R v Hart - [2017] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HART
Criminal Trial by Judge Alone
[2017] SADC 106
Reasons for the Verdicts of Her Honour Judge Schammer
25 September 2017
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
The accused attended at the complainant's home on 10 January 2015 at approximately 10.30pm and banged on the front door. The complainant opened the front main wooden door of his home. An altercation occurred, resulting in damage to the wire mesh security door which remained closed and locked throughout the altercation. The complainant sustained injuries to his right hand, left forearm and foot. The accused was charged with aggravated criminal trespass in a place of residence and aggravated recklessly causing serious harm, the circumstance of aggravation in each instance being that the accused knew the complainant was over 60 years of age.
Verdict - not guilty of both counts
- guilty of alternative count of aggravated recklessly causing harm

Criminal Law Consolidation Act 1935 ss 21, 23(3), 24(2), 170A(1), referred to.
R v Davis (1823) 168 ER 127; R v Welker [1962] VR 244, 245, considered.

R v HART
[2017] SADC 106
Introduction

The accused, Trevor Hart, is charged with two offences that are alleged to have occurred at approximately 10.30 pm on Saturday 10 January 2015.
These offences are one count of aggravated criminal trespass in a place of residence and one count of aggravated recklessly causing serious harm, the circumstance of aggravation in each instance being that the occupant of the place of residence and complainant, Ivan Vidakovic, was over 60 years of age at the time.
It is alleged that the accused attended at the complainant’s home at 55 Barbara Road, Salisbury East, in the company of his youngest son. It is alleged that after the complainant opened the main front wooden door of his home, the accused repeatedly kicked a wire mesh security door (‘the security door’), causing the solid metal mesh to break, resulting in a deep cut to the complainant’s right hand and a cut to his left arm, sustained while the complainant was holding his hands up against the security door, with his palms facing out, trying to prevent the accused from getting inside his home.
It is further alleged that the accused entered the complainant’s home by taking a step inside the home.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. The trial proceeded before me over five days commencing Monday 5 June 2017.
The Charges
First Count
Statement of Offence
Aggravated Criminal Trespass in a Place of Residence. (Section 170A(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Trevor Hart on the 10th day of January 2015 at Salisbury East, trespassed in a place of residence of Ivan Vidakovic while Ivan Vidakovic was lawfully present in the place of residence, and knowing of his presence in the place.
It is further alleged that Trevor Hart committed the offence knowing that Ivan Vidakovic was, at the time of the offence, over the age of 60 years.
Second Count
Statement of Offence
Aggravated Recklessly Causing Serious Harm. (Section 23(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Trevor Hart on the 10th day of January 2015 at Salisbury East, caused serious harm to Ivan Vidakovic, being reckless as to whether such harm was caused.
It is further alleged that Trevor Hart committed the offence knowing that Ivan Vidakovic was, at the time of the offence, over the age of 60 years.
Legal Directions
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.
In these reasons if I use the words proved, established, or satisfied then I have meant in each case to an extent that excludes reasonable doubt.
The accused is presumed by law to be innocent of 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.
If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then he remains innocent of that charge and I must return a verdict of not guilty to that charge.
There are two 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.
With respect to each charge, if I am satisfied that there may be a rational explanation consistent with the innocence of the accused 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.
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.
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 the gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution have proven the case beyond reasonable doubt.
The accused elected to call evidence from his son. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution. I remind myself that even if I reject the evidence presented by the defence in its entirety, that fact does not bolster, nor strengthen the prosecution case. It remains for the prosecution to prove each element of the offence (and in this case, offences) charged beyond reasonable doubt.
The accused was not obliged to answer the questions directed to him by police in a record of interview, but he chose to do so. The statements or expressions of opinion made by any police officer to the accused during the record of interview are not evidence. Only the answers given by the accused are to be used as evidence in this case, although of course the questions that were asked of the accused may provide a context or assist to explain his answers. Insofar as the record of interview contains self-serving statements I remind myself that the accused was not cross examined with respect to such statements.
In this case, an expert in DNA analysis was called to give evidence. 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.
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.
Elements of the Offence
Count 1: Aggravated Criminal Trespass in a Place of Residence
The prosecution must prove each element of the offence beyond reasonable doubt, namely:
1The accused entered or remained in a place of residence. A ‘place of residence’ means any building or part of a building used as a place of residence.
2The accused did so intentionally as a trespasser, that is, he entered or remained without the consent of the occupier and he knew he did not have the consent of the occupier or was recklessly indifferent in respect of their consent.
3That at the time another person was lawfully present in the place and the accused knew of that person’s presence or was reckless as to whether another person was so present.
The circumstance of aggravation is that the accused knew at the time he committed the offence that the complainant was over the age of 60 years.
Count 2: Aggravated Recklessly Causing Serious Harm
The prosecution must prove each element of the offence beyond reasonable doubt, namely:
1The accused caused serious harm to the complainant.
‘Serious harm’ is defined in s 21 of the Criminal Law Consolidation Act 1935 (‘the Act’) as:
(a) harm that endangers a person’s life;
(b)harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c) harm that consists of, or results in, serious disfigurement.
Harm can be physical or mental harm, whether temporary or permanent. Physical harm includes unconsciousness, pain or disfigurement.
2The act or acts causing serious harm were deliberate, not accidental.
3The accused recklessly caused serious harm to the complainant.
‘Recklessly’ is defined in s 21 of the Act to mean:
- a person is reckless in causing harm or serious harm to another if the person-
(a)is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and
(b) engages in the conduct despite the risk and without adequate justification.
4The act or acts causing serious harm were unlawful. In other words, the accused was not acting in self-defence.
The circumstance of aggravation is that the accused knew at the time he committed the offence that the complainant was over the age of 60 years.
The Evidence
The prosecution called evidence from the following witnesses:
1The complainant, who gave his evidence with the assistance of an interpreter;
2The complainant’s son, John Vidakovic;
3Brevet Sergeant Andrew Murphy (‘Officer Murphy’), the crime scene investigator.
4Detective Brevet Sergeant De’arne Woodroofe (‘Officer Woodroofe’), the principal investigating officer.
5Ms Emma Koch, forensic scientist.
6Mr Martin Mackey, a neighbour.
7Ms Anne Wells, a neighbour.
The accused did not give evidence but called evidence from his son, Nathan Hart.
In addition, the following witness statements were tendered by consent:
1Dr Markos Kyriakides dated 29 January 2015.
2Dr Shashank Lamba dated 21 May 2015.
3Dr Sanjeer Sabharwal dated 2 August 2016.
Defence Case
Although the accused did not give evidence it became apparent, on the basis of Mr Nathan Hart’s evidence and that contained in the accused’s record of interview (Exhibit P10), that there was no dispute that the accused attended at the complainant’s home with his youngest son on the night in question.
However, in his record of interview the accused denied intentionally causing any damage to the security door and claimed that after knocking on the complainant’s front door, the complainant had armed himself with a knife and inflicted a number of injuries upon him, being lacerations to his head, left hand, left little finger and abdomen.
Mr Nathan Hart gave evidence that the damage to the security door was caused when the complainant pushed or barged his way through the closed security door while armed with a knife.
As to count 1 on the Information the accused denied entering the complainant’s home but it was submitted that if he did, he did not enter as a ‘trespasser’ because he honestly believed he had a right to do so, so as to retrieve items he believed had been stolen from his family by the complainant’s son, John Vidakovic (also referred to during the trial as ‘Johnny’).
There was no evidence in this case which raises as a possibility that the accused acted in self-defence with respect to count 2 on the Information, rather the accused denied he had acted in the manner as alleged by the prosecution and denied he had acted in any way so as to cause any harm or serious harm to the complainant.
Tendered Statements
The three witness statements tendered by consent relate to injuries sustained by the complainant.
Dr Kyriakides stated that he saw the complainant in the Emergency Department at the Lyell McEwin Hospital at 11.40 pm on Saturday 10 January 2015.
He said the complainant stated that two men had forced their way into his home, ‘breaking the glass screen’. He described the complainant as having sustained a deep cut to his right hand through the web space at the base of the right thumb approximately 8 cm long, extending through the muscle and the wound was bleeding profusely. In addition the complainant sustained a 10-12 cm cut to the middle of the left forearm with exposed underlying muscle and a minor, 2 cm cut to the top of his left foot.
The bleeding blood vessels in the right thumb were tied off but the other wounds were only dressed. The complainant was given a tetanus boostrix, IV pain relief and intravenous antibiotics and was then transferred as a matter of urgency to the Royal Adelaide Hospital (‘RAH’).
Dr Lamba, a medical practitioner and Fellow in the RAH Department of Plastic and Reconstructive Surgery as at May 2015, prepared his statement (dated 21 May 2015) following a review of the complainant’s RAH medical records. He was not involved with the complainant’s inpatient treatment and only saw him as an outpatient.
He noted that the complainant had been assessed by Dr Coghlan, Plastic Surgery Registrar, on 11 January 2015 in relation to a deep laceration to the right hand first webspace/base of thumb involving 100% lacerations of the flexor tendon, ulnar digital nerve, radial digital nerve and ulnar digital artery, a transverse laceration to the left mid-forearm dorsum down to the fascia, exposing but not penetrating the extensor tendon and superficial lacerations to the feet. The former two injuries required surgical repair.
The complainant was discharged the following day and then referred for physiotherapy treatment and splinting.
Thereafter the complainant reported ongoing sensory loss over the ulnar aspect of the right thumb, affecting his activities of daily life, which complaint remained as at April 2015. Dr Lamba expressed the view that over time the complainant should regain nervous sensation although that was not always predictable. He stated it was likely the complainant would have permanent scarring as a result of the injuries.
Dr Lamba could not comment on the mechanism of the injuries but stated the lacerations appeared consistent with contact with a sharp object.
Dr Sabharwal is a general practitioner who examined the complainant at the Cross Keys Medical Centre on 12 May 2016. The complainant presented with stiffness in his right hand and reported he could not hold a glass. The complainant described numbness over the right thumb and ongoing difficulties undertaking household chores.
Upon examination Dr Sabharwal noted the complainant could not make a fist with his right (dominant) hand and had numbness on the ulnar side of the right hand and tip of his right thumb that was not going to recover further.
He described the complainant’s left hand grip as normal, with no disability to the left upper limb, where there was a healed scar on the mid forearm.
Contested Evidence
The complainant
The complainant gave evidence with the assistance of a Croatian interpreter.
The complainant gave his date of birth as 19 February 1942, meaning that as at the date of the alleged offending he was 72, nearly 73.
He said that at the time of the alleged offence he lived alone at 55 Barbara Road, Salisbury East and had lived at the home since 1992. He had originally lived at the home with his former wife (from whom he separated approximately 9 years ago) and his two sons, Danny and John.
At the time of his separation his former wife had left the home. Danny had married and moved out. John had lived for two years with his mother and then returned to live with him at the home, but was not living there as at the date of the alleged offending. He stayed there overnight occasionally.
The complainant gave evidence that on Saturday 10 January 2015 he went to the Croatian Club and returned home and had dinner at around 6 to 7 pm. He watched television and then went to bed at around 8 or 8.30 pm. He was home alone at the time.
He fell asleep, but was awoken by somebody at the ’entry door’, being the front door of his home.[1]
[1] T67.23-25.
He said he heard a conversation and knocking at the front door, so he got up and went to the front door to see who was there.
He said he opened the front door – being an inside wooden door. He described there being a further security screen door between the wooden front door and his outside porch area, which remained closed and locked.
He could see two people through the security door – an ‘older man’ and ‘a younger boy’.[2] He recognised both of these people, being a father and son. He said he used to see the father out the front of the father’s house in Daphne Street, when he walked past to go to the shop. He did not know the younger boy’s name but said he used to see him on the street when he used to come to visit his neighbour’s son.
[2] T69.2-9.
He said the older man, who he identified as the accused, asked him ‘Is Johnny at home’? He said he replied ‘Johnny’s not at home’[3].
[3] T70.15-17.
He said the accused asked him a second time, ‘Is Johnny at home?’ and he replied again ‘Johnny’s not at home’ and told him ‘he should go home and leave me alone’.[4]
[4] T70.24.
The complainant said that instead of going home the accused ‘smash the mesh on security door’.[5]
[5] T70.30.
The following exchange then occurred in examination-in-chief:[6]
[6] T70.31-71.21.
QWhat did he smash the mesh with.
AHe was wearing heavy working shoes, like safety shoes, with the steel caps on.
QWhat did he do with his shoes.
AHe smashed the door.
QWhat did you do.
ASo I was standing in front of him trying to prevent him to go into house and that happen, that incident.
QHow did you do that; how did you try to prevent him from going into the house.
ASo with my arms (DEMONSTRATES).
QYou’re demonstrating, just so I can describe it, with your two hands facing away with your fingers upright. Where were your hands placed.
AOn my smashed door.
QDid that stop him.
AHe did not stop, he continue taking pots and he started throwing the pots into the house, so my hands were in blood and I wanted to continue stopping him and I went to take kitchen knife with my right hand but I couldn’t hold kitchen knife because my hand was bleeding.
QYou said that he was using his steel cap boots against the door.
AYes, that’s correct.
QWas he kicking the door.
AYes, he kicked the door and entered the house.
QWhere did he enter, how did he enter.
ASo he went inside the house like one step, so when I took the knife he step back.

The complainant gave evidence that when the accused was pushing the security door he had tried to stop him with his hands. He described sustaining a cut to his right hand, where there was still a scar, extending on the back of his right hand between his thumb and forefinger down to the base of his palm. He said he could not keep a glass in his right hand or form a fist.
He was asked:[7]
[7] T72.15-24.
QHow did you get that injury.
AWhen he was pushing security door, I tried to stop him with my hands.
QSo how was your right hand injured.
AI think I was injured like pushing sharp part of the door.
QWhich part of the door was sharp and cut your hand.
AThat was mesh, mesh was cut.
QIs that the mesh that was in the screen door.
AYes.
Later in his evidence the complainant said that he had a tremor in his right hand all of the time, he could not bend his right thumb and he did not have any feeling on the inside of his right thumb.
The complainant also described an injury to his left forearm where there was a deep cut across his forearm from one side to the other. He said he could see the bone.
He said ‘I cut my left arm on another part of the mesh on the door, that mesh was damaged, heavily damaged’.[8]
[8] T72.26-27.
The following exchange occurred in examination-in-chief:[9]
[9] T73.1-29.
QWas the older man Trevor doing something to the door when you were cut.
AWhen I started bleeding I was reaching to take knife, then Trevor step back.
QI think you say you were cut by the mesh on the door; is that correct.
AYes, I did.
QWhat was Trevor doing, the older man, when you were cut.
AHe didn’t do anything.
QWas he doing something to the door when you were cut.
AIt was night, so it was dark. Only what I can remember, he took flower pots and hit the entry door with the flower pots and some other plants.
QWere you bleeding.
AYes, I did, and very much.
QYou say that he came inside, he took a step inside.
AYes, he did.
QWhat did you do when he took a step inside.
AI tried to stop him. I didn’t let him go inside.
QWhat did you do.
ASo with my wide hands, arms.
QWhere did you put your hands or your arms.
AAt that particular moment I really didn’t know what I was doing, I just did it automatically like, without much thinking.
QWhat happened next, what happened after he took a step inside.
AI started bleeding heavily and he stepped back when he saw so much blood.
The complainant was asked when and from where he got the knife he had referred to and what he did with it.
He said he had got the knife from the kitchen at a time when he was already bleeding and had cut hands.
He was asked ‘What did you do with the knife’[10] and replied:[11]
AI took my, like arm towards the door but I couldn’t keep the knife in my right hand.
QWhat do you mean by that.
ABecause I had the wound on my right hand.
QWhere was the older man Trevor when you had the knife.
AOutside, at the front of the house.
QDid you go outside.
ANo I didn’t.
[10] T73.38.
[11] T.74.1-8.
The complainant gave evidence that thereafter the older man, Trevor left although he ‘didn’t see them leaving’.[12]
[12] T74.34.
He said that his next door neighbour called an ambulance, the neighbour (Mark) tried to put a bandage on his hand and then the ambulance and police arrived.
The complainant was asked whether he did anything with the knife to Trevor. He replied:[13]
No, I didn’t do anything to him. I couldn’t keep the knife in my hand.
[13] T74.31-32.
He said the younger man did not do anything to him but when the older man was smashing the door he heard the younger man say ‘He is a good man. You shouldn’t do that. Leave him’.[14]
[14] T74.28-29.
In cross-examination the complainant was asked why he did not slam the wooden door in the face of the man when he started to kick the security door. He replied:[15]
I wanted to see who was there. I wanted to see the man who was there.
[15] T85.23-24.
He confirmed in response to further questioning that he could see the two men through the security door mesh and that he recognised the men from around his neighbourhood.
He was asked:[16]
[16] T86.7-17.
QSo why didn’t you slam the wooden door in his face when he wouldn’t go away.
AHow could I close or slam wooden door into his face, because in that second he already smash the mesh?
QSo he did it with one kick; is that right.
AMany.
QMany kicks; is that what you’re saying.
AYes, many kicks.
QSo why, when you got the first kick, did you not close the wooden door in his face.
AIt was too late. He could smash the wooden door.
The complainant was also asked in cross-examination whether he had a telephone in the home and he confirmed there was a telephone in the kitchen. He explained that he had not called the police as he did not know what number to dial. He said his former wife had taken care of those things and that he did not know the emergency number (000), despite having been separated and living apart from his former wife for seven or eight years.
He reiterated in cross-examination that at no time did he go outside of his home, at no time did he use the knife to stab the accused and at no time did he struggle with the accused in the front garden. He denied attempting to use the knife to stab the accused through the security door[17], he denied that he was the one who had pulled the wire screen off the security door and said of the accused ‘No, he smashed the wire and wire was on the ground’.[18] He said he did not see the accused get injured at all.[19]
[17] T90.1.
[18] T90.23.
[19] T94.36.
The complainant was asked a number of questions in cross examination about the accused’s alleged entry into the home.
The following exchange occurred during cross-examination:[20]
[20] T94.37-95.36.
QOf course you would say you didn’t see him all the time because you went down to the kitchen to get the knife at one stage and came back.
AIf I shouldn’t take the knife he will enter into my house, I wanted to protect myself.
QBut he could have got in the front door while you were getting the knife.
ASo when I came back with the knife he, he was on his way to leave, he was leaving.
QWhen you went to get the knife you didn’t know he would be leaving.
AI didn’t know that he’s going to leave.
QNo, and he already had a foot inside of your front door.
ASo yeah he - I took step back.
QYou took a step back – let’s be clear – when you came back with the knife or when you turned to go and get the knife.
AI went to grab knife when I saw bleeding in my hands, on my hands.
QBut at that time he was already partly inside your house.
AHe was on the doorstep. He didn’t went into house.
QSo he never actually put a foot inside the house did he.
AI couldn’t see everything because it was dark.
QSo it’s, he may never have had his foot – I’m not saying - leave aside all the other allegations about him, it’s quite likely – you can’t say whether he had his foot inside the house or not at any time can you.
AWhy are you asking me all the time the same question?
QWell the answer is you don’t know do you, it’s that simple.
AI know.
QYou know that he had his foot inside the door or you don’t know because it was dark.
AI saw his foot inside the house, but yes it was night-time.
QAre you sure you saw his foot inside the house.
AYes, I’m sure.
The complainant denied that he tried to break through the screen door to attack the older man, while the younger man tried to hold that screen door closed against him. He maintained that the younger man had stood aside and had not done anything.
The evidence given by the complainant as to whether or not he fell during the incident was as follows:[21]
AHe was at my front door, he smashed the front door, I stand back, but I did not have a fall.
QDid you tell police he pushed you and made you fall.
ANo, I did not have a fall.
QDid you tell the police that you did.
AI can’t remember that I told that to the police.
[21] T100.30-33.
The complainant gave a statement to police on 12 January 2015, while he was still a patient at the RAH and signed that statement on 23 January 2015. The statement was tendered as Exhibit D1.
The complainant said that he did not have an interpreter with him either when he gave the statement or when the statement was read back to him in English. However he was asked if he understood what the officer read to him on 23 January 2015 when he signed the statement and he said he understood.[22]
[22] T102.35-38.
The complainant confirmed that he signed the statement as it was the truth.
At para.4 on p.2 of the statement it is recorded:
The older man then grabbed a flower pot and threw it at the screen door and stepped one (1) leg inside and he then came inside my house in the front entry and pushed me causing me to fall down…
The complainant gave a further statement to the police on 23 June 2015, which statement was tendered as Exhibit D2. The statement was provided to Officer Woodroofe.
Although the evidence is unclear, it seems likely that there was no interpreter present at the time he made his statement.
The complainant was shown a copy of the statement and agreed he had signed the statement. He said the police officer had read the statement to him. When asked if he understood what she had read to him he answered ‘Most of them’[23]. He did not tell her anything about what he may not have understood.
[23] T103.32.
At para.2 on p.2 of that statement it is recorded:
In my original statement it says that the older male came into my house through the front entry and pushed me causing me to fall down. I did fall down but this was caused from the screen door being kicked in and was trying to stop the male entering. The male did enter my premises but did not physically push me with his hands.
In cross-examination the complainant was asked:[24]
QDid you tell her that the male did enter your premises but did not physically push you with his hands.
AI can’t understand. I can’t remember.
[24] T103.36-38.
This line of questioning was not followed any further.
Officer Woodroofe was not asked any questions with respect to this statement.
The neighbours
At the time of the alleged offending Mr Mackey lived directly across the road from the complainant at 46 Barbara Road, Salisbury East.
Mr Mackey gave evidence that he and his wife were in the backyard of their home when he heard what sounded like some loud banging and a screen door being hit repeatedly. He also heard some loud voices shouting and what sounded like a glass bottle breaking.
He went to his bedroom window which faced directly onto Barbara Road and was directly opposite the complainant’s front door.
He said he saw two men in the complainant’s front yard near the front door making loud noises, yelling and screaming although he could not make out what they were saying.
Mr Mackey then moved into his front yard so that he could get a better view of what was going on. He saw an older man in his 50s, maybe 60s and a younger man in his late 20s, to mid-30s.
He said:[25]
Ivan was on the other side of his screen door. When I came out, the door had been torn apart and the metal insert screen out of his security screen door – he was standing on one side of it, another man was standing on the other side of it and they were wrestling over that piece of metal, and Ivan was a couple of metres in front of his front door as if he had been yanked out or followed this person out.
[25] T108.1-8.
He clarified that the complainant was not inside his home at this time, rather he and the older man were both under the front verandah of the complainant’s home and each was grabbing hold of a side of the metal screen, which was no longer within the doorframe. He described them as wrestling over the piece of metal. He said the complainant then dropped his side and retreated back to within his house, the older man followed him to the front door and the complainant had tried to close the wooden door but had been unable to fully close it. He described the older man as being about 1 to 2 m away from the front wooden door at this time.
He heard someone say words to the effect of ‘I’m going to kill you. That’s the last time you speak that way’ and ‘You can’t call my sister a slut’.[26] In examination in chief he said that it was not the complainant who had said these words. In cross examination he maintained that he did not believe that it was the complainant who had said the words to the effect of ‘I’ll kill you’ although he acknowledged he could not be 100% certain.
[26] T109.23-25.
Mr Mackey gave evidence that by this stage other neighbours had come out to see what the noise was about and that the two men started to walk away, but came back and shouted ‘We’ll be back tomorrow to sort this out’[27] then they walked away. He said he and another neighbour had followed them at a distance for about 30 to 40 m along Shelton Drive but they lost sight of the men after the second bend on that street.
[27] T110.8-9.
At the time of the alleged offending Ms Wells lived at 44 Barbara Road, Salisbury East, being on the opposite side of the road from the complainant’s home and on the north western side of Emma Court. In other words, a short distance down Barbara Road from the complainant’s home, on the other side of the road.
Ms Wells gave evidence that on the night of the alleged offending it was quite late and she was inside watching TV. She said her immediate neighbour was having a bachelor’s party so there was quite a bit of activity in the street.
She heard some yelling, which prompted her to go to her front door and then she stepped out onto her front porch.
She said she saw the complainant at his front door, being diagonally across the road from her front door. She could see two male people yelling and starting to kick the front door. She said the complainant’s internal light was on and she could see his figure on the inside of the door. She said the external porch light was also on. She said it ‘was mainly one of the men just kicking the door’[28] and saying a few things to the complainant. She described the kicks as forceful and said she saw maybe five such kicks. She said she could see the complainant on the other side ‘just holding against’ the door.[29] She described him as using his arms, with his palms facing outwards, to push against the security screen door.
[28] T137.21-22.
[29] T137.30.
She said there were two men, an older man, with a bald head, probably in his 40s with a bit of a beer belly and a younger man, probably late 20s with fairish short hair. It was the older man who was mainly kicking the door.
She heard one of the men say that they were looking for Johnny and that the complainant had responded ‘He’s not here’.[30]
[30] T138.34.
She believed one of the men, and she thought it was the older man, picked something up, like a pot plant and threw it against the door and then they both walked away, around the corner, being in the direction of Shelton Drive. She thought the pot plant had come from under the verandah rather than from the garden.
She did not see the complainant come outside at any time, nor did she see him holding a knife at any time. She did not hear the sound of breaking glass at any time. She said that during the roughly four minutes that she was observing the incident the complainant had remained at his front door, but inside his house.
She had not seen the complainant retreat from near his front door, back inside his house during the altercation.
During cross-examination Ms Wells estimated that she was about 50 m away from the events she was observing.
The police
There were numerous photographs taken at the scene by the crime scene investigator, Officer Murphy. Those photographs were tendered as Exhibits P3 and P4.
Officer Murphy gave evidence that he arrived at the complainant’s home at approximately 11.30 pm on 10 January 2015 and at that time there were already several other police officers in attendance. He did a walkthrough of the premises with the investigating officer, Officer Woodroofe and obtained information from the other officers present as to what they had seen.
Within 15 minutes of his arrival he commenced taking photographs and samples (including blood samples) from the scene in his role as a crime scene investigator. He continued with these tasks until he left the scene at 3.20 am the following morning.
Officer Murphy said the 79 photographs in Exhibits P3 and P4 were only a selection of the photographs he had taken.
Officer Murphy labelled every area from which a sample was taken by him, with the labels bearing the Police Property Management System (‘PPMS’) number for the investigation, namely 15/B45674 and each being individually numbered.
Photographs 1 and 2 of Exhibit P3 depict the front of the complainant’s home which faced north on Barbara Road.
He observed that the thick mesh from the security door at the complainant’s home had been torn off, with only the top third of that mesh still intact in the doorframe. The balance of that mesh appeared to have been pulled or pushed out of the interior channel that runs around the doorframe and was on the ground in the front yard in the location depicted in photographs 10 and 11. He had not measured the mesh on the ground to see if it ‘lined up’ with the mesh left within the doorframe.
He could not say if the mesh remaining intact on the doorframe appeared to have been pushed either ‘inward’ or ‘outward’. When asked again about this during cross examination Officer Murphy said that the mesh appeared to have been pushed slightly inwards by reference to photograph 25.
He observed that the security door was locked, as evidenced in photographs 23 and 24.
Officer Murphy observed numerous bloodstains at the scene at various locations both inside and outside of the house.
Those blood stains can be seen in many of the photographs, including photograph 15. That photograph is accompanied by a description namely ‘View of passive blood drops, broken glass, forensic label etc’.
Officer Murphy described his understanding of a passive blood drop as being a blood drop formed by the effects of gravity only, such as someone with a blood nose, dripping blood from their nose and that blood hitting the ground.
In cross examination Officer Murphy was asked if he observed any blood stains which appeared to have been transferred from one item to another and he agreed that he had and specifically referred to the bloodstains on a light switch above the bookcase.
Officer Murphy said that he saw what he believed to be human flesh caught or adhering to the security screen doorframe above the door handle. This is depicted in photograph 28. He also took a sample of that flesh.
He also observed what he believed to be human flesh on the edge of a brick to the right of the front door (if looking towards that door from outside the house), as depicted in photograph 29.
Part of a broken Somersby Pear Cider bottle (bearing a green label) is apparent in photographs 12 - 17 (inclusive).
Officer Murphy described seeing broken glass other than that part of that bottle and he stated that glass could be seen in photographs 13 and 14. Some of those pieces of glass also had part of a green label on them, others did not. There were no glass fragments in the immediate vicinity of the front door, nor any glass fragments stuck in the remaining mesh within the security doorframe.

The hexagonal insert from the security door can also be seen in photographs 10 and 12, lying on the ground in the front yard.
There is a rectangular piece of flyscreen mesh (being made of different material to that which had been in the security door) depicted loose on the ground, partly on the front porch, in photographs 12 – 14 (inclusive). Officer Murphy said he saw similar mesh on the top of the garden bed as depicted in the front right of photograph 12. He reasoned that it was likely the loose flyscreen had previously been covering part of the left of the garden beds as seen in that same photograph. In cross examination he said that it appeared as if there had been some sort of disturbance in the area of the left garden bed, which disturbance had involved the green vegetable matter, some of which was found inside the home.
Photographs 53, 54 and 55 were taken inside the home in the front hallway. In those photographs there is green vegetation apparent on the floor, particularly in an area near the door way entrance to a room leading off to the left (when viewed from a position near the front door). Similar green plant material can be seen in photographs 66 - 68 (inclusive) and photograph 70 on the floor in front of a bookshelf. Photograph 13, being a photograph taken from outside the home looking back towards the front door also shows similar green plant material on the ground just to the left and outside of the front door.
Officer Murphy noted that the bed in the main bedroom was unmade and that the lounge room, on the opposite side of the front hallway from that bedroom, was clean, neat and tidy with no signs of any disturbance.
The photographs taken inside the complainant’s house depict a blood trail between the front door and the kitchen/dining room area.
On the left side of photograph 77, on the kitchen bench, there is a knife. There are numerous blood drops on the kitchen floor in the vicinity of the knife. Officer Murphy described the knife as blood stained both on the blade and on the handle. He seized the knife, which was tendered as Exhibit P6.
Officer Murphy said he took the samples he had collected at the scene and the knife back to the Elizabeth Police Station and secured them in a crime scene facility there. The next day he entered the details of those samples onto PPMS and then transferred those items to the secure interim property room at the Elizabeth Police Station. He had no further contact with those items.
Officer Murphy also attended at an interview conducted between Officer Woodroofe and the accused on 11 January 2015 and he took the photographs tendered as Exhibit P5, which depict the accused and in particular various injuries on the accused.
On the accused’s left hand, there was a bloodied laceration, which appeared to be a cut, on the accused’s left little finger (see photograph 82), a laceration on the top of his hand running across the hand from the near the base of the left thumb towards the base of his index finger (photograph 83), a laceration along the top of his left thumb (photograph 84) and a further laceration on the top of another finger (photograph 85).
There was an injury on the accused’s head (photographs 86 and 87).
There was injuries on the lower left side of the accused’s abdomen (photographs 88 - 90).
The accused was also noted to be wearing a hospital tag on his right wrist.
Officer Woodroofe was the principal investigating officer with respect to the alleged offending.
She arrived at the complainant’s home at approximately 11.20 pm on Saturday 10 January 2015 in company with Officer Nguyen. She said other police officers were already in attendance, however the complainant was not present as he had already been conveyed from the scene via ambulance to hospital.
She described the damage she observed to the front security door at the home and the numerous blood stains both inside the home, particularly in the hall way leading from the front door to the kitchen and in the front yard. She also remembered there being smashed glass from a Somersby cider bottle outside near the front door.
She liaised with Officer Murphy at the scene and then left at approximately 12.15 am.
The next day she attended at the accused’s home address at 54 Daphne Road, Salisbury East at approximately 4.55 pm and arrested the accused. The accused’s home was also searched under the authority of a general search warrant. The location of the accused’s home and its distance from the complainant’s home is apparent from both the map tendered as Exhibit P1 and the overhead photograph of the area tendered as Exhibit P2.
The accused was then conveyed to the Elizabeth Police Station. Officer Woodroofe said he had a hospital wrist band on his right wrist and she observed he had a laceration to his little finger which was bleeding together with other scratches on his head, his right thumb and his stomach.
Officer Woodroofe and Officer Nguyen conducted a recorded interview with the accused. A disc containing that record of interview was tendered as Exhibit P10.
A DNA sample was obtained from the accused by way of a mouth swab and this, together with clothing seized from the accused, the blood samples obtained from the scene by Officer Murphy and the knife, were conveyed by Officer Woodroofe to the Forensic Science Centre for analysis. She confirmed that some further samples obtained from the scene were also conveyed to Forensic Science at a later date by a Detective Gough, as was a DNA sample obtained from the complainant on 12 January 2015.
Forensic Science SA
Exhibit P15 contains two schedules prepared by Emma Koch, Forensic Scientist (being extracts from two reports prepared by her) containing the results of examinations and analyses undertaken by Forensic Science SA relevant to the alleged offending. Each schedule sets out the samples which were submitted for analysis, a brief description as to from where each sample was obtained, the results of the analysis and a statistical weighting.
Ms Koch also gave evidence to explain what is set forth in these schedules.
She explained that reference samples in the nature of buccal swabs had been provided to Forensic Science SA by the police for both the complainant and the accused. A DNA profile was then obtained from each of these reference samples.
Samples taken from the scene (‘scene samples’) were also tested and analysed for the presence of DNA with the results then compared to those obtained from the reference samples.
The majority of the scene samples were blood samples.
With respect to the blood samples taken from the scene of the alleged offending, there were two such samples which, following a presumptive test for blood which gave a positive result, a single source DNA profile was obtained and compared with the reference sample for the accused and two scenarios were considered namely one, that the accused was the source of that DNA or two, that the source of the DNA was from an unknown individual. With respect to those two samples, the results of that comparison were that it was a hundred billion times more likely that the accused was a contributor to that DNA rather than an unknown individual. This statistical weighting is the highest level used by Forensic Science SA.
These two samples were blood samples obtained respectively from a swab used to sample a stain on the outside wall of the complainant’s home, to the immediate left of the front door (15/B45674-10, as depicted in photographs 21 and 34) and a swab used to sample a stain on the inside eastern wall passage of the complainant’s home (15/B45674-15, as depicted in photographs 51 and 52).
The complainant was positively excluded as being a contributor to that DNA, the DNA profile of the sample in each instance being a single source profile.
There was a further sample obtained from a swab used to sample a stain described in the schedule as being ‘on the inside passage floor mat’ (15/B45674-16). The prosecutor submitted that the position from which this sample was taken can be seen in photographs 41 and 42, being a sample taken of blood adjacent to, but not ‘on’ that mat. The questioning of Ms Koch was directed to that sample being ‘obtained from the floor area near to a floor mat…’.[31]
[31] T174.23-24.
Following a presumptive test for blood which gave a positive result, a mixed DNA profile from two contributors was obtained from that sample. That mixed DNA profile was then compared with the reference sample for the accused and two scenarios were considered namely one, that the accused was the source of that DNA or two, that the source of the DNA was from an unknown individual. The result of that comparison was that it was 260 times more likely that the accused was a contributor to that DNA rather than an unknown individual, being a relatively low statistical weighting.
That same sample was also compared with the reference sample for the complainant and two scenarios were considered namely one, that the complainant was the source of that DNA or two, that the source of the DNA was from an unknown individual. The result of that comparison was that it was a hundred billion times more likely that the complainant was a contributor to that DNA rather than an unknown individual.
There were several other samples obtained which following a presumptive test for blood which gave a positive result, a single source DNA profile was obtained and compared with the reference sample for the complainant and two scenarios were considered namely one, that the complainant was the source of that DNA or two, that the source of the DNA was from an unknown individual. With respect to those samples, the results of that comparison were that it was a hundred billion times more likely that the complainant was a contributor to that DNA rather than an unknown individual. The accused was positively excluded as being a contributor to the DNA, the DNA profile of the sample in each instance being a single source profile.
Those samples were from:
1A swab used to sample a stain on the main wooden front door (western hinge side) as depicted in photographs 39 and 40 (15/B45674-14).
2A swab used to sample a stain on the floor immediately inside the front door, as depicted in photograph 43 (15/B45674-19).
3A swab used to sample a stain on the inside floor, outside of the master bedroom, as depicted in photographs 54 and 55 (15/B45674-17).
4A swab used to sample a stain on the inside eastern passage wall, as depicted in photographs 44, 49 and 50 (15/B45674-18).
5A swab used to sample a stain on the inside eastern passage floor (for which there is no specific photographic evidence, 15/B45674-20); and
6A swab used to sample a stain on an inside door knob, as depicted in photograph 46 (15/B45674-21). By reference to photograph 44, this is the inside door knob of the front wooden door.
Biological tissue material located on the screen door (15/B45674-7, as depicted in photograph 28) was analysed and a single DNA profile was obtained from that sample. That sample was then compared with the reference sample for the complainant and two scenarios were considered namely one, that the complainant was the source of that DNA or two, that the source of the DNA was from an unknown individual. With respect to that sample, the result of that comparison was that it was a hundred billion times more likely that the complainant was a contributor to that DNA rather than an unknown individual.
The accused was positively excluded as being a contributor to the DNA, the DNA profile of that sample being a single source profile.
Heavy blood like staining was observed on the both sides of the blade and handle of the knife tendered as Exhibit P6.
Exhibit P16 includes a Forensic Science SA Examination Form with respect to that knife which indicates from precisely where two swabs were taken from that knife and then submitted for analysis.
One such swab (674-22.A) was taken from an area on one side of the blade, approximately one third of the way down the blade, as depicted in the top photograph on p.1 of Exhibit P16.
A second swab was taken from the reverse side handle of the knife (674-22.B), as depicted in the lower photograph on p.1 of Exhibit P16.
Each swab contained a single source DNA profile. That profile was then compared with the reference sample for the complainant and two scenarios were considered namely one, that the complainant was the source of that DNA or two, that the source of the DNA was from an unknown individual. With respect to the samples, the results of that comparison were that it was a hundred billion times more likely that the complainant was a contributor to that DNA rather than an unknown individual. The accused was positively excluded as being a contributor to the DNA, the DNA profile of the sample in each instance being a single source profile.
The accused’s shirt contained blood like staining on the inner neck, lower left front, lower left rear and lower left sleeve cuff area. Photographs of this shirt are also included in Exhibit P16.
A tape lift sample, taken to avoid any blood like staining, was taken from the inner neck area of the shirt (674-24.A). A single source DNA profile was obtained and compared with the reference sample for the accused and two scenarios were considered namely one, that the accused was the source of that DNA or two, that the source of the DNA was from an unknown individual. With respect to that sample, the results of the comparison were that it was a hundred billion times more likely that the accused was a contributor to that DNA rather than an unknown individual. The complainant was positively excluded as being a contributor to the DNA, the DNA profile of the sample being a single source profile.
A cutting from an area of blood staining from the shirt, taken from the area circled in blue on p.3 of Exhibit P16 (674-24.B) was analysed.
Following a presumptive test for blood which gave a positive result, a mixed DNA profile from two contributors was obtained. That mixed DNA profile was then compared with the reference sample for the accused and two scenarios were considered namely one, that the accused was the source of that DNA or two, that the source of the DNA was from an unknown individual. The result of that comparison was that it was 100 billion times more likely that the accused was a contributor to that DNA rather than an unknown individual. The complainant was excluded as being a contributor to that mixed DNA profile.
In cross examination Ms Koch confirmed that not every area of blood on the knife or the accused’s shirt was analysed, meaning it remained possible that there was blood on the knife, for example, that contained the accused’s DNA, although he was excluded as a contributor to the single source DNA profile undertaken with respect to the only two swabs taken from that knife. Similarly it remained possible that there was blood or sweat or saliva on the accused’s shirt, for example, that contained the complainant’s DNA, although he was excluded as a contributor to the DNA profiles undertaken with respect to the testing undertaken with respect to that shirt.
There were no DNA results for any swabs for blood stains found on the ground on the front porch or verandah.
In cross examination Ms Koch was asked a question relating to the transfer of DNA. She agreed with the proposition that transference of DNA was an accepted scientific fact. She was asked:[32]
QJust because you find a streak of blood on a wall where someone has walked past, it doesn’t necessarily mean that that blood is that person’s, it might have transferred from the body of someone who they had been fighting earlier.
AYes.
[32] T181.29-34.
The complainant’s son
The complainant’s son, John Vidakovic was called to give evidence. He was not present at the complainant’s home at the time of the alleged offending on 10 January 2015. His evidence was only relevant in terms of understanding why the accused and his son Nathan attended at the complainant’s home on that date and the nature of any relationship between the two families (and specifically the nature of any relationship as between any member of the accused’s immediate family and John Vidakovic) as at that date.
John Vidakovic gave evidence that as at 10 January 2015 he was mainly living at his girlfriend’s dad’s house although he occasionally visited and stayed with the complainant. He was not staying with his father on the night of Saturday 10 January 2015, nor had he been there during that day.
He said he had received a phone call at around midnight or 1 am on Sunday 11 January 2015 to inform him that his father was injured and at the hospital. He had then attended at his father’s home to ensure the house was secure once the police left. He described seeing damage to the front security door and blood drops throughout the whole of the inside of the house. He later visited the complainant in hospital and observed the injuries to the complainant’s right hand and left forearm although those injuries had been treated and bandaged by that time.
John Vidakovic gave evidence that he had known the accused for about 20 years as he used to go to school with the accused’s son, Danny, with whom he had been very good mates. He also knew Danny’s younger brother, Nathan and said that he would often visit the accused’s home in Daphne Street, being only a five minute or so walk from his father’s home in Barbara Road. He said similarly Danny Hart, and occasionally Nathan Hart, would visit his father’s home.
John Vidakovic was asked whether his father and the accused had met and he replied:[33]
Probably once or twice but not really.
[33] T122.10.
John Vidakovic gave evidence that there was a falling out between him and Danny Hart when he was falsely accused of something. Specifically he said that about six months before the alleged offending he had dropped into the accused’s home to see Danny, he had stayed only briefly and that shortly after he got home (to his father’s house) he had received text messages and a phone call from Danny accusing him of having stolen a phone which belonged to Danny’s sister, Deanna. In cross examination he agreed this incident may have been in January 2014, so approximately a year before the alleged offending.
John Vidakovic said that he had then returned to the accused’s home and argued with Danny about this for about 20 minutes and that then he and Danny had returned to his father’s home. He explained that if Deanna’s phone was there then Danny would have been able to hear it ringing if someone called the number. Danny had gone with him to his father’s home and had stayed there briefly and then gone home. The complainant was at home at that time but John Vidakovic said his father knew nothing at that time about the issue with the phone and that he had not mentioned it to him since as it had nothing to do with his father.
John Vidakovic said that from thereafter he was no longer friends with Danny. He said he had no contact with Danny, Nathan or the accused for some time. He said a few months later he was walking along Shelton Drive with his girlfriend and that Deanna Hart and a friend were walking just ahead of them and that Deanna had started abusing them. He said he had replied by looking at her and saying ‘I didn’t touch your phone’[34] and just kept walking.
[34] T126.8.
He said around three months or so before the alleged offending (although he could not recall precisely when) he was with his girlfriend at the Elizabeth City Shopping Centre and had seen Nathan Hart with a group of five friends. He described Nathan and his friends as ‘just giving me daggers and that’.[35]
[35] T127.20.
He was asked if he had seen the accused at all between the time of the falling out with Danny and the alleged offending. He said he was unsure when, but he had seen the accused and Deanna Hart at Hungry Jack’s at Salisbury, they were in a car and they were abusing him about the phone.

John Vidakovic said the issue with respect to Deanna’s phone remained unresolved and there had been no change in his relationship with the Hart family since the falling out.
Record of interview – the accused
The accused did not give evidence.
A disc containing the record of interview conducted between the accused and police on 11 January 2015 was tendered as Exhibit P10.
A transcript of that record of interview was marked for identification. Where I have made reference to the contents of the record of interview, that reference relates to my interpretation of what was said by the accused from listening to the disc and is not a reference to what is included in the transcript.
In the record of interview the accused made certain admissions and also made a number of self-serving statements.
During the interview, the accused told police that he had attended the pub the day before, had a few drinks and had then gone to the complainant’s house and knocked on the door to ask him where his son was. He explained that the complainant’s son, Johnny, had stolen money from his daughter and had pushed his daughter over and called her a whore. Later he elaborated and said the complainant’s son had stolen ‘our money’ and jewellery. He said his son, Nathan, was with him when he went to the complainant’s house, ‘but he had nothing to do with it’ and that ‘he didn’t do anything, just stand there’.
The accused said that he banged on the complainant’s screen door and that all of a sudden the complainant had come out and started stabbing him with a knife and had cut him on the head. He said the complainant had ‘gone off his head’. He said he had not gone to the complainant’s house to hurt him, he simply wanted to tell him what his son had done. He had gone to see the complainant, not his son and he did not go there because he thought any of the money or jewellery that Johnny had taken were inside.
The accused said he was pretty drunk at the time and could not provide much more detail.
He was asked if he could explain how the damage was sustained to the complainant’s screen door and it was put to him that it had ‘been ripped out from somebody from the outside’ and was asked to explain how that had happened.
In response the accused stated:
Oh probably me, I don’t know, I was just like banging on it, no lights were on or nothing I just like give it a good crack, banging and that, I suppose I could have done it when he was trying to thrust the knife at me or whatever.
He was asked if he could remember how the screen had come to be ripped off and he replied ‘no, he did not’.
He said he could not recall throwing a bottle at the complainant’s front door.
He was asked if he was involved in any kind of wrestle or tussle with the complainant and he replied that he really could not say, he was unsure and said ‘I actually was gonna go round today and say sorry’. He was not asked, nor did he say why he was sorry or what he was sorry for.
He was asked whether he had entered the house at all and he stated:
No, I wouldn’t have gone in the house, even drunk, I wouldn’t do that, no way would I have went in the house.
When asked to explain how the complainant came to be outside the accused said he could just remember going there, just knocking on the door and the complainant had come out screaming and that he had woken up with cuts.
When told about the injuries the complainant had suffered he stated ‘well I know I didn’t do it’. He said he did not have a knife, he never cut the complainant and that he never touched him or attacked him.
He acknowledged he was upset at the time because Johnny had ‘pinched all the money’ and called his daughter a whore. He was adamant that he just wanted to let the complainant know what his son had done.
During the interview the accused said (of the complainant):
I feel bad like if he got hurt or something. I had no intentions of hurting anyone.
He was asked what he had been wearing the night before and he described wearing a green shirt, blue jeans and steel capped boots.
He said he had gone to the Modbury Hospital for treatment for his injuries at around midday on Sunday 11 January 2015. His injuries included numerous cuts to his head and fingers and what he thought was a broken finger. He denied having any injuries on his stomach. He had told hospital staff that he had sustained the injuries when he fell down.
I remind myself that none of what the accused told the police was tested by way of cross-examination.
The accused’s son
Nathan Hart gave evidence.
He described an incident that had occurred at Christmas time, when John Vidakovic had attended a function at the accused’s house, some money had gone missing from his sister’s bag and her phone was stolen. The Hart family had concluded that John Vidakovic had taken both the money and the phone.
He said that on Saturday 10 January 2015 he had been at the Brahma Lodge Hotel where he had met up with his father, the accused, by chance. He had been drinking cocktails and he could remember 90% of what had occurred. He said he had thought that John Vidakovic was staying with his father. He said he and his dad decided to go to the complainant’s house, to knock on the door, to see if Johnny was there and to ask for their money back. He said his dad had had quite a bit to drink as he had been at the pub all day. He described the accused as ‘quite intoxicated’ and that his speech was slurred and his balance was affected.
He was asked to describe what happened when they arrived at the complainant’s house. He replied:[36]
So we got to the front door, knocked. Then Ivan had come out – we knocked actually a couple of times, then Ivan had come out and we asked where Johnny was and he said he wasn’t home, and then we said ‘Well’, like ‘We need to know. Like we want the money back’ and he said – he started swearing and telling us that he was going to shoot us and then went back to – he ran back into his kitchen, come back out with a knife and tried coming through the door, so I held the door and I said to dad ‘Get back’ and then he just pushed his way through, this is when I fell over, and then by then, dad and Johnny’s dad Ivan had – that Johnny- Johnny’s dad had dad holding him (DEMONSTRATES) and dad was holding him back and he was just like swinging the knife around. So I got up behind dad and started ripping dad back from Ivan and telling him to ‘Get out of there. This is no good’ and that’s when we took off.
[36] T199.38-200.16.
Nathan Hart said that the complainant had opened only his front wooden door. He denied that either he or his father had kicked the security door. He did not know how the wire mesh from that security door had come to be in the front yard on the ground (as depicted in photographs 10 and 11 of Exhibit P3).
He described the complainant as barging his way through the security door. He said he (Nathan) tried to grab hold of the door by holding his hands up with his palms against the mesh and that he had then fallen backwards. He had been holding a Somersby cider bottle in his hand at the time, he had let go of that bottle as he fell and the bottle had broken when it hit the ground.
He denied throwing anything at the house and he denied that his father had thrown anything at the house.
He said the complainant had the knife in his right hand as he barged through the security door and ‘that’s when he said he was going to kill us and came through the door’.[37] He did not know if the complainant was bleeding at this time and he did not notice the complainant bleeding at any time. Similarly he did not know his father had been cut.
[37] T.201.38.
He said before the incident at the complainant’s home his father, the accused, had not had any cuts to his hand, his head or his stomach but that he had seen these injuries on his father once they had arrived home, after the incident.
He was asked ‘Did your dad to your knowledge ever get a foot inside the doorway’ and he said no.[38]
[38] T205.7-9.
Nathan Hart was cross examined at length.
He said he had been walking home with his dad from the pub when his dad had come up with the idea to go to the complainant’s house and to ask Johnny about the money. He agreed this was about 10 o’clock at night. He had not known his father to ever visit the complainant at his home before, although he had been at the complainant’s home before due to his brother’s friendship with Johnny.
It was suggested to Nathan Hart in cross examination that this was not going to be a social visit, and he said that ‘yes, it was’. It was also suggested that it was not going to be a friendly visit and again Nathan replied that ‘yes, it was’.
He agreed they were both annoyed about the money having been stolen and that they wanted it back.
He agreed that in the year or so since the money had been taken members of his family had seen Johnny and that those occasions were unfriendly ones. He agreed that abuse had been exchanged between his sister and Johnny and said that Johnny had thrown rocks at his sister and called her ‘a slut’.[39] He agreed his whole family had fallen out with Johnny. He agreed that both he and his father were angry with Johnny and that they both hated him.
[39] T216.33-35.
Nathan Hart gave evidence that in addition to stealing some cash and his sister’s phone, Johnny had stolen a protein tub full of change from his bedside table. He had not seen Johnny take any of these things, rather he had worked out from the circumstances that it must have been Johnny who had taken them. He said his brother’s wallet had also gone missing.
He said that both his sister, Deanna and brother, Danny had confronted Johnny about stealing these things and that Johnny had denied doing so. He said there had been prior attempts made to get these things back from Johnny but those attempts had been unsuccessful.
Nathan Hart maintained that their plan in attending the complainant’s house at 10 o’clock that night was to have a civilised conversation with Johnny, to see if he would admit what he had done and to see if he would hand back the cash, the phone, the wallet and the protein tub full of change. He was asked if he thought that Johnny would hand these items over and he said ‘Maybe not at the time but we could have organised something’[40].
[40] T222.4-5.
He stated that he thought that Johnny might finally admit he had taken these things if they confronted him. When asked how they intended to confront Johnny, he said they simply intended to ask Johnny for the money.
Nathan Hart denied that he and his father were angry at the time they attended at the complainant’s house, although he acknowledged he was angry towards Johnny. He agreed that both he and his father were sick of the situation, they just wanted an answer and they just wanted their money back.
He said his father had knocked on the complainant’s door, but had not ‘banged’ on it.[41] The complainant had opened the front wooden door and had turned on the interior light. He thought his father had asked the complainant ‘Where’s Johnny?’[42] and he had replied ‘No he’s not’.[43] They had asked ‘Where is he?’ and the complainant had said words like ‘Go away’[44] and then had said, a few times ‘I’ll shoot you’.[45] He said the complainant had then run back into the kitchen and grabbed the knife.
[41] T229.37-230.1.
[42] T230.36.
[43] T231.21.
[44] T231.21-23.
[45] T231.25-27.
Nathan Hart gave evidence that the complainant returned to the front door with the knife and maintained that the complainant had broken through the security door, dislodging the wire mesh that had been in that security door, while he (Nathan) was standing with his palms up against the door trying to hold it in place, to put pressure on the door to stop the complainant from coming out. He maintained that in the process of doing so the complainant had knocked him onto the ground.
He marked photograph 10 of Exhibit P3 with the letter ‘N’ to show where he was when he was knocked to the ground. He said after he got up he had gone to pull his dad back and away from the complainant and again he marked the same photograph to show where the three men were at that time (being just on the grass beyond the pavers outside the front of the home, near a garden bed). He described the complainant as waving the knife around with his right hand and holding the accused by the front of his jumper with the other hand. It was then that he had thought that they had to get out of there. Although he had not seen the knife connect with any part of his father’s body he had seen the marks on his father’s head and had seen the knife go across his father’s head.
When asked why, after being asked to go away, they had not left, Nathan explained that they wanted to know where Johnny was. They had stayed at the front door, after the complainant had threatened to shoot them and waited for him to return, as they still wanted to know where Johnny was.
He denied that the accused had forcefully kicked the complainant’s security door several times or pulled the mesh from out of the door frame. He denied that the security door was damaged in any way by either himself or his father.
He denied ever seeing the complainant bleeding. He agreed that he had told the police that he had seen a cut on the complainant’s left forearm and that he had seen the complainant cut his forearm while swinging the knife about. He said that the complainant did not have a shirt on during the incident, he was wearing shorts and was barefoot. He did not know how the complainant’s right thumb came to be almost severed. He did not see the complainant get injured at all while the complainant was in the vicinity of the front door.
He did not know how the green plant material had got on the floor in the hallway inside the complainant’s house and denied that either he or his father had thrown a plant at the house.
He maintained that at no time were either he or his father being aggressive.
He said he and his father had started running home but that he had slowed to a jog and his father had stopped running somewhere on Shelton Drive.
He had not contacted the police about the incident as he wanted his dad to do so. He agreed he had made no attempt to contact the police to talk to them about the incident until they had contacted him.
He denied saying, or hearing his father say ‘We’ll be back tomorrow’.
Closing addresses of counsel
Mr Powell for the prosecution highlighted what he submitted was the blatant fabrication of events by Nathan Hart in his evidence.
In this respect he outlined that on all the evidence it was apparent that the accused was drunk and that Nathan Hart had been drinking when they attended at the complainant’s home, which was in darkness, at around 10 pm on Saturday 10 January 2015. As eventually conceded by Nathan Hart, they were both angry and this anger had been brewing for some time given the wrongs they perceived had been done to their family by John Vidakovic. He submitted that the only conclusion that can be made is that the accused and Nathan Hart intended an angry confrontation at the complainant’s home. He submitted that Nathan Hart’s claim that they attended to have a civil conversation with Johnny about the return of the stolen items was simply fanciful.
Thereafter he outlined the implausibility of the complainant, a man of 72 years of age, dressed only in his boxer shorts and barefoot, barging through his own locked and unopened security door to get to the accused and Nathan Hart – while at the same time Nathan Hart was holding his hands up against that security door trying to prevent him from getting through.
Mr Powell noted that on Nathan Hart’s version, the complainant had then launched a knife attack on the accused but with the eventuality being that the only person to receive any serious injuries from the altercation was the complainant himself, with the complainant’s injuries being somehow self-inflicted when he was wielding the knife.
Nathan Hart’s version was not put to either Mr Mackey or Ms Wells in cross examination. They were not asked to comment on whether they saw the complainant barge through the screen door or launch a knife attack on the accused in his front yard.
He noted that Nathan Hart told the court that they had both run away from the scene, whereas both Mr Mackey and Ms Wells described the two men as walking away from the complainant’s home.
It was submitted that the animosity between John Vidakovic and the Hart family was the motivation behind the accused’s attendance at the complainant’s home that night and that this was plain from the evidence.
Mr Powell submitted that this explained the hostile and violent behaviour of the accused as described by the complainant and why the accused kicked the security door violently several times using his steel capped boots. He noted that the accused had told police he was wearing steel capped boots on the night.
He submitted that there was no dispute that the complainant had asked the men to leave but they did not. He said that what was described by the complainant and as observed by Ms Wells was the complainant holding both of his hands up against the screen door to try to prevent the accused from kicking it in and entering his home.
He submitted the presence of the complainant’s flesh on the frame of the security door and the volume of blood in the area of the front door, made it clear that the complainant’s injuries had been sustained as a result of the complainant attempting to defend himself and his home from the accused’s forceful and deliberate kicking and destruction of the security door.
He submitted that the complainant’s evidence that the accused had taken only one step inside his home ought to be believed. He submitted, if this story was concocted, why limit the accused’s entry to only one step? He submitted that the complainant was being truthful in describing the accused’s entry into his home in this way and had made no attempt to embellish his evidence in that respect. In addition he noted the presence of the accused’s DNA in the blood samples found near the mat inside the hallway and on the eastern wall of the front hallway, albeit he noted these findings of themselves were not definitive. He submitted however that they supported the complainant’s version of events.
Mr Powell submitted that the evidence of the neighbours supported the complainant’s assertion that at all material times it was the accused who was the aggressor and that the neighbours’ version of events was supported by the physical evidence found at the scene.
As to alternative charges, it was submitted that with respect to each count, if I was not satisfied the accused knew the complainant was over the age of 60 then the basic version of each charge could be available as an alternative. However it was argued that given the relationship between the families the accused must have known the complainant was over 60.
As to count 2, it was submitted that in light of the violent and forceful nature of the damage inflicted upon the door by the accused I could be satisfied beyond reasonable doubt that the accused was reckless to the fact that serious harm could arise from such actions but proceeded to act in any event. However it was submitted that if I could not be so satisfied, then the accused’s actions were consistent with no other rational explanation than to him being reckless to the fact that his actions could cause ’harm’ to the complainant but that he acted that way regardless.
Ms Stokes submitted that upon a careful analysis and scrutiny of the evidence and in particular that of the complainant I could not be satisfied that there was no reasonable hypothesis available consistent with the accused’s innocence with respect to both charges.
She highlighted the complainant’s failure to immediately shut the front wooden door as being inconsistent with him being confronted by violence or aggression on the part of the accused on the other side of that door. She argued it was inconceivable that the complainant was unaware of the police emergency number (‘000’) despite his evidence to the contrary and queried why, if events had unfolded in the way he claimed, he did not simply call 000 when he went to the kitchen, rather than arming himself with the knife.

She referred to the inconsistencies in the statements made by the complainant to the police compared to what he said in his evidence as to whether he was pushed by the accused and whether he fell to the ground. She submitted that these inconsistencies showed that the complainant had the capacity to lie to the authorities as to the true nature of the events that had occurred.
She said it was inconceivable that the complainant had not exited his home, as he steadfastly maintained and she emphasised the differences in the complainant’s memory of the incident compared to that as described by the neighbours. Given the inconsistencies in that evidence it was submitted that there remained a reasonable possibility that these witnesses were mistaken and that the events did not unfold as claimed by the Crown.
Further, Ms Stokes referred to the apparent injuries that had been sustained by the accused. It was submitted that there was no alternative explanation as to how those injuries could have been sustained but for them being inflicted by the complainant when wielding the knife as alleged by Nathan Hart. It was submitted those injuries were only consistent with the complainant’s use of a knife.
Ms Stokes referred to the photographs which depicted the wire mesh from the security door lying outside the house. She suggested that this was consistent with that mesh having been pushed out, from inside, rather than having been pushed in by some action undertaken by the accused from outside the house.
She argued that I should find that I cannot be certain where the truth lies as to how the wire mesh came to be in that position or how the complainant came to suffer the injuries he sustained and that even if a conclusion was more likely than another, innocent explanations could not be excluded beyond reasonable doubt.
It was also submitted that as to count 1, there was simply insufficient evidence for me to be satisfied beyond reasonable doubt that the accused did enter the complainant’s home and even if I was satisfied, it remained necessary for the prosecution to exclude beyond reasonable doubt, that the accused had entered the premises on the basis of a claim of right. In this respect it was submitted that the evidence supported a finding that the accused’s purpose for attending at the complainant’s home was to retrieve property that belonged to him and his family.
Assessment of the Witnesses
In assessing the evidence of each witness I must determine first, whether the witness is honest, that is, whether he or she was honestly attempting to tell the truth.
If I decide that a witness is an honest witness, the next step is to decide whether the evidence given by that witness is reliable and accurate.
I may believe all, some, or none of a witness’s testimony. It may be that a witness who I find to be generally acceptable is honestly mistaken about a matter whilst being entirely reliable about other matters.
The complainant gave his evidence with the assistance of a Croatian interpreter.
I am mindful of the difficulties that can be encountered when a witness requires the assistance of an interpreter to give evidence. Apparent inconsistencies or unusual responses to certain questions may, in part, be explained by language and communication difficulties.
In this respect I note the criticism made of the complainant with respect to the difference in his evidence as compared to what he told the police in two respective statements, as to whether or not he was pushed by the accused at any time during the incident or whether he fell down (see discussion at paras. 79-89 herein).
I cannot be satisfied that both at the time the complainant made his statements to police on 12 January 2015 and on 23 June 2015 and on the occasions when these statements were read back to him by police, there was an interpreter present.
As such, although the complainant claimed to have understood what was read back to him by police (in terms of the contents of each statement) I cannot be satisfied that what was recorded in fact represents a completely accurate record of what was intended to be said by the complainant.
By way of an example as to difficulties in translation that can occur, even with the assistance of an interpreter, during the trial the complainant was questioned at length about the presence of the plant material on his front porch and inside his home. His responses were interpreted on numerous occasions to the effect that the accused (and/or his son) had thrown pots or pot plants at the house. The complainant did not correct the interpreter on any such occasion.
However much later during his evidence it in fact became apparent that what the complainant intended to convey was that the accused had uprooted and thrown a plant at his front door, which plant had previously been planted in his front yard.
As such this apparent inconsistency in the evidence given by the complainant that he did not fall, nor was pushed, compared to what he apparently told police on two prior occasions, does not cause me to have any significant concerns as to his general reliability.
However, there were aspects of the complainant’s evidence that did concern me.
The complainant was adamant that at no time did he leave the interior of his home and step out into the front porch or the front yard.
Mr Mackey, who was watching events unfold from directly across the road, described seeing the complainant and another man wrestling over the metal insert screen from the security door on the front porch – a couple of metres in front of the front door. While Ms Wells could not recall seeing the complainant outside of his home, she was watching from a further distance down the road from her home at 44 Barbara Road.
Both Mr Mackey and Ms Wells were clearly honest witnesses, doing the best they could to recount to the court their memory of what they saw and heard that evening. It was not suggested to either witness that their view may have been impaired given their respective vantage points or that they may have been mistaken in what they claimed to have seen. It was not suggested that they could not have seen what they claimed to have seen because it was too dark for them to see clearly. Indeed there was evidence that both the front porch light and the interior light of the complainant’s home were on during the incident and I note Officer Murphy’s evidence as to the presence of a street light on the corner of Barbara Road and Emma Court.
Mr Mackey impressed me as being a reliable witness – he had a clear view from his front yard of the altercation occurring directly across the road from his home and his memory of events is consistent with the physical evidence, in terms of where the metal insert from the security door came to rest outside and the fact there was blood located on the inside handle of the front wooden door (consistent with the complainant trying to close that door when he was already injured and bleeding, despite the absence of any evidence from the complainant that he tried to close that door at any time).
Further Mr Mackey heard words spoken to the effect of ‘You can’t call my sister a slut’, which recollection is consistent with Nathan Hart’s evidence that the complainant’s son, Johnny had called his sister a slut.
I have no hesitation in accepting Mr Mackey’s evidence as both honest and reliable. Insofar as there are some minor differences in his evidence as compared with that of Ms Wells, I find that Ms Wells may be honestly mistaken and/or that her view of the unfolding events may have been less clear than that of Mr Mackey, thus explaining those differences.
Having accepted Mr Mackey’s evidence, it follows that I cannot accept the complainant’s evidence that he did not step outside of his home at any time.
Further, there is a period of time unaccounted for in the complainant’s evidence, being the time it took him to leave the front door, walk to the kitchen, find and grab the knife and then return to the front door with that knife.
As such I have approached the complainant’s evidence with some caution.
However, on the critical issue as to how the damage came to be sustained to the security door, the complainant’s evidence is supported by that of Ms Wells who saw the older man kicking the security door. Further, on the critical issue as to the cause of the complainant’s injuries, the presence of the complainant’s DNA in the tissue material found lodged on the security door frame and the large volume of blood found on the passage floor near the front door supports a finding that the complainant was injured when his body came into contact with the security doorframe.
As such, I accept the complainant’s evidence that he did not attempt to barge through the security door and that the accused kicked the security door multiple times causing the wire mesh to break. I accept the accused’s evidence that he cut his right hand and left forearm on a sharp part of the broken mesh.
There was no challenge to the evidence of the police officers or Ms Koch, each of whom I considered to be honest and reliable witnesses.
Counsel for the accused was critical of the police for only submitting a small number of blood samples to Forensic Sciences SA for analysis and in failing to submit any blood samples located outside the home for such analysis.
While it would have been of benefit had further samples been analysed, this was not a case where the identity of the accused was in issue and as such the fact that only limited samples were submitted for analysis can be understood. In light of my findings (as set out hereunder) whether or not some of the blood found outside the complainant’s home and in the area of the front porch is the accused’s blood is of little moment having regard to the nature of the charges.
The evidence of John Vidakovic was of limited assistance as he did not witness the incident. I accept his evidence, consistent with what the accused told the police in his record of interview and the evidence of Nathan Hart, that there had been a significant falling out between John Vidakovic and the Hart family.
The accused did not give evidence but in his record of interview he made a number of admissions, importantly that he was present at the complainant’s home on the evening of 10 January 2015.
There is no doubt that the accused was extremely drunk at the time he attended the complainant’s home. I accept that when spoken to by the police he had only a limited recollection of precisely what had occurred at that time.
That being said, my impression was that the accused downplayed his role in the incident to police and his comment that he had intended to return to apologise to the complainant is seemingly inconsistent with the version of events he otherwise presented to police, namely that he had simply knocked on the door and that thereafter the complainant had been the violent aggressor.
Nathan Hart was a most unimpressive witness. His explanation as to what transpired at the complainant’s home was unconvincing and unsatisfactory. I consider his version of events to be simply implausible and untrue in terms of how the security door came to be broken. It is simply inconceivable that the complainant, dressed only in his boxer shorts, would try to physically barge through his locked and unopened security door in an effort to attack the accused.
Neither Mr Mackey nor Ms Wells saw the complainant wielding a knife in a frenzied attack upon the accused in his front yard. I reject the evidence of Nathan Wells that any such attack occurred, that evidence being completely inconsistent with the evidence of those independent witnesses.
In this respect I note it was submitted by Ms Stokes that the only explanation for the accused’s injuries were that they were knife wounds inflicted by the complainant and that this was a reason why I should accept Nathan Hart’s evidence on this issue. However there was no medical evidence tendered as to the possible or probable cause(s) of the accused’s injuries. Mr Mackey described the complainant and the accused as wrestling over that part of the mesh which had broken away from the door frame. The mesh was sharp. This provides an explanation as to how the accused’s injuries were sustained.
I reject Nathan Hart’s evidence as to how the incident unfolded as being unreliable and lacking in any credibility. My impression was that he tailored his evidence with a view to assisting his father.
I remind myself that it is not for the accused to prove or disprove anything.
Having completely discounted the evidence of Nathan Hart and expressed reservations as to the veracity of matters as stated by the accused to police, that does not in any way bolster the Crown case.
It remains for the Crown to prove each element of the offences as charged beyond reasonable doubt and if there remains a reasonable doubt as to any elements of a charge after my assessment of all of the evidence I must acquit the accused of that charge.
Findings
Count 1
In order to prove count 1 on the Information, that is aggravated criminal trespass in a place of residence, the Crown must prove that the accused entered or remained in a place of residence, without the consent of the owner. The Crown must prove that the accused knew he was a trespasser or was recklessly indifferent as to whether he was a trespasser. Further the Crown must prove that another person was present in the place of residence at that time and that the accused knew of that person’s presence or was reckless as to that person’s presence.
Finally to prove the circumstance of aggravation the Crown must prove that at the time of the trespass the accused knew the complainant was aged over 60.
The evidence of Nathan Hart established that upon attending at the complainant’s home, the accused and Nathan Hart were told by the complainant to go away and to leave his property.
At all material times the accused must have known that he did not have the consent of the complainant to enter his home and I make a finding to this effect beyond reasonable doubt.
Further at all material times the accused knew that the complainant was present at his home, being a place of residence. I make findings to this effect beyond reasonable doubt.
The complainant gave evidence at the time of the alleged offending he was 72, nearly 73 years of age. He said he had lived at 55 Barbara Road, Salisbury East since 1992 and that his children had grown up living there. He recognised the accused as he had seen him out the front of his house on Daphne Street when he used to go to the nearest shop. He knew the accused’s name was Trevor. I accept that evidence.
John Vidakovic gave evidence, which was undisputed, that he had previously been a very close friend of the accused’s son, Danny. He gave evidence that he regularly attended at the accused’s home and similarly that Danny Hart (and to a lesser extent Nathan Hart) had attended at the complainant’s home. Nathan Hart agreed he had seen the complainant when visiting John Vidakovic at the complainant’s home, although he knew him only well enough to say hello.
John Vidakovic gave evidence that he was 34, meaning that as at the date of the alleged offending he was either 31 or 32. He said he had known the accused for 20 to 25 years because of his friendship with Danny Hart. He said he thought the accused and the complainant had met once or twice and I accept that evidence given the long term relationship between John Vidakovic and Danny Hart.
Although the complainant and the accused can at best be described as acquaintances, I am satisfied beyond reasonable doubt that the accused knew the complainant was over the age of 60 as at the date of the alleged offending. I am so satisfied given the fact that the complainant was known to the accused, the fact of the complainant’s age at 72, nearly 73, the period of time over which there was some connection between the complainant’s family and the Hart family and the age of John Vidakovic.
The primary issue in dispute is whether the accused entered or remained in the complainant’s home, being a place of residence.
Neither Mr Mackey nor Ms Wells gave evidence that they saw the accused enter the complainant’s home at any time.
Mr Mackey described seeing the complainant and the older man wrestling over the metal screen door on the complainant’s front porch – therefore outside of the complainant’s house.
Mr Mackey said that when the complainant retreated back inside his front door the accused remained standing outside some 1 to 2 m away from the front wooden door.
I have outlined the complainant’s evidence on this issue in detail at paras. 63 and 77.
Initially the complainant stated that the accused ‘kicked the door and entered the house’.[46] He then said ‘So he went inside the house like one step, so when I took the knife he step back’. [47]
[46] T71.18.
[47] T71.20-21.
The complainant was asked during evidence in chief as to what he did when the accused took that step inside. The complainant’s response was that he tried to stop him, with his hands and arms held wide and that he did this automatically without thinking. When asked what happened next he said he started bleeding heavily, the accused saw this and took a step back.
In cross examination, the complainant was asked a number of questions about when he had gone to get the knife and why he did so, leaving the front door open, given the accused and Nathan Hart were still at his front door.
The complainant said that he went to grab the knife when he saw bleeding in his hands. It was put to him that at that time the accused was already partly inside his house. The complainant‘s response was ‘He was on the doorstep. He didn’t went inside the house’.[48] He then said that he couldn’t see everything because it was dark. He then said ‘I saw his foot inside the house, but yes it was night-time’.[49] He said he was sure he saw the accused’s foot inside the house.
[48] T95.20.
[49] T95.33-34.
The evidence of both Ms Wells and Nathan Hart was that the interior light in the hallway was on. I find that the hallway light was on at all material times. As such, the adequacy of the lighting was such that at all material times the complainant ought to have been able to see if the accused did, or did not, take a step inside his home.
When the complainant’s evidence is carefully scrutinised, it is possible that what he saw and is intending to convey, was the complainant’s foot pushing through the wire mesh of the security screen door, in the sense that he saw the accused’s foot, in the air, on the inside of the security door.
If that is what the complainant is in fact intending to describe, then it may be sufficient to constitute an entry into the home (see R v Davis[50] and R v Welker[51]), but only if the mesh remained intact in the door frame at the time such that the accused’s foot in fact crossed the threshold into the complainant’s home.
[50] (1823) 168 ER 127.
[51] [1962] VR 244, 245.
While that is a possible interpretation of the complainant’s evidence, this is decidedly unclear.
Further the Crown case was not put this way, rather it was submitted that the accused in fact took a step inside the home. This must be taken to mean that the accused‘s foot made contact with the ground inside the home.
A sample taken from the a stain near the inside passage floor mat, immediately inside the front door (being 15/B45674-16 as depicted in photographs 41 and 42) contained a mixed DNA profile which when compared to that of the accused, produced a finding that it was 260 times more likely that the accused was a contributor to that DNA rather than an unknown individual, being a relatively low statistical weighting.
A sample from a stain on the inside eastern passage wall (being 15/B45674-15 as depicted in photographs 51 and 52) was analysed and compared to the accused’s DNA sample and the result of that comparison was that it was a hundred billion times more likely that the single DNA profile came from the accused rather than an unknown contributor, being the highest possible statistical weighting.

These samples were found some distance inside the house. However, I cannot exclude as a reasonable possibility that the accused’s DNA could have been transferred to either of these locations by way of transfer from the complainant and/or in the case of the former sample, through sweat, saliva or blood dripping from the accused while he remained outside through the unscreened portion of the security door and was then transmitted across the threshold into the home.
I return to the complainant’s evidence namely:[52]
QWhere did he enter. How did he enter.
ASo he went inside the house like one step, so when I took the knife he step back.
[52] T71.19-21.
The complainant’s evidence was that he left the front door to walk down the hallway to the kitchen to get the knife.
On any assessment of the complainant’s evidence, if the accused did take a step inside the house, it must have been a considerable time before the complainant ‘took the knife’.
It is for the prosecution to establish that the accused entered the home or remained in the home beyond reasonable doubt. While it is possible that the accused did take a step inside the house, I simply cannot be satisfied that he did so beyond reasonable doubt. While the complainant’s evidence ultimately was that he was sure the accused did take that step inside, the internal inconsistencies in his evidence on this topic cause me to have some doubts as to the reliability of this aspect of his evidence.
I am not satisfied beyond reasonable doubt that the accused entered or remained in the complainant’s home.
As such I must acquit the accused of count 1.
In those circumstances there is no necessity to address the argument raised by the accused namely that the prosecution must negative the necessary mens rea through a claim of right.
In the record of interview the accused stated on more than one occasion that his purpose and intention for attending at the complainant’s home was to tell the complainant what his son Johnny had done to the accused’s family. Further, when specifically asked by police as to whether he thought any of the property allegedly taken by John Vidakovic was inside the complainant’s home the accused replied ‘Nah, my son’s been there before looking for it’.
Although Nathan Hart gave evidence that their intention for attending the home was to have a civil conversation with John Vidakovic and to arrange for the return of the property, he agreed that given Johnny’s denials of wrong doing in the past it was unlikely he would admit to having taken the property and unlikely that he would have handed the property over. I have already outlined my reservations as to the reliability and credibility of Nathan Hart’s evidence.
Had I been required to address this issue, to the extent that a possible claim of right was raised on the evidence, I am satisfied that the prosecution has negatived that defence beyond reasonable doubt. I am satisfied that the accused’s purpose for attending the complainant’s home that night was to tell the complainant what Johnny had done to the Hart family.
Further, I am satisfied that while the accused and Nathan Hart had hoped to confront Johnny during their attendance at the complainant’s home (given their questioning – ‘Where’s Johnny’), I find that their intention was to confront Johnny about what he had done and that they had no expectation nor intention of retrieving any stolen property from the home. In this respect, I note the alleged thefts occurred many months before the alleged incident. Further, the accused told the police that there had already been unsuccessful attempts made by Danny Hart to search for the stolen property at the complainant’s home. I also note Nathan Hart’s evidence that prior attempts to get the property back had been unsuccessful.
I am satisfied that there is no reasonable possibility that at the time of the incident the accused was exercising any bona fide claim of right.
Count 2
In order to prove count 2 on the Information the Crown must prove beyond reasonable doubt:
1The accused caused serious harm to the complainant.
2The act or acts causing serious harm were deliberate, not accidental.
3The accused recklessly caused serious harm to the complainant.
4The act or acts causing serious harm were unlawful. In other words, the accused was not acting in self-defence.
As with count 1, the circumstance of aggravation is that the accused knew at the time he committed the offence that the complainant was over the age of 60 years.
I note my earlier finding that I am satisfied beyond reasonable doubt that at the time of the alleged offending the accused knew the complainant was aged over 60 years.
As to the fourth element, there was no evidence in this case which raises as a possibility that the accused acted in self-defence with respect to count 2 on the Information, rather the accused denied he had acted in the manner as alleged by the prosecution and denied he had acted in any way so as to cause any harm or serious harm to the complainant.
The defence case was that the complainant had attacked the accused with a knife. This was not raised as the reason why the accused may have acted in a manner which resulted in injuries to the complainant. The defence case was that the accused did nothing to cause any injuries to the complainant and that the complainant’s injuries were self-inflicted – either by the complainant barging his way through the closed and locked security door or while wielding the knife towards the accused.
The complainant’s injuries are documented in the statements tendered as Exhibits P12, P13 and P14 and were described by the complainant in his evidence.
The nature of these injuries was not challenged.
I find beyond reasonable doubt that the complainant sustained a deep cut to his right hand through the web space at the base of his right thumb, extending through the muscle. I accept the complainant’s evidence that he can no longer properly form a fist with his right hand and that he is unable to hold a glass in his right hand. I find consistent with the evidence of Dr Sabharwal that these restrictions will be permanent.
In addition, I find beyond reasonable doubt that the complainant sustained a 10 to 12 cm cut to the middle of his left forearm exposing the underlying muscle and a small cut to the top of his foot.
I find that all of these injuries constitute ‘harm’, being physical harm, either permanent or temporary.
Further I find beyond reasonable doubt that the injury to the complainant’s right hand constitutes ‘serious harm’ in that the complainant suffers from serious and protracted impairment of a physical function, being his ability to fully use his right hand in the sense that he is unable to properly form a fist or properly grip with his right hand.
The issue which is very much in dispute is how these injuries were sustained.
Dr Lamba described the injuries as being consistent with contact with a sharp object.
The complainant’s evidence was that he sustained the injuries when he was pushing the security door with his hands trying to prevent the accused from entering his home and kicking in the door. He said he had cut his right hand on the sharp mesh. Further he claimed to have already sustained his injury before he went to pick up the knife and that he was unable to properly hold the knife because of the injury. I accept that evidence.
Having regard to all of the evidence I make the following findings of fact.
On Saturday 10 January 2015 the accused and Nathan Hart attended upon the complainant’s home by foot at approximately 10.30 pm. The accused was drunk. The accused and Nathan Hart were both angry as they believed John Vidakovic had stolen numerous items belonging to the Hart family.
The accused banged on the front door.
The complainant was awoken by the banging. He answered the door wearing only his shorts. He was barefoot and shirtless. He turned on the interior hall way light. He opened the front wooden door.
The accused and/or Nathan Hart asked the complainant ‘Where’s Johnny’ to which the complainant replied with words to the effect that Johnny was not home and told the two men to go away and to leave his home.
The accused and Nathan Hart did not go away. The accused then forcefully and violently kicked the security door, which remained closed and locked at all material times. The accused was wearing steel capped boots at the time.
The complainant responded by trying to stop the accused from entering through the security door in this way. He put both of his hands up, with his palms facing outwards, against the security door, to try to stop the accused from kicking down the door and entering his home.
The tissue material found in the doorframe as depicted in photograph 28 of Exhibit P3 and analysed (15/B45674-7) was flesh from the complainant’s left forearm which became caught in that position while the complainant was trying to stop the accused from kicking in the security door. This was the cause of the injury sustained to the complainant’s left forearm.
As a result of the accused’s deliberate actions, in violently and forcefully kicking the security door several times, the wire mesh in the security door broke. The edges of that mesh were sharp. A large portion of the mesh came apart from the door, and both the complainant and the accused struggled over that mesh in the manner as described by Mr Mackey – with the complainant holding onto one side of the mesh and the accused holding on to the other. During this struggle the complainant stepped outside of his home and into his front yard.
Either at the time the mesh broke, or during this struggle over the mesh, the complainant’s right hand made contact with a sharp edge of the broken mesh causing the deep cut to the complainant’s right hand through the web space at the base of the thumb.
The complainant and the accused then let go of the mesh, which was discarded and came to rest in the location as depicted in photographs 10 and 11 of Exhibit P3.
The complainant returned inside his home and walked down the hallway to the kitchen to retrieve the knife. He walked with the knife to the front door but did not leave the house. He could not properly hold the knife because of the injury to his right hand.
At some time during their attendance at the complainant’s property either the accused or Nathan Hart threw a Somersby cider bottle at the complainant’s house. The bottle broke and its remnants can be seen in photographs 13 - 17 (inclusive) of Exhibit P3. The cut to the complainant’s left foot was on the top of that foot. As such it is unlikely that cut was caused through contact with the broken glass. I make no finding as to the cause of the cut to the complainant’s foot, although it is possible it was also caused by coming into contact with the broken mesh from the security door.
The accused and/or Nathan Hart pulled up a plant that had been growing in the left of the two garden beds depicted in photograph 12 of Exhibit P3 and threw parts of that plant towards the house. As some portions of plant landed inside the home at least some portions of that plant were thrown at a time after the wire mesh from the security door was broken and dislodged from the door frame.
In pulling up the plant the rectangular piece of flyscreen which had been covering that garden bed became dislodged.
Upon seeing the complainant return to the front door with the knife, the accused and Nathan Hart walked away from the property, down Shelton Drive to their home at Daphne Street.
I reject the evidence of Nathan Hart that the various lacerations suffered by the accused occurred as a result of the complainant attempting to attack the accused with a knife. Neither of the neighbours witnessed this alleged attack. The presence of these injuries on the accused can be explained otherwise than having been sustained in any alleged attack, namely in the same way as the complainant’s injuries were sustained, through contact with the sharp edges of the broken wire mesh.
As previously stated I cannot be satisfied beyond reasonable doubt that at any time during the incident did the accused enter the complainant’s home.
In making these findings I accept the evidence of the complainant and Ms Wells that the accused kicked the security door several times.
I accept the complainant’s evidence that he did not have enough time to react to close the wooden door before the accused started kicking the security door and that instead the complainant responded by trying to stop the accused from kicking down the security door and entering the home by putting up his hands up against the security door, trying to hold back the accused and the force of the accused’s kicks.
I reject in its entirety the evidence of Nathan Hart that the complainant caused the damage to the security door by barging through it while wielding a knife. The damage to the security door was caused by the accused kicking that door multiple times while wearing steep capped boots.
I accept Mr Mackey’s evidence that the complainant did step outside of his home while wrestling with the accused and each man was holding one side of the part of the wire mesh which became dislodged from the door by virtue of the accused’s actions in kicking that door.
I find beyond reasonable doubt that the complainant’s right hand and left forearm injuries were sustained as a result of the complainant trying to protect his property in response to the accused violently and forcefully kicking the security door.
I find beyond reasonable doubt that in forcefully kicking the security door at the same time as the complainant was standing on the other side of that door, holding his hands up against the door, trying to prevent the accused from entering his home, the accused must have been aware of the substantial risk that his conduct could result in ‘harm’ to the accused and that he engaged in that conduct despite that risk and without adequate justification.
Although serious harm resulted to the complainant, I cannot be satisfied beyond reasonable doubt in all of the circumstances that the accused was aware of a substantial risk that his conduct could result in ‘serious harm’ to the complainant. While he may have been aware of some such possible risk, given the unusual circumstances in which the complainant’s injuries were sustained, there remains a reasonable possibility that he was not aware that there was a substantial risk his conduct could result in serious harm.
The accused’s actions in kicking the security door were intentional.
In light of these findings, I must find the accused not guilty of aggravated recklessly causing serious harm to the complainant.
However, I am satisfied that the Crown has proved all of the elements of the alternative lesser offence of aggravated recklessly causing harm to another beyond reasonable doubt namely:
1The accused caused harm to the complainant.
2The act or acts causing harm were deliberate, not accidental.
3The accused recklessly caused harm to the complainant.
4The act or acts causing harm were unlawful. In other words, the accused was not acting in self-defence.
5The accused knew at the time he committed the offence that the complainant was over the age of 60 years.
There is no rational explanation consistent with the accused’s innocence available on the evidence.
Conclusion
The accused is not guilty of count 1 on the Information.
The accused is not guilty of count 2 on the Information but guilty of the lesser alternative charge of aggravated recklessly causing harm to another pursuant to s 24(2) of the Act.