R v Kamara - [2023] SADC 142

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KAMARA
Criminal Trial by Judge Alone
[2023] SADC 142
Reasons for the Verdict of her Honour Judge Davison
14 September 2023
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ALTERNATIVE VERDICTS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
Accused charged with serious criminal trespass in a place of residence, and in the alternative, criminal trespass in a place of residence. He was also charged with assault. Prosecution alleged that accused entered his neighbour's house intending to assault her and then got into bed with her and touched her legs.
Issues of recognition, and state of mind of the accused.
The prosecution proved beyond reasonable doubt the intruder was the accused, however, failed to prove that the accused entered the premises intending to assault.
Verdict:
Count 1: Not Guilty
Count 2: Guilty
Count 3: Guilty
Criminal Law Consolidation Act 1935 (SA); Juries Act 1927 (SA) s 7(1)(a), referred to.
R v Pascoe (2004) SASC 420; R v Bennett (2004) SASC 52; R v Bennett (2004) SASR 6 (27); N, BM v The Queen [2021] SASCA 105, applied.

R v KAMARA
[2023] SADC 142
Introduction

The accused, Alpha Kamara, is charged with aggravated serious criminal trespass in a place of residence and in the alternative with criminal trespass in a place of residence. He is also charged with assault. The prosecution case is that in the early hours of 21 May 2021, the accused entered the place of residence of Cassandra Knowles at an address in Clearview as a trespasser with the intention of committing an offence of assault and then assaulted her as she lay in bed.
The accused elected for trial by judge alone.[1] The trial proceeded without a jury.
[1] Juries Act 1927 (SA) s 7(1)(a).
The Charges
Count 1
Offence Details
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars
Alpha Kamara on the 21st day of May 2021 at Clearview, entered the place of residence of Cassandra Marie Knowles as a trespasser, with the intention of committing an offence therein, namely assault.
Circumstances of Aggravation
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and Alpha Kamara knew of the other’s presence or was reckless about whether anyone was in the said place.
Count 2
Offence Details
Assault (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars
Alpha Kamara on the 21st day of May 2021 at Clearview, assaulted Cassandra Marie Knowles.
Count 3 (in the alternative to Count 1)
Offence Details
Criminal Trespass in a Place of Residence (Section 170A(1) of the Criminal Law Consolidation Act, 1935).
Particulars
Alpha Kamara on the 21st day of May 2021 at Clearview, trespassed in a place of residence of Cassandra Marie Knowles when another person was lawfully present in the said place, knowing of the other’s presence or being reckless about whether anyone was in the said place.
Elements of the Offences
Aggravated Serious Criminal Trespass in a Place of Residence
1.   The accused entered a place of residence.
2.   The accused entered the place of residence intentionally as a trespasser. That is, without the consent of the occupier, knowing that he did not have consent or being recklessly indifferent as to whether or not he had consent.
3.   The accused entered the place of residence with the intention to commit the offence of assault.
4.   To establish the circumstances of aggravation, the prosecution must prove beyond reasonable doubt that another person was lawfully present in the place of residence and the accused knew or was reckless as to this fact.
Assault
1.   There was an application of force by the accused.
2.   The accused applied the force intentionally. It cannot be accidental.
3.   The accused acted unlawfully.
Criminal Trespass in a Place of Residence (Alternative)
1.   The accused entered a place of residence.
2.   The accused entered the place of residence intentionally as a trespasser. That is, without the consent of the occupier, knowing that he did not have consent or being recklessly indifferent as to whether or not he had consent.
3.   Another person was lawfully present in the place of residence and the accused knew or was recklessly indifferent as to the other person’s presence.
Legal Directions
I give myself the following directions.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused is presumed innocent of the charge unless and until guilt has been proved beyond reasonable doubt.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of an offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words 'proved,' 'established,' or 'satisfied,' in each case I mean to an extent which excludes a reasonable doubt.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’ evidence.
The accused did not give evidence or call any evidence. That was his right. I cannot and do not draw any adverse inference against him or the case he presents for declining to give evidence.
There is no onus on the accused to prove a motive for the complainant to have lied in this case. There is no evidence that she has lied however that does not mean that I should find that her evidence is more credible as a result. I remind myself that people may lie for any number of reasons and the reason may not be apparent.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.
The accused is charged with two separate offences. Each of these counts must be considered separately and only in relation to the evidence that is admissible in respect of each. It is only if I find him not guilty of Count 1 that the alternate charge must be considered.
There was also evidence of discreditable conduct being an altercation between the accused and his partner, who is not the complainant, that resulted in him being excluded from his home by the police. There was no objection to this evidence. It has been led for context and to explain the later events that have been alleged. I must not reason that the accused is a person who is more likely to have committed the charged offences if any other conduct was discreditable nor must this conduct, if it occurred, distract me from the need to consider whether to prosecution have proved the charged offences.
Prosecution Case
Cassandra Knowles’ Evidence
Ms Knowles was living at Clearview in May 2021 with her two children. Her son is now four years old, and her daughter is now eight years old. Ms Knowles had been living there for approximately seven months at that time.[2] The premises at Unit 3 had a shared roof and shared driveway with her neighbour.[3]
[2] TS 5.
[3] P1.
On the afternoon of 20 May 2021, Ms Knowles was at home. There was an altercation between her neighbour, Kimberly Smith, and the accused. There was an Aboriginal woman and African men present. Ms Knowles was watching this from her window. Ms Smith was yelling 'help' so Ms Knowles opened her door and said that she could come inside.[4]
[4] TS 6.
When Ms Smith came inside, the Aboriginal woman kicked Ms Knowles’ door in. There is a screen door and a wooden door at the front of Ms Knowles’ premises. The screen door was kicked in and the wooden door was not damaged. Ms Knowles could not close the screen door because of this. She was still able to lock the wooden door.[5] Police were called and at some point, Ms Smith left Ms Knowles' unit. Police attended at around 5.30p.m. and she said she spoke to police.[6]
[5] TS 7.
[6] TS 8.
Later that day, Ms Smith invited Ms Knowles over to her unit for some drinks. She went with Ms Smith next door to her unit. This was at Montrose Avenue, Clearview. The accused was present in the kitchen. She was in the loungeroom with Ms Smith. They were drinking a mixed alcoholic drink in a Coke bottle. Ms Knowles was not enjoying this, so she suggested that they attend Dan Murphy’s. They left at around 6.30p.m. or 7.00p.m. to go to Dan Murphy’s. They were gone for 20 to 30 minutes. Her children had been with her, but she left them with the accused when she went to Dan Murphy’s with Ms Smith.[7]
[7] TS 8–9.
When they returned, Ms Smith and Ms Knowles continued to drink in the loungeroom of Ms Smith’s unit. After this, she left with Ms Smith to go to Ms Smith’s relative’s house. Ms Knowles drove Ms Smith there. Her daughter was with her, but she could not recall where her son was. The accused remained at Ms Smith’s unit.
Ms Knowles told the accused when he was looking after her children that 'If you need, my house is open, you can grab snacks or anything'.[8] She left the front door to her unit unlocked. She does not know whether the accused went into her unit at that time.
[8] TS 9.
Ms Smith and Ms Knowles were at the relative’s house for just under one hour. When they came back, Ms Knowles continued to socialise with Ms Smith. At some point she told her children it was time for bed. She does not recall what time her children went to bed. It may have been around 8.30 p.m. or 9.00 p.m. After her children went to bed, she was still with Ms Smith at Ms Smith’s unit.
Ms Knowles had around five drinks over the course of the evening; from around 6.30 p.m. or 7.00 p.m. to around 9.30 p.m. or 10.00 p.m..[9] The drinks were mixed Jack Daniel’s in cans.
[9] TS 11.
After Ms Knowles finished socialising with Ms Smith, she went home. This was at about 11.00 p.m..[10] She got ready for bed. She had entered her house through the front door. She cannot recall doing anything to the wooden door at that time.[11] She cannot recall going to her back door. She does not frequently use the back door; it is usually always locked. Ms Knowles went to bed at this time.[12]
[10] TS 11.
[11] TS 12.
[12] TS 12.
Ms Knowles then recalls some more commotion going on between Ms Smith and the accused. She asked Ms Smith if she wanted her to call the police again. She does not recall how she contacted Ms Smith. Ms Smith came into Ms Knowles’ unit at this time. This was when she offered to allow Ms Smith to stay at her unit. Ms Smith said she would be fine but told Ms Knowles 'Just lock your door'. She locked her door after Ms Smith left.[13] Ms Knowles then called police and police attended. She did not know where the accused was at this time. She thinks that the accused was escorted off Ms Smith’s premises by police. She saw this through her window.
[13] TS 13.
Ms Knowles locked the front wooden door. She did not check the back door. She did not lock the front door with a key; 'you can just turn the knob thing'. She cannot recall whether she did anything to the windows in the unit.[14]
[14] TS 14.
Ms Knowles then got into bed. Her son was also in her bed in her room. She had her bedroom door open.[15]
[15] TS 15.
At some point Ms Knowles woke up with the accused in her bed. She had fallen asleep. Ms Knowles woke up to the accused stroking her legs in bed:
QWhat did you do in response to the stroking of your leg.
AWell, it took a little minute just to realise what was going on and I reached down because I thought maybe it possibly could have been my daughter because sometimes they get a nightmare and they might come to my room. So I reached down to feel what was going on and then I felt Alpha’s head, his hair, and then I kind of freaked out. I was like – I asked ‘Alpha, is that you?’ and he said yes. I said ‘How did you get in?’
…
QWhat did he say.
AHe said that I let him in.[16]
[16] TS 15–16.
Ms Knowles was sleeping on the side of the bed closer to the wall.[17] Her son was sleeping on the left side of the bed where the pillow is. The intruder was laying in the middle of the bed with his legs possibly in an 'L' shape.[18]
[17] See P2.
[18] TS 18–19.
She was woken up sometime after midnight. The room was dark. Ms Knowles was asked whether there was any other reason why she thought the person in her bed was the accused. She said 'I couldn’t think of anyone else it would be'.[19]
[19] TS 19.
When the intruder said that Ms Knowles had let him in, she responded 'No, I didn’t'. She then told the intruder to leave. They got up and walked out. She walked with the intruder out the front door. She does not recall whether the front door was locked or unlocked.[20] She opened the door for the intruder. She does not recall whether she used the knob to open the door. Ms Knowles then closed her door and called the police.
[20] TS 20.
When the intruder left Ms Knowles unit, the lighting was 'some dark' but illuminated from the outside lights. She could 'very faintly' see the intruder's body shape.[21] The body shape was consistent with the accused’s body shape.
[21] TS 20
It took police 20 to 30 minutes to arrive. Ms Knowles had a look around her unit to see how the intruder had got into her unit. She looked at the windows and the back door. The back door was locked. The dining room window to the right of the back door was open.[22] Ms Knowles did not check any of the other windows. She could not recall whether she opened this window. She did not check the window before she went to sleep.[23] As Ms Knowles was checking through the house, she saw her house keys lying on the floor of the dining room. She could not recall how her house keys got there. She would normally place her keys on the bench in the kitchen. She could not recall when she last saw her keys prior to this. Her keys were not connected to her car keys.[24] Ms Knowles did not notice anything else about the house while walking around at this time. She could not recall handing her house keys to the accused.
[22] See P3, a floorplan of address at Clearview. Ms Knowles circled all the windows on the floorplan.
[23] TS 22.
[24] TS 23.
Other than when Ms Knowles told the accused he could go into her unit to get her children snacks or drinks, she did not give the accused permission to come into her unit at any other time. She did not tell the accused he could sleep on the couch. She did not give the accused permission to come into her house. She did not give the accused permission to stroke her leg.[25]
[25] TS 24.
The prosecution tendered a bundle of photographs of the premises at Clearview, P4. The window in the last photograph of P4 has a winding mechanism. The glass window comes out when winding the mechanism. There are locks to the side of the screen that are used to lock the screen in place. The screen would come off if those locks were undone.[26] If the window was open slightly — enough for Ms Knowles to put her hands under and reach the locks on the screen — Ms Knowles could flick the locks and then wind the window up enough for her to get inside. She would push the screen and it would push inwards to her unit.[27] Ms Knowles marked the gap on P4; it is about 3 cm.
[26] TS 27.
[27] TS 28.
The accused had been inside Ms Knowles’ unit previously. This was when Ms Knowles offered the accused the use of her phone when he was having a disagreement with Ms Smith. Ms Knowles described her relationship with the accused as neighbours. The accused was not a friend.[28] The accused was briefly in her unit on that occasion. There are no other occasions she recalls the accused coming into her unit. She cannot recall any other occasion of giving the accused permission to enter her unit.[29]
[28] TS 29.
[29] TS 30.
Ms Knowles was cross examined on P4. The last photograph of P4 shows a wire mesh on the back window. Ms Knowles confirmed the glass window opens with a winding mechanism. Ms Knowles confirmed that there is a locking mechanism on each side of the screen component of the window. Both are on the inside part of the screen. Ms Knowles has been able to get her hands into the gap to open the window from the outside in the past.
Ms Knowles was cross examined on locating her house keys. She discovered her house keys sometime after looking through her house. This was before police attended. The house keys were next to the single armchair sofa. She agreed that she only mentioned this in her most recent statement to police. She recalls finding the house keys. She has no idea how they got there. Ms Knowles accepted that she may have dropped the house keys there when she returned home that evening.[30]
[30] TS 36.
Ms Knowles had no idea how the intruder got inside her unit. She confirmed that there was nothing missing and no signs of damage to doors or windows.
Ms Knowles agreed that the altercation she heard in the afternoon was between an Aboriginal woman and Ms Smith. There was also an altercation between Ms Smith and the accused at that time. Ms Smith sounded distressed. She later realised that Ms Smith was quite drunk.[31] This was after Ms Smith came to her house.
[31] TS 37.
Ms Knowles was cross examined on trips to Dan Murphy’s.[32] Ms Knowles initially agreed that she made one trip to the bottle shop that evening. Ms Knowles then described one time when they were at Ms Smith’s unit and another time when they went to Ms Smith’s relative’s house. They took two males to the bottle shop at that time. Ms Knowles agreed that she recalls two trips to the bottle shop. She did not recall telling police that she was mistaken about this. Ms Knowles believed that the investigating officer had tried to clarify whether there were one or two trips to the bottle shop. Ms Knowles agreed that there are aspects of the afternoon and evening that she possibly does not remember. She agreed that there are some small aspects that she does not remember. Ms Knowles agreed that she did not tell police about attending the bottle shop on a second occasion.
[32] TS 38–40.
Ms Knowles had not had any drinks at her own unit before having drinks with Ms Smith.[33] She only recalls drinking at Ms Smith’s unit. She did not use any drugs that day. Ms Knowles would sometimes use drugs recreationally at this time.[34] This included 'ice'; it would make her more alert. She was smoking ice rarely as at May 2021 — 'once in a blue moon'. She would not suffer hallucinations when smoking ice.
[33] TS 40.
[34] TS 41.
Ms Knowles was cross examined on the conversation with the intruder in her bed.[35] She does not recall which statement she first mentioned this. It was put to her that it was not until her latest statement. Ms Knowles disagreed that she had not mentioned this aspect to police before her latest statement. She does not recall the first time she told police about this.
[35] TS 43–5.
Ms Knowles was cross examined about the way the intruder touched her. She said he was stroking both of her legs.[36] She has a memory of this. Ms Knowles indicated that the intruder was stroking from her mid-thigh to just below her knee area.[37] The stroking was mostly on one leg. She cannot recall how she was positioned on the bed while this was occurring. She thinks she was laying mostly on her back; her legs were 'kind of twisted'. Ms Knowles agreed she told police the intruder was rubbing her legs. She agreed that it was both legs and this was her memory; this has always been her memory. Ms Knowles agreed that she told police in her first statement that the intruder had touched her upper thigh. She agreed that she did not say 'thighs' (plural).[38] She agreed that she did not describe touching that went further down to her shin. She agreed that she described the intruder stroking her on her back. Ms Knowles agreed that the intruder could not stroke her back if she was laying on her back.
[36] TS 45.
[37] TS 46.
[38] TS 49.

Ms Knowles disagreed that the accused was never in her bed and that the accused never touched her in bed.[39]
[39] TS 50.
Ms Knowles was cross examined on the events following the intruder stroking her legs in bed.[40] She agreed that she went to the front door first to unlock it before letting the intruder out. She agreed that in her first statement she told police that the intruder let himself out the front door with her following behind him. Ms Knowles cannot recall which version is correct.
[40] TS 50.
Ms Knowles was cross examined on the sequence of events that evening.[41] She agreed that the first trip to Dan Murphy’s was at 6.30 p.m. She drove and it was just her and Ms Smith. She left her children at Ms Smith’s unit with the accused. The accused’s son was there too. Ms Smith and Ms Knowles purchased pre-mixed Jack Daniel’s. This was Ms Smith’s choice. Ms Knowles suggested that they attend the bottle shop. They were gone for 20 to 30 minutes. She left the front door of her unit open so that the accused could get any food for her children if needed. After purchasing the alcohol, they went back to Ms Smith’s unit. Ms Knowles started drinking. An hour after this, they went to Ms Smith’s relative’s house. Ms Knowles went with Ms Smith because she was driving Ms Smith. There was an altercation and they left. Ms Knowles believes they went back to Ms Smith’s unit. At some point they went back to Ms Smith’s relative’s house and this was when they went to Dan Murphy’s for a second time. Ms Knowles does not really recall the sequence of events, or whether they went to Dan Murphy’s two times or three times.
[41] TS 51 -
Ms Knowles agreed that she did not mention any trips to the bottle shop or to any relative’s house in her second statement. She agreed that in her third statement she said there was only one trip to the bottle shop. She agreed that she said this occurred when her children were in bed. She agreed that she said she left the unit open for the accused so he could check on her children while they were asleep. She agreed that her memory now is that none of the trips to the bottle shop occurred when her children were in bed. She agreed that she said the trip to a relative’s was on the way back from the bottle shop. She now agrees that this did not happen at that time.
She disagreed that at some stage she could have told the accused he could come into her house and sleep on the couch. This was not something she would do as she did not want to cause conflict with Ms Smith. She disagreed that she would have done this after police told the accused he could not go back to Ms Smith’s house.
Ms Knowles was cross examined on her drinking.[42] Ms Knowles recalls Detective Horner attending her house, but she does not recall him taking photographs.[43] She does not recall whether she had been drinking alcohol before Detective Horner arrived. She agreed that there is a photograph which shows a can of Jack Daniel’s open. She agrees she was the only adult home. She disagrees that she had been drinking alcohol before Detective Horner arrived. She agreed it could just be a leftover can. She agreed that generally she would have a tidy house. She disagreed that she is trying to downplay how much alcohol she drinks. Ms Knowles said she was 'pretty sure' she had around five drinks. This is because she was driving. She felt 'pretty well enough to drive'. She saw and heard the accused being escorted off by police. She says she would have been okay to drive at this point. She was arrested by police on 28 May 2022. She was under the influence of alcohol. She agreed she would occasionally drink a lot around the time of May 2021.[44]
[42] TS 65
[43] See P4.
[44] TS 71.
She agreed it was possible that she had a lot more to drink on the night of the alleged offending.[45] It would have been when they came back from the bottle shop. She did not have any drinks at the relative’s house. She did not get more alcohol when they went to the bottle shop for the second time. She does not recall whether she drank more when they returned to Kimberly’s house. She was trying to slow down at this point. She did not have to work the next day.
[45] TS 72.
I asked Ms Knowles whether she has difficulty with her memory. She said that she struggles with PTSD. She thinks this affects her memory.[46]
[46] TS 74.
Kimberly Smith’s Evidence
Ms Smith is currently pregnant with the children of the accused. In May 2021, she was living at Unit 4, 6 Montrose Avenue, Clearview. She was living there with her two sons. The accused would sometimes stay at that address. She had a neighbour but could not recall her name. Her neighbour was not really someone that she spoke to.[47]
[47] TS 76.
Ms Smith could not really recall anything about 20 May 2021. She recalled the accused was at her unit. She could not recall whether anything happened between her and the accused. She recalled the police attending to remove the accused. I questioned Ms Smith about why the police came to remove the accused:[48]
[48] TS 80–1.
HER HONOUR
QWhy did the police come to remove Alpha.
ADo I have to tell the story or –
QTell the story.
AIt’s because I met the neighbour and he’s supposed to look after the kids, but I think he got a bit jealous or something and there was a bit of an argument sort of thing, so yeah, and I thought he took one of my kids, but he never, and then there was an issue where he came to the door and pushed me, but it wasn’t like a full on push, and then the police came and removed him for 24 hours, but I did told them to check if he had the house keys, which he reckon he never had it. The from there the next – with that girl, the neighbour, I went back in and she was sleeping at the back with her son, and I told her ‘I’m going home now, can you come and lock the front door’, and she locked it, I went home with my kids and then went to sleep, I checked everything was locked and I woke up to him in the house. That’s what happened.
QYou woke up to who in the house.
AAlpha.
QIn your house.
AYes.
Ms Smith woke up to the accused in her house at 8.00 a.m. or 9.00 a.m. This was when police came to knocking on the door. She did not know the accused was in her unit.[49]
[49] TS 81.
In cross examination, Ms Smith disagreed that she let the accused back into her unit about half an hour after police left. She disagreed that her and the accused slept together in the main bedroom. She disagreed that she let the accused back in.[50]
[50] TS 82.
Ms Smith said that she did not hear the police knocking on her door at 3.30 a.m. that morning. She disagreed that the accused was in bed with her when police knocked on her door at this time. She disagreed that she did not answer the door because she did not want the accused to get into trouble for being back at her house. Ms Smith confirmed that she woke up to the accused in her house and that is when she saw him.[51]
[51] TS 83.
Constable Jordan Anderson’s Evidence
Constable Anderson is currently stationed at Port Adelaide Police Station and was previously stationed at Parks Police Station.
She was on shift on 21 May 2021 on mobile uniform patrol with Constable Boyle. She was tasked to attend at an address in Clearview. She arrived at about 3.00 a.m.[52] Constable Anderson saw that the screen door had damage and observed an open window. There was a hard wooden door behind the screen door. They knocked on the door of the unit and were met by Ms Knowles. Ms Knowles appeared scared and spoke quietly. Constable Anderson then entered the address.
[52] TS 85.
The back door was locked. There was no damage to any of the windows or doors.[53] Constable Anderson noted the open window was the window directly next to the front door.[54] She believes that the back window was also open. The premises were neat and tidy; nothing appeared out of place.
[53] TS 85.
[54] TS 86.
Constable Anderson took photographs of the unit at about 3.42 a.m.[55] Photograph 5 of P2 shows the front of the unit. This shows the window open. Constable Anderson had body worn video activated.[56]
[55] See P2.
[56] See P5.
Ms Knowles was speaking very quietly and faint. Ms Knowles was not slurring her words and did not appear intoxicated.[57]
[57] TS 87.
After being at Unit 3 for some time, Constable Anderson went next door to Unit 4. They knocked on the door for about four minutes but did not raise anyone at the address. This was at about 4.00 a.m.
In cross examination, Constable Anderson could not recall whether there was a light on inside/down the side of Unit 4. She confirmed that no one came to the door of Unit 4 when they were knocking. She confirmed that the flyscreens within Ms Knowles’ unit had a latch on them to lock them into place.[58]
[58] TS 88.
Detective Brevet Sergeant Paul Horner’s Evidence
Detective Brevet Sergeant Horner is the investigating officer. On 21 May 2021, he was on shift and was briefed in relation to a matter at an address in Clearview. He attended the address at between 9.00 a.m. and 10.00 a.m. He spoke to Ms Knowles and then went into Unit 4, Clearview. Ms Smith allowed him to access the property and he located the accused at the back of the unit.
On 16 December 2021, he took photographs of Unit 3, Clearview.[59] This was on request of the prosecution.
[59] See P4.
In cross examination, Detective Brevet Sergeant Horner agreed that no crime scene investigators were tasked in relation to the alleged offending. There was no fingerprinting done nor any DNA swabs taken of any items at Ms Knowles’ unit. This was because the initial assessment was that police could not identify a point of entry. Police could not identify any DNA that would have been foreign to the premises.
He was cross examined on statements he took from Ms Knowles. He said Ms Knowles appeared to read the statements before signing them. He does not recall Ms Knowles making any changes to the statements when they were read out to her. She could review what was typed.
When he attended Ms Knowles’ unit on 16 December 2021, he did not observe that Ms Knowles was intoxicated.
Agreed Facts
The prosecution tendered by consent a set of agreed facts:[60]
[60] P6.
Police Attendance at 5:36 p.m.
1.   Police received a 000 call from Ms Knowles at 5:05 p.m. on 20 May 2021 regarding a disturbance involving a neighbour and an unknown female and a complaint of damage to the front screen door of her unit.
2.   At 5:36 p.m. on 20 May 2021 police officers Kerin and Ralston attended at an address in Clearview. No persons were present. There was no answer at the front door of unit 3. Police observed visible damage to front screen door of unit 3.
3.   The police attempted to contact Ms Knowles on the mobile telephone number she had used to contact the police with, but the number said it was disconnected when called.
4.   Police had no interaction with Ms Knowles (in person or over the phone) at this time.
5.   Police spoke with a male neighbour at Unit 4. The male was Mr Kamara. The police advised Mr Kamara that they would raise a property damage report and advised Mr Kamara to let the reporting person know that she needs to attend a police station to provide a report if she wished to press charges.
6.   The next police attendance at the unit complex at Clearview on 20 May 2021 was officers Joel Boyd and Chole Edwards [sic] when the [sic] attended at 11:30 p.m.
Police Attendance at 11:30 p.m.
7.   At 11:30 p.m. on Thursday 20 May 2021, police officers Joel Boyd and Chloe Edwards attended at Units 3 and 4 at 6 in Clearview.
8.   Mr Kamara was located at Unit 4 when police arrived.
9.   Two females, Kimberly Smith and Cassandra Knowles were located at Unit 3 when police arrived.
10. On the body worn video of officer Joel Boyd at 11.34 p.m., the front window of Unit 3 is depicted as closed. This still will be tendered as P7.
11. Mr Kamara was escorted by police from the premises at 11.43 p.m. and was trespassed from the address. Police officer, Chloe Edwards, advised Mr Kamara could not to [sic] return to the address for 24 hours or he would be arrested.
Police Attendance at 2:55am
12. Police received a 000 call from Ms Knowles at 2:06 a.m. on 21 May 2021.
Defence Case
The accused did not give evidence or call any witnesses.
Addresses
Ms Zimmermann addressed for the prosecution. Ms Zimmermann submitted that there are four key issues in this trial: (1) the reliability and credibility of Ms Knowles; (2) identity; (3) permission for the accused to enter the premises; and (4) the accused’s intention upon entering the premises.
On the issue of Ms Knowles’ reliability and credibility, Ms Zimmermann submitted that while she presented shakily on peripheral details such as the chronology of the afternoon and early evening, she was 'rock-solid' on core details. This includes not giving the accused permission to enter her unit in the middle of the night and not giving the accused permission to stroke her legs. Ms Zimmermann submitted that if I accept Ms Knowles’ evidence on those two things, I can find the offences proved beyond reasonable doubt. Ms Zimmermann submitted that it is understandable that Ms Knowles cannot recall the exact order of events from an otherwise ordinary afternoon and evening some two years later. Ms Zimmermann submitted that what Ms Knowles was clear about was 'waking up in the middle of the night to her neighbour in her bed with his hand under her quilt, stoking her legs'.[61] Ms Zimmermann also submitted that it was apparent that Ms Knowles was somewhat intimidated by the court environment, which may explain her presentation whilst giving evidence.
[61] TS 100.
On the issue of identity, Ms Zimmermann submitted that I could be satisfied from Ms Knowles’ evidence that it was the accused who entered Ms Knowles’ unit and stroked her legs. Ms Zimmermann submitted that Ms Knowles gave direct evidence of the accused’s identity by way of the reply to her question 'Alpha, is that you?' Ms Zimmermann submitted that Alpha is not a very common name and questioned the chances of any other person by the name of Alpha just happening to enter Ms Knowles’ unit. Ms Zimmermann submitted that this combined with Ms Knowles’ evidence that she could see the outline of a body shape consistent with that of the accused means I can be satisfied beyond reasonable doubt that it was the accused who committed the alleged offences.[62]
[62] TS 101.
On the issue of permission for the accused to enter, Ms Zimmermann submitted there are three factors which demonstrate the accused knew or was reckless as to the fact he did not have permission to enter Ms Knowles’ unit. First, Ms Zimmermann submitted that the accused had been escorted by police from his home next-door and told he could not return for 24 hours. Ms Zimmermann submitted that while this order was not in relation to Ms Knowles’ unit, there is a close proximity of the addresses, and the accused knew he was not meant to return that night but needed somewhere to sleep. Second, Ms Zimmermann submitted that the accused had only briefly been allowed inside Ms Knowles’ unit on one occasion previously. Ms Zimmermann submitted that this was not a place where the accused was permitted or welcome to come inside at any time unannounced. They were neighbours and not friends. Third, Ms Zimmermann submitted that the time of night the accused came into the unit suggests there was nothing to indicate Ms Knowles wanted or was expecting a visitor.
On the issue of intention to commit the offence of assault when entering Ms Knowles’ unit, Ms Zimmermann submitted that the accused did not simply enter the unit to sleep on the couch; the accused went into Ms Knowles’ bedroom, got onto her bed in the middle of the bed, and stroked her legs. Ms Zimmermann submitted that the stroking of the legs is an obviously strange way to wake someone up to check if he could sleep on the couch. Ms Zimmermann submitted that I might think this had some sexual connotation or was perhaps a sexual advance by the accused on Ms Knowles. Anticipating that defence counsel would submit Ms Knowles was mistaken about the stroking of her legs having occurred, Ms Zimmermann submitted that it is an oddly specific action to be mistaken about or invent.
Mr Wilson addressed on behalf of the accused. Mr Wilson tendered a document consolidating a set of proved inconsistent statements by Ms Knowles (marked D8):
The alleged offending itself and immediate aftermath
1.Ms Knowles’ evidence in chief and in cross examination that Mr Kamara stroked both of her legs was inconsistent with the contents of her first affidavit given to police on 21 May 2021 which she accepted only referred to Mr Kamara stroking her on the thigh (singular).
1.1    Ms Knowles also gave evidence about the touching having occurred from the area of mid-thigh down to shin area which is inconsistent with her first statement which referred to touching on the thigh only.
2The only touching Ms Knowles described in her oral evidence was the stroking of both of her legs. However, Ms Knowles told police in her first affidavit that Mr Kamara stroked her on the back but accepted that Mr Kamara could not have stroked her back if she was positioned in the bed in the manner she described in her evidence namely laying on her back.
3.Ms Knowles gave evidence that she after she [sic] told Mr Kamara to leave she opened the front door for Mr Kamara which was inconsistent with what she told police in her first affidavit given to police on 21 May 2021, namely that Alpha got up and walked to the front door and that she followed behind him. Ms Knowles accepted what she was describing to police in that first affidavit was Mr Kamara getting to the front door first and letting himself out with her following behind. Ms Knowles could not recall which account was correct.
4.Ms Knowles gave evidence that when she says Mr Kamara was on her bed she said 'Is that you Alpha' and he said 'Yes.' It is agreed that this purported exchange was not referred to in any of Ms Knowles first three affidavits to police.
5.Ms Knowles gave evidence that she found a set of her house keys on the floor in the dining room of her house at some point after Mr Kamara left her house and before police arrived. It is agreed that this was not mentioned in any of Ms Knowles first three affidavits to police.
Trips to the bottle shop and/or Ms Smith’s relative’s house
6.In Ms Knowles’ evidence-in-Chief, she described going to Dan Murphy’s only once, on 20 May 2021, in the company of Ms Smith, and whilst her children were being looked after by Mr Kamara. She put that trip at around 6.30–7p.m. and thinks they were gone from the house for 20–30 minutes. Ms Knowles initially confirmed that there was only one trip to the bottle shop in cross-examination. In cross-examination Ms Knowles confirmed that both her children were awake and running around playing when she went to the bottle shop leaving them in the care of Mr Kamara.
6.1    This was inconsistent with Ms Knowles statement in proofing on Thursday 27 July 2023 that she made two trips to the bottle shop, one of which was with her daughter.
6.1.1This statement was inconsistent with Ms Knowles subsequently telling Detective Horner on Friday 28 July that she only went once to the bottle shop and once to the house of a relative of Ms Smith.
6.2    This was also inconsistent with Ms Knowles subsequent evidence under cross-examination that she believed there was a second trip to the bottle shop where she had gone to Ms Smith’s relative’s house and taken two males who were present at that house to the bottle shop.
6.2.1Ms Knowles accepted in cross-examination that she never mentioned, in any of her four police affidavits, about having made two trips to the bottle shop.
6.2.2Ms Knowles also accepted in cross-examination that she had never referred, in any of her four affidavits, to making any trip to a bottle shop with two males. She said that she remembered that detail 'just now' on the day of giving her evidence in court.
6.3    Ms Knowles made no reference at all to any trip or trips to the bottle shop in her second affidavit provided 22 June 2022 even though that affidavit covered the period of time between her front screen door being damaged and the alleged offending.
7.Ms Knowles also gave evidence that when she left on the single trip to Dan Murphy’s she had left her house unlocked and told Mr Kamara 'If you need my house is open, you can grab snacks or anything you need.'
7.1    This was inconsistent with what Ms Knowles told police in her third affidavit provided n 31 May 2023 wherein Ms Knowles told police that when she went to the bottle shop:
7.1.1After her two children had been put to bed (and that there was only one trip)
7.1.2That she left the front door of her house open so that Mr Kamara could go and check on her children if needed whilst they were asleep (not so he could get snacks or anything he might need for her children who were awake)
7.1.3That after returning from the bottle shop, she went into her unit and checked on her children who were asleep.
8.Ms Knowles gave evidence of a subsequent trip after the trip to the bottle shop, where she drove Ms Smith from the unit complex to the house of a relative of Ms Smith. Ms Knowles took her daughter with them but could not remember if she also took her son. She was away from the unit complex for approximately an hour.
8.1    This was inconsistent with what Ms Knowles told police in her third affidavit provided on 31 May 2023; namely that the trip to Ms Smith’s relative’s house (singular) occurred on the way home from the pair’s only trip to the bottle shop.
9.There was also a suggestion by Ms Knowles in cross-examination that there may have been a second trip back to Ms Smith’s relatives [sic] house (which would represent the third trip away from the unit complex on the afternoon/evening in question).
(footnotes emitted)

Mr Wilson submitted that this is a case which rests solely on the evidence on Ms Knowles. There are no eyewitnesses and no supporting forensic evidence. There are no signs of forced entry. Mr Wilson submitted that it is therefore critical that Ms Knowles’ evidence be credible and reliable. Mr Wilson relied on N, BM v The Queen [2021] SASCA 105[63] in his submission that I could not find Ms Knowles is a reliable witness solely on the basis that Ms Knowles is a credible witness. He submitted that credibility does not necessarily prove reliability. Mr Wilson’s overarching submission was that I should have significant concerns in relation to Ms Knowles’ reliability. Mr Wilson submitted that Ms Knowles was not simply a witness with a 'patchy' memory but rather 'a witness that demonstrated on multiple occasions a preparedness to reconstruct events and to reconstruct particular events in ways that were inconsistent with each other'.[64] Mr Wilson submitted these concerns that I should have are such that they should cause me reasonable doubt.
[63] N, BM v The Queen [2021] SASCA 105
[64] TS 109.
Mr Wilson submitted that the prosecution cannot prove that the accused entered the unit knowing that he was a trespasser and intending to enter as a trespasser. Mr Wilson submitted that the prosecution cannot negate the possibility that the accused thought he had Ms Knowles’ consent to enter. Mr Wilson submitted that this linked to the possibility that Ms Knowles could have told the accused he could sleep in her house or Ms Knowles let the accused in but now cannot recall doing so. When I questioned Mr Wilson on this, he agreed that this was stretching the evidence of Ms Knowles.
I further questioned Mr Wilson on the possibility that Ms Knowles did let the accused into her house, and the description of discovering the accused in her bed then being a nonsense. Mr Wilson submitted that this is one view, with another being that Ms Knowles had let the accused in and then subsequently awoken to find the accused in her bed without her permission. Mr Wilson agreed that this scenario would still leave open an assault. Mr Wilson suggested that while it is his primary submission that I cannot be satisfied beyond reasonable doubt that the touching in the bed occurred, his alternative submission is that there was an assault but not a trespass. Mr Wilson agreed that the touching described, if I were to find proved beyond reasonable doubt, cannot amount to something in the ordinary course of social interaction.
Mr Wilson further submitted that there are clear deficiencies in Ms Knowles’ memory of the events of the afternoon on 20 May 2021 through to the early hours of 21 May 2021. Mr Wilson flagged that she had admitted problems with her memory, which may stem from mental health issues, and that she accepted in cross‑examination that there are aspects of the evening that she possibly cannot remember. Mr Wilson further relied on D8. Mr Wilson went on to highlight examples of inconsistent statements by Ms Knowles and submitted that while one or two of the inconsistencies in D8 in isolation would not trouble me too much, but the fact that Ms Knowles’ evidence was entirely at odds with her statements to police should cause me concern.
I asked Mr Wilson what I can make of the fact that Ms Knowles gets out of bed at 2.00 a.m. and calls police saying there is a man in her house, and whether it is his submission that this is a figment of her imagination entirely. Mr Wilson submitted that the fact Ms Knowles called police explains why they attended at that time but that I cannot use that fact to make it more likely that Ms Knowles is telling the truth about what she says occurred with the accused. When I pressed Mr Wilson on this, he upheld his submission that Ms Knowles must be mistaken or lying about the fact the accused was in her bed at all.
Mr Wilson gave examples of Ms Knowles being confident about something occurring that did not in fact occur. Mr Wilson also pointed to the evidence given by Ms Knowles about her alcohol consumption in support of the submission that I cannot find Ms Knowles to be a reliable witness. He submitted that Ms Knowles displayed a reluctance to be candid about her drinking on the evening in question.
Mr Wilson relied on R v Bennett [2004] SASC 52 and R v Pascoe [2004] SASC 420 in submitting that the prosecution have to negate the possibility that Ms Knowles had at some point given the accused permission explicitly to enter her unit or that she let him in, or alternatively, that Ms Knowles did or said things that caused the accused to believe he was permitted to enter her unit. I raised with Mr Wilson the issue that the entry into the unit by the accused was in the early hours of the morning. Mr Wilson responded by acknowledging that the previous permission to enter the unit to get food for Ms Knowles’ children does not equate to permission to enter at that time of night.
On the issue that the accused had been 'trespassed' from Unit 4 earlier that evening, Mr Wilson submitted that I cannot use this evidence to bear on the accused’s state of mind, specifically whether or not he was permitted to enter Unit 3. I put to Mr Wilson that if the accused knew he was not allowed back into Unit 4 but needed somewhere to sleep, I could use that in reasoning that the accused entered Unit 3. Mr Wilson accepted that I could use the evidence in this way but submitted that I could not use this evidence as bearing upon whether the accused entered as a trespasser.
I then raised with Mr Wilson whether I could make any use of the evidence from Ms Smith that suggests the accused can get into Unit 4 without it being obvious how he has done so. Mr Wilson submitted that I cannot make any use of this evidence or draw any inferences from this evidence. Mr Wilson submitted that this is effectively discreditable conduct evidence and that the defence should have been put on notice if the prosecution intended to adduce this evidence.
Finally, Mr Wilson highlighted that the prosecution has chosen to particularise the charge of aggravated serious criminal trespass in a place of residence as 'an intention to commit an assault upon entry rather than entering or remaining as a trespasser'.[65] Mr Wilson submitted that this means that if I find the accused entered Ms Knowles’ unit without her permission and then whilst inside the unit decided to assault Ms Knowles as alleged, the prosecution would not have proved the charge of aggravated serious criminal trespass in a place of residence as laid. Mr Wilson submitted that I must be satisfied the accused entered with this intention in mind at that time. He conceded that I would then have to consider the alternative charge of criminal trespass in a place of residence.
[65] TS 132 (emphasis added).
Discussion
This case relies upon an acceptance of the evidence of Ms Knowles. If the case is to be provide beyond reasonable doubt, she must be a reliable witness and she must be truthful.
There is no dispute that Ms Knowles resided in the address at Clearview at the relevant time. There is no dispute that the accused lived next door. Ms Knowles was giving evidence about events that occurred in May 2021 in her unit.
There is, in reality, three scenarios that arise for consideration initially:
1.has the prosecution proved, beyond reasonable doubt, that there was an unwelcome intruder in the house; or
2.was Ms Knowles mistaken about this; or
3.is she telling a deliberate lie about it?
Unless I am satisfied that there was a intruder then this case falls at the first hurdle as the prosecution would not have proven a critical element for each of the offences.
The alleged offences occurred at about 2.00 a.m., when Ms Knowles awoke to find a man unexpectedly in her bed. Her young son was also beside her in the bed. If this happened, she was undoubtably shocked and rattled by the situation she found herself in.
If it did not happen, she has made up an elaborate tissue of lies and persisted with it.
Could anyone be mistaken about it? It is not reasonably possible to be mistaken about these events, unless Ms Knowles is or was having some significant lack of connection with reality such as visual or auditory hallucinations or both.
She called the police on 000 at 2.06 a.m.[66] They arrived at about 3.00 a.m. They observed an open window that had not been open earlier in the day. Ms Knowles was not slurring her words, nor did she appear to be intoxicated. She nominated her next-door neighbour as the intruder. He had been asked to leave the premise next door by the police and was 'trespassed'. He was in the next-door premises in the morning without permission.
[66] Agreed fact No. 12
I am satisfied, beyond reasonable doubt, that Ms Knowles was not mistaken about an intruder in her unit.
Has she told lies about an intruder being invited into her unit? Ms Knowles gave a cogent account about waking up to find a man in her bed. On her account, immediately after he left her unit, she called 000. She did not know how he got in. A possibility is through an open window that had not been open earlier in the evening. Ms Knowles was not intoxicated when the police arrived about an hour later.
I accept that she was unclear about some details of her evidence. However, much of the subject matter of the cross-examination was irrelevant to the facts in issue. An example of this is a criticism of whether she told the intruder to leave or whether the intruder just walked towards and out the front door.
On many of the matters about which Ms Knowles was criticised, there was, in effect, no other evidence on this topic as Ms Knowles did not agree with the proposition, and nor was there any admissible evidence to prove the contrary.
Examples of this include trips to Dan Murphy's. Ms Knowles was very confused about his topic. However, this topic of itself was irrelevant to her account of what occurred in her home at about 2.00 a.m. Much of the cross examination focused on her level of sobriety. I accept that she was unsure as to how many drinks she had. However, she was very clear that she did not feel intoxicated. In addition to this, the police officer who attended at 3.00 a.m. did not observe her to be intoxicated. Similarly, the number of times she left the units during the afternoon was not something that was important to her recounting the events in her unit.
Ms Knowles gave evidence that there was an altercation at her unit at about 5.30 p.m. on this day when there was a disturbance between her neighbours and another group that resulted in her screen door being damaged. There is no dispute that Ms Knowles called the police and reported this incident. Ms Knowles said she spoke to the police. The agreed facts record two police officers attending and no persons were present at her house, and they did not speak to her. Curiously they suggest her phone was disconnected when they tried it. These versions are inconsistent. Is Ms Knowles lying or mistaken about speaking to the police at that time? It is reasonable that she is incorrect in her assertion. However, does this render her evidence in relation to the alleged events in the unit in the early hours of the morning unreliable?
There is a real question to be answered about whether simply because an individual is inconsistent about other and possibly entirely irrelevant matters this can undermine her reliability to such an extent that her evidence on the facts in issue cannot be accepted. The answer will always lie in an analysis of the circumstances of the particular case. The inconsistencies need to be considered separately and in combination.
I accept that Ms Knowles' account in relation to the trips to Dan Murphy's and the relatives of Ms Smith’s house contains inconsistencies. I accept that two years after the events in question, Ms Knowles' memory of these trips is scant. It is a feature to take into account in determining whether she is reliable in relation to the events that she says occurred at about 2.00am and, in particular, whether the prosecution have proved any or all of the elements of the charged offences.
Ms Knowles was in my view a truthful witness. She was doing her best to answer the questions that were put to her. She acknowledged that she had problems with remembering some aspects of the day in question and some of the events. Her version of events is cogent and detailed. In many respects, it is a simple and straightforward account of events that occurred very quickly and unexpectedly.
I do not accept that any inconsistencies either alone or in combination are such that they undermine the evidence of Ms Knowles such that she cannot be considered a reliable witness about the events giving rise to the charged acts.
I accept her evidence that she awoke to find an uninvited man in her bed stroking her legs. She may now be unclear whether it was one leg or two at various stages but there is no doubt that she is describing him waking her up by touching her. I do not consider that any confusion as to whether she was also touched on the back renders her account unreliable.
There is a degree of unreality, to expect a person woken from their sleep, in circumstances like this, to be able to be sure about exactly what was happening to them. It does not lead me to think that she was not being touched or that she is fabricating what happened. It is clear from her evidence read as a whole that she had difficulty articulating what happened in that short space of time. I am satisfied that accused touched Ms Knowles on her legs.
Has it been proven beyond reasonable doubt that it was the accused who entered the unit and touched Ms Knowles? There is no dispute in this matter that the accused was living in the unit next door to Ms Knowles at the relevant time. There is no dispute that she had met him and spoken to him and done so as recently as hours before the alleged offence. There is no dispute that the accused had been 'trespassed' and was not permitted to return to his home for 24 hours. It follows from this that he may have been in need of somewhere to stay that night. There is no dispute that by 8.00 a.m. - 9.00 a.m., the following morning he had returned to his home and was found there by the police.
The evidence of Ms Knowles is that having woken to someone stroking her legs, she reached down and felt the hair on this person's head, and said 'Alpha, is that you.' The person said 'yes'. She said 'How did you get in' and the person replied 'You let me in', to which she said 'No I did not'.
I accept the evidence of Ms Knowles that this was the nature of the conversation she had with the intruder. The first instinct of Ms Knowles was that this was the accused. This was based on feeling his hair and the circumstances of the events that had unfolded the evening before. It was confirmed by the intruder. She then had the opportunity to continue to observe him as he got out of the bed and she and he made their way to front door. As he left the premises, she could see him illuminated by the outside lights. His body shape was consistent with that of the accused. Her state of mind was then confirmed in her conversation with the police. Obviously, this cannot be used to prove the identity of the accused but merely demonstrates that this was her belief. As a consequence, the police knocked on his door several times but were unable to get any answer at that time.
I exclude as a reasonable possibility that Ms Knowles is mistaken in her recognition of the accused. He was her next-door neighbour. She had spent a number of hours in his presence the evening before. She spoke to him the day before. She had plenty of opportunity to see him in her unit at the time of the incident and to see not just his face but his whole body as he walked to her door and out of it. In addition to these factors, I accept that she asked him if it was him and he replied 'Yes'.
I am satisfied beyond reasonable doubt that the person who entered Ms Knowles unit at about 2.00am was the accused.
Did he enter as a trespasser? The evidence is that Ms Knowles did not give the accused permission to come into her premises. She did not invite him after he had been 'trespassed'. I accept that she had given him permission to enter her home to get snacks for her children whilst he was looking after them. That was a completely different transaction to the events that occurred after he was trespassed.
I accept that Ms Knowles had been drinking alcohol, but I do not find that she was so intoxicated that it is a reasonable possibility that she granted permission for the accused to stay in her unit or that she did this because she was just a kind person. I am very mindful of the fact that many propositions were put to Ms Knowles that she denied, about which there was no other evidence or reasonable inferences that can be drawn from other proved facts to the contrary.
I am satisfied that the accused knew he was trespassing when he entered the unit and entered the unit as a trespasser[67]. I do not accept that he was truthful when he said 'You let me in', because that had not in fact occurred. Prior to his entry, Ms Knowles had been asleep in bed with her child.
[67] R v Bennett (2004) 88 SASR 6 [27]
I am satisfied that he did not have permission to enter, and he knew that. His conduct was not careless, mistaken or unknowing. Exactly how he entered the unit is not clear. In all likelihood it was through the window. But I am satisfied that Ms Knowles did not let him into her unit, nor had she invited him in or done or said anything from which he could have had such a belief.
I am satisfied that at the time he entered the premises he knew another person was lawfully present in the unit. It was 2.00am. He knew Ms Knowles lived in the unit with her children. He knew she was there when he was 'trespassed' and excluded from his partners unit. It is a reasonable inference to draw that he knew she and her children were present or at very least he was reckless as to their presence.
Has the prosecution proved that the accused intended to commit the offence of assault when he entered the unit? I am satisfied that the accused did commit an offence of assault. However, that does not mean that he had this intent when he entered the premises. I have already found that it is unclear how the accused entered, but am satisfied he did so, knowing he did not have the consent of the occupier. However, I am not satisfied that when he entered, he intended to commit the offence of assault. It is a reasonable possibility that he formed that intent after he had entered the unit. It is a reasonable possibility that he needed somewhere to sleep after he was excluded from his unit and was looking for somewhere to sleep. He had clearly formed the intent to assault Ms Knowles when he touched her legs whilst she was in bed. He touched her deliberately and knew she was not consenting to that touch because she was asleep at the time, and he had no reason to think that she was consenting. However, he may have formed this intent after he had entered the unit and acted opportunistically to assault Ms Knowles.
It follows from the findings that I have made that I am not satisfied that the prosecution have proved Count 1; the charge of aggravated serious criminal trespass in a place of residence, as I am not satisfied that the accused had an intention to commit an offence of assault when he entered the premises, and this was the way the charge was pleaded. I find him not guilty of Count 1.
I am, however, satisfied beyond reasonable doubt that the prosecution have proved that the accused trespassed in a place of residence and that he assaulted Ms Knowles. I therefore find him guilty of Counts 2 and 3.