R v McFarlane - [2022] SADC 155

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCFARLANE
Criminal Trial by Judge Alone
[2022] SADC 155
Judgment of his Honour Judge Stretton
20 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES
The accused was charged per count 1 with aggravated creating a likelihood of harm by allegedly driving his vehicle headlong at a police vehicle in the course of attempting to escape, and subsequently per count 3 with recklessly causing harm to a Prescribed Emergency Worker by allegedly grabbing a police officer’s foot and causing him to fall from a fence sustaining injury. The evidence of the accused’s driving was clear and unequivocal, creating a likelihood of harm with the totality of the circumstances establishing the relevant intent. That charge is proven beyond reasonable doubt. Count 2 was an alternate lesser charge which it is unnecessary to consider. As to count 3, the evidence of the accused’s subsequent actions is less clear, the allegations less logical, and in light of the accused’s sworn denials the court has a reasonable doubt.
Held:
Count 1:          Guilty.
Count 2:          Unnecessary to consider.
Count 3:          Not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 19AC(1), 19AC(3), 20AA(2), 29(3), referred to.
R v S, GJ [2012] SADC 150, applied.
Ducaj v The Queen [2019] SASCFC 152; Nelson v Police (2011) SASC 55; R v Shah [2018] SASCFC 90; R v Nona [1997] 2 Qd R 436; R v Oulds [2014] QCA 223; R v Hansen (2002) 84 SASR 54; BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; Driscoll v The Queen (1977) 137 CLR 517; R v Trabolsi [2018] SASCFC 57, considered.

R v MCFARLANE
[2022] SADC 155

The accused has pled not guilty to three offences arising out of events which occurred in Morphett Vale in the early hours of 2 June 2021.
He has elected for a trial by judge alone.
The Charged Offences
First Count
Statement of Offence
Aggravated Creating Likelihood of Harm. (Section 29(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brett Matthew McFarlane on the 2^nd day of June 2021 at Morphett Vale, without lawful excuse, drove a motor vehicle at or towards or in the direction of Daniel Pople and Wayne Langford, knowing that act was likely to cause harm to another, and intending to cause such harm or being recklessly indifferent as to whether such harm was caused.
It is further alleged that Brett Matthew McFarlane committed the offence against police officers, knowing that Daniel Pople and Wayne Langford were acting in the course of their official duty as police officers.
Second Count
Statement of Offence
Driving Dangerously to Escape Police Pursuit. (Section 19AC(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brett Matthew McFarlane on the 2^nd day of June 2021 at Morphett Vale, drove a motor vehicle in a manner dangerous to any person with the intention of escaping pursuit by a police officer.
This is an alternative offence under s 19AC(3) of Criminal Law Consolidation Act, 1935.
Third Count
Statement of Offence
Recklessly Causing Harm to a Prescribed Emergency Worker. (Section 20AA(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brett Matthew McFarlane on the 2^nd day of June 2021 at Morphett Vale, caused harm to Daniel Pople, a prescribed emergency worker who was acting in the course of official duties, being reckless as to whether harm was caused.
Count 2 of driving dangerously to escape police pursuit is charged in the alternative to count 1. It was common ground that a further alternative to count 2 was driving in a manner dangerous to the public.
Elements of the Offences
The offence of creating the likelihood of harm has the following elements:
1.That the accused performed a deliberate act that was likely to cause harm to another;
2. That the accused knew his conduct was likely to cause harm to another;
3. That the accused had no lawful excuse for engaging in the conduct; and
4. That the accused intended to cause harm or was recklessly indifferent as to whether harm was caused.
The offence is aggravated if the accused knew that the offence was being committed against police officers acting in the course of their official duty.
As discussed by Stanley J in Ducaj v The Queen,[1] the requirement ‘that the accused knew that the act or omission is likely to cause harm … conveys the notion of a substantial i.e., a real and not remote chance, regardless of whether that chance was more or less than 50 per cent’.
[1] [2019] SASCFC 152 at [75].
Recklessness is defined in s 21 of the Criminal Law Consolidation Act. In Nelson v Police,[2] Doyle CJ held that the concept of being recklessly indifferent had the meaning set out in s 21.
[2] (2011) SASC 55 at [6].
The Full Court in R v Shah,[3] explained that reckless indifference requires that the defendant know that his conduct is likely to cause harm and does not care; in other words, he engages in the conduct despite the risk and without adequate justification.
[3] [2018] SASCFC 90.
The elements of the offence of driving in a dangerous manner with the intention of escaping pursuit by a police officer are as follows:
1. That the accused drove a motor vehicle;
2.That the accused drove the motor vehicle in a manner dangerous to others. Such driving must be more dangerous than driving with the mere want of care ordinarily associated with driving a motor vehicle; and
3.That the accused had the intention of escaping pursuit by a police officer.
Driving in a manner dangerous to the public involves only the first two of the elements of that offence.
The offence of recklessly causing harm to a prescribed emergency worker has the following elements:
1.     That the accused caused harm to a person;
2.     That the accused did so by a conscious and voluntary act;
3.That the accused was reckless in causing harm to a person. A person is reckless in causing harm if they are aware of a substantial risk that their conduct could result in harm or serious harm and engages in the conduct despite the risk and without adequate justification;[4]
4.That the person who was harmed is a prescribed emergency worker. Prescribed emergency workers are defined to include police officers;
5.That the prescribed emergency worker was acting in the course of official duties; and
6.     That the accused acted unlawfully.
[4]     Section 20AA(9).
The Prosecution Case
It is common ground that at about 2.45am on 2 June 2021, the accused was observed by police driving a Holden Commodore in the back streets of Morphett Vale.
The prosecution case as to count 1 and in the alternative, count 2, is that the accused briefly drove away from the officers at speed, and then turned and rapidly accelerated head-on towards the police vehicle to escape police pursuit, and in doing so created a likelihood of harm to the two officers.
The prosecution case is that police were forced to swerve to the left to avoid a head-on collision. The prosecution contend that such conduct amounted to the accused without lawful excuse, driving the motor vehicle at both police officers knowing that the act was likely to cause them harm, being at least recklessly indifferent as to whether such harm was caused, and that he did so knowing that they were police.
The prosecution case as to count 3 is that the accused continued driving for a short distance before abandoning his car and fleeing on foot. One of the police officers chased the accused and they both climbed onto a corrugated iron fence. The accused fell off the fence and it is alleged that he then reached up and twice pulled Officer Pople’s leg, causing Officer Pople to fall from the fence. As Officer Pople fell, he cut his arm on the fence, causing him harm. The prosecution contend that the accused did this act, reckless as to whether harm was caused to the officer.
Defence Opening Statement[5]
[5] R v Nona [1997] 2 Qd R 436, R v Oulds [2014] QCA 223, R v Hansen (2002) 84 SASR 54.
Defence counsel outlined the issues in contention. Mr Mead said that the first issue was whether the accused knew the officers were police at the relevant time. He said that when the accused first saw the police vehicle, he did not realise it was a police vehicle, only coming to that realisation after he had turned and passed by it in the opposite direction. Mr Mead said that was the reason why the accused then stopped the vehicle and proceeded in the manner that he did.
Mr Mead said that in terms of count 3 the primary issue in dispute was that the accused denied that he had ever pulled the officer down from the fence. He said that in fact the accused was pulled down, sustaining a number of injuries as a consequence.
Legal Principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[6] a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.[7] To be clear however, the court has applied all the principles applicable to a criminal trial of charges of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however they have all been applied.
[6] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[7] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382. The Court applies the principles helpfully set out by Lovell J at [6]-[25] of R v S, GJ [2012] SADC 150.
It is fundamental that the accused has, and at all times retains, the presumption of innocence. The prosecution at all times bears the onus of proof and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence and must do so based only on the evidence relevant to that offence. The court must and will consider each alleged offence separately, only having regard to the relevant and admissible evidence concerning that charge.
The accused gave evidence on oath in his own defence. He was not obliged to do so. Having given evidence, that evidence is to be assessed in the same way as any other evidence.
Evidence was led that the accused was on parole at the time of this alleged offending and had served lengthy periods of imprisonment. The evidence of the accused being on parole was led by consent by way of an agreed fact. Its relevance is limited to the contention by the prosecution that the accused had a motive to evade police to prevent a parole warrant being served. The evidence as to the accused having served lengthy periods in custody was volunteered by the accused at various stages of his evidence on oath.
It is important that the court disregard any suggestion that the accused is a person of bad character and for that reason, or on account of having committed other offences therefore may have or is more likely to have committed the current offences. It is similarly important not to reason that because of such evidence he committed the current offences, is the sort of person who may have committed the charged offences or is more likely to have committed the charged offences.
It was suggested at trial that a police witness had made prior inconsistent statements. That evidence is not evidence of the truth of what was said but is relevant to assess the witness’ credibility. It will be assessed in accordance with the settled law as to alleged prior inconsistent statements.[8]
[8] Driscoll v The Queen (1977) 137 CLR 517; R v Trabolsi [2018] SASCFC 57.
The Evidence
The prosecution case consisted of evidence from the two apprehending police officers, and from an officer who subsequently took the accused to hospital. Maps, photographs, and some video footage were also tendered. There were two agreed facts.
The first witness was Senior Constable Pople. Officer Pople gave evidence that as of 2 June 2021 he was stationed at Aldinga Beach police station and in the early hours of that morning was on mobile patrol in company with Detective Brevet Sergeant Langford. They were driving a Holden Colorado caged police fleet vehicle obviously marked as a police vehicle.[9] Officer Pople gave evidence that they were tasked to patrol the Morphett Vale area in relation to suspected illegal interferences with vehicles in the area. They had no particular suspect in mind.
[9] Exhibit P4 – Photograph of the police vehicle.
Officer Pople gave evidence that at around 2.45am they were driving down Karyn Crescent, Morphett Vale when he observed a Holden Commodore ahead of them on the road with its engine roaring and tyre smoke coming from the rear of the vehicle. It was accelerating heavily away from them.
Officer Pople said that although it was dark, there were streetlights in the area and their view was not obstructed. Officer Pople could not recall if the vehicle’s lights were on at that stage, but the vehicle emitted loud engine noise indicating it was being driven very hard. The police vehicle followed the Commodore along Karyn Crescent, but Officer Pople lost sight of the Commodore as it turned right onto Marie Avenue. The police followed.
As the police vehicle rounded the corner onto Marie Avenue, Officer Pople observed the Commodore now facing towards the police vehicle with its headlights on and driving directly at the front of the police vehicle. Officer Pople could not say whereabouts on the road the police vehicle was at that point, whether to the left or the right or the centre. He couldn’t say for sure whether the Commodore had already commenced accelerating at the point when he first saw it. Officer Pople said that Officer Langford immediately drove the police vehicle to the left to avoid a collision, and the Commodore passed them in the opposite direction.
Officer Pople gave evidence that Officer Langford performed a U-turn and they followed the Commodore back along Marie Avenue, past the intersection and then around a slight right turn. After the turn, Officer Pople saw the Commodore stopped on the right-hand side of the road with the driver’s door open and a male running north from it into the front yard of the adjacent housing. Officer Pople said he saw the male go to the fence of 3 Marie Avenue and jump into the rear yard of the adjacent property at 1 Marie Avenue.
Officer Pople gave evidence that he got out of the police vehicle and ran across the front yard of 3 Marie Avenue and jumped the fence in approximately the same location. He landed in the rear yard of 1 Marie Avenue whereupon he could see the male at the rear door of number 1 appearing to be trying to open it. The male then ran towards the northern fence with Officer Pople in pursuit. The male climbed up on top of the rear fence of 1 Marie Avenue, the southern boundary fence to 22 Rosemary Avenue.
Officer Pople gave evidence that he therefore climbed up on top of the fence as well, using his hands to pull himself up. He then stood on the top of what was a six- or seven-foot-high uncapped corrugated steel fence. Adjacent the fence was an alfresco area in the rear yard of 1 Marie Avenue which had a roof over it. Officer Pople observed the man appearing as if he was trying to jump the north-west corner of the fence to land in the front yard of 22 Rosemary Avenue. Officer Pople said he grabbed the man and pulled him back. At this time, Officer Pople had two feet on top of the fence and was bracing himself against the alfresco shed to his side. Officer Pople said the person turned around, swung a punch at him so he pushed the man, the accused, backwards with his right hand to avoid being hit, whereupon the accused stumbled backwards and fell off the northern side of the fence.
Officer Pople gave evidence that the accused landed on the ground but grabbed Officer Pople’s right foot. Officer Pople said he kicked the accused’s hand away, but the accused grabbed his right foot again and dragged him down off the fence, causing him to fall onto the northern side of the fence. As he fell his bicep struck the top of the uncapped steel fence. Officer Pople said that when he fell off the fence, he was not 100 per cent sure where he landed, but it was on the ground, describing it in the following terms: ‘I believe I was right behind/on top of him when I landed’.[10]
[10] T37.
Officer Pople gave evidence that he couldn’t recall if the accused was standing or lying so his first thought was to take the accused to the ground and try and effect an arrest, so they ended up on the ground with Officer Pople on top of the accused. Officer Pople said the accused’s left arm was pinned between his body and the shed on the northern side, but he was struggling to try and control the accused’s right arm as his own injured left arm ‘didn’t have much strength in it at that time’.[11] Officer Pople said that although the accused was face down on the ground at that time, the accused was trying to grab at his accoutrement belt where his spray, a taser, and his firearm were kept.
[11] T37.
Officer Pople said that to stop the accused from grabbing the items on his belt, he delivered what he described as a ‘closed fist distraction strike to the lower ribs’.[12] Officer Pople said that worked, and so he managed to get some control of the accused’s right arm. He said there weren’t any other officers present at that time. He estimated that it was possibly some 30 seconds after falling off the fence that Officer Langford arrived.
[12] T38.
Officer Pople identified his injury in tendered photographs, revealing a corrugation shaped injury consistent with having struck the top of an uncapped corrugated iron fence. Officer Pople also suffered lacerations to his right hand which he indicated might have been caused when he put his hand on top of the uncapped steel fence to climb it. Officer Pople gave evidence that at some stage when he was on top of the corrugated fence or when he was coming down from it, his body worn camera got activated.[13]
[13] T42.
The body worn camera footage of Officer Pople was tendered by consent.[14] The initial portion of the video is recorded in very low lighting, such that it is not possible to accurately discern what is occurring. Officer Pople is yelling to the accused ‘stay down, stay down’.[15] It is reasonable to conclude that both the accused and Officer Pople are at that time on the ground having fallen from the fence with the accused on the ground and Officer Pople attempting to keep him on the ground. None of the prior events alleged to constitute count 3 are caught on video. Shortly after telling the accused to ‘stay down, stay down’, Officer Pople says ‘let go of me, let go of me’ repeatedly.[16]
[14] Initially a version of this footage without audio was tendered but ultimately, the full version was put to Officer Langford in cross-examination and tendered without objection.
[15] Exhibit D1.
[16] Exhibit D1.
Later during the video, Officer Pople is asked by Officer Langford to describe his injuries and indicates a cut to his hand and says that he was punched in the left bicep by the accused. He did not give evidence at trial that he was punched in the bicep.

In cross-examination, Officer Pople gave evidence that there was no dashcam footage available as their police vehicle was not equipped with a dash camera. Officer Pople said that Police General Orders required their body worn cameras to be activated when dealing with members of the public but that when in pursuit of a suspect, it was up to the officer whether to activate the camera. The camera is activated by pushing a single button on the face of the camera. In this case, Officer Pople said he did not intentionally activate the camera but that it was accidently knocked on. He explained that he was primarily focussed on chasing the suspect and apprehending him rather than activating the camera.[17]
[17] T50.
In cross-examination, Officer Pople repeated that he and the accused had been standing on the top of the corrugated iron fence and when the accused had gone to jump into the front yard of number 22 Officer Pople grabbed him to pull him back. At that, the accused turned around and took a swing at him with his right hand. Officer Pople pushed the accused back, causing him to fall.[18] Although Officer Pople indicated that he was aware immediately that his bicep had been injured, it was put to him that the video indicated that he made no reference to that at the time. Officer Pople responded that he could not recall the conversation.[19]
[18] T51.
[19] T56.
It was put to Officer Pople that he fell from the fence on top of the accused, which he denied. He also denied the suggestion by defence counsel that he had stomped on the accused’s head, ear, and lower back with upward of 10-20 stomps. Defence counsel also put to Officer Pople that the accused never grabbed his foot. Officer Pople denied that suggestion.
Officer Pople was then taken back over earlier events. He indicated that when they had been following the accused in their police vehicle, he did not think that he and his partner had notified a ‘police pursuit’.[20] Accordingly, that meant they were still in what he described as ‘tactical observation’ mode wherein the police vehicle does not activate emergency lights or sirens and stays within the speed limit.[21] They were however following the accused from the moment he had initially accelerated away from them.
[20] T59.
[21] T60.
The second witness was Detective Brevet Sergeant Langford. Officer Langford gave evidence that he was also stationed at Aldinga Beach police station as of 2 June 2021 and was on mobile patrol with Officer Pople in the Morphett Vale area. He was driving the marked police cage vehicle.
Officer Langford gave evidence that when he turned the police vehicle into Karyn Crescent, Morphett Vale he saw a grey VY or VZ model Holden Commodore parked on the north-eastern side of the road. It was illegally parked on the wrong side of the road. As the police vehicle approached it from behind, Officer Langford observed the interior light was on. Officer Langford gave evidence that he then heard the car rev its engine loudly, heard the tyres screech and it took off away from them towards Marie Avenue.
Officer Langford gave evidence that he followed the vehicle down the road and saw it turn right onto Marie Avenue. The police vehicle’s headlights were on, but its emergency lights and sirens were not activated. Officer Langford said as the Commodore turned right onto Marie Avenue, he momentarily lost sight of it. As he turned onto Marie Avenue, he heard tyres screech and saw that the Commodore had done a 180 degree turn and was facing back towards the police officers. The police vehicle was on the left, correct side of the road. The Commodore came to a stop momentarily but then the engine revved loudly, the tyres screeched, and the vehicle drove directly towards the police vehicle on the wrong side of the road. When the Commodore started accelerating directly at the police vehicle, Officer Langford moved the police vehicle forward to get it moving and as soon as he saw that the Commodore had not changed its path, he veered the police vehicle to the left almost mounting the northern curb of Marie Avenue. Officer Langford described the vehicle passing within less than two metres of the police vehicle at about 50 kilometres per hour, a speed to which it had accelerated over only about 30 metres.[22] He then turned the police vehicle around and followed the Commodore.
[22] Exhibit P9 is a diagram by Officer Langford of the positions of the two vehicles leading up to the moment when they passed each other in opposite directions on Marie Avenue.
Officer Langford gave evidence that he next saw the Commodore just around the bend, further down Marie Avenue, in his words ‘dumped’ out the front of number 3.[23]
[23] T69.
Officer Langford gave evidence that as he brought the police vehicle to a stop, Officer Pople yelled to him ‘there he goes’,[24] pointed towards the western fence of 3 Marie Avenue and left the police vehicle to give chase on foot. Officer Langford could hear officer Pople yelling ‘stop, police’. Officer Langford observed Officer Pople climb the western fence of 3 Marie Avenue, at the same point described by Officer Pople.[25]
[24] T69.
[25] T69.
Officer Langford decided to drive into the adjacent street, Rosemary Terrace, in the direction of where he thought the accused and Officer Pople had gone. When he arrived, he could hear two people yelling and he recognised one voice as that of his partner. He entered 22 Rosemary Terrace and found the accused and Officer Pople wedged between the fence and the shed at the rear of the property. He assisted Officer Pople in handcuffing the accused. He said the accused appeared uncooperative. He said he believed the accused was trying to get up and was trying to grab at some of Officer Pople’s equipment and hand. Officer Langford said he activated his body worn video when he located the accused and Officer Pople between the shed and the fence.
Officer Langford said that he observed the accused kicking his legs up in the air as Officer Pople stepped over him. He said that Officer Pople stepped on the accused at one point but only as there was not enough room to go around him. He agreed that the accused had some blood on his face but could not recall any other visible injuries.
Screenshots extracted from Officer Langford’s body worn camera were tendered as P12, indicating blood between the accused’s ear and brow, and blood and redness to the accused’s brow. During cross-examination, it was put to Officer Langford that whilst he had given evidence in chief that Officer Pople had said he had injured his arm, in fact no such conversation was revealed in the body worn camera video.[26] The audio from Officer Pople’s body worn video reveals no such conversation, although Officer Pople did say to Officer Langford that he had been punched in the left bicep.
[26] T86-87.
After the video was then shown to Officer Langford, he agreed that he had not been told during the recorded portion of the apprehension that Officer Pople had injured his arm. He replied that it must have been later. He did agree that as he arrived to subdue the accused, the accused can be heard crying out.[27]
[27] T93.
In cross-examination Officer Langford gave evidence that the accused was lying in the opposite direction to that which Officer Pople and the body worn footage indicate that he was lying, and he conceded that error when reshown the footage.[28]
[28] T94.
Officer Langford denied that Officer Pople stomped on the accused at any time, notwithstanding being shown the video from Officer Pople’s body worn camera at 1.20 when the camera appears to wobble several times at the same time as the accused appears to cry out. Officer Langford responded that he did not know what was happening at that point as he had his eyes down looking at the handcuffs that he was trying to restrain the accused with.[29]
[29] T95.
In further cross-examination, Officer Langford agreed that the accused had no weapons or stolen property on him and that the car the accused had been driving was registered to a relative of the accused.[30]
[30] T99.
Finally, Officer Langford was asked about the initial observations he made of the Commodore’s driving. He indicated he was not able to say whether the 180 degree turn by the accused on Marie Avenue was deliberate or whether the accused had lost control of the vehicle.[31]
[31] T101.
The final police witness was Constable Mooney. Officer Mooney was on duty at the Christies Beach police station at about 4.45am on 2 June 2021. She was tasked with taking the accused to the Flinders Medical Centre as he was suffering from backpain. Officer Mooney said that the accused had difficulty getting up and appeared to be in excruciating pain. Officer Mooney said that in her opinion the accused’s pain was genuine.[32]
[32] T107.
The body worn camera footage of Officer Langford was also tendered.[33] That footage commences after the cessation of the charged events at a time after the accused has been handcuffed when Officer Pople is putting on a glove to protect his lacerated hand. It shows Officer Pople then stepping on the accused to pass him and move back towards Officer Langford. It shows Officer Langford assisting the accused to his feet and then accompanying him through the backyard to the front of the premises and be placed in the police caged vehicle under arrest. The video shows the accused’s face, indicating some blood running between the top of the accused’s ear and his forehead and blood across the front of the accused’s forehead.
[33] Exhibit P11.
The prosecution case closed with the following agreed facts:
1.That the driver of the Holden Commodore, South Australia registration XLL 606 seen by Brevet Sergeant Langford and Senior Constable First Class Pople at about 2.45am on 2 June 2021, was the accused. At this time the accused was aware he had an outstanding Parole Board Warrant.
2.That the Parole Board Warrant was issued for the accused’s arrest on 28 May 2021 and the warrant document said it was suspected the accused provided urine samples that tested positive for illicit substances on 1 April 2021 and 11 May 2021.
The accused gave evidence on oath in his defence and tendered medical records of his subsequent admission to Flinders Medical Centre.
The accused is currently 57 years of age and in custody. He gave evidence that on 2 June 2021 he was on parole and living at Aldinga. He said that on Monday 1 June he had rung his Parole Officer to ask why the police had been looking for him and his brothers. The accused’s Parole Officer told him a serious matter had arisen. The accused said that he told his Parole Officer that he had a matter to take care of that day, that he had to take someone to the airport whose life was in danger and that he had to lock up his house. He said the Parole Officer told him that he had to do what he had to do. The accused deduced that the Parole Officer wanted him to surrender himself. The accused replied that he would ring his Parole Officer back later that day or night.
The accused said he then rang his OARS counsellor explaining what was going on and that he wanted to work with them. The accused said that this was because when his parole had previously been revoked, he had lost everything such as his identification, his bank accounts, and his property. Accordingly, he needed to get to his house, make sure it was locked down and move some of his property.
The accused elaborated that this was the third time he had had his parole revoked. He cited an occasion when after serving 22 years imprisonment, then being released on parole for 10 months, he was picked up by police at his workplace and returned to prison without the opportunity to return home. The accused said that on that occasion, the people he was living with took everything he owned as soon as he was taken into custody. The accused said he was concerned about that happening again.
The accused gave evidence that consequently he tried to obtain a vehicle and trailer to move his property. The accused said he initially borrowed his brother’s ex-girlfriend’s car, a Suzuki four-wheel drive without a towbar which was not sufficient for the job, but he got told that he might be able to access one of his nephew’s cars. His nephew was however away. The accused explained that his nephew had five cars, several of which were not registered or suitable so ‘the only option I had was the Holden which could have been registered straight away’.[34]
[34] T124.
The accused gave evidence that he was told he could get that car from 10/12 Ellis Avenue, Morphett Vale, that being his nephew Joshua’s mother’s house. Accordingly, in company with a person by the name of Sammy Kendrick he attended that address at midnight that same day. He spoke to a woman at the house named Kathy. He said that she agreed that he could choose ‘one or two of the cars’ and she gave him the keys.[35]
[35] T125.
The accused gave evidence that with the use of the Suzuki’s battery he was able to start the Holden which had been sitting under the tree for some five or six months. He decided to take it for a test drive to see if it needed oil and whether it was roadworthy enough to do the job.
The accused said that it had taken about 20 minutes to get the vehicle going. He drove it down the street with Sammy Kendrick whereupon ‘the car just died’.[36] So the accused and Sammy pushed it to Karyn Crescent along the gutter on the wrong side of the road and left it there.
[36] T126.
The accused gave evidence that they then walked back to Ellis Avenue to get another battery and some petrol. The accused gave evidence that when he got back to Ellis Avenue he went to a later model Holden, took the battery out of it and siphoned some petrol out of one of the other cars. The two of them drove back and parked the Suzuki in front of the Holden, nose to nose. The accused said that by this time Sammy had rung two of her friends who had attended as well.
The accused said he started the Commodore up with the use of the Suzuki battery and once the car was started, he put the Suzuki battery back in the Suzuki and put about 5 litres of petrol into the car. That all took about 25 minutes. The accused then let the car idle to charge the battery. He and Sammy then sat out the front of the house adjacent and had a cigarette. Sammy’s two friends were sitting in a white Holden nearby. The accused explained that as well as knowing Sammy those two persons were also his nephew’s friends and that they had attended to see if they could help but were not needed.[37]
[37] T127.
The accused gave evidence that after about 15 or 20 minutes charging the battery, he shut the bonnet of the Suzuki. He then went to do a three-point U-turn to park the Commodore. The accused said that when he was halfway through the U-turn, he opened the passenger door and said to Sammy that he was going to drive up to the end of the street and back.
The accused indicated that just as he went past Claire Avenue, he noticed headlights coming around the corner behind him on high beam, ‘flying right up behind me’.[38] The accused said that by the time they got close to him he was towards the second or third house at the end of the street on Karyn Crescent and he couldn’t see anything except bright lights. The accused said he didn’t have his glasses on, that he had never been out much at night driving, nor had he been out much at all due to 40 years of incarceration. The accused said he panicked.
[38] T128.
The accused gave the following explanation for panicking:
I wasn’t sure. The day before I took this lady to the airport, she was – she got robbed and she was overdosed with medication for which I actually revived her for. I had a couple of hours until the medication wore off and then took her – she wanted to go home to her father in Kangaroo Island and I paid for that. I took her and these people weren’t quite happy that I stood up and interfered. I wasn’t sure if it was them for retribution or not but.[39]
[39] T128.
The accused was asked to explain where the woman he had referred to was going. He said:
She was going home to Kangaroo Island. She came over from Kangaroo Island to sell a couple of diamonds and got mixed up with the wrong crew and they actually robbed her and overdosed her with fantasy and while I was there in that place, I said ‘this ain’t happening, I’m not doing this’. I had stayed with a girl in a room for a number of hours. She actually stopped breathing for 15-20 minutes, your Honour and when she come to, I explained what had happened and she is aware she’s been ripped off and that and she just wanted to get out of there. She left her clothes there. My clothes are still in that premises and I felt it was necessary to – she just wanted to go home to the airport and that’s where I took her. I paid for it from – I got my unemployment benefit that day and it cost me a couple of hundred dollars to get her…I got there after it happened and I heard them talking and I heard a couple of people talking that, you know, that she probably won’t wake up and stuff and then I went in the room and see what was happening.[40]
[40] T129.
The accused gave evidence that he had stayed at that house that weekend because for various reasons the power had been turned off at his own premises. He said he met the woman concerned that weekend. He said she subsequently wrote him a letter in prison thanking him but indicating that she did not want to take the matter further for reasons likely related to the drug scene.[41]
[41] T130.
The accused then gave evidence as to the circumstances surrounding count 1.
Q.So when you were driving up Karyn Crescent and you realised there was a car behind you, did you think that might be connected to what had happened the day before.
A.Definitely.
HIS HONOUR: It will help me if you don't lead, Mr Mead.
MR MEAD:Thank you, your Honour.
XN
Q.So what was in your mind when you realised -
A.I wasn't sure. I wasn't hooning or I wasn't driving erratically. It was 2 o'clock in the morning. I just noticed the car. There was high beam. It lit up the street. It just come flying up so fast behind me. I shit myself. I didn't know, you know. I just was into turning into the corner.
Q.What did you do when you got to the intersection of the Karyn Crescent and Marie Avenue.
A.I tried to turn right. I was a bit blinded by the light. There's a dip in the road there. I could have taken it a little bit too quick, I wasn't sure. As I turned in, I braked. It had rained probably 15 minutes earlier, lightly. As I turned into the corner, the back end just flipped around and did a 180. It doesn't hit any kerbs or anything, it just come around. At this stage the car had turned semi into the corner with its high beam on me and then I put it into first and to go around the car (INDICATES). As I got just about level with it, I realised it was police. I proceeded to go up the street and then realised shit, you know. I pulled over. I didn't want to enter into a high speed pursuit or I didn't want to get myself into any more trouble than I was in. I got out the car and I panicked and I ran.
Q.Just going to back to when you turned right into Marie Avenue, how far up Marie Avenue do you say you got.
A.Well, the car 180 on the directions, as I turned into the corner, (INDICATES), the car before it straightened up, it started the 180 so it was right there on the corner, probably 5 m, 10 m.
HIS HONOUR
Q.Can I just ask why you panicked.
A.All I wanted to do was make sure that I had my house locked up. I don't know. I just - I had plans to turn myself in and I organised all that so I don't know, I just panicked, you know. Because of who I am, I suppose, my reputation, the police have a real bad reputation up south and I understand why because it's not a - [42]
[42] T130-132.
The accused gave evidence that he ran into a house on Marie Avenue but realised he could not get over the fence so ran back out the front and into the next house down the open driveway, through a shed to where he thought he saw an opening between which he could run. He ran into chicken wire.

The accused gave evidence that to his right there was a stack of three pillars of bricks next to the back fence and he decided to climb up the bricks onto the fence. The accused said he heard something like ‘police, stop fucking running’ at which he turned and said ‘ok’.[43] The accused gave evidence that before he could step down, he ‘felt something grab me on the back and then pull me back pretty hard’ from where he was kneeling on the roof of the shed.[44] He said his arm hit the fence and he fell to the ground between the shed and the neighbour’s fence and the police officer landed on him.
[43] T133.
[44] T133.
The accused gave evidence that the police officer stood up and started kicking his lower back and kept doing so, landing 10-15 blows. The accused said he tried to say stop kicking him, but the officer proceed to jump with both feet on his upper ribs. The accused said he asked the officer to stop to which the officer replied, ‘this is what happens when you do crime in the area’[45] and so on. The accused said after five jumps on his chest and another five or 10 to his head he heard other officers calling out. He said he felt his body shudder and heard a crack.[46] The accused said he felt excruciating pain to his back.
[45] T135.
[46] T135.
The accused gave evidence that he at no stage grabbed or tried to pull the officer off the fence.
The accused gave evidence that another officer arrived and came over and kneed him to the side of the head and neck and he was told to ‘stop resisting’ while they were trying to handcuff him.[47] He explained that he could not move his left hand behind his back because it was wedged between the shed and the ground. He gave evidence that he was eventually assisted to his feet.[48] The accused said he was in a great deal of pain, predominantly down the right side of his body. He said it got steadily worse once he was placed in the rear of the police vehicle.
[47] T137.
[48] T137.
The accused gave evidence that he was taken to the Christies Beach Police Station where he was charged, processed, and placed in a cell. The next thing he remembered was waking up in hospital. The accused gave evidence that he had a permanent displacement of his L2 and had to have stitches to his ear. He said that he also had grazes to his forehead, with marks and bruises to his ribs.
In cross-examination the accused accepted that he had stopped the Commodore at the end of Dalkeith Avenue rather than Ellis. The accused explained that Dalkeith was an extension of Ellis. He indicated that when the car stopped, he was on the correct left hand side of the road on Acacia Road. The accused said he then pushed it backwards into Karyn Crescent.
In cross-examination the accused was asked about Sammy Kendrick. He explained that he had only spoken to her once since he had been incarcerated. He explained that she was a friend and they helped each other on occasions. When asked why he would push the car down the road around the corner into Karyn Crescent the accused responded that Acacia Road was a busy road and that it would be easier to fix the vehicle if it was on a side street. When asked why he pushed it onto the wrong side of the road, he responded it was just the way he was steering at the time.[49]
[49] T143-144.
The accused was cross-examined about his evidence concerning the woman he had assisted over the weekend who was ripped off in relation to diamonds. He said he had met her for the first time on that occasion. The accused said that he had been at the house for a time. He said he was aware the house was involved with drugs and that there were quite a few people present at the time.
The accused said he overheard a conversation with words to the effect that the woman had been dosed with enough drugs so that she would not wake up but that it would not look suspicious. He said that consequently he went to the room where she was, stayed with her and when she stopped breathing gave her mouth-to-mouth resuscitation for some 15 minutes and saved her life. The accused gave evidence that he then explained to her what had happened, agreed to help her to leave and gave her a lift away from the house in the early hours of Monday morning, the day prior.[50]
[50] T146-147.
The accused said there had been 10-15 people at the house. When asked to describe them he responded, ‘usually the average drug addict type I suppose …’. The accused said he overheard the conversation from a couple of people in the house while everyone was at a table smoking ice pipes.[51]
[51] T148.
The accused was cross-examined over the events involving count 1. The accused gave evidence that at the time he first saw the vehicle behind him he was already doing 50-60 km an hour and not accelerating. He said he was doing nothing at that time to arouse suspicion, but he panicked because he assumed someone was either trying to blind him, come after him, or was hooning. So, he wanted to get out of their way. The accused denied being aware at the outset that it was a police vehicle. The accused denied pulling away from the side of the road on Karyn Crescent and accelerating as the vehicle approached.
In cross-examination the accused said the vehicle approached him moments after he had pulled away from Sammy by the side of the road. The accused denied that his tyres were screeching, or that his engine was roaring, or that he knew that the other car was a police vehicle.[52]
[52] T151.
In cross-examination the accused agreed that he had a significant amount of unexpired parole at the time. He denied that he was trying to avoid police on that account.
In cross-examination the accused agreed that after he had spun the vehicle 180 degrees, he drove back past the police car but denied driving towards it in any way.
The prosecution put to the accused that it did not make sense that people from the Onkaparinga house[53] would somehow be after him at 2.45am in McLaren Vale. The accused responded that ‘it’s a pretty heavy area and pretty heavy things happen’.[54]
[53] Where the accused had said he had saved the drugged woman’s life.
[54] T155.
The accused repeated that he only became aware that the other vehicle was a police vehicle when he passed by it in the opposite direction. He said he would have only been doing about 20 kilometres an hour when he passed it. He said the police vehicle was stationary at that point.[55]
[55] T161.
In further cross-examination the accused was asked to explain why he then stopped the Commodore and ran from police. His response was:
I just said ‘shit’. Just, No.1, it was a relief that it wasn’t someone after me. 2, it was like shit, you know, what do I do, what do I do, and you know all that entered my mind just at that stage was pull over which I did. Then I was thinking of losing the trust for the person who gave me the privilege to stay in his house, plus losing all my stuff as well and then I panicked and ran.[56]
[56] T164.
In further cross-examination the accused repeated his account of what happened on the fence and when he fell to the ground. He denied that he struggled with police, or that he tried to grab Officer Pople’s weapons or hands at any time. He described being stomped to the back, chest, and head with quite a deal of force by Officer Pople.[57] He said that he was first stomped to his right-side hip next to his vertebrae, approximately 15 times. He said that Officer People jumped on his back about 5-10 or 15 times. He was pinned to the ground. He felt his back crack. The accused said that he assumed that the officer was holding the fence with his hands and using one leg to stomp his lower back and the other one to stomp his lower hip.
[57] T173.
The accused was cross-examined as to why he did not inform any doctor or hospital staff about the stomping. The accused responded that he said nothing because there were four police officers present. He said when he awoke in hospital he was in a lot of pain, just wanted to go back to sleep and did not want to put himself in anymore danger or ‘make waves’.[58]
[58] T176-177.
The accused conceded he had consumed drugs over the preceding weekend and at the time of his arrest. He indicated he would rather not say what those drugs were.[59]
[59] T179. The accused was advised he was not required to answer that question.
Finally, the defence formally tendered the ‘with audio’ body-worn camera footage from Officer Pople and the accused’s record of admission to the Flinders Medical Centre.[60]
[60] Exhibits D1, D2 and D3.
The medical records from the Flinders Medical Centre show that the accused was admitted at 5.13am on 2 June 2021 and discharged approximately 12½ hours later at 5.42pm that same day. The discharge summary reported as follows:[61]
[61] Exhibit D2.
Assessment
History: 46 year old man attempted to evade police resulting in 2 meter fall while climbing fence landing on back with police officer landing on the top of patient. patient got lacerations on wrist and behind left ear, presented to ED through SAAS and SAPOL. He complained of severe back pain on presentation. he got abrasions on different parts of body. There was no loss of consciousness. No headache, no neurological symptoms, no chest pain or abdominal pain.
Main Examination/Investigation Findings: vitals stable.
neurological intact.
tender thoracic and lumber spine.
C spine cleared.
chest clear.
abdomen soft non tender.
2 cm laceration behind left ear that needs stitching.
patient mobilizing well.
blood investigations unremarkable.
CT BRAIN, SPINE, ABDOMEN AND PELVIS DONE.
SHOWS L2 RIGHT TRANSVERSE PROCESS FRACTURE minimally displaced.
high density in left lateral body of right lateral ventricle likely due to calcification.
patient reviewed by Neurosurgery, they are happy with no more imaging if no worsening headache, continue with conservative management of back.
laceration behind ear is stitched and tetanus given.
Diagnosis/Differential diagnosis:
L2 transverse process fracture
back pain.
ear laceration
Treatment/Procedures
Treatment in the Emergency Department consisted of observation and assessment.
pain relief.
stitching of laceration.
Plan
plan discussed with ED consultant dr Mark Morphett.
patient can go back to police custody.
pain relief.
antibiotics.
wound care.
can come back if nay worsening symptoms or raising concerns.
Analysis
The court has carefully considered all the evidence and has had the benefit of counsel’s addresses. The court has carefully considered all counsel’s submissions but does not repeat them in full.
The primary thrust of the prosecution’s final address was that the apprehending police officers’ evidence should be believed, the accused disbelieved, and that based on the apprehending police officers’ evidence, the objective facts had been established, and the relevant mental elements of the charged offences could be inferred.
The prosecution submitted that in relation to count 1, on the evidence presented, the court should find proven that accused was attempting to escape police by driving his car directly at them, thereby also intending or being reckless as to harming them for that purpose. The prosecution submitted that in relation to count 3, it should be inferred that the accused had realised he could not outrun Officer Pople and that his only other option was to become violent and fight him to get away.
The primary thrust of the defence’s final address was that the apprehending police officers should not be believed. The defence submitted that the accused was badly injured in ways not consistent with the police evidence of what occurred. The defence criticised Officer Pople’s evidence that he could not say whether he landed on top of the accused or rather beside him, nor how he consequently took the accused to the ground. The defence argued that the shaking body worn camera footage was more consistent with the accused indeed being ‘stomped on’ at that point. The defence put that Officer Pople’s evidence of the events alleged to constitute count 3 was inconsistent with his verbal account recorded at the time by the body worn cameras.
Both police officers gave evidence in a relatively straightforward way. It is clear that the events occurred suddenly and progressed quickly. It is also clear that Officer Pople fell off a seven-foot fence and injured both his hand and left bicep in the process.
Unfortunately, there is no video or audio of any of the charged events.
There were however several issues with Officer Pople’s evidence. The body worn camera footage reveals that in the immediate aftermath of falling from the fence, Officer Pople was angry, yelling and somewhat traumatised. Further, when asked by Officer Langford to describe events he gave a different account both of what happened on top of the fence and of how he sustained any injury. There is no mention to Officer Langford at the time that the accused fell off the fence first, then reached up and twice tried to grab the officer’s foot, eventually dislodging him and causing him to plummet to the ground. Officer Pople also tells Officer Langford that he was punched in the bicep. These statements are not consistent with his in-court evidence. He did not clearly admit the statements, and his response when the alleged inconsistencies were put to him in cross examination was that he could not remember the conversations he had at the scene.
Officer Langford was a clearer and more consistent witness than Officer Pople. He was however mistaken about whether Officer Pople had told him his arm had been injured. There were other aspects of his evidence which suggested there may have been an element of reconstruction in his recollection. For example, he gave evidence that the accused was reaching for Officer Pople’s belt, whereas the body worn camera footage has Officer Langford arriving after the time during which according to Officer Pople that could have occurred.
Officer Mooney was an obviously reliable witness.
The accused came across as a relatively inarticulate witness, who gave much of his evidence in a sometimes jumbled and discursive way. The evidence of Officer Mooney and the medical evidence from Flinders Medical Centre establish that the accused had been materially injured in the course of the evening and was consequently quite traumatised.
The accused’s evidence as to why he was in the Commodore at 2.45am in the back streets of Morphett Vale was not convincing. None of the other people who he claimed were with him were either observed by police or called as witnesses. The coincidence suggested by the accused that police came upon him just seconds after he had pulled away from the kerb for unrelated reasons was unconvincing.
After careful consideration of all the evidence and counsel’s submissions, the court concludes that the evidence from both police officers that the accused accelerated away under hard acceleration, then after the 180-degree turn, accelerated hard directly at the police vehicle was consistent, logical and at the end of the day credible.
After careful consideration of all the evidence and counsel’s submissions, the court concludes that Officer Pople’s evidence as to what happened on top of the fence, namely that the accused after being pushed off the fence onto the ground was either able to or did grab his leg twice rather than try to escape lacked a degree of logic. It was also inconsistent with the account he gave to the other officers recorded by the body worn cameras. Officer’s Pople’s responses to the alleged inconsistent statements did not clearly admit the statements nor adequately explain them.
Factual Findings Beyond Reasonable Doubt
At the end of the day, the police evidence as to the accused’s driving was credible and reliable, and the court accepts it beyond reasonable doubt, notwithstanding the accused’s evidence on oath to the contrary.
The actions of the accused are only consistent with the accused, from the outset, desperately trying to evade the vehicle that had approached him. The accused’s convoluted explanation that he was worried that the approaching vehicle may have been driven by people unhappy that he had saved the life of a woman whom he had just met and who had been ripped off in a diamond sale was not credible.
The accused had a strong motive to avoid police, a motive he admitted at trial. He did not want to be apprehended on his Parole Warrant until he had made arrangements for his property and had been able to attend his premises and lock them down.
The court finds that the rapid acceleration, the screeching of the tyres, and driving at the police vehicle head on are only explicable in terms of the accused knowing that it was a police vehicle containing police officers and trying to escape them. He intentionally created a real and not remote risk of harm to assist his intended escape.
On the other hand, it is not sufficiently clear exactly what happened on top of the fence, to be satisfied beyond reasonable doubt that the accused deliberately grabbed Officer Pople’s leg in the way alleged. As well as the issues earlier discussed concerning the only police witness to those events, the accused denied the allegations on oath.
The court finds proven beyond reasonable doubt that, in relation to count 1:
1.The accused performed the deliberate act of driving his vehicle directly at the police officers. That act was likely to cause harm.
2.The accused knew that he was creating a real and not remote chance of causing harm to them.
3. The accused had no lawful excuse for such actions.
4.The accused did so intending to escape police, being recklessly indifferent as to whether harm was caused.
5. He knew he was committing the offence against police officers.
In relation to count 3, there is a reasonable doubt that the accused deliberately or recklessly caused harm to Officer Pople.
Conclusion
Count 1 is proven beyond reasonable doubt.
As count 2 is an alternate verdict to count 1, it is unnecessary to further consider it.
As to count 3, there is a reasonable doubt.
Verdicts
Count 1: Guilty
Count 3: Not guilty.