R v Kennedy; R v Barker

Case •

[2024] NSWDC 71

•

14 March 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Kennedy; R v Barker [2024] NSWDC 71
Hearing dates: 12 February 2024 - 14 February 2024
Date of orders: 14 March 2024
Decision date: 14 March 2024
Jurisdiction:Criminal
Before: GRANT DCJ
Decision:

Charles Samuel Barker and Ziggy Kennedy are convicted and found guilty.

Catchwords:

Detain for psychological advantage – meaning of psychological advantage – includes vigilante conduct – detaining person mistakenly believed to have sexually assaulted sister – Judge Alone Trial – finding of guilt.

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Fleming v The Queen (1998) 197 CLR 250

Category:Principal judgment
Parties: Rex (Crown)
Ziggy Kennedy (accused)
Charles Barker (accused)
Representation:

Counsel:
Mr Paul Kerr (Crown)
Mr Mark Davis (Barker)
Mr T.C Jackson (Kennedy)

Solicitors:
Mr Fraser Lawrance (ODPP)
Mr John Weir (Barker)
Mr Rohan Harrison (Kennedy)
File Number(s): 2022/00314958; 2022/00310663

JUDGMENT

  1. On 12 February 2024, the accused Ziggy Kennedy and Charles Samuel Baker were arraigned before the Albury District Court and pleaded not guilty to the following count (contrary to section 86(3) of the Crimes Act 1900), being count 1 on the Indictment:

On or about 16 October 2022, at Albury, in the State of New South Wales, did detain Logan Berryman without his consent with the intent to obtain and advantage, namely, as a psychological advantage, and at the time of, or immediately before or after the taking, actual bodily harm was occasioned to Logan Berryman.

  1. The accused were further arraigned in the alternative and pleaded guilty to the following count, being count 2 on the Indictment:

On or about 16 October 2022, at Albury in the State of New South Wales, while in the company of another person, assaulted Logan Berryman, thereby occasioning to him actual bodily harm.

  1. The Crown did not accept the plea to the alternative to count 1 in full satisfaction of the indictment.

  2. Mr Jackson who appears for Mr Barker in his final address successfully argued that the charged as framed above was missing the words “while in company of another person” and therefore was a s86(2) charge. The Crown sought leave to amend the indictment. I refused leave due to prejudice the accused would suffer. There is a 5-year difference in the statutory maximum applicable.

General Directions

  1. In accordance with section 133 Criminal Procedure Act 1986 (NSW), and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law:

  1. A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

  2. A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

  3. If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

  1. I remind myself of the requirement to state findings on the main grounds critical to the contest between the parties and on which the verdict rests. In this trial, the critical issues were whether each of the accused detained Logan BERRYMAN without his consent and with intent to obtain advantage, and that actual bodily harm was occasioned to Logan BERRYMAN at the time of that detaining.

  2. In my role as judge of facts, I am able to draw inferences from the direct evidence from experiences had in my own life. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. Noting the requirement to find the accused satisfied beyond reasonable doubt of guilt, there is an additional requirement, among other things, to be extremely careful about drawing any inference. Any possible inference will be examined to ensure that it is a justifiable and rational inference in the circumstances.

  3. I now direct myself to the burden of proof of guilt of the accused. To prove the accused guilty of each count, the Crown must prove beyond reasonable doubt each of the following elements of the offence in each count. That burden is placed squarely on the Crown and is in respect of every element or essential fact that makes up the offence charged. There is no stage where that burden is shifted to either or both of the accused to prove any fact or issue that is in dispute. Beyond reasonable doubt are ordinary words that carry their everyday meaning, and that is how I understand them. If, at the end of my deliberations after considering the evidence and submissions made by the parties, I am not satisfied beyond reasonable doubt as to any one or more of the elements for a particular count, a verdict of not guilty must be returned.

  4. I direct myself to the presumption of innocence. The accused are presumed innocent unless the Crown satisfies me that the accused are guilty beyond reasonable doubt.

Azzopardi direction

  1. The accused have not given any evidence in response to the Crown’s case.

  2. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged.

  3. The accused bears no onus of proof in respect of any fact that is in dispute. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon any accused to do so. The accused are presumed innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that the accused are guilty of the offences charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove their guilt to the high standard required.

  4. I remind myself that the accused having decided to not give evidence cannot be used against either of the accused during my deliberations. The decision to not give evidence does not amount of an admission of guilt, nor will any inference or conclusion be drawn because of that decision.

  5. I further remind myself that I must not speculate about what might have been said in evidence if the accused had given evidence.

Single Witness Direction

  1. The Crown seeks to prove the guilt of the accused with a case based largely or exclusively on the evidence of Logan Berryman.

  2. Accordingly, I direct myself that unless I am satisfied beyond reasonable doubt that Logan Berryman is both an honest and accurate witness in the account he has given, I cannot find the accused guilty. In that sense, I direct myself to examine the evidence of Logan Berryman very carefully to satisfy myself that I can safely act upon that evidence to the high standard required in criminal trials. I further direct myself that in considering the evidence of Logan Berryman and in my deliberations of whether it satisfies me of the accused’s guilt, I should also see if it is supported by other evidence.

Section 165 Direction

  1. I give myself a section 165 direction in relation to the reliability of oral evidence given in the trial. I understand that the offence took place at some time between midnight and 2am on 16 October 2022 at a 21st birthday party. I also understand that each of the witnesses have confirmed that they had consumed alcohol that evening. Accordingly, I direct myself that the evidence given by each witness may be unreliable. I inform myself that the state of each witnesses’ intoxication on that night may have caused their recollection of the evening to be unreliable. I warn myself of the need for caution in determining whether to accept the evidence and the weight to be given to it.

Good character direction: Charles Barker

  1. In respect of the accused Charles Samuel Barker, I give myself a good character direction. That is, that Charles Barker’s good character is relevant to the likelihood of him having committed the offence alleged. I direct myself that it is within my capabilities to find that Charles Barker is more unlikely to have committed the offence.

Elements

  1. Counts have a particular time frame and place. I must be satisfied beyond reasonable doubt that whatever occurred, occurred at the nominated time and place.

  2. The Crown alleges that the accused detained Logan Berryman without his consent with the intention to obtain a psychological advantage, and at the time of, or immediately before or after the taking, actual bodily harm was occasioned to Logan Berryman.

  3. The elements of the first count are:

  1. The accused, Ziggy Kennedy and Charles Samuel Barker, detained LOGAN BERRYMAN;

  2. The accused knew LOGAN BERRYMAN was not consenting to that detention;

  3. The accused did what they did with the intention of obtaining an advantage by that detention; that is to obtain a psychological advantage; and

  4. Actual bodily harm was occasioned to LOGAN BERRYMAN at the time of, or immediately before or after, the commission of the offence.

  1. The Crown further alleges in the alternative that the accused assaulted Logan Berryman thereby occasioning actual bodily harm while in company.

  2. The elements of the second count are:

  1. That accused, Ziggy Kennedy and Charles Samuel Barker, assaulted LOGAN BERRYMAN

  2. The assault occasioned to LOGAN BERRYMAN actual bodily harm.

  3. In company

  1. The accused have pled guilty to the alternative count 2.

  2. I pay particular focus to the charge attached to count 1 on the Indictment, section 86(2) Crimes Act 1900 (NSW). That section is an offence of kidnapping, aggravated by actual bodily harm occasioned at the time of, or immediately before or after, the commission of the offence.

Detention

  1. The first matter for the Crown to prove beyond reasonable doubt is that the accused, Ziggy Kennedy and Charles Samuel Barker, detained Logan Berryman. To detain a person means that the accused caused or forced Logan Berryman to remain where he was, and that he was not free to leave should he wish. That is, the accused directly or indirectly interfered with the liberty of Logan Berryman.

  2. The Crown argue that at or around 2:00am at 431 North Street, Albury, Logan Berryman walked from the loungeroom of the home down the adjoining hallway where he saw the accused. As he continued down the Hallway, the accused stood in front of him, blocking his path. The Crown alleges that the accused pulled Logan Berryman down to the ground and dragged him from the hallway into a bedroom. It is alleged that the door was shut. It is alleged that when Logan Berryman tried to get to his feet, he was told to sit back down. Later, when Logan Berryman attempted to follow Maddylin Barber out of the room, Charles Barker turned and yelled at him, “Sit back down”.

Knowledge that the victim did not consent to the detention

  1. The Crown must also prove that Logan Berryman was kept in the room without his consent. The Crown must prove that the accused knew that the victim was not consenting. Consent must be freely and voluntarily given. Consent is not given if Logan Berryman was detained by the accused as a result of force or threats.

Psychological Advantage

  1. Further, the Crown must prove beyond reasonable doubt that the accused detained Logan Berryman with the intention of obtaining an advantage. The advantage achieved need not be financial and maybe psychological as attested to in this case. I have had regard to the remarks of Johnson J in R v Speechley (2012) 221 A Crim R 175 at [50] (McClellan CJ at CL and Hammerschlag J agreeing), that “psychological gratification or satisfaction…[includes] the taking of vigilante action in circumstances where it is believed that the detained person has committed some wrong against the offender, or persons associated with the offender.” The Crown need only prove that the intention to obtain this psychological advantage existed at some time during the period that Logan Berryman was allegedly detained. That is, the intention need not exist for the whole of that period.

  2. The Crown submit that the accused detained Logan Berryman for a psychological advantage, namely that the accused detained Logan Berryman under the false assumption that Mr Berryman sexually assaulted the sister of the accused Charles Barker whilst she was in Wollongong. The Crown alleges that Charles Barker confronted Logan Berryman, asking him if he knew his sister and whether he had ever been to Wollongong. Despite Mr Berryman responding that he had only been once in his life, the accused pulled Berryman into the room and he was unable to leave. When there was a break in the alleged assault, Mr Kennedy said words to the effect of “why should we stop? He deserves it.” Later, the sister of the accused Charles Barker asked him words to the effect of “what are you doing? This isn’t him. The Logan that did it lives in Wollongong. Get out.” The Crown alleges that evidences detention for psychological advantage.

Actual Bodily Harm

  1. The Crown must prove beyond reasonable doubt that actual bodily harm was occasioned to Logan Berryman at the time of, or immediately before or after, the commission of the offence of detaining for advantage. “Actual bodily harm” includes any hurt or injury which interferes with the health or comfort of a person. It need not be permanent but must be more than transient or trifling. Bruises and scratches are typical examples of injuries that can amount to actual bodily harm.

  2. The Crown contends that the accused punched and kicked Logan Berryman repeatedly both in the hallway of the house and in a room. Typical examples of injuries that can amount to actual bodily harm include scratches and bruises. The degree of violence involved in an assault is a material consideration in sentencing. An offence may be objectively serious due to the nature of the assault notwithstanding minor injuries.

  3. In this matter, the Crown alleges that in the hallway, Ziggy Kennedy reached around Charles Barker and punched Logan Berryman in the face. Barker then joins in, and it is alleged that both accused punched and kneed him for what he thought was about 20 seconds.

  4. It is alleged that one of the accused then grabbed the victim around his shoulder and chest area and pulled him to the ground and dragged into a room. Once the door was shut, the Crown alleges that the two accused continued to kick him while he was on the floor. The kicking continued for approximately 15 to 20 seconds before the kicking stopped. Immediately following the assault, Logan Berryman went to the bathroom and saw that his right eye was swollen and bloodshot. He saw that he had blood trickling out of his right ear. He saw that his face was swollen, and he had red marks on his right cheek and neck. It is these injuries that the Crown alleges as actual bodily harm. Exhibit 9 is several photographs of the complainant showing injuries. I am satisfied that the injuries captured in the photographs amount to actual bodily harm. There is reddening, scratches, swelling and an injury to the ear with dried blood.

Evidence Led in the Crown Case

  1. The Crown called the following witnesses:

  1. The complainant Logan Berryman

  2. Lily Barker

  3. Maddylin Barber

  4. Max Bruton

  5. Cameron Parry McLeod

  6. Maclayn Hallows

  1. The following exhibits were tendered on behalf of the Crown:

  1. Exhibit 1 - Agreed facts dated 17 February 2024

  2. Exhibit 2 – Statement of Luke Berryman dated 17 October 2022

  3. Exhibit 3 – statement of Jarryd Sundblom dated 22 October 2022

  4. Exhibit 4 – statement of William Unthank dated 28 October 2022

  5. Exhibit 5 – Statement of Plain-Clothes Senior Constable Andrew David Jones

  6. Exhibit 6 – Statement of Senior Constable Amy Gibson dated 3 October 2023

  7. Exhibit 7-statement of Senior Constable Amy Gibson, crime scene officer.

  8. Exhibit 8 – statement of Detective Senior Constable Hogg dated 15 December 2023.

  9. Exhibit 9 Photographs of the complainant depicting injuries.

  1. Tendered on behalf of Mr Barker was a USB containing video of the complainant.

  2. Tendered of behalf of Mr Kennedy was a one page emergency department clinical record of the complainant.

AGREED FACTS PURSUANT TO SECTION 191 OF THE EVIDENCE ACT 1995

  1. For the purposes of these criminal proceedings, the abovenamed accused, upon the advice of his lawyer, and the Crown have agreed upon the following facts pursuant to section 191 of the Evidence Act 1995 (NSW):

“2. On or about 17 October 2022, the accused were present at a party at 431 North Street Albury, the home of Jarryd Sundblom. The complainant, Logan Berryman, was also present at that address.

3.In the early hours of 17 October 2022, the accused were standing in the hallway of the premises. As the complainant walked down the hallway, towards the accused, he said, ‘Hey boys, how is it going?’

4. The accused both stepped in front of the complainant, blocking his path, and the following conversation took place:

“Charles Barker to the complainant:   Do you know Lilly Barker.

Complainant:      Nah mate, I’ve got no idea.

Charles Barker:   Well, that’s my sister, is there anything you want to tell me about her? Have you done anything with her?

Complainant:   I’m good mates with Tom, why would I do anything like that? [Tom is Charles Barker’s brother].

Charles Barker:   Have you been to Wollongong Recently?”

Complainant:   Nah mate, I’ve literally been to Wollongong once in my life. I live in Melbourne now.

Charles Barker:   Ah, yep.”

5. Without warning, Ziggy Kennedy reached around Charles Barker and struck the complainant to the face with a clenched fist. The punch connected with the left side of the complainant’s face.

6. Shortly after the complainant was punched by Ziggy Kennedy, he and the two accused were in a spare bedroom.

7. Charles Barker does not have a criminal record.”

EVIDENCE OF LOGAN BERRYMAN

  1. Logan Berryman gave evidence in trial relating to the charges on the Indictment, explaining the following sequence events:

  1. On the afternoon of 15 October 2022, Mr Berryman attended the birthday party of Tom Barker at the Albury Football Club, a good friend of Mr Berryman.

  2. After the birthday of Tom Barker, Logan Berryman went to the 21st birthday party of Jarryd Sundblom. He arrived at the house at maybe 11:30pm or midnight.

  3. On arrival, he remembered seeing the accused Charles Barker and Ziggy Kennedy at the 21st birthday party. He did not know the accused personally before the incident but knew of Charles Barker having been friends with his brother, Tom.

  4. At some point in the evening, Logan Berryman moved over into the hallway of the house where he was confronted by both accused, and Charlie Barker asked whether Berryman knew Lily Barker. At this stage, Logan Berryman felt a bit confused and a bit nervous. Logan Berryman responded words to the effect of “isn’t that your sister” to which Barker replied asking whether Logan Berryman had been to Wollongong recently. Logan Berryman responded only once in his life.

  5. After this confrontation, Ziggy Kennedy punched Logan Berryman in the left eye “and then they both continued to assault me.” Logan Berryman clenched his fists over his face and bent over. “Charlie dragged me into the room, and then they shut the door.” Both accused continued to assault Logan Berryman, and he “felt like I had fists coming from, like, multiple fists coming from both directions”.

  6. The assault started in front of the door of the room. As it continued, the accused and Logan Berryman moved to the right and around a corner. There, Logan Berryman was dragged to the ground and into a room by Charles Barker. In the room, mostly Ziggy Kennedy but Charles Barker a few times too kicked Logan Berryman.

  7. The assault momentarily stopped when Charles Barker said words to the effect “He’s had enough, stop”, to which Ziggy Kennedy replied, “why should we stop, he deserves this?”. At this time, Logan Berryman felt very worried and scared and confused.

  8. At any stage where Logan Berryman tried to get up, the accused told him to sit back down, which he did against the back wall.

  1. At some stage, whilst Logan Berryman was on the floor against the wall, Charles Barker kneeled down in front of him, pointed in his face and was talking harshly. At this stage, Logan Berryman was unsure why the assault was being occasioned. Logan Berryman continued to ask “why, what have I done?” but was never really getting an answer. Charles Barker didn’t really respond to any of Logan Berryman’s questions about this.

  2. Afterwards, Maddylin Barber came into the room. No one had left the room. I infer that both accused were present. Charles Barker told her to get out, but Maddylin Barber said ‘stop, he’s had enough’. During this conversation between Maddylin Barber and Charles Barker, Logan Berryman started to walk towards the door where Maddylin Barber was standing but Charles Barker told him to not go anywhere. Logan Berryman had got to his feet when Maddylin Barber was in the doorway. He tried to follow her out but was told to sit back down and not go anywhere. It was Charles Barker who said that.

  3. Maddylin Barber left the room shortly thereafter and Lilly Barker came into the room by herself. She put a stop to it, saying “You’ve got the wrong person. Like, I don’t even know this guy” and then comforted Logan Berryman. Lilly told Charles Barker and Ziggy Kennedy to leave the room. They left the room.

  4. Afterwards, Lily explained to Logan Berryman that “somebody had sexually assaulted her in Wollongong, and that his name was Logan” and that Charles Barker and Ziggy Kennedy confused Logan Berryman for the other Logan.

  5. Charles Barker returned to the room. He looked apologetic. He told Logan Berryman that he was very sorry. He appeared to be remorseful. They both left the room.

  6. They went to the front of the property and Ziggy Kennedy was there. Charles Barker apologised again saying, “I thought you did this to my sister. It was my chance to do something about it.” Charles Barker offered him some money to show he was sorry.

  7. Logan Berryman said he went to the bathroom with a couple of mates who cleaned him up. Mr Bruton called his girlfriend who came and took him to his house. He took some Panadol. The following morning, he iced his face. He spoke to his father about what happened, and his father took him to the police station on the Monday. After the police station he went to the hospital for an examination.

  1. He was cross-examined about his injuries, the amount of alcohol he had consumed, his police statement, the absence of blood on the Elvis suit he had been wearing at the party and the offence.

  2. It was put to him that he under reported the amount of alcohol he had consumed. It is not unusual for a witness to under report what they have drunk. Logan Berryman has been asked about events that took place over a hear and a half ago. It is not surprising with that delay the complainant is unable to recall with precision the amount of alcohol he had consumed.

  3. It was put to him that he had embellished his injuries. There was no blood on the Elvis suit. He may have embellished his evidence about injury, but by looking at exhibit 9 I am satisfied beyond reasonable doubt that actual bodily harm was occasioned.

  4. He maintained that he was “dragged by the scruff of the neck” into the bedroom and that he thought that Charlie had kicked him in the room. He repeated that the bedroom door was shut. “I know the door was shut. I recall the door was being shut. The door was definitely shut.”

  5. The following questions and answers took place at transcript 36 lines 26-37:

“Q…At no point was the door ever shut to the bedroom, do you agree or disagree?

I disagree.

Q. At no point were you dragged into the bedroom, do you agree or disagree?

A. I disagree.

…

Q. At anytime, you could have gone from the bedroom?

A. No, I could not leave the bedroom.”

  1. Logan Berryman maintained that he was detained. He conceded at transcript 34 that he could not say for certain that Charles Barker kicked him in the bedroom. He was punched by both. The Crown case is that there was a short lived joint criminal enterprise and that each participant is liable for the acts of the other.

EVIDENCE OF LILY BARKER

  1. She is the sister of Charles Barker. She attended the party with him. She did not know Logan Berryman. The first time she met him was in the bedroom. At the party she told Maddylin Barber that she had been sexually assaulted by a Logan in Wollongong.

  2. She was standing at a fire and Ziggy Kennedy came to her and asked her to come with him. They went into the house and then to a bedroom. The bedroom door was open, and the light was on. Logan Berryman was standing in the middle of the room. There was no one else in the room. She saw some blood on his neck. He said he had been in an altercation with two men one of whom was Charles Barker. He said a girl named Lily Barker had been raped and Charles Barker asked Logan Berryman if he had done it.

  3. When she was walking towards the bedroom, she saw Maddylin Barber in the hallway who apologised to her that Charles Barker must have heard them talking about her experience.

  4. Leave was granted to the prosecutor to cross-examine the witness as she was unfavourable to the Crown case. She denied Maddylin Barber and Charles Barker been present in the bedroom. She denied Ziggy Kennedy came into the bedroom. She denied that Logan Berry was on the floor when she first entered the bedroom. She said her brother Charles Barker entered the room after she was speaking to Logan Berryman who said, “I was told it was him”. She then told Charles Barker to get out. While in the room Charles Barker began to cry and apologise.

  5. She said she left the room and re-entered after 30 seconds. She was standing in the doorway Charles Barker was hugging Logan Berryman and apologising. Ziggy Kennedy was also apologising once he re-entered the room.

  6. She was cross-examined about her friendship with Maddylin Barber. They had known each other since kindergarten. There interactions were very pleasant and very happy. They were comfortable with one another.

EVIDENCE OF MADDYLIN BARBER

  1. She had a conversation with Maddylin Barber where she said she was assaulted by Logan who was Maggie Millthorpe’s partner (Logan Berryman). She then removed herself from the conversation not knowing what to do with the information. She saw Charles Barker in the dining room. He said “hello” and mentioned the conversation she had about Logan Berryman. He asked what happened and she explained the situation to him and repeated what she had been told.

  2. Later, Charles Barker came to her and asked her to come to the bedroom. He took her to a closed door. The door was opened (she cannot remember by whom) and she saw Ziggy Kennedy and Logan Berryman. They went into the room. Logan Berryman was crouched over towards the corner of the room. He was covered in blood on his face and the top of his T shirt. He was like huddled in a ball. She pleaded for whatever was happening to stop. She then saw Lily Barker entering the room and she (Lily Barker) went to Logan Berryman. She exited the room. It was Lily’s problem now not hers.

  3. Charles Barker and Ziggy Kennedy were standing to the side of the door, not in front of it, but to the side, she told Logan Berryman “to get out.” Logan Berryman came towards her, they (Charles Barker and Ziggy Kennedy) were towards the door, so he went back to the back of the room. The door was directly in the corner, and they were in like that corner of the room. She could not recall whether they were directly in front of the doorway, but they were not stopping her from getting out. She said, “I was in front of them, and I asked Charlie to get Lily and then at that point in time Lily was already entering the room as she came in, I exited.”

EVIDENCE OF MAX BRUTON

  1. He went to Jarryd’s party. He spoke to Maddy who told him that something was going on with Logan. He went towards the bedroom. The door was shut. He knocked on the door a couple of times.

T79-80 “Q. After you knocked on the bedroom door, did you try the handle?

A. Yeah.

Q. What do you recall?

A. Not being able to open it.”

  1. He knocked on the door a couple of more times. It eventually opened. He saw Logan on the ground and saw Ziggy Kennedy standing over him. He was on his knees, like huddled over. He asked Charles Barker what was going on and was told there was a mix up. They were both trying to make sure Logan was alright. He had a bloody face. He thought his shirt was fairly ripped. He looked in a lot of pain. He asked him (Logan) if he was alright, and sort of got him out of there. They took him out of the house, to the front of the house and rang his girlfriend to pick him up. He did not see Logan Berryman go to the bathroom.    

  2. He was cross-examined about the amount of alcohol he had consumed. He said the incident took place at 11pm. He was taken to his statement where he said the incident took place between 1.30-2am. He denied that he was “fairly drunk.” He said he and Cam took Logan out of the room. In his statement he said it was Will Unthank and he who took Logan out of the room. It was put to him that he had no idea what happened that night. He said he did. He was taken to paragraph 9 of his statement where he said, “as soon as I said that the door opened”. He agreed what he said in court did not match what was said to the police. It was put to him he did not touch the door handle. His response was, “…it was two years ago, and my statement that I made two years ago might be different to my remembrance of it now”.

  3. It was put to him that at no time did he pull Logan out of the bedroom. He disagreed. At transcript 84-85 the following took place;

“Q. See, I am suggesting to you that you’ve made all of your - now, your evidence today is just you trying to piece together a drunken night. Do you agree or disagree?

A. I’m not sure.

Q. So if you’re not sure, it means what I’m putting to you might be correct?

A. Could be.

Q. So you’ve got the hazy memory of someone who may not have been falling down drunk, but was at least significantly intoxicated?

A. Yep”.

  1. He was taken to his statement dated 24/10/22 (MFI 4). The following questions were asked at transcript 85-86;

Q. There is no mention at all in paragraph 9 of the door being locked. Do you agree?

A. Yeah.

Q. There’s no mention at all in paragraph 9 of taking one to two minutes to open, correct?

A. Yes.

Q. In fact, what you tell the detective is, “I knocked on the door and said, ‘Let me in’. As soon as I said that the door opened”?

A. Yes.

  1. He agreed that when he made his statement to police which was nine days after the incident that his memory was better than when he gave his evidence.

  2. I find that on his evidence the door was closed. He knocked on the door and said, “let me in”, and as soon as he said that the door opened. I do not accept that he knocked on the bedroom door and tried to open the door, but he was unable to open it. That version is inconsistent with what he told the police when his memory was better.

EVIDENCE OF CAMERON MCLEOD

  1. He said he had a bit to drink. As a result of something he was told he went to look for Logan. He was walking down the driveway to go back into the backyard and saw him through the window of one of the rooms of the house. He saw Charlie and Ziggy in the room. He saw a bit of blood on Logan’s face.

  2. Logan signalled to him to come in. He went inside the room to try and help him. He was told to leave and go away. Something to the effect of “piss off”, “go away”. He said to Logan, “Logan come on let’s go”. Logan responded, “I’m just talking to these guys.” He observed some blood on Logan’s face and some bruising on his neck and face. He then went to get Tom to see if he could help.

  3. He left the party with Logan at about 3 o’clock. He had a conversation with Logan in the car. Logan said it was a case of mistaken identity and that he was taken into the room and flogged. He said his memory was a bit hazy, but it was more the time since the incident than the alcohol.

EVIDENCE OF MACLAYN HALLOWS

  1. He was walking down the side of the house. There was a room without curtains and the light was on. He could see Logan sitting down up against the wall and he saw some people congregated around him. There seemed like there was lots of talking going on. He entered the house to see what was going on. He walked towards the door which was slightly open and he could get a little glimpse of Logan. He tried to enter the room and it was swiftly shut in front of his face. He cannot remember what transpired after that. His next memory is being at the front of the house with Logan.

  2. He observed blood coming out of his ear, which wouldn’t stop bleeding, and he had big red welts on his neck. He said he had been touched up in the room. He understood the term to mean belted or punched.

  3. He was cross-examined about his alcohol consumption. He said he was drunk, but not extremely drunk. He didn’t want to put a number on how many people were in the bedroom.

EVIDENCE OF DETECTIVE JONES

  1. He is the officer in charge. Exhibit 9, photographs of the complainant were tendered. He agreed in cross-examination that the investigation was “hamstrung” because the complainant had gone home, cleaned himself up and then had gone to the hospital about a day and half after the incident. Mr Davies tendered exhibit ZKA a single page hospital record dated 17/10/22.

  2. In re-examination the Crown took the witness to the exhibit, which in part read, “ED diagnosis, closed head injury”.

Complaint Evidence

WILLIAM UNTHANK

  1. Exhibit 4 is the statement of William Unthank. At [10] he says, “I also saw Ziggy and Charles standing in the spare room. I did not pay much attention to what they were doing. I just grabbed Logan and assisted him. We took Logan back to the living room where he said something like, ‘they beat the shit out of me.’ Unthank was not cross-examined. I accept his evidence that Logan Berryman complained to him at the first opportunity that the accused had ‘beat the shit out of [him]’.”

CAMERON MCLEOD

  1. At transcript 93, McLeod gave this evidence,

“Q. Did he tell you what had happened to him?

A. He said that he was taken into the room and, yeah flogged.”

  1. I accept that Logan Berryman complained to Cameron McLeod that he had been taken into a room and flogged.

MACLAYN HALLOWS

  1. At transcript 105 Hallows gave this evidence,

“Q. Now, did Berryman tell you how he got those injuries or marks?

A. Yeah, he basically just said he’d been touched up in the room.”

  1. He understood the term to mean that you’ve been belted or punched.

LUKE BERRYMAN

  1. Exhibit 2 is the statement of Luke Berryman the father of Logan Berryman. He was not called as a witness. On Sunday, 16 October 2022 he got a phone call from his son who said, “dad I’ve been assaulted.” He told his father, “they met me in the hallway and started talking to me. Then they started approaching me and asking me questions. They then started asking me questions about a girl who he didn’t know. Then they started closing doors as he was backing into a room.” He said, “as the door started closing he knew he was in trouble.” He went on to say that after they closed the doors Ziggy Kennedy punched him first and then they both started punching into him. He told me that at some stage he hit the ground and they grabbed him and dragged him into another room and kept assaulting him.

  2. Mr Davies in his final address was critical of the evidence of Luke Berryman. He submitted what was said by Logan Berryman to his father was inconsistent with Logan Berryman’s evidence. He said there was no mention of him being dragged or of him being on the ground. The statement of Luke Berryman says, “he told me that at some stage he hit the ground and they grabbed him and dragged him into another room and kept assaulting him.” There is mention of being dragged and being on the ground.

  3. Mr Davies made further criticism of Luke Berryman’s evidence submitting that he talked about a second bedroom. What the father recorded maybe his interpretation of his son going down in the hallway to start with and then been dragged into the bedroom and assaulted within the bedroom. There may be some confusion on the part of the father about what was being recounted to him about the hallway and going down the hallway and them being dragged into the bedroom with the assault continuing. Mr Davies complains that Mr Luke Berryman is referring to 2 bedrooms. That is not how I understand Mr Luke Berryman’s statement. He talks about another room. He is not saying two bedrooms so it could be the hallway and then into the bedroom.

  4. I am entitled to use the complaint evidence in two ways. Firstly, assisting the credibility of Logan Berryman in the account he has given. Secondly, in proof of the allegations. The complaint evidence to Mr Luke Berryman, Mr Hallows, Mr McLeod and Mr Unthank is consistent with the allegation made.

CROWN SUBMISSIONS

  1. The Crown says that Mr Berryman was detained for a psychological advantage. The psychological advantage was to have power and control over Mr Berryman, to isolate him, to remove him from the vicinity of his friends, to intimidate him, believing he was responsible for the sexual assault on Lily Barker, to assault him. A vigilante’s style retribution. They kicked and punched him. That is what the Crown says amounts to the psychological advantage. He was in a room by himself with those two men. The door was shut. There were some occasions when the door was open, when people were coming and going, but at the very start of the detain, the door was shut and Mr Berryman was viciously assaulted.

  2. It is clear that there was alcohol involved or people were drinking. Young people had been drinking from at least the early afternoon. Many were intoxicated. The Crown respectfully submits that even though they were intoxicated, the critical parts of their evidence are honest and reliable.

  3. The Crown must prove that the conduct of the accused materially contributed to the detention of the victim. The Crown says that the conduct of the accused by dragging him into the bedroom, closing the door and repeatedly telling him he could not leave when he tried to do so satisfies that element.

SUBMISSIONS ON BEHALF OF MR KENNEDY

  1. Mr Jackson on behalf of Mr Kennedy submits that Logan Berryman was an unreliable witness and that I should reject most of his evidence. He points to the fact that Mr Berryman said that the door was generally always shut which conflicts with Madeline Barber’s evidence that she was able to go in and the door was not shut. He also points to the evidence of Lily Barker that the door was open when she went into the bedroom.

  2. He submits the complaint evidence of having been “touched up” is referable to the incident in the hallway to which both accused have pleaded guilty and is not referable to being touched up in the bedroom.

SUBMISSIONS ON BEHALF OF MR BARKER

  1. Mr Davies on behalf of Mr Barker submits that Logan Berryman cannot be relied upon as a witness of accuracy, truth and reliability in material respects. He submits that the injuries documented in the photographs are consistent to the plea of guilty to count 2 and have no bearing on count one. He says that the complaint evidence is entirely consistent with count 2 to that Mr Barker pleaded guilty to and is inconsistent with being detained. He says that Mr Berryman did not say to others, “I was dragged”. He did not say, “they kept me in the room”.

  2. He submits that Mr Berryman was highly intoxicated and was unable to give an accurate account of what happened. He submits that what the complainant says happened in the bedroom simply never happened. He further submits, even if it was accepted that he was dragged into the bedroom, that could not be sheeted home to Mr Kennedy. He submits that none of his complaints to his mates on the night were that he was dragged or detained. The complaints were that he was touched up or belted.

  3. He submitted that Mr Berryman was a wholly unimpressive and unreliable witness. That there is little to no independent support of count 1 and there is certainly no corroboration that could take the court’s consideration with respect to count 1 any further as opposed to consideration of count 2 that’s been pleaded guilty to.

DETERMINATION

  1. Many of the witnesses had been drinking alcohol and I should treat with caution their evidence. I also consider the fact that they were recounting events that occurred two years ago. I take judicial notice that time dims the memory. It is not unusual due to these two factors (alcohol and time) that there will be different versions. It does not equate with dishonesty on the part of the witness but, may be relevant to the question of reliability.

  2. To find either accused guilty I would have to accept that Logan Berryman’s evidence was reliable beyond reasonable doubt in relation to the elements of the offence. I do not accept his evidence that he went to the bathroom after the incident with a couple of mates and they cleaned him up. There is no evidence from others to support this contention.

  3. Apart from that aspect of his evidence I have carefully scrutinised his evidence and I am satisfied beyond reasonable doubt that he was an honest, accurate and reliable witness. He was an impressive witness.

  4. I accept the following beyond reasonable doubt:

(A) “2. On or about 17 October 2022, the accused were present at a party at 431 North Street Albury, the home of Jarryd Sundblom. The complainant, Logan Berryman, was also present at that address.

3.In the early hours of 17 October 2022, the accused were standing in the hallway of the premises. As the complainant walked down the hallway, towards the accused, he said, ‘Hey boys, how is it going?’

4. The accused both stepped in front of the complainant, blocking his path, and the following conversation took place:

Charles Barker to the complaint:   Do you know Lilly Barker.

Complainant:         Nah mate, I’ve got no idea.

Charles Barker:   Well, that’s my sister, is there anything you want to tell me about her? Have you done anything with her?

Complainant:   I’m good mates with Tom, why would I do anything like that? [Tom is Charles Barker’s brother].

Charles Barker:      Have you been to Wollongong recently.

Complainant:   Nah mate, I’ve literally been to Wollongong once in my life. I live in Melbourne now.

Charles Barker:      Ah, yep.”

5. Without warning, Ziggy Kennedy reached around Charles Barker and struck the complainant to the face with a clenched fist. The punch connected with the left side of the complainant’s face.

6. Shortly after the complainant was punched by Ziggy Kennedy, he and the two accused were in a spare bedroom.

(B) Both accused assaulted him in the hallway (T 10 line 17 to 18).

(C) Charlie Barker then dragged him into a room and the door was shut (T 10 line 31, T 34 lines 16 to 18, lines 26 to 27, T 36 lines 26 to 37).

(D) He was then assaulted by both accused feeling multiple fists coming from both directions (T 20 lines 34 to 35).

(E) He was kicked and assaulted by both but mostly by the accused Kennedy (T 10 lines 47 to 50, T 11 line 1).

(F) It was Mr Barker who put a stop to the assault by telling Mr Kennedy “that’s enough, he’s had enough” (T 11 lines 3 to 15).

(G) The detention was of short duration. At one point Mr Barker said to the complainant “sit back down or don’t go anywhere”, which caused him to stop in his tracks (T 13 lines 10 to 27).

(H) I infer from the evidence that Mr Barker and Mr Kennedy believed that Mr Berryman had sexually assaulted Ms Barker in Wollongong. They were mistaken.

(I) I am satisfied beyond reasonable doubt that the dragging into the bedroom from the hallway by Mr Barker was the commencement of the detention. Mr Kennedy was ready and willing to assist by his presence. The detention continued when both accused assaulted the complainant in the bedroom. The detention expired shortly after the assault ceased. The injuries occasion to the complainant during the bedroom assault amount to actual bodily harm including bruising and an ear which bled. The photographs of the injury are consistent with the complainant having been assaulted in the bedroom. I am somewhat circumspect about the number of blows he received but I am satisfied he was assaulted by both accused.

(J) The credibility of the complainant is strengthened by his immediate complaint to others. The complaint is about what happened in the bedroom and not the hallway. I also use the complaint evidence in proof of the elements of the count.

(K) I’m satisfied beyond reasonable doubt that the detention was for psychological satisfaction by taking vigilante action against the complainant in the belief that he had sexually assaulted Ms Barker in Wollongong.

ORDERS

  1. Charles Samuel Barker and Ziggy Kennedy are convicted and found guilty of on or about 16 October 2022 at Albury in the State of New South Wales did detain Logan Berryman without his consent with the intent to obtain an advantage, namely, a psychological advantage, and at the time of, or immediately before or after the taking, actual bodily harm was occasioned to Logan Berryman contrary to section 86 (2) of the Crimes Act 1900.

Decision last updated: 15 March 2024

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Fleming v The Queen [1998] HCA 68
Fleming v The Queen [1998] HCA 68
Fleming v The Queen [1998] HCA 68