R v Gill - [2019] SADC 90

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GILL
Criminal Trial by Judge Alone
[2019] SADC 90
Judgment of His Honour Judge Slattery
12 June 2019
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - GENERALLY
The accused is charged on Information for arraignment on 27 April 2018 with the offence of attempted robbery contrary to ss137(1) and 270A of the Criminal Law Consolidation Act. The accused made an election to be tried by a Judge sitting without a jury.
Verdict:
Guilty.
Juries Act 1927 (SA) s7; Criminal Law Consolidation Act 1935 ss134, 137, 270A, referred to.
R v Nieterink (1999) 76 SASR 56, considered.

R v GILL
[2019] SADC 90

This verdict follows a trial by Judge alone; the accused made an election pursuant to s 7 of the Juries Act 1927 (SA) for a trial by a Judge sitting without a jury.
The accused is charged on Information for arraignment on 27 April 2018 with the following offence:
First Count
Statement of Offence
Attempted Robbery (section 137(1) and 270A of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Joseph William Gill on the 24^th day of September 2017 at Underdale, attempted to commit the theft of a motor vehicle by using force against Robert William Maiolo, and the force was used at the time of, or immediately before, the attempted theft.
Because an election has been made for a trial by a Judge sitting without a jury, I remind myself of the directions which are essential for me to take into account in the determination of this matter. They are as follows:
1.   An accused person is presumed innocent unless and until guilt has been proved beyond reasonable doubt.
2.   The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence.
3.   The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4.   It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty.
5.   I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused elected to give evidence. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all of the ingredients of the charge. The accused elected to give evidence on oath and I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness.
6.   Finally, I remind myself that it is not a question of preferring or accepting one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charge beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
I set out hereunder the basic elements of attempted robbery which must be proved by the prosecution beyond reasonable doubt.
The elements of the offence
It is first necessary to comprehend the meaning of ‘attempt’ in the context of this charge.
Attempt to commit an offence means:
1.   That the accused must have the intention to commit the offence;
2.   That the accused must have gone past merely making preparations to commit the offence; and
3.   That the act of the attempt must be part of a series of acts which would culminate in the commission of the crime if they were not interrupted.
The elements of the offence of robbery pursuant to s137 of the Criminal Law Consolidation Act 1935 (SA) are as follows:
1.   That the accused committed theft;
2.   That the accused used (or threatened to use) force against another in order to commit the theft or used (or threatened to use) force against another in order to escape from the scene; and
3.   That the force was used (or threatened) at the time of, or immediately before or after the theft.
The elements of theft pursuant to s134 of the Criminal Law Consolidation Act 1935 are as follows:
1.   That the accused dealt with the property;
2.   That the accused did so dishonestly;
3.   That the accused dealt with the property without the owner’s consent; and
4.   That at the time the accused dealt with the property, he intended either:
a.    To deprive the owner permanently of the property; or
b.   To make a serious encroachment on the owner’s proprietary rights; that is, that he intended to treat the property as his own to dispose of, regardless of the owner’s rights, or to deal with it so as to create a substantial risk that the owner either would not get it back or, if they did, that its value would be substantially impaired.
Overview
On 24 September 2017, the events, the subject of this prosecution, took place on Hardys Road near to the intersection with Northern Parade, Underdale. Hardys Road runs in a generally north/south direction between Henley Beach Road in the south and Ashwin Parade in the north. It is a slightly broader street than the surrounding streets and at places on the road, there are chicanes placed for reduction of traffic speed. Northern Parade runs in a generally east/west direction and is a narrower street. At the intersection of Hardys Road and Northern Parade, there is a round-a-bout for traffic control. Hardys Road appears to be the boundary of Torrensville to the east and Underdale to the west. Exhibit P3 contains an aerial photograph of the area generally. It is a generally suburban area with typical detached home dwellings. In places, there is some more intense development on various blocks consistent with general changes in land usage.
The complainant in this matter is Mr Robert Maiolo. At the time, he occupied premises at 24B Hardys Road, Underdale. Those premises are situated on the eastern side of Hardys Road, south of Northern Parade and north of Henley Beach Road. Mr Maiolo’s home was about five houses south of the intersection of Northern Parade and Hardys Road.
The prosecution case is that in the afternoon of 24 September 2017, Mr Maiolo left his home to travel north upon Hardys Road. At that time, he intended to travel to his former business premises for the purposes of cleaning up those premises. He was driving a white Mitsubishi Pajero motor vehicle and was towing a typically sized trailer which had attached to it a cage to increase the storage capacity of the trailer.
From the time that Mr Maiolo left his home, he looked northwards up Hardys Road and noticed a man standing on the road in the vicinity of what is now understood to be number 39 Hardys Road. That property is three houses north of the corner of Northern Parade and Hardys Road. Mr Maiolo anticipated that the man standing in the road, the accused in these proceedings, would move across the road when he saw him coming. That did not occur. As a result of the man standing in the road and as a result of his moving into the direction of travel of Mr Maiolo’s vehicle, it became necessary for Mr Maiolo to stop his vehicle. The accused came from the front of Mr Maiolo’s vehicle to the driver’s side window and spoke to Mr Maiolo. He said in a very loud voice that he needed to go to hospital, and Mr Maiolo asked him the reason why. There was a conversation. In the end, the accused told Mr Maiolo that he had a torn hamstring. At that time, another vehicle travelling south on Hardys Road stopped in the vicinity of Mr Maiolo’s vehicle. The accused turned and spoke to the driver of that vehicle and asked to be taken to hospital. The driver immediately put his car into reverse and left the area. As he did so, the accused turned back to face Mr Maiolo’s vehicle, put his hand into the vehicle, turned off the engine and extracted the keys. He held them up saying words to the effect, ‘Now this fucking vehicle is mine’.
Mr Maiolo exited the vehicle and was assaulted by the accused. Mr Maiolo did not see this coming and by the time he became aware, he was on the ground and his prescription sunglasses had been smashed off of the bridge of his nose. His nose was bleeding as was his mouth. He got to his feet, leaning against the vehicle and, although he could not see clearly, he was aware of the accused coming towards him holding his keys in his right hand. Mr Maiolo grabbed at the keys and was able to extract some keys from the hand of the accused. He was struck again around the head. The phone owned by Mr Maiolo fell to the ground in amongst the scuffle. The accused picked up the phone, held it up into the face of Mr Maiolo and said that he was taking the phone. The accused then picked up his bag and threw a can of drink at Mr Maiolo; the can struck the front right-hand wheel of Mr Maiolo’s vehicle.
The events were witnessed by the occupiers of number 39 Hardys Road and a Ms Shelton, a solicitor who was in her car and stationary near the corner of Hardys Road and Northern Parade.
After the accused left the area, he ran south on Hardys Road and then westward into Northern Parade. He was seen by Ms Shelton to be hiding behind a hedge on a property on Northern Parade on the southern side. Police attended and the accused was arrested.
The issue for my consideration in this matter is to decide whether it is proved to my satisfaction beyond reasonable doubt that the accused had the intention to commit the offence, that he had gone past merely making preparations to commit the offence, and that the act of the attempt to rob Mr Maiolo of his motor vehicle was a part of a series of acts which would culminate in the commission of the crime of robbery if they were not interrupted. In order to do so, it is necessary for the prosecution to prove beyond reasonable doubt the elements of the offence of robbery: that the accused committed theft (or attempted to commit a theft), that the accused used or threatened to use force in order to commit the theft and that the force was used or threatened at the time of or immediately before or after the theft. I have earlier set out the elements of theft.
In order to explain my conclusion in this matter, it becomes necessary for me to now assess the witnesses whose evidence I have heard, recalling always that the accused shoulders no burden of proof. I continually keep in mind that if the version given by the accused is a reasonable possibility or, put another way, is reasonably possibly true, then I will entertain a reasonable doubt about the guilt of the accused. As I indicated to counsel in their addresses to me at the end of this trial, the question is whether, as a matter of inference, I am prepared to infer that the accused had the intention to commit the offence, that he had gone past merely making preparations to commit the offence and that the attempt was part of a series of acts as I have previously outlined.
I turn then to the question of inferences and the direction that I am required to give myself. It is quite often the situation in criminal trials that direct evidence of a particular fact is not available. It is also frequently the case that the existence of a fact follows logically from the existence of other surrounding facts. Proper inferences may be drawn where common-sense and logic indicates the propriety of doing so. The process of ascertaining facts not only involves assessing the weight to be attached to the various items of facts which are direct evidence, but also drawing inferences from the facts which are directly attested to. The evidence must be assessed and then any inferences as might arise from the evidence must be examined. These are all common-sense matters. Take an illustration: you may see me on the street in Adelaide at 11 am and then again on a street in Sydney at 3 pm on the same day. You may draw the inference, reasonably, that I have flown to Sydney in the meantime, as have you. But inferences may be stronger or weaker according to the circumstances. And so you could not infer that I also flew on the same plane as you because I may have used another airline. Inferences may be stronger or weaker according to the circumstances and may be drawn with greater or lesser assurance according to the circumstances.
Common sense and experience of life must be applied to the process of deciding what inferences are to be drawn from the facts of which evidence is given by the witnesses and what degree of force or cogency attaches to those inferences.
The drawing of inferences is also used to discern a person’s state of mind. A person’s state of mind is a fact like any other fact and is usually inferred from what the person says or does. Take another illustration, if I point a camera at you and say ‘smile’, it would be safe to infer that I intend to take a photograph. You do not hesitate to draw an inference about my state of mind when common-sense and logic dictate that you should do so. Even though you cannot see into another person’s mind, a person’s intention or state of mind may be or must be drawn as inferences from what he said and did at the time and by his own evidence of his state of mind.
Sometimes actions speak louder than words, sometimes a better indication of a person’s true state of mind and his intention at the relevant time is to be found in the common-sense inference to be drawn from his actions and words at the time rather than what he says now.
The witnesses
Robert Maiolo
Mr Maiolo was the complainant in this matter. After explaining some of his background, his skills and his working history, Mr Maiolo said that on 24 September 2017 he was living on the Torrensville side of Hardys Road. He left home at about 2.30pm to head to his real estate office. He saw the accused walking in the middle of Hardys Road as he set off to drive north in his white Pajero that had a trailer attached.
Mr Maiolo could see the accused walking on the left-hand side of the road as he approached him. As his vehicle approached the accused, he noticed that the accused moved to walk in the middle of the road or at least in the middle of the northern-bound carriageway immediately in front of his car. It became necessary for him to try to drive around him. He veered his car slightly to the left to avoid hitting the accused. He was then forced to stop his vehicle and therefore the vehicle stopped in a slightly awkward position. The Pajero motor vehicle and the trailer were not contiguous and were in a slightly jack-knifed position. The Pajero motor vehicle was across the middle of the road which would block the southbound carriageway of Hardys Road.
Mr Maiolo can recall that although the accused’s demeanour was normal in that he did not appear drunk or dishevelled, the accused was screaming in pain and appeared to be limping. He was crying out and requesting to be taken to hospital. Mr Maiolo spoke to the accused out of the open driver’s side window and asked him what was the matter with him. The accused responded that there was something wrong with his hamstring. This appeared peculiar to Mr Maiolo who could not understand why someone would need to go to a hospital for a hamstring injury, having had a hamstring injury himself in the past. As he was trying to process this question in his own mind, and before he could respond about going to the hospital, he saw another vehicle approaching in the southbound carriageway of Hardys Road. That vehicle stopped because Mr Maiolo’s vehicle, in its position, was blocking that southbound carriageway. The accused then turned to the driver of that vehicle and asked him to take him to hospital because Mr Maiolo would not do so; the other driver reversed his vehicle and left the area. The accused then turned back to Mr Maiolo’s vehicle and Mr Maiolo can remember that the accused then reached into his car, turned the car off, pulled the keys out, stepped back and then said to him ‘This is my fucking car’. The next thing that Mr Maiolo could remember was being on the ground outside the vehicle and being disoriented and feeling scared and vulnerable. He had been struck by a punch. He was in considerable pain. He cannot recall where he was on the ground. In the process of being struck, his prescription sunglasses had been smashed, he could not see clearly but he was aware that the accused was standing very close to him and was very near the front of the driver’s door. When he came to his senses, Mr Maiolo immediately got up off the ground and could see the keys in the right hand of the accused. He then grabbed at the keys to retrieve them. He can recall that the accused attempted to get into the car but his hand did not reach the door and he did not physically enter the car. Mr Maiolo clearly recalls the accused moving towards the car with the keys in his left hand. There was then a further scuffle. Mr Maiolo was struck again but in the course of that scuffle the keyring broke apart so that Mr Maiolo had some keys and the accused had some of the other keys.
Mr Maiolo’s observation was that after taking back some of the keys, the accused became comparatively angrier and began throwing punches. He can recall trying to protect himself but he does not remember how this punching scuffle commenced. By this stage he had lost his prescription glasses and because he is short-sighted he could not see very far. He kicked out at the accused on a number of occasions and recalls successfully kicking him in the groin. This happened on at least three or four occasions but this seemed to have no effect on the accused’s behaviour. Also, at the time, Mr Maiolo became conscious that there were other people around the place who he could see in his peripheral vision but they were not offering him any assistance. He can recall screaming out to those around him that the Police should be called.
On the occasion on which the accused backed off from trying to punch him and coming towards his car, Mr Maiolo got out his mobile phone and tried to call the Police. This was the commencement of another scuffle with the accused, who came back towards him and started punching at him and it ended up that the phone fell to the ground and the accused picked it up. The accused held the phone up in the face of Mr Maiolo and, whilst yelling, walked away and got his bag. Mr Maiolo had not earlier seen this bag. The accused took something out of the bag which was a can and threw it at Mr Maiolo but missed him and hit the front right-hand tyre of the vehicle.
The accused then left the area and Mr Maiolo noticed that he was no longer limping. Mr Maiolo gathered himself and eventually got back into his car and moved it off the road. The Police arrived very soon afterwards. Mr Maiolo told them what had happened and the direction in which the accused was walking. Mr Maiolo then left the area and headed home. At the time that he was walking home, Mr Maiolo was wearing another pair of glasses that he had retrieved from his motor vehicle. When he got down to the intersection of Hardys Road and Northern Parade, Mr Maiolo saw the accused crouching down by a fence. He yelled out to the accused and demanded that he give his phone back. At that demand, he observed the accused get very angry and start running towards him whilst at the same time ripping off his shirt. This was a jacket style shirt and there was no t-shirt or any other clothes underneath. He also observed that the accused was not dragging his leg. This scared Mr Maiolo who then turned away to run but first saw the Police patrol coming down Northern Parade and he waved them down. The Police were on the scene within seconds.

Mr Maiolo observed a scuffle between the Police and the accused in which the accused was struggling. While that was happening, he picked up the jacket of the accused, which was lying on the ground. He wanted to retrieve his telephone. He was told by the Police not to do this. He was asked by the Police to go home. While this was happening, he saw the Police restrain the accused and then go through the bag of the accused. The Police took out a mobile phone and asked Mr Maiolo if it belonged to him. He said it did. The Police attended Mr Maiolo’s home and took his statement. Mr Maiolo was then taken to the hospital.
Mr Maiolo was not able to recall what he was wearing on that day but can recall that whatever it was, it was ripped. He could not say when the damage to his clothing occurred. He was shown Exhibit P2, the photograph of his injuries. He recalls having additional injuries including a sore wrist, feeling disoriented and a sore head. He was not able to recall the treatment he received at the hospital.
A proposition was put to him that there were two boys on push bikes on Hardys Road at the time that these events occurred. This was denied. No other witness saw any children on push bikes on Hardys Road at the time. He initially thought that the other vehicle that arrived on the scene soon after the accused commenced speaking to him was a four-wheel-drive vehicle and this was in a statement that he initially gave to the Police. He has thought about that matter since and his best memory is that the car was lower to the ground than his vehicle which was a four-wheel-drive, and therefore, it must have been a sedan. He was unable to say where he had retrieved his mobile phone from, however, he can recall that he had it in his hand to call the Police. He did not recall the accused taking the phone from him or how the accused in fact got the phone. He had been struck a number of times and was suffering from the effects of those punches. He agreed that the accused never got into his vehicle apart from putting his arm into the vehicle to remove the keys.
Heather Padgett
Ms Padgett lives at 39 Hardys Road Underdale. At the time in 2017, she lived there with her fiancé and her granddaughter, Talia Cleland. She can recall on the day of this event, she was working in the kitchen of the home and she could hear people yelling out the front of the home. When she heard this, she moved to the loungeroom of the home which is towards the front of the house. Her granddaughter Talia was there. She could see out the window that there were two men fighting on the road. She went outside to see what was happening and she had a clear view of what was occurring.
She observed that there was a white four-wheel-drive vehicle parked on the road and it was slightly askew. It was facing north. She can recall that the two men were yelling and swearing at each other; one of them was in the car and the other one was outside of the car. The man in the car was wearing a light-coloured shirt and appeared much older than the man outside the car. The man on the outside of the car appeared much younger, was stocky and had dark skin. He was wearing a dark coloured top, shorts and white sneakers. She saw the man outside of the car reach his hand inside of the car while the driver was yelling. The driver then got out of the car and she saw the younger man hit him in the face. She saw the driver fall to the ground, get back up and then struggle with the younger man, who looked bigger and stronger. Her observation was that in that process, the t-shirt worn by the driver became torn. She then heard screaming by the driver that the younger man should give him back his phone and she also heard keys being mentioned. She saw that the driver was visibly shaken and she saw the younger man run away.
Tahlia Cleland
The Court granted leave on the application of the prosecution to lead evidence from Tahlia Cleland via video link. I do not draw any particular inference adverse to the accused as a result of this process being used, nor would I allow any such arrangements to influence the weight that I have placed upon the evidence of the witness or of any other witness in this trial. Ms Cleland was simply away from the State when the trial of this matter commenced, and therefore necessary steps were taken to ensure she had the ability to give her evidence elsewhere.
Ms Cleland is 18 years of age and has recently relocated to Queensland. At the time of this incident, she was living with her grandmother, Ms Padgett, and Ms Padgett’s fiancé. On the day of this event, she heard yelling outside of her house whilst she was sitting in the loungeroom. As a result, she moved to the front door to get a better look and eventually she moved to the front lawn. From that position, she could clearly see an altercation going on in the street. She could see a white four-wheel-drive motor vehicle with a man inside the vehicle as the driver and a man standing outside of the vehicle. From what she could ascertain, the men appeared to be arguing and they were swearing at each other. She observed the man outside of the vehicle reach into the driver’s side window and when he pulled his arm out, she observed that he had keys in his hand and he said ‘it’s my car now’. She observed that once he had the keys in his hand, he walked towards the back of the vehicle towards the trailer. She then saw the driver get out of the vehicle and walk towards the man who had been on the outside of the vehicle. The two men began fighting. She then stopped watching and called the Police and she heard the driver yell out ‘call the Police, he has my phone’.
Ms Cleland can recall the driver was wearing a yellow top and appeared older. The other man appeared younger and was wearing a black unzipped hoodie with no shirt underneath and black shorts and sneakers.
She can recall seeing the man in the hoodie run off in the direction of Henley Beach Road. He was running but she could not recall at what speed. She saw the driver of the vehicle move his car off the road and then speak to Police.
Britney Shelton
Ms Shelton is a solicitor and at the relevant time was living on Hardys Road. At that time, she was driving her car in a northerly direction up Hardys Road. She intended to go to the Brickworks Markets. As she was approaching the roundabout of Hardys Road with Northern Parade, she observed a vehicle which she thought was facing a southerly direction. She could see there were two men in front of the passenger side of the car and they were on the road. She thought this was odd and she could see the driver’s side door of the parked car was open. One of the men was on the ground and she could see him get up. The two men appeared to be fighting, they were holding each other and punches were being thrown. She could not tell whether any punches were connecting and her impression was that the man in the yellow t-shirt, the older man, appeared to be overwhelmed by the other man and was not defending himself particularly well.
Ms Shelton observed that the older man was wearing a yellow t-shirt that was ripped. He had grey hair and appeared to have blood smeared across his face. She observed that a black mobile phone fell out of that man’s yellow t-shirt pocket and the other male in the darker clothing picked up the mobile phone. The younger man, in the darker clothing, then offered the man in the yellow t-shirt the mobile phone a few times but withdrew it as soon as that man tried to take it back.
Ms Shelton recalls that both men became aware of her presence and they both looked towards her. She saw the younger man in the darker clothing then pick up his backpack and leave the scene. He was running away and he was still holding the mobile phone. She then later observed the same younger man attempting to hide in some bushes on the northern side of North Parade. She can recall that when he ran away, the accused picked up a bag from the passenger side of the vehicle as it was parked.
Senior Constable Michael Glaister
Two Police officers gave evidence. The first, Senior Constable Michael Glaister, informed the Court that he had been tasked to attend the scene. He and another constable, Charlotte Pagh, were already in Hardys Road at the time on an unrelated matter. They arrived at the scene within 30 seconds. He saw Mr Maiolo on the western side of the footpath speaking with some females. Mr Maiolo flagged down their patrol car. Constable Pagh spoke to Mr Maiolo. He could see that Mr Maiolo had a cut above his nose and he appeared very worked up and shaken. He heard Mr Maiolo say that another male had assaulted him and had run away. They then drove off to find this other male. Later on, when searching on Northern Parade, he said he saw Mr Maiolo standing in the middle of the road with another man who is the accused. He stopped his vehicle outside 119 North Parade on the northern side of the street. At the time, Mr Maiolo was facing the accused and it appeared to him they were about to interact. He observed the accused pacing up and down and appeared to be agitated and erratic and not to be acting in a normal way. At the time, the accused was wearing only shorts and sneakers, he did not have a shirt on. He approached the accused and asked him what was happening. His recollection is that the accused started bouncing up and down on his toes and telling him that he was a boxer and he had been boxing for 20 years. At that time, the accused’s arms were up in a fighting pose and his assumption was that the accused wanted to be fighting. This is uncharged conduct.
Senior Constable Glaister and Constable Pagh got the accused off the road and sat him down on a brick fence. He told the accused he was under arrest and at that time the accused became angry and swung a punch at Constable Pagh. This is further uncharged conduct. As a result, Senior Constable Glaister punched the accused and he was arrested and restrained. Senior Constable Glaister recalls the accused did not appear to be injured and he did not ask to be taken to hospital.
Charlotte Pagh
Constable Pagh gave evidence of the response of the Police to the tasking on Hardys Road. She recalled Mr Maiolo flagging down their vehicle, telling them that his phone had been stolen, that he had been assaulted and the accused’s direction of flight. The Police then went to look for the accused. At the time, she saw Mr Maiolo was wearing a yellow polo t-shirt that appeared torn. His appearance was of being frightened and very scared. Soon after that interaction with Mr Maiolo, she saw him in the middle of a nearby road. Another man was there. Mr Maiolo could be seen waving and signalling to them to come over to them and stop. When they did so, Senior Constable Glaister got out of the vehicle and spoke to Mr Maiolo who said that the accused was the man who assaulted him and taken his mobile phone.
Constable Pagh saw the accused standing in the middle of the road and facing her and Senior Constable Glaister. He had his fist raised and she understood that if he was approached, he would fight the them. She recalls the accused saying words to the effect ‘…is it because I’m black?’ and that ‘I’ve been a boxer for 20 years’. She observed him hopping from foot to foot. This is the same uncharged conduct.
The Police then spoke to the accused and tried to calm him down and move him to the footpath. Eventually he sat down on a nearby brick fence. Another Police patrol was called to assist. When the other unit arrived, there was a conversation with the accused, he became agitated and had to be restrained, he was thrashing, aggressive and erratic. Again, this is the same uncharged conduct. She said it was clear he was intent on injuring her and her colleagues by the way he was thrashing around and being aggressive. The accused did not ever say he was injured or ask to be taken to hospital and she certainly did not see him dragging his legs.
The accused
The accused gave evidence. On the day in question, he observed Mr Maiolo driving in his vehicle northwards on Hardys Road. He saw two young boys on push bikes near to where Mr Maiolo was driving. He observed Mr Maiolo yelling at the boys from his car. He could not hear what Mr Maiolo was saying but he could see the faces of the boys and that there was concern on their faces.
He assumed there was something wrong going on and he decided to stop Mr Maiolo’s car. He stepped out onto the northbound carriageway of Hardys Road and forced Mr Maiolo’s car to stop. The two boys on the push bikes stopped some 20 meters away. He could not say where they were in relation to where he was standing or where the car was on the road.
The accused said he was then living just off Hardys Road in Underdale near the corner of Stuckey Street and Hardys Road. On the day in question he wanted to go and see a female friend who lived on the corner of Clifford Street and Ashley Street. He said he had parked his car there. Ashley Street is one street north of Stuckey Street and Clifford Street is four streets east of Hardys Road. From Stuckey Street, the shortest route to Clifford Street would be north to Ashley Street and then east along Ashley Street to Clifford Street.
The accused said that he had been staying at a friend’s place on the corner of Stuckey Street and Hardys Road for about a week and a half. On that day, he was walking to get his car; however, it appears that he was walking away from the position that he said his car was parked. He saw two young teenagers between the ages of 12 and 14 riding push bikes being spoken to by the driver of the vehicle who was Mr Maiolo, but could not hear what Mr Maiolo was saying. He thought the driver of the vehicle was ‘their old man’ who was telling them off and yelling at them. He thought the children looked a little scared. He admits he probably overreacted, he put his bag down on the side of the road and stepped off the footpath onto the northbound carriageway of Hardys Road and walked up to the side window of the vehicle and spoke to the driver. He said ‘…what the fuck are you doing yelling at these kids? You got a problem?’ He had seen the push bikes on the inside or footpath side of the vehicle and he thought the driver had the passenger front windows down when he was speaking to the children on the push bikes. By the time he spoke to Mr Maiolo, the accused said the children were at least 20 metres away.
He accepted that by standing in the middle of the road, Mr Maiolo had no choice but to stop his vehicle. He said after a period of time, Mr Maiolo responded to him and said ‘I can do what the fuck I want. Who the fuck are you?’ As a result, the accused said he lost his cool, there was an argument and he then struck Mr Maiolo in the face whilst he was sitting in the car. There was a lot of yelling and swearing going on. He wanted to inconvenience Mr Maiolo so after he hit Mr Maiolo, he reached in and turned the car off, took the keys out and threw the keys on the ground. He cannot recall where he threw the keys. He did that to ensure the car would remain stationary and humiliate Mr Maiolo by causing him to get down on the ground to find his keys. When he had thrown the keys on the ground, he said he walked to the back of the car to the trailer to see if he could still see the boys on push bikes.
He then started to realise he had committed a crime by assaulting Mr Maiolo and knew that Mr Maiolo was very angry. By this time Mr Maiolo had already got out of the car and began arguing with him. He made Mr Maiolo think he still had the keys in his hands. At that time, he was kicked in the groin a couple of times by Mr Maiolo. A scuffle followed. He landed more blows upon Mr Maiolo. He punched Mr Maiolo at least twice more outside of the car. The first punch was inside the car to the face and that smashed Mr Maiolo’s glasses. He said that in the scuffles outside the car, Mr Maiolo had grabbed his shirt and it ripped. He hit Mr Maiolo and Mr Maiolo went to the ground. When Mr Maiolo got up, his mobile telephone fell out of his pocket and the accused picked it up and stupidly taunted him with it.
He then went down Northern Parade and walked into somebody’s front yard although he says he was not trying to hide. He put Mr Maiolo’s phone into his bag.
In cross examination, the accused agreed he had done boxing training and he had done that for many years as part of the fitness regime for rugby league. He has done boxing for about 20 years. He knows how to box and to land a punch on someone. In his boxing training, he learnt to transfer power through his hips and through his shoulders and to have his feet placed in a particular way.
The accused tried to describe the two children he allegedly saw. I am not prepared to accept that evidence because I find that it is not accurate, reliable or truthful and I do not think that it is reasonably possibly true. No other witness saw these children at all. Mr Maiolo, whose evidence I accept without any hesitation, said there were no children on push bikes on the street. The only person on the street that he saw, apart from the presence of the accused on the roadway, were the driver of the sedan, Ms Shelton and in his peripheral vision, the occupants of number 39 Hardys Road. In particular, the occupants of 39 Hardys Road did not see any children and Ms Shelton did not see any children on push bikes.
The accused agreed that he was intending to get to the corner of Ashley and Clifford Streets but he was actually walking away from those premises at the time he assaulted Mr Maiolo. He accepted that on the version of events he gave to the Court, he was walking away from the home that he intended to go to.
He agreed it was his intention to stop the vehicle driven by Mr Maiolo when he stepped into the road. Then, differently from this evidence, he said he stopped the vehicle, went to the passenger side or footpath side of the road and put down his bag. He agreed with me when I asked him[1] that if that was the case, there was nothing to stop the driver of the car from driving off when he was doing that on the footpath side of the car. I consider that this evidence is not truthful, reliable or accurate and find that it was not reasonably possibly true. It also lacks any semblance of reality because nobody else saw him do what he alleges he did. His own evidence was that as soon as he stopped Mr Maiolo’s vehicle, he walked to the driver’s side window. He agreed he had gone to the driver’s side window of the vehicle, spoke to a man he had never seen before in his life, an older man who he thinks was between 50 and 60 years of age, and then punched that person in the face after asking him what the fuck he thought he was doing. I find that this evidence was not truthful, reliable or accurate and I am satisfied that it is not reasonably possibly true.
[1] T101.16.
The accused then said when he first spoke to Mr Maiolo, Mr Maiolo was speaking in an angry tone. He thought it was a heated argument from both sides and a scuffle broke out not long after that. He first assaulted Mr Maiolo in the car by punching him in the nose. Mr Maiolo got out of the car and he punched him again twice. There were two further scuffles. He knew Mr Maiolo had sunglasses on when he was driving, he knew he hit him in the face and he knew Mr Maiolo did not have sunglasses on when he got out of the car. Factually, it was therefore impossible for him to see his face fully when he was coming down the street allegedly abusing two young children on the side of the road. This was contrary to the evidence he gave about being able to see the expression on Mr Maiolo’s face. The presence of the children was not detected by anybody else. For those reasons, I find that the evidence is not truthful, reliable or accurate and that this evidence is not reasonably possibly true.
The accused then agreed in further cross-examination that during the interaction with Mr Maiolo, another vehicle came down the southbound carriageway of Hardys Road. He thought it was a greenish blue car and was like a SUV. The car pulled up and the accused spoke to the driver of the car who asked if everything was okay. He responded that ‘everything was alright mate’. By that point he had punched Mr Maiolo and he could not be sure whether he had taken the keys from Mr Maiolo’s car. If he had he would have already thrown them away. He could not explain how by taking the keys away and throwing them on the ground he could humiliate Mr Maiolo anymore. He only made out he had the keys in his hand because Mr Maiolo kept asking him to give his keys back to him. He did not tell him he did not have the keys in his hand and he did not show him the keys were not there. Mr Maiolo did not see him throw the keys on the ground. He agreed he had taken the keys from the vehicle, he was holding up a clenched fist and allowing Mr Maiolo to understand that he had the keys inside the clenched fist, but in all of that time he did not mention the two boys to him. He then said there had been a mention of the boys but that was in contradistinction to earlier evidence he gave that he could not recall what was said. This evidence about a mention of the boys I find is not truthful, reliable or accurate. I find that it is not reasonably possibly true.

The accused agreed that walking into the middle of the road and stopping a vehicle was a drastic and unusual thing to do. He also agreed that if he was angry enough, it would have not mattered what Mr Maiolo said to him, he would have assaulted him either way. However, it was what Mr Maiolo said to him after he asked him what the fuck he was doing that caused him to strike Mr Maiolo while he was sitting in his car. And when he hit him the first time, the accused said he was not trying to knock out Mr Maiolo, he could have broken his jaw or teeth if he wanted to. He knew how to do that because of his boxing training. It was not true to say that he was not trying to hurt him but only not trying to hurt him severely.
The accused also said that having punched Mr Maiolo three times on the day, it was only the second punch that knocked him to the ground. He punched Mr Maiolo when he was sitting in the car. Mr Maiolo then got out of the car and he punched him again after Mr Maiolo kicked him in the groin. It was then that Mr Maiolo went to the ground. He did not pull Mr Maiolo out of the vehicle after he had punched him on the first occasion. He did punch him when Mr Maiolo was standing in front of the driver’s side door. He hit him a third time when, after knocking him down for the second time, he walked away to get his bag. Mr Maiolo grabbed him and he turned and punched him again. I find that this evidence is not truthful, reliable or accurate. This evidence is not reasonably possibly true. It is inconsistent with the evidence of the other witnesses that I accept without hesitation. The altercation between Mr Maiolo and the accused took place in a space adjacent to the driver’s side door of Mr Maiolo’s vehicle. In that context, there was no reason why the accused grabbed the phone of Mr Maiolo. The evidence of the accused that he did not have the keys of Mr Maiolo’s car in his hand is neither truthful, reliable nor credible. I formed the clear impression that the accused was deliberately trying to mislead the Court in relation to those facts. I formed the view that the version of the accused that on the second occasion which he punched Mr Maiolo, he merely walked away was neither truthful, reliable or accurate. It was not reasonably possibly true. It is also inconsistent with the phone falling to the ground, the accused picking it up, the accused taunting Mr Maiolo with that phone and Mr Maiolo then having another scuffle with him trying to get the phone back as well as his car keys.
The accused agreed he was found by the complainant Mr Maiolo standing in a yard of a house with which he had no connection in Northern Parade at about the same area the Police identified that they saw him, which was 117-119 Northern Parade in Underdale. He also agreed that the third occasion that he punched Mr Maiolo, and perhaps even on the second occasion, had nothing to do with the boys he allegedly saw in the street, nor did the taking of the mobile phone. He only alleged that the punching of Mr Maiolo in the car had something to do with the boys. He agreed that after the second punch, he was still standing in front of Mr Maiolo confronting him. He was standing only a metre away and he was later taunting him with the mobile phone. At that stage, when he was only a metre away after the second punch, he was taunting him by suggesting that he had his keys in his hand. He agreed that Mr Maiolo was trying to get the keys back from him when he assaulted him a second time.
The evidence given by the accused was not truthful, reliable or accurate. It was not reasonably possibly true. The evidence of the accused about there being any children on the road at the time that Mr Maiolo was driving northwards along Hardys Road in Underdale is not truthful, reliable or accurate. I find that Mr Maiolo identified that the accused was walking southwards in the northbound carriageway on Hardys Road. I find that Mr Maiolo proceeded in his vehicle (towing a trailer) in a northerly direction in that carriageway expecting or hoping that the accused would move off the roadway onto the footpath. The accused did not do so.
I find that the accused deliberately stood in the carriageway and moved within the carriageway in such a way that Mr Maiolo had to stop his vehicle adjacent to 39 Hardys Road in Underdale.
I find that the accused was yelling in a very loud voice that he needed assistance to be taken to hospital. When questioned by Mr Maiolo, the accused falsely claimed that he had a torn hamstring and had to go to hospital. At that time, another car was travelling in the southbound carriageway of Hardys Road, could not proceed because of the position of Mr Maiolo’s vehicle. At the time that vehicle pulled up, the accused distracted the attention of both Mr Maiolo and the other driver by yelling out to the other driver asking him to take him to hospital in the same way as the request had been made to Mr Maiolo. The driver refused that request and immediately left the vicinity by reversing back up the street. Having been distracted, Mr Maiolo then saw the accused reach into his car, pull out his keys and then say to him ‘this fucking car is mine’. I find that there followed significant shouting and screaming. Mr Maiolo was clearly upset by the fact that someone had stolen the keys of his vehicle and then claimed the vehicle for his own. Mr Maiolo then found himself on the ground outside of the door of his vehicle. He had been struck once in the face by the accused and that this strike, around the area of the bridge of his nose, had smashed the prescription sunglasses he was wearing. I find that Mr Maiolo then got up to his feet, he did not have his glasses on but was aware of the accused moving towards him and was motioning towards obtaining access to his vehicle. A scuffle occurred. The accused landed another punch upon Mr Maiolo who responded by lashing out with his feet and kicking the accused in the testicles.
I find proved beyond reasonable doubt that the accused was moving towards the vehicle of Mr Maiolo with the intent to remove the driver, Mr Maiolo, and take his vehicle. When Mr Maiolo got to his feet after the second blow, he was conscious of other people being in the vicinity. In particular, there were the residents of 39 Hardys Road in their front yard and Ms Shelton, a solicitor, who was stationary in a car at the roundabout of the intersection of Hardys Road and Northern Parade. When a further scuffle occurred, the phone of Mr Maiolo dropped out of either his pants pocket or out of a t-shirt pocket. The accused picked up the phone, taunted Mr Maiolo with it and said he was taking it. The accused then ran away from the area.
I further find that during the whole period of time, the accused was holding in his hand the keys of the vehicle of Mr Maiolo. I find that in the second scuffle, Mr Maiolo was able to grab at the keys in the hand of the accused and pull the keyring apart by the force of his grab such that some of the keys fell into his hands. One of those keys was the key to the motor vehicle.
I find that the accused then ran southwards along Hardys Road and then westward along Northern Parade. I find that he hid in a random house the front yard of which had a hedge front fence.
The evidence given by Mr Maiolo was truthful, honest, credible and reliable. I found him to be a compelling witness. I accept his evidence without hesitation. I accept the evidence of all of the witnesses called by the prosecution. I found all of their evidence to be credible, reliable, truthful, honest and compelling. I have taken into account the inconsistencies in the version of events given by the accused: where he was heading that day, the boys on push bikes, his ability to see Mr Maiolo clearly, where his bag was placed and his alleged hamstring injury. I have also had full regard to the alleged inconsistencies in some of the evidence given by the prosecution witnesses. In my opinion, those alleged inconsistencies are not matters of any particular weight or significance and they do not change my views. I have also taken into account the fact that Ms Shelton thought the vehicle owned by Mr Maiolo was facing south in the southbound carriageway of the road; however, it was plainly facing north. I consider she was mistaken about that and therefore was mistaken on what she said about these events occurring on the passenger side of that vehicle. All the evidence points to the events having all occurred on the driver’s side except those events after the accused had left the area and sprinted down Hardys Road towards Northern Parade and along Northern Parade.
I accept the submissions made by the prosecution that the evidence of the Police officers about the accused’s uncharged conduct could only be used on a Nieterink[2] style basis. I am not prepared to give any significance to that evidence of the Police officers except that at the relevant time the accused was highly agitated, was highly aggressive and took significant effort on the Police officers to arrest and to subdue him. Other than that, I am not prepared to give any further significance to that evidence. I would not reason because of that evidence that the accused was likely to have committed the offence with which he has been charged. The evidence of the Police officers may only be used to set the scene of the events and to better explain the physical circumstances as they were detected by the Police on arrival.
[2] R v Nieterink (1999) 76 SASR 56.
Findings
I am satisfied beyond reasonable doubt that at the time he first struck Mr Maiolo, the accused had an intention to commit the offence of robbery. I make this finding based upon the inferences that I am satisfied arise on all of the evidence. I find that the only reason the accused stopped the vehicle in the road as he did was with the intention of taking that vehicle. I find proved beyond reasonable doubt that the accused intended to and did use force in this attempt in order to fulfil this intention. It was a random event. It just so happened that Mr Maiolo was driving the vehicle which the accused stopped.
I find that the accused clearly had an intention to commit the offence of robbery by stopping the vehicle, taking the keys from the vehicle and claiming the vehicle as his own. I am satisfied that in this attempt, the accused used force against the complainant, Mr Maiolo, by seizing the keys of his vehicle and punching him in the head on multiple occasions.
Verdict
In the result, I find the accused guilty of the charge.