R v Kemp - [2021] SADC 126

District Court of South Australia
(Criminal)
R v KEMP
[2021] SADC 126
Reasons for Ruling of her Honour Judge McIntyre
16 November 2021
CRIMINAL LAW - SENTENCE - DISPUTED FACTS
The defendant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence and three counts of aggravated assault arising out of an incident that occurred at Mullaquana near Whyalla on 17 December 2019.
Ruling following disputed facts hearing as to basis upon which defendant to be sentenced.
R v Perre (1986) 41 SASR 105 , applied.

R v KEMP
[2021] SADC 126

The accused pleaded guilty to one count of aggravated serious criminal trespass in a place of residence and three counts of aggravated assault arising out of an incident that occurred at Mullaquana near Whyalla on 17 December 2019. There is however a dispute about the factual basis upon which the accused is to be sentenced. This is my ruling following a disputed facts hearing.
Background
The victims of the assaults were the accused’s friend, Andrew Dendunnen, and the accused’s wife, Kerry Kemp. The accused attended at Mr Dendunnen’s home at about 8:45 pm. He entered the premises via a sliding glass door. As he did so, he observed Mr Dendunnen and his wife in the lounge room having sexual intercourse. When Mr Dendunnen and Mrs Kemp became aware of the accused’s presence, they observed that he had a knife in his hand. He threatened Mr Dendunnen with it. This is the first count of aggravated assault. Mr Dendunnen hid behind a couch and then ran from the house to summon help. The remaining two counts of aggravated assault involve Mrs Kemp; one occurring in the lounge room and the other as the accused and his wife went home.
The key issues in dispute are:
·Why the accused attended at Mr Dendunnen’ s house,
·Whether the accused took the knife with him; and
·How the accused entered the house.
There are a number of other areas of dispute, but these relate to peripheral or incidental matters. I will refer to those in context.
The prosecution contends that the accused was suspicious that Mr Dendunnen and his wife were engaging in a sexual relationship, that he went to Mr Dendunnen’s house to confirm that suspicion and to remonstrate with them if he was correct. The prosecution says that the accused took the knife with him and that he gained entry into the house by means of smashing the locked glass sliding door. These are circumstances of aggravation that the Crown must prove beyond reasonable doubt. The prosecution did not call evidence, and was not obliged to call evidence, on the disputed facts hearing. Rather the prosecution relied on inferences to be drawn from the primary facts set out in the affidavits in the prosecution brief.[1]
[1] R. v Perre (1986) 41 SASR 105
The accused gave evidence on the disputed facts hearing disputing some of the primary facts relied on by the prosecution and disputing some of the inferences for which the prosecution contends. The accused gave evidence that he went to Mr Dendunnen’s house for a social visit. He did not know his wife was there. He did not see her car. He knocked on the sliding door and thought that he heard Mr Dendunnen invite him in by saying “Yoh” as he usually did on such visits. The door was not locked, and he slid it open. He entered the foyer area and saw his wife and Mr Dendunnen engaging in sexual intercourse in the lounge room. He then slammed the door shut causing it to break. He entered the lounge room and snatched up a knife which was on the kitchen bench. Matters proceeded from there.
It is the defence position that Mr Kemp only became a trespasser when he remained on the premises having gained entry by means of an open door. This is a circumstance of mitigation that Mr Kemp need only prove on the balance of probabilities.
Why did the accused attend at Mr Dendunnen’s house?
The accused gave evidence that he visited Mr Dendunnen’s house regularly as they were friends. When he did so, he would knock on the glass sliding door and that Mr Dendunnen would shout “Yoh” by way of invitation to enter the house. The door was generally not locked. Mr Dendunnen’s statement confirmed that the accused was a friend who would visit from time to time.
The accused says that on the night in question, his wife had gone out telling him that she was going to a colleague’s house for Christmas drinks with work friends. He was suspicious about this and of his wife’s relationship with Mr Dendunnen but claimed that it played no part in his decision to see Mr Dendunnen that evening. Rather, the accused said that he contacted a friend who was interested in learning scuba diving to see if he wanted to visit Mr Dendunnen. Mr Dendunnen taught scuba diving and the accused wanted to introduce his friend to Mr Dendunnen so that they could discuss the possibility of Mr Dendunnen teaching him. It is uncontentious that the accused attended Mr Dendunnen’s house in a friend’s car and that the friend remained in the car during these events. It was put to the accused that he took this friend with him for back-up which he denied.
It is clear that the accused and his wife had a difficult relationship characterised by mutual jealousy. This is evident from Mrs Kemp’s declarations, the evidence given by the accused and the content of several text messages passing between the two tendered as exhibit P3.
There is also evidence that the accused had a tracking app on his wife’s phone that could be used to track her whereabouts. The accused agreed that the family did use an app, the Family 360 app. His wife and the two children downloaded the app to their phones so that they could trace where the children were if anything ever went wrong. It showed a GPS map and a dot of where each individual person was at that point in time. He denied using it on this occasion. Mrs Kemp says in an addendum declaration that she believes that the accused tracked her to Mr Dendunnen’s house by use of the app. There is no evidence that this is the case. This appears to be speculation on her part. I am not satisfied that the accused used the tracking app on this occasion.
The prosecution relied on some text messages which it is said can be inferred were passing between the accused and Mrs Kemp immediately prior to these incidents. The messages are in the form of screenshots of Mrs Kemp’s telephone. She provided these to police on a USB stick. Police did not take the screen shots. Only one of the messages referred to has a date, 17 December, and a time 6:46. There is no year on the message. The times stamp does not establish whether this was a text sent in the morning or the evening. The texts that follows are in separate screenshots. They are not dated but it is said that it can be inferred from the content that these follow on from the partially dated text. It is not clear to me that this is the case. Further I cannot be certain that the messages represent a complete exchange; it is possible that some messages are missing.
Given the time of night and the fact that the accused maintained he was concerned about leaving his children home alone in Whyalla that evening as part of his explanation for his other actions, I find his evidence about making a social call to discuss scuba diving instruction improbable. However, whilst I am deeply suspicious about his motivation, I cannot exclude as a reasonable possibility that the accused intended a social visit and accordingly, I find that the prosecution has failed to prove this circumstance of aggravation beyond reasonable doubt.
Did the accused take the knife with him?
The Prosecution says that I can infer that the accused took the knife with him from several facts outlined in the declarations.
Constable Bryant describes locating a green plastic knife sheath on Mr Dendunnen’s lounge room floor and seeing a slash mark on the lounge chair. Constable Webb described Mr Dendunnen showing him the inside of his house, pointing out a slash mark on the lounge chair and a green plastic knife cover. Exhibit D1, the photographs taken of Mr Dendunnen’s house shortly after these events by police show the slash mark on the lounge chair and a crushed ice coffee container under the lounge chair.
Mr Dendunnen’s declaration indicates that he saw a green knife sheath in his lounge that was foreign to his house. He had not seen it before. In his description of the assault, he describes the accused having something in his right hand and slashing at him with it. He believes it may have been a knife but did not see it clearly. Mrs Kemp describes seeing her husband with a knife in his right hand and a carton of Farmers’ Union Iced Coffee clenched between his teeth. The knife was green “a bright, almost lime green” fishing knife used for filleting. She had seen it before as she had found it in their car behind the back car seats with a gas cannister in the boot. She does not know where it came from. In an addendum declaration, Mrs Kemp described finding a knife blade in the back of Mr Dendunnen’s couch on 30 January 2020 which they then took to the police station.
Constable Mitchell describes searching the accused’s home address at about 2:25 am on Wednesday 18 January 2019 where Mrs Kemp informed them that she thought she had located the knife used in the offending. He found a knife handle on the couch in the granny flat. He seized that handle. Photographs of the various components of this knife were tendered as exhibit D2. These are a sheath, a handle, and a knife blade in two parts. It is difficult to ascertain the colour of the knife sheath from the photographs. The sheath may be green, but it is certainly not lime green. These items were not tendered in evidence.
The accused gave evidence that he did not take the knife with him. He described seeing a knife on a kitchen bench in his “peripheral vision” as he ran through from the door through to the lounge room. He described the knife as a cream handled fishing knife. He grabbed the knife as he ran through and thrust it towards Mr Dendunnen, as Mr Dendunnen pushed the lounge chair at him. The knife broke and he dropped onto the ground.
The accused was asked whether he took the handle with him when he left Mr Dendunnen’s house. He did not think so; he couldn’t remember but did not think he would have.
The accused agreed that he drank Farmers Union Ice Coffee but could not remember if he had one with him when he went into the house. He did not remember having a crushed container between his teeth as he came through the door.
The accused agreed that he found a knife in his car. He said it was, a different style of knife to the one he grabbed off the bench; it was a diving knife with a bigger blade and more heavy duty. It had straps for it to go around your leg. That knife was in his car for about 12 months before this incident, when they first got the car. He couldn’t remember who he bought the car from, it was a private person in Whyalla. He said he found the knife wedged between the gas tank and the back seat when he was cleaning the car.
I am not satisfied of the identification of the knife used in the attack by Mrs Kemp as being one located in their car. Her description of that knife is at odds with the photographs taken of the knife that was undoubtedly used in the incident. This does not however preclude the possibility that the accused brought the knife with him: just not that knife.
Mr Dendunnen’s declaration indicates that he did not recognise the knife sheath and that it was not at the house prior to the attack. His declaration does not deal with the knife itself however, clearly the knife used in the attack was associated with the sheath. Accordingly, it is a reasonable inference to draw that Mr Dendunnen did not identify the knife as having been at his house previously. It was put to me that it was a reasonable possibility that the knife was on the kitchen bench because Mr Dendunnen is a diver and presumably has fish filleting knives. This however ignores the fact that Mr Dendunnen says he did not recognise the knife sheath. Neither Mr Dendunnen nor Mrs Kemp say anything about seeing the accused grabbing a knife from the kitchen bench. Indeed, their declarations suggest that he entered from the foyer area with it in his hand.
I found the accused’s evidence about fortuitously seeing the knife in his peripheral vision as he approached Mr Dendunnen and his wife implausible. The photographs taken by the police show that Mr Dendunnen’s kitchen was neat. There are no superfluous items or apparent fishing paraphernalia on the bench or indeed elsewhere in the photographs. The bench top is dark. The knife and sheath were also dark. The declarations indicate that the lights were off and that the room was dark apart from the light provided by a TV. His attention was specifically directed to his wife and Mr Dendunnen. Further, these events occurred in a matter of moments. It would have been difficult for the accused to see the knife in those circumstances. When the accused was cross-examined about this, he suggested that he saw the rope attached to the handle rather than the knife itself. I reject that explanation. The rope is dark and short. It too would have been difficult to see. Even if the accused did see the rope it would hardly have commended itself as a weapon or suggested that it was attached to one. I reject the accused’s evidence that he fortuitously located the knife as he entered the premises.
I consider that the prosecution has proven beyond reasonable doubt that the accused took the knife into the house with him.
How did the accused enter the house?
The prosecution case is that the accused was presented with a locked door and smashed the door to achieve entry. Police photographs, exhibit D1, showing the broken window and the glass. The prosecution contends that the projection of glass fragments into the house and across the floor to a chest of drawers is consistent with force applied from the outside of the door.
The prosecution further contends that, given the nature of the activity occurring in the home and the fact that it was night-time, it is more likely than not that the door would have been locked. I do not accept that contention. Mr Dendunnen said he did not know whether the door was locked. Mrs Kemp does not say anything about whether the door was locked. Neither say anything about being concerned to lock the door prior to engaging in sexual activity on the lounge.
The prosecution has not proven that the door was locked. There is however no doubt that the door was closed; did the accused kick the door in to gain entry rather than sliding the door?
Neither Mrs Kemp nor Mr Dendunnen say anything about how the door was broken. It is unlikely that either had a clear view of the door.
The accused said that he knocked on the door and thought he heard Mr Dendunnen invite him in. Plainly, Mr Dendunnen would not have done so but this does not preclude the possibility that the accused thought he heard an invitation.
The accused gave evidence-in-chief that, as he walked through the door and saw his wife and Mr Dendunnen having sex, he went into “panic and shock mode” and a split second later he used the door to thrust himself forward. He described launching himself off the door which slammed shut. That is when it shattered.
In cross-examination it was put to the accused that he kicked the door in. He denied that saying he had rubber crocs on and that if he kicked the door, he would have cut his foot open. He agreed he had a cut on his leg but not on his foot. He said that he got that cut riding through saltbush previously that day. He claimed that if he kicked in the door, he would have had slashes all over his leg. He agreed that the glass appeared to have smashed some distance into the house, that it was thick glass. He said that he slammed the door very hard but did not get any glass on him because it smashed behind him. He said that as he launched himself it slid all the way back and smashed when it shut.
Having carefully considered this evidence I consider it unlikely that the door could be smashed the way that the accused described. It was a thick glass door, and it appears unlikely that simply slamming it would cause the amount of damage that is evident in the photographs. I reject the accused’s contention that even wearing crocs he would inevitably have cut his feet kicking the door in. His foot would have been protected by his foot and need not necessarily have been cut by the glass. I further find his explanation of the cut on his leg improbable. I therefore put his version of events to one side.
The main feature relied upon by the prosecution is the distribution of the glass apparent from the photographs. These depict glass strewn some distance across the floor of the foyer area which is said to be suggestive of force being applied from the outside into the house. It is also said that the distribution of glass is not consistent with the door breaking as it slammed in the manner described by the accused. I accept both submissions. However, I note that there is also a large amount of glass on the veranda and the floor mat outside the house. This does not sit comfortably with the prosecution submission. Accordingly, I am not satisfied that the accused broke the door to gain entry to the house.
Conclusion
In conclusion I will sentence on the basis that the accused did not attend at the premises of Mr Dendunnen intending to remonstrate with his wife and Mr Dendunnen, nor did he gain entry to the house by kicking the door. I will however sentence on the basis that he took the knife with him into Mr Dendunnen’s house