been that he responded verbally, he could have responded with some body language.

    AI don’t recall.

    QWhen you say you ‘don’t recall’, that’s possible.

    AI don’t recall so, yeah, it’s possible.

    QBut it was your impression at that point that he had claimed ownership of the motorcycle.

    ACorrect.

35. Officer Donaldson said that thereafter Officer White had approached them, walked around the motorcycle and undertaken a radio transmission check on it (radio check). He described Officer White as moving away from where he remained with the male, and of being about three to four metres away, but still on the driveway. He could hear Officer White talking, but not what he was saying and although he could hear noise coming from the radio transmission, he could not make out what was being said.[164]

    [164] T 154.12-18; T 155.5-30.

36. Officer Donaldson said that at some point thereafter Officer White walked back to the police vehicle to conduct a Mobile Rugged Tablet check (MRT check) with respect to the motorcycle. He said that after about 20 to 30 seconds Officer White walked back towards him and ‘he’s sort of under his breath given me the indication that like, ‘Dan, stolen,’ just to alert me that the bike was stolen.’[165]

    [165] T 156.14-21.

37. Officer Donaldson said that the accused must have heard what Officer White said as in reaction to it, the accused then said ‘I bought it for $500, that’s the last time I trust black fellas’ (the second alleged admission). He said that at the time he was standing within a metre to two metres from the accused and Officer White was a similar distance away from him. He described what the accused had said as being said ‘very audibly’, rather than having been whispered.[166]

    [166] T 156.27-32; T 182.18-183.2.

38. When asked in cross-examination if Officer White had heard the accused make this comment Officer Donaldson said:[167]

    AI believe he would have, unless – I don’t know, I don’t know what he sort of said to me when the comments occurred, yeah.

    QWhite wasn’t standing very far away when that comment was made.

    AI believe it was said as he was sort of approaching me from the vehicle, however as I said, some time’s elapsed and I don’t recall exact movements of where we were on the driveway.

    [167] T 183.4-12.

39. Officer Donaldson was adamant that it was only after the MRT check had been conducted that he learnt, from Officer White, the motorcycle was stolen and it was (seemingly) in response to Officer White communicating that information to him, the accused had blurted out the second alleged admission.

40. Officer Donaldson gave evidence that thereafter Officer White had searched the accused and had found a pair of scissors in his pocket.[168] He said he had then conducted a more thorough check of the motorcycle and taken some photographs of it (Exhibit P12).

    [168] T 156.36-37.

41. As to those photographs he confirmed the seat had been on the motorcycle when he first spoke to the accused about it, but the seat had come off during his discussions with him.

42. Photograph 2 of Exhibit P12 depicts the rear number plate of the motorcycle as it appeared to Officer Donaldson on that day. He described its appearance as ‘charred or severely weathered’.[169] He said there was damage to the ignition barrel and a key in that barrel which was like a general house key.[170] The seat release had also been damaged and there was no key for it.[171] There were two motorcycle helmets on the ground next to the motorcycle in the position as depicted in photograph 8 of Exhibit P12. Both helmets were seized.[172]

    [169] T 159.29-31.

    [170] T160.1-6; photographs 3 and 4 of Exhibit P12.

    [171] T 160.22-161.14: photographs 5 and 6 of Exhibit P12.

    [172] Photograph 11 of Exhibit P12; Exhibits P13 (RXT Motorcycle helmet with visor); Exhibit P14 (older black helmet).

43. Officer Donaldson gave evidence that thereafter there was a conversation with the accused whereby he was informed he would be arrested. He said that it was in this context that the accused had said, in quite a loud voice, words to the effect of ‘Vickey bring my bag out’ and that within five to 10 seconds a woman came out of the house, approached the three of them and placed a dark coloured backpack in their vicinity.[173] Officer Donaldson later learnt that Vickey was Vickey Michailidis, the accused’s wife.

    [173] T 161.32-37; T 162.11-25; T 162.32-163.5.

44. Thereafter either he or Officer White had retrieved a video camera from the vehicle, the camera was activated and the accused was placed under arrest and given his arrest rights.[174] He was arrested for illegal use of a motor vehicle, being the motorcycle.

    [174] T 163.14-34.

45. In cross-examination Officer Donaldson maintained that consistent with what was in his handwritten notes, the accused had said ‘Vickey, bring my bag out’, that these were the exact words he used and that he made this request before the video recorder was activated.[175] He disagreed with the suggestion that in fact the accused had asked Vickey to bring out his smokes.

    [175] T 187.18-188.16.

46. The disc containing the video recording made at that time was tendered as Exhibit P17 and played to the Court. The recording was activated at 11.45 am on 24 March 2014. It depicts the accused standing next to a motorcycle on a driveway.

1. On 22 March 2017 the first complainant was on bail for the indecent assault of KM.

2. KM was 17 years of age at the time of the offending being the subject of that charge.

3. As at 22 March 2017, KM had three uncles, none of whom were the accused.

4. I accept the evidence of Officer Dring that there is no known connection between the accused and KM.

5. The first complainant gave evidence that during the incident male one said something to him ‘about a woman, a girl, young girl, something to do with a young girl’ and ‘yes you did’, to which he had responded ‘I think you’ve got the wrong bloke and the wrong house’.[389]

   [389] T 75.38-76.1; T 76.16-19.

6. The second complainant gave evidence that male one was beating up his father and ‘kept saying something about a 15-year-old girl and it was his niece or something like that’ and ‘do you like molesting’, although he could not recall the exact words used. However, he understood the gist of what male one to be saying was ‘Are you having sex with 15-year-old girls’.[390] He said he was ‘pretty sure’ that male one described the 15-year-old girl as his niece.[391]

   [390] T 120.34-121.2.

   [391] T 141.28-34.

7. Mr Possingham gave evidence that the accused told him that he had bashed the man because he thought he was a paedophile.[392]

   [392] T 296.20-24.

8. KM was not 15 years of age at the time of the alleged offending by the first complainant, rather she was 17. Further, that offending was a charge of indecent assault, the circumstances of which involved the first complainant allegedly saying the following words to KM:[393]

   Has your boyfriend been doing things to you? Like sticking his tongue down your throat? Maybe you should be doing the same to him, so he loses his.

   [393] Exhibit D33 [3].

9. Km alleged the first complainant later asked for her assistance to locate an item within the store and while doing so, allegedly slapped her on the bottom. KM described this slap as ‘not hard, it was like a pat. His hand moved upwards and hit the bottom of my cheek’.[394]

   [394] Exhibit D33 [7]-[9].

10. KM described feeling uncomfortable because of what had happened.

11. While the circumstances as described by KM were no doubt distressing, the nature of the charge is such that it falls towards the lower end of the scale in terms of indecent assaults. Further, KM was 17 years of age at the time, not a ‘young girl’, and indeed, of the age of consent for the purposes of s 49(3), albeit not s 49(5), of the Criminal Law Consolidation Act 1935.

12. The charge does not involve any allegation of ‘having sex with 15-year old girls’, or indeed, of paedophilia.

13. While the second complainant is now ‘pretty sure’ male one identified the 15-year-old girl as his niece, if he did use those words, then he could not have been referring to KM as she was not 15. As such, if those words were used by male one, it is likely that male one was not referring to KM, and/or, as claimed by the first complainant at the time, the offenders had the wrong man and the wrong house.

14. However, it seems unlikely that the fact of this charge is simply coincidental.

15. Given the disparity in the allegations made by KM against the first complainant and the words used by male one as described by the second complainant, I consider it likely that the second complainant is now mistaken in terms of the accuracy of his recollection as to the detail of the words used by male one. Again, this can be explained having regard to the frightening nature of the incident, and that these words are said to have been uttered by male one while he was in the process of beating up the first complainant.

16. The evidence falls far short of a finding that male one was necessarily KM’s uncle.

17. The fact the accused is not KM’s uncle, nor otherwise known to be connected to KM, does not add support to the prosecution’s case that he is one of the offenders, but does not, of itself, disprove his role in the offending. I am, however, mindful of this evidence, and it has caused me to scrutinise the other potentially incriminating evidence as against the accused with great care.

18. As previously outlined, I have found that the accused was a drug user, and specifically a heroin user, at the time of the incident. The offenders not only sought to harm the first complainant, but they ransacked the Highbury home, and stole items of property from it. It is of course possible therefore that the accused had a motive to commit the offending, namely the theft of property, to fund his heroin habit. Of course, there are many people with drug addictions who may have a possible motive to commit the offence of theft.

19. The existence of a possible motive cannot, of course, prove that the accused is guilty of any of the charges, although it may be one factor which, when taken with other factors, may lead to a conclusion as to an accused’s actions and intentions.

    Forensic Evidence

20. There is no fingerprint or DNA evidence in any way linking the accused to the Highbury home. Similarly, there is no DNA evidence linking either complainant to blood like stains found on the accused’s shoes and clothing.

21. A mixed DNA profile was obtained from a swab taken from the handle of a hammer found at the Highbury home. Analysis of that profile supports a hypothesis that the accused was not a contributor to that profile and I make a finding to that effect.

22. Similarly, a mixed DNA profile was obtained from a swab taken from the handle of a hammer found at the Highbury home. Analysis of that profile supports a hypothesis that the accused was not a contributor to that profile and I make a finding to that effect.

23. However, both complainants gave evidence that there were two offenders involved in the incident. The first complainant said male one was wearing gloves.

24. As such, the absence of any DNA or fingerprint evidence linking the accused to the Highbury home and the fact he was not a contributor to the mixed DNA profile found on items which were found to be ‘out of place’ following the incident, and therefore were likely handled by an offender, does not, of itself, mean the accused was not one of the offenders.

25. Rather the position is that the forensic evidence does not lend support to the prosecution case that the accused was one of the offenders.

    The ring

26. I accept the evidence of Officer Dring and find that Mr Possingham gave the ring tendered as Exhibit P11 to Officer Dring when he spoke to him at the Milford Avenue property on 28 March 2017.

27. I reject Mr Possingham’s internally inconsistent and changing evidence as to how he came to be in possession of the ring.

28. I decline to make any findings as to how and why Mr Possingham came to be in possession of the ring. However, the fact he was in possession of it on 28 March 2017 is, in my view, not inconsistent with the other findings made herein. It is possible, in light of my other findings, that the accused gave the ring to Mr Possingham in exchange for Mr Possingham supplying heroin to him, however I am unable to make such a finding in the absence of additional, reliable evidence.

    Description of Offenders

29. As previously stated, insofar as there are any discrepancies in the evidence given by the complainants with respect to their observations and descriptions of the two offenders, I prefer and accept the evidence of the second complainant.

30. Although the first complainant said that ordinarily when he went to bed he would turn off the lights inside the house, I accept the second complainant’s evidence that, as a general practice, the kitchen light was left on in the Highbury home at night. The only toilet in the home was only accessible via the door leading from the dining room, into the kitchen and then along a passage to the left. The kitchen light being on served a purpose to guide the way to the toilet at night.

31. I find the kitchen light was on at the time both the first and second complainants made the observations of the offenders as outlined earlier in this judgment. However, I also find it is unlikely the kitchen light shed much, if any, light inside the first complainant’s bedroom having regard to the configuration of the home.

32. Although the first complainant could not recall if his bedside lamp was on at the time the offenders were in his bedroom, the second complainant was ‘pretty sure’ it was on. The photographs on page 2 and the bottom photograph on page 4 of Exhibit P8, being photographs taken by Officer Hill during her attendance at the Highbury home on the morning of 22 March 2017, depict the bedside light on the left-hand side of the bed (when viewed from the foot of the bed) in the first complainant’s bedroom, knocked over, on its side, and turned on. There was no evidence that anyone turned that light on after the offenders had left the home. The manner in which the bedside light is depicted in the photographs is consistent with it being on, and having been knocked over, during the course of the incident.

33. Further, there must have been some light within that bedroom for the complainants to have made any of the observations they did as to the movements and actions of the offenders, given that the incident occurred in the middle of the night at a time when it would otherwise have been dark. The fact the first complainant could see male two at the end of his bed is consistent with that bedside lamp being on at the time the offenders were in that room.

34. I find the bedside light that is depicted knocked over, and turned on in the photographs in Exhibit P8, was on at the time the offenders were in the first complainant’s bedroom and during the course of the incident.

35. The first complainant gave evidence that both the offenders were wearing masks. The first complainant’s description of the mask worn by male one was that it was a ‘white and ugly looking thing’ and he recalled the mask having ‘goggles’. As to male two’s mask, he said only it was a ‘full face’ mask.[395]

    [395] T 99.8.

36. The second complainant described male one as wearing a full latex type mask, that covered his whole head. This was a ‘scary Halloween mask type thing, full faced, demon looking’.[396] He believed the mask was green, but he then clarified that to be ‘aqua’. He also had a recollection that the mask might have had some horns sticking out of the top of it.

    [396] T 126.16-17.

37. The second complainant gave evidence that male two had either a rolled-up mask or bandana on his head, but he did not give any better detail.

38. I consider there was sufficient light in the first complainant’s bedroom and sufficient time during which the second complainant had male one under observation, to enable him to make the observations he described with respect to the mask being worn by male one. I accept therefore that such evidence is reliable and is not a product of reconstruction or of mistake or misapprehension on his part.

39. Photographs 4, 5 and 6 of Exhibit P19[397] depict a male person wearing what appears to be a full faced mask. It is green in colour, and matches the description of a ‘scary Halloween mask type thing, full faced, demon looking’. It is unclear from the photographs whether there are any horns protruding from the mask, although there does appear to be something raised and protruding from above the mask wearer’s left eye, which may possibly be a small horn. The second complainant’s description of the mask worn by male one is consistent with the mask depicted in those photographs.

    [397] Being the same photographs as those in photographs 3,4 and 5 of Exhibit P20.

40. The second complainant had more dealings with male two than male one. He described seeing male two’s face when he was wiping down the guns in the hallway. I accept the second complainant’s evidence that although he was, at this stage, lying on the floor in the first complainant’s bedroom, with his feet closest to the door, he was still able to see male two from this position, and that most of the lights in the house were on at this time.

41. I therefore find that the second complainant’s evidence as to his observations of male two at that time is both reliable and credible.

42. It was submitted that neither complainant described either offender as being covered in blood, noting that Mr Possingham said the accused had described himself as being covered in blood at the time of the offending.

43. I have outlined in detail the difficulty I have accepting much of Mr Possingham’s evidence in terms of its reliability and credibility. I simply cannot be satisfied that the accused described himself in this manner to Mr Possingham. Although the beating suffered by the first complainant generated much blood, both complainants described male one’s face as remaining covered throughout the incident, except for the brief period when the first complainant tried to pull down his mask or face covering. The mask and other clothing worn by male one may well have been bloodied and protected that offender’s face and arms from becoming blood splattered.

44. Neither complainant was asked whether they observed either offender to be covered in blood.

45. I find, consistent with the second complainant’s evidence, that male two was a male with dark hair, which was either balding or receding, with a moustache and beard of even length, being longer facial hair than that of the second complainant at the time of trial (namely heavy stubble). I also accept the second complainant’s evidence and find that male two was of average build and about his age, so approximately 40, and slightly shorter than him, so approximately 5’8” or 5’9”.

46. The second complainant never saw male one’s face as it was covered by the mask. I accept his evidence that male one was of average height, a bit stockier than male two and possibly in his mid-30s.

47. The first complainant gave evidence that at one stage he tried to pull male one’s mask down and that he got it down to about mouth level. He recalled feeling facial hair, which he described as a ‘light beard’. He also described that male as being maybe 5’7” in height (although he said it was hard to tell). In this respect the first complainant remained in bed throughout the incident and was therefore looking at the offenders from that position, rather than ever observing them from a standing position. He also described male one as having a mature sounding voice and as to his build described it as ‘just normal’.

48. A photograph taken of the accused on 24 March 2017 as part of the arrest process was tendered as Exhibit P25. In that photograph, the accused has short dark receding hair, a full moustache and some other much shorter facial hair, best described as a closely shaven beard. It was an agreed fact that the accused is 174 cm, being between 5’8” and 5’9”.

49. I find that the first three photographs of Exhibit P20 also depict the accused. These photographs were taken on 20 March 2017. In those photographs the accused’s facial hair – namely his moustache and beard – appear to be of similar length. His beard at that time is longer than that depicted in Exhibit P25, from which it can be inferred that the accused shaved his beard sometime between that photograph being taken and the time of his arrest, four days later.

50. The descriptions of the male offenders provided by the complainants are quite general. Those observations fall well short of any sort of identification. However, I accept the submissions made by the prosecutor that the accused’s appearance as evidenced by the photographs 1, 2 and 3 of Exhibit P20 and Exhibit P25, is not inconsistent with the general appearance of male two as described by the second complainant.

51. Similarly, the very limited descriptions both complainants made of male one, are not inconsistent with the general appearance of the accused, as depicted at or about 20 and 24 March 2017.

    Exhibit P26 – the mobile phone

52. I accept the evidence of Officer Dring, supported by Exhibit P27, and find, that Exhibit P26 is a mobile phone with service number 04XX XXX 369 which, at the relevant time, was registered in the name of Vickey Michailidis, the accused’s wife (or partner), with a connection date of 14 March 2017. This is the phone Officer White seized from the accused on 24 March 2017.

53. I accept the evidence of Officer White that when he looked on that mobile phone, prior to seizing it, he saw an image on that phone which was either photograph 3, 4 or 5 of Exhibit P19. I accept the evidence of Office Donaldson that he saw photographs 3, 4 and 5 of Exhibit P19 on that phone when he looked at it after it was seized.

54. I accept the evidence of Officer Dring, supported by Exhibits P20 and D35, and find, that photographs 3, 4 and 5 of Exhibit P19, were created by the mobile phone tendered as Exhibit P26, on 24 March 2017 at, respectively, 7.37:25 am, 7.37:27 am and 7.37:30 am. Given the contents of that phone, and having regard to the records tendered as Exhibit P30, I find that although that phone was registered in the name of Vickey Michailidis, it was a mobile phone regularly used by the accused between 15 March 2017 and 24 March 2017.

55. I accept the evidence of Officer Dring, supported by Exhibits P20 and D35, and find, that photographs 8 and 9 of Exhibit P20 were not created by the mobile phone tendered as Exhibit P26, but were sent to that phone by MMS on 20 March 2017, being two days prior to the incident, from the mobile phone tendered as Exhibit P28, being service number 04XX XXX 879. This was the phone seized from Vickey Michailidis by police on 12 April 2017 and registered in her name. Having regard to this evidence and the frequency of communications between this phone service and that of Exhibit P26, I find that this mobile phone was used regularly by Vickey Michailidis between the period 15 March 2017 and 24 March 2017.

56. Having regard to all of the evidence, I find that the male depicted in photographs 1, 2 and 3 of Exhibit P20 is the accused.

57. As previously stated, I am unable to rely on Mr Burns’ evidence that the accused is the man depicted in photograph 1 of Exhibit P19[398] and I have not relied on that evidence.

    [398] Being the same as photograph 8 of Exhibit P20.

58. Photographs 8 and 9 of Exhibit P20 depict a naked (or at least partially naked) male. Although the photographs are not of particular clarity, the male depicted therein is of very similar appearance to the male in photographs 1, 2 and 3 of Exhibit P20, being the accused. The only reasonable inference to be drawn from all of the evidence, including the fact that these photographs were sent by MMS from the accused’s partner’s phone to his phone, is that these photographs depict the accused.

59. As such, having regard to all of the evidence which I have accepted and relied upon, I find that a reasonable inference, and the only reasonable inference, that can be made from all of that evidence, is that the naked male depicted in photographs 8 and 9 of Exhibit P20[399] is the accused.

    [399] Being the same photographs as photographs 1 and 2 of Exhibit P19.

60. In those photographs the accused is pictured holding and aiming a firearm. The pose itself is not unusual, if regard is had to how someone may be positioned if photographed holding a firearm. The pose assumed by the accused in these photographs is however consistent with that described by both complainants in terms of the pose and actions of male two, during the incident. The date the image was sent to the accused’s phone, being two days before the incident, is also significant.

61. Photographs 3, 4 and 5 of Exhibit P19[400] depict a person of masculine build, wearing a mask, holding a firearm in a similar pose to that in images 1 and 2 of that exhibit. The stature and physique of the masked person is similar to that of the accused as depicted in the other images. These images were taken on the accused’s mobile phone at about 7.37 am on 24 March 2017, two days after the incident. That phone was seized by police from the accused a few hours later on that same day.

    [400] Being the same as photographs 4, 5 and 6 of Exhibit P20.

62. Having regard to all of the evidence, I find that a reasonable inference, and the only reasonable inference, that can be made from the evidence, is that the masked male depicted in photographs 3, 4 and 5 of Exhibit P19 is also the accused. I find, having regard to all of the evidence, that there is no reasonable possibility that those photographs depict someone other than the accused.

    Summary – findings as to circumstantial evidence

1. By way of summary, I make the following findings with respect to the circumstantial evidence:

   1The accused made the second alleged admission as to possession of the Kawasaki to Officer Donaldson on 24 March 2017.

   2The accused was in possession of the Kawasaki and the first complainant’s motorcycle helmet on 24 March 2017.

   3The accused was a heroin user at or about the time of the incident, thus providing a possible motive for the offending, namely theft, to fund that habit.

   4The accused was not in any way linked to KM, however, KM was not a ‘15-year-old girl’ and the charge against the first complainant was, in the circumstances, towards the lower end of seriousness in terms of charges of indecent assault. As such it is likely that the second complainant is mistaken in his recollection of the precise words used by male one when he was beating the first complainant. I cannot be satisfied that male one used words to suggest the first complainant had molested his niece.

   5The mask worn by the man depicted in photographs 3, 4 and 5 of Exhibit P19 is consistent with that described by the second complainant as being worn by male one.

   6The accused’s appearance as at 20 March 2017 and 24 March 2017 is not inconsistent with the appearance of male two as described by the second complainant and/or male one as described by the first complainant.

   7The stance of the man depicted in photographs 1 to 5 of Exhibit P19 is similar to the stance of male two as described by the second complainant.

   8The firearm depicted in the photographs 3, 4 and 5 of Exhibit P19 is generally consistent with the second complainant’s description of the firearm that was being held by male two.

   9The male depicted in photographs 1 to 5 of Exhibit P19 (and photographs 4,5, 6, 8 and 9 of Exhibit P20) had access to, at least, one firearm.

   10The accused made the phone request.

   11Both before and after 24 March 2017, Vickey Michailidis had access to a mobile phone other than the mobile phone seized by police from the accused.

   12The accused and Vickey Michailidis were not in each other’s presence at or about 12.50 am on 22 March 2017.

   13The accused is the man depicted in the photographs contained in Exhibit P19.

2. I have carefully scrutinised all of the evidence and, having done so, I am satisfied that the only reasonable inference that can be made from the circumstantial evidence that I find proved, is that the accused was one of the offenders.

   Findings

3. The prosecution has proved beyond reasonable doubt that on 22 March 2017 the accused:

   1entered and remained in the Highbury home intentionally as a trespasser, with the intention of committing the offence of assault and that the offending was aggravated in that it was committed in company with another, and the accused knew or was reckless as to the fact that another person was present in the place of residence at the time.

   2by his deliberate and unlawful acts, intended to cause harm, and did cause harm to the first complainant and that the offending was aggravated in that he used an offensive weapon, namely a firearm and the offending was committed in company with another.

   3deliberately and unlawfully assaulted the second complainant, without the second complainant’s consent, and that the offending was aggravated as it was committed in company with another.

   4dishonestly dealt with the Kawasaki and the ring without the first complainant’s consent, intending to deprive the first complainant permanently of the property and the offending was aggravated as it was committed in company with another.

4. I find the accused guilty of all counts on the Information.