R v Monydeng
[2022] SADC 20
•25 February 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MONYDENG
Criminal Trial by Judge Alone
[2022] SADC 20
Judgment of his Honour Judge Stretton
25 February 2022
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Trial pursuant to Part 8A of the Criminal Law Consolidation Act. The objective elements of the charges of robbery and damaging property were contested. The accused elected for trial by judge alone.
Held:
The objective elements of all charges are proven beyond reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) Part 8A, ss 20(3) and (4), 56(1), 85(2), 134(1), 137(1), 269B, 269M, referred to.
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; R v S, GJ [2012] SADC 150; R v O'Leary (1946) SASR 175; O'Leary v R (1946) 73 CLR 566; R v Fleming (2017) 129 SASR 27, applied.
R v England [2002] SASC 108; R v Abisaab [2006] SASC 439; Sutton v R (1984) 152 CLR 528; R v Armstrong (1990) 54 SASR 207; Pfennig v R [1995] HCA 7; DPP v P [1991] 2 AC 447; R v Smith (1998) 71 SASR 543; Thompson v R [1989] HCA 30, considered.
R v MONYDENG
[2022] SADC 20
The accused, Monydeng Monydeng, is charged with eight offences alleged to have been committed on 25 March 2020. It is alleged that between about 9.30am and 9.45am at Mile End and Torrensville, the accused offended against five separate women in a variety of ways before being apprehended and arrested by police at about 10.00am.
As a result of pre-trial agreement and the orders of prior judicial officers, the trial is proceeding pursuant to Part 8A of the Criminal Law Consolidation Act (‘the Act’) and involves a trial of the objective elements of the offences.
Trial of Objective Elements of Offence
As by agreement between counsel and the order of a previous judicial officer, the trial of the objective elements of the offences is occurring before any trial of the defendant’s mental fitness to stand trial, s 269M of the Act provides that the court must first hear evidence and representations put to the court by the prosecution and defence relevant to the question of whether the court should find that the objective elements of the offence are established.
If the court is satisfied beyond reasonable doubt that the objective elements of the offences are established, the court must record a finding to that effect; but otherwise, the court must find the defendant not guilty of the offences and discharge the defendant. On such a trial, the court is to exclude from consideration any question of whether the defendant’s conduct is defensible.
Whilst an accused has a right to trial of the objective elements by jury in these circumstances,[1] the defence elected to have the matter dealt with by a judge sitting alone.
[1] Section 269B, Criminal Law Consolidation Act.
As the matter is a trial by judge alone, the court has not reviewed any part of the substantive or procedural history of the matter nor any declarations, transcript, or other material prior to the hearing. At trial, the court has had regard only to the matters put, tendered, and submitted by counsel.
The Alleged Offences
First Count
Statement of Offence
Damaging Property. (Section 85(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Monydeng Monydeng on the 25th day of March 2020 at Mile End, knowing that he had no lawful authority to do so, damaged a motor vehicle, the property of Lin Andrews Real Estate Pty Ltd, intending to damage property or being recklessly indifferent to whether his conduct damaged property, the said damage amounting to more than $2,500 but less than $30,000.
Second Count
Statement of Offence
Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Monydeng Monydeng on the 25th day of March 2020 at Mile End, assaulted Kirsty Lee Walker.
Third Count
Statement of Offence
Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Monydeng Monydeng on the 25th day of March 2020 at Mile End, used or threatened to use force against Sally Maria Jane Baxter, in order to commit the theft of a mobile telephone, headphones, bankcards and $10.00 cash, and the force was used, or the threat was made, at the time of, or immediately before, the theft.
Fourth Count
Statement of Offence
Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Monydeng Monydeng on the 25th day of March 2020 at Mile End, assaulted Sally Maria Jane Baxter.
Count Four is laid in the alternative to Count Three.
Fifth Count
Statement of Offence
Theft. (Section 134(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Monydeng Monydeng on the 25th day of March 2020 at Mile End, dishonestly dealt with property, namely a mobile telephone, headphones, bankcards, and $10.00 cash, without the consent of Sally Maria Jane Baxter the owner of that property, intending to permanently deprive the owner of the property or make a serious encroachment on her proprietary rights.
Count Five is laid in the alternative to Count Three.
Sixth Count
Statement of Offence
Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Monydeng Monydeng on the 25th day of March 2020 at Mile End, assaulted Claire Louise Will-Jones.
Seventh Count
Statement of Offence
Aggravated Assault Causing Harm. (Section 20(4) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Monydeng Monydeng on the 25th day of March 2020 at Mile End, assaulted Caterina Caristo and thereby caused her harm.
It is further alleged that Monydeng Monydeng committed the offence knowing that Caterina Caristo was over the age of 60 years at the time of the offence.
Eighth Count
Statement of Offence
Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Monydeng Monydeng on the 25th day of March 2020 at Mile End, indecently assaulted Caterina Caristo.
It is further alleged that Monydeng Monydeng committed the offence knowing that Caterina Caristo was over the age of 60 years at the time of the offence.
Objective elements of the Charged Offences
The objective elements of the offence of damaging property pursuant to s 85(2) of the Act are:
1.The accused damaged property.
2.The damage was inflicted without lawful authority.
3.The damage is not inflicted by fire or explosives.
4.The property belongs to another.
5.The property is a building or motor vehicle.
The objective elements of the offence of assault pursuant to s 20(3) of the Act are:
1.The accused assaulted another person, assault being a non-trivial intentional application of force to another person.
2.The application of such force was without any lawful excuse.
3.The application of force was voluntary.
The objective elements of the offence of robbery pursuant to s 137(1) of the Act are:
1.The accused commits theft; theft is dealing with another’s property dishonestly and without the owner’s consent with the intention of permanently depriving the owner of the property or seriously encroaching on their rights in the property. Proof of the objective elements of this offence does not require the accused to have such intention.
2.The accused uses force or threatens to use force in order to commit the theft or to escape from the scene of the offence.
3.The force or threat was used at the time of immediately before or after the theft.
The objective elements of the offence of aggravated assault causing harm pursuant to s 20(4) of the Act are:
1.The accused assaulted the victim.
2.By such assault the accused caused the victim harm.
3.There was a circumstance of aggravation, in this case the objective component of the alleged circumstance of aggravation is that the victim was over the age of 60 years at the time of the offence.
The objective elements of aggravated indecent assault pursuant to s 56(1) of the Act are:
1.That the accused assaulted the victim.
2.That the assault was committed in circumstances of indecency with a sexual connotation.
Each of the objective elements of the offence must be proven by the prosecution beyond reasonable doubt.
The Issues at Trial
It was not disputed at trial that each victim was offended against in the way alleged, and it was not suggested that an offence had not been committed against each of the victims as charged. The sole issue in contention at trial was whether the accused was the person who committed Count 1, the offence of damaging the property of Lin Andrews Real Estate Pty. Ltd driven by Felicia Carli by kicking the vehicle that she was driving; and whether the accused was the person who offended against Sally Baxter by robbing her or alternately assaulting and stealing from her, as alleged in Count 3, and alternately 4 and 5 in the Information.[2]
[2] The defence admitted the objective elements of Count 5 on the basis of conceding theft by receiving the two items belonging to Ms Baxter that were ultimately located on the accused. This basis was not accepted by the prosecution. T26-27.
The defence formally admitted the objective elements in relation to Counts 2, of assaulting Kirsty Walker by kicking her to the chest and knocking her to the ground, Count 6 of assaulting Claire Louise Will-Jones by threatening to strike her with his knee or foot, and Counts 7 and 8 of assaulting Caterina Caristo causing her harm and then indecently assaulting her.
The Course of Trial
The accused pled not guilty and elected for trial by judge alone.
Much of the evidence at trial was by way of tendered affidavits and exhibits with only three witnesses called to give oral evidence as to the contested issue of identity. Ms Carli was called to give oral evidence as to Count 1. Ms Baxter and a witness, Natasha Inglis were called to give evidence in relation to Counts 3-5.
The defence did not give or call evidence at trial.[3]
[3] That was the accused’s right, and consequently no adverse inference whatsoever can arise thereby.
General Directions
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,[4] 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’.[5]
[4] 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.
[5] 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 paras 6-25 of R v S, GJ [2012] SADC 150.
To be clear however, the court has applied all the principles applicable to a criminal trial of the objective facts 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.
It is fundamental however, that the accused has, and always retains, the presumption of innocence. The prosecution bears the onus of proof and must prove each objective element of the 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 Evidence
The evidence in relation to Counts 2, 6, 7 and 8 was not disputed. Accordingly, I will briefly set out that uncontested evidence before proceeding to the facts in dispute relating to Counts 1 and 3-5.
The victim in relation to Count 2 is Ms Walker. It is not in dispute that at around 9.30am on the day in question, Ms Walker parked her car on King Street, Mile End behind her father’s van as they were both working at that address on that day. As she parked, she saw the accused and another male walk from Claremont Street across King Street and walk east along the northern footpath past her father’s van. When the accused was about in line with her vehicle, she got out and walked towards the back of the car, locking it, and placed her keys in her bag. As she got to the boot of her vehicle, she saw the accused who jumped from the gutter area and fly kicked her with his right foot, striking her chest with some force, knocking her flat on her back in the street.
She described the accused as of African appearance, aged about 20, with a slim build, approximately six foot two in height wearing a light blue hooded long sleeve jacket with white coloured shoes. She described the second male as of short, stubby build with curly hair and although she could not recall exactly what he was wearing, he had a red colour on him somewhere. As a result of the assault her chest was very sore, together with her lower back. At a later time, Ms Walker identified the accused by way of a standard photo identification procedure.
As indicated, the defence has admitted these facts and concedes that the objective elements of the assault on Ms Walker by the accused are established beyond reasonable doubt.
The facts in relation to Count 6, the assault on Ms Will-Jones, are also not in dispute. Ms Will-Jones was parking her boyfriend’s car in the Centrelink carpark on the corner of Henley Beach Road and Wainhouse Street at about 9.30am on the day in question.
Video footage shows that the accused had just attempted to queue jump those lined up outside the Centrelink office but had been refused entry by security guards, whereupon the accused loitered a few metres from the entrance.
As Ms Will-Jones exited her vehicle, she saw a black male she described as Sudanese, about six foot two inches tall with slim build and short black hair wearing a grey or blue jumper, staring at her. It is not disputed that was the accused.
The accused then ran straight towards Ms Will-Jones, lifted his right leg, appearing to be about to kick her to the chest but stopped himself mid-motion, standing close in front of her as she felt pinned against the car. CCTV video footage of the incident shows these events and depicts the accused apparently going to fly-kick Ms Will-Jones full to the middle of the chest but stopping his foot just centimetres from the upper middle part of her chest. The accused swung his arms near Ms Will-Jones’ head whereupon Ms Will-Jones ran into the Centrelink building to escape.
As she entered the building, security staff directed her attention back to her vehicle where she saw the accused leaning his back on the driver’s side door of the car with his arms over the roof. A subsequent examination of the vehicle revealed no damage.
Ms Will-Jones said that it was all such a blur, she did not think she would be able to recognise the male if she saw him again. Indeed, she was unable to select any photograph per a subsequent photo identification procedure.
The assault on Ms Will-Jones was also witnessed by Nicola Dimasi, the Centrelink security guard who had just prior to the interaction with Ms Will-Jones observed the accused trying to jump the queue into Centrelink and had told the accused he needed to line up. Upon being told that, the accused remonstrated and then walked off. A few minutes later a distressed Ms Will-Jones approached Mr Dimasi and pointed out the accused standing next to her vehicle before slamming the car door shut and walking off towards Henley Beach Road.
The CCTV shows all of this, and shows the accused wearing a blue hooded jumper and light blue denim jeans. He appears tall and of African appearance.
The facts in relation to Counts 7 and 8, the attack on Ms Caristo, are also not in dispute.
Ms Caristo had attended the same Centrelink at Torrensville at about 9.30am. She noticed the line at the front entrance was long and as a result decided to walk home. Ms Caristo walked towards an electrical store opposite Centrelink and soon noticed that someone was walking closely behind her. She moved to the side to enable that person to pass, however that person moved with her such that they remained directly behind her. Accordingly she turned around and saw the accused standing straight in front of her close to her face. Ms Caristo was concerned and said, ‘the police are in there’ to which the accused responded, ‘I am the police’.
At that, the accused grabbed Ms Caristo around the neck with both hands pulled her around and threw her to the ground, she landing on her stomach. At this, Ms Caristo started screaming ‘help, help, someone’s kill me’. She said she was petrified and thought she was going to die. The accused put his hand over Ms Caristo’s mouth to stop her screaming and grabbed her hair from behind and smashed her face into the pavement two to three times. Ms Caristo kept yelling for help.
Ms Caristo could then feel the accused sitting on her pelvis area moving up and down in a backwards and forwards motion as if, in Ms Caristo’s impression, he was trying to rape her. The accused reached around and placed one of his hands between her legs and started to touch her genital area over the top of her clothes.
Video and the evidence of other witnesses indicate that at that stage members of the public screamed at the accused to stop, and at that, the accused got up off Ms Caristo and ran away. Tendered CCTV footage from an adjacent shop shows the accused walking quickly and breaking into a run past that shop, shortly after members of the public could be heard screaming for someone to stop doing something.
Ms Caristo was screaming, hysterical, crying and in pain. She was injured in the attack, suffering a bump to the right-hand side of her head, bruising to her neck, grazing to her right wrist together with other soreness and pain. At hospital, doctors recorded a haematoma to the right front of Ms Caristo’s head together with pain and tenderness, an external abrasion on the right side of her neck, right shoulder pain and redness, a further abrasion on the outer side of her right forearm and pain at the coccyx area.
These events were witnessed by members of the public. They saw the accused lying on top of Ms Caristo, moving his hips back and forwards, up and down from behind Ms Caristo, as if to have sex with her.
One of the witnesses chased the accused along Henley Beach Road and through several car parks to Ebor Avenue where the accused was apprehended by police. The accused was, at the time of his apprehension, wearing a blue hooded jumper, blue denim jeans, black shoes and was also in possession of a black hooded jumper, 16 Metro cards - one bearing Ms Baxter’s signature, and a Woolworths Rewards card also bearing Ms Baxter’s name.
It is admitted, also clear on the evidence, and not disputed that the accused committed each of these three attacks; firstly, Ms Walker, then Ms Will-Jones and finally, Ms Caristo, as set out above. It is against that backdrop that the two attacks in dispute occurred.
The first disputed attack is Count 1, the alleged property damage to the vehicle driven by Ms Carli. Ms Carli gave evidence that between 9.00 and 10.00am on 25 March 2020, she was returning to her office on South Road and was driving along Claremont Street, Mile End. As she crossed Ballara Street, Mile End, she saw a male in the middle of the road who remained there as she approached in her vehicle. Accordingly, Ms Carli tooted her horn whereupon the male turned around, looked at her and simply continued walking but as he did so was trying the door handles on the cars parked on either side of the road. He then turned, stared at Ms Carli, and stomped with his foot on the front bonnet of Ms Carli’s car causing her to accelerate and the male to get out of her way. As she drove by, the male kicked the rear passenger side door of her car, seriously damaging it, denting it, and chipping the paint.
Ms Carli described the attacker as an African male around six foot tall, slim wearing a blue hooded jumper pulled low over his forehead, wearing grey jeans, aged in his late teens or early twenties. There were two other males in the vicinity, one behind the attacker on the left-hand side of the road, the other in front of the attacker on the right-hand side of the road. She could not describe those persons, other than they had hooded jumpers pulled over their heads.
The damage to Ms Carli’s vehicle was $2,615.24.
It is to be observed that this location is a very short distance from the King Street location where at about 9.30am, Ms Walker was assaulted by a similarly attired African male kicking her to the chest.
The final matter in dispute is the attack on Ms Baxter, represented by Count 3 of robbery and in the alternative, Counts 4 and 5, of assault and theft.
Ms Baxter gave evidence that on the morning in question, she was walking along Cumming Street, the street adjacent to the King Street address where Ms Walker had been assaulted and two streets from the Claremont Street location of the attack on Ms Carli.
Ms Baxter turned the corner onto Victoria Street when a male she described as a tall, skinny, dark African, wearing a grey or blue hoodie with what she perceived as grey or blue tracksuit pants, approached her quickly saying something she could not interpret. The male then did a ‘sweep kick’ connecting with the back of her right calf just below the knee causing her to fall on her back. The male then positioned himself on top of her and struck down at her with his elbow, hitting her in the middle of the chest. Ms Baxter tried to kick and punch to defend herself.
The male grabbed at Ms Baxter’s belt, was pulling at her stomach area and her jacket, then Ms Baxter saw her phone and her cards were on the road. The male then, whilst still positioned on top of her, took her phone and her cards and went through her other property that had come out of her pocket during the course of the attack on her. Ms Baxter said the male grabbed up her belongings, got off her, crossed the road and met up with another male wearing a hoodie who put his arms up towards him in a manner in which she described ‘I don’t know what you are talking about or, I don’t know you or yeah I’m your brother I don’t know’ type of way. Then they walked off, but not together.
Ms Baxter said that she later identified a Metro card and Woolworths card with her names on them, both subsequently seized from the accused. Ms Baxter described her assailant as dark, African, skinny, very tall and wearing a greyish or blue hoodie with grey or blue tracksuit pants. She said the other male was dark, but shorter with curly hair and not wearing a hoodie.
The assault on Ms Baxter was witnessed by Natasha Inglis, a resident in a house situated on the corner of Cumming Street and Victoria Street, Mile End. She said that on the day in question, between 8.00 or 9.00am, she was in her bedroom compiling a job application when she heard a car door shut outside. That caused her to look out her window overlooking Victoria Street, Mile End. Ms Inglis recognised a man she had seen the day prior at around 4.00 to 5.00pm, on this occasion walking in a southerly direction along Victoria Street. Ms Inglis saw Ms Baxter walking from the southern side of Victoria Street, heading in a northerly direction towards Henley Beach Road. Ms Inglis saw the male and female walk towards each other eventually meeting. She said Ms Baxter went to step around the male however the male turned and kicked her with a roundhouse kick, contacting Ms Baxter’s lower leg causing her to fall to the ground and onto the road.
At that, Ms Inglis turned back into her room to get her mobile phone for the purposes of recording what she was seeing but when she returned to the window, the female was standing and yelling ‘give me back my phone’ and the male was nowhere to be seen. She described him as African, tall and slender, looking to be in his twenties, wearing baggy clothes including a jumper with a hood, drawn to about his eye line. Her recollection was that the jumper was dark.
The prosecution tendered an agreed document, including a map of the area indicating each location where an attack occurred. The document also noted that a person walking through each location starting at Claremont Street and ending up at Ebor Avenue would travel 2.2 kilometres and at an average walking speed, this would take some 27 minutes.
It is agreed that at about 9.52am that day, police were tasked to search the area around the Centrelink premises and at about 9.54am observed the accused standing on the northern side of Henley Beach Road outside the Royal Hotel drive through. The police then drove around to the drive through. On the approach of the police, the accused ran to the rear of the car park, then away down Norma Street, Mile End to Ebor Avenue. Police overtook the accused who then stopped running and stood at the intersection of Norma Street and Henley Beach Road, whereupon he was apprehended by police.
Police’s recorded observations were of an African male about 25 years old, tall with a slim build wearing a navy blue hooded jumper with light blue pants and black shoes. Police seized 16 Metro cards, one bearing Ms Baxter’s signature and a Woolworths Rewards card bearing the name ‘Sall Baxter’, both the property of Ms Baxter.
Upon the close of the prosecution case, the defence indicated they would not be calling any evidence.
Discussion and Consideration
The prosecution submits that on the totality of the evidence, the court can be satisfied beyond reasonable doubt that the same person committed all five attacks, that person being the accused. The prosecution submits that circumstantial evidence establishes that the person who committed Counts 1 and 3, or in the alternative to Count 3, Counts 4 and 5, is the same person, i.e., the accused, who it is not disputed committed the other offending.
The prosecution case is that there is an underlying unity[6] between each of the five occasions, on the following basis;
[6] R v England [2002] SASC 108; R v Abisaab [2006] SASC 439; Sutton v R (1984) 152 CLR 528; R v Armstrong (1990) 54 SASR 207; Pfennig v R [1995] HCA 7; DPP v P [1991] 2 AC 447; R v Smith (1998) 71 SASR 543 at 553; Thompson v R [1989] HCA 30.
1.The offending all occurred within the same geographical area of about two square kilometres.
2.The offending occurred within the same short period of time; between about 9.00am and 9.47am on the day in question.
3.The attacks occurred in a linear fashion, the sequence of which suggests that the offender was moving in the direction of Henley Beach Road from the first event occurring on Claremont Street, to a second event one street away towards Henley Beach Road, the third event occurring at the intersection of Victoria and Cumming Street which is a further side street towards Henley Beach Road, the fourth occurring at the Centrelink on Henley Beach Road itself, near to the location of the fifth attack, again on Henley Beach Road.
4.Each victim was female.
5.Each occasion involved violence and aggression.
6.The violent and aggressive behaviour of the offender on each occasion was unprovoked and to a victim simply going about their business.
7.The physical conduct involved on the first four occasions was markedly similar with the male stomping with his foot on Ms Carli’s car, the male kicking Ms Walker in the chest with his foot, the male kicking Ms Baxter to the leg and fourthly, the male going as if to kick or strike Ms Will-Jones with his knee to the chest.
8.The description by the various victims and witnesses of the offender was strikingly similar in that they all describe the offender as either African, Sudanese, or black; skinny, slim, or slender; and tall or very tall; and with a young age of either late teens or early twenties.
9.The description of the clothing was also strikingly similar, with every witness describing the assailant as wearing a blue or grey hooded jumper pulled down low over the forehead, when the accused was plainly wearing a blue hooded jumper as seen in the CCTV and upon his arrest. The description of the accused’s pants by each witness was consistently similar, whether being jeans or trackpants, they were described as grey or denim.
The prosecution argues that the similarities between the admitted occasions together with the circumstantial evidence as to the same area, the same time, the same kind of unprovoked violent behaviour directed towards women exclude, as a reasonable possibility, that the offences were committed by different persons.
The prosecution argues that as a matter of ordinary human experience, the hypothesis that there were two males of a similar height, build and age wearing identical clothing and acting in the same violent manner towards women without provocation, in the same area of Mile End, at the same time is so improbable as to exclude it as a reasonable possibility.
The prosecution also argue that the facts demonstrate a connected series of events that were almost a single transaction from which the overwhelming inference is that the same person was responsible for that entire transaction and course of conduct.[7]
[7] R v O’Leary (1946) SASR 175, O’Leary v The King (1946) 73 CLR 566, R v Fleming (2017) 129 SASR 27.
On the other hand, the defence submits that the evidence is insufficient to prove that the accused was the person responsible for the attacks on Ms Carli and Ms Baxter. The defence submits that there were plainly other people in the area, some who appeared to be with or near the accused and that it is not possible to exclude the possibility that one of those persons or someone else was responsible for that conduct.
The defence observe that neither Ms Carli nor Ms Baxter identified the accused in the course of a photo identification process, nor is there any forensic evidence to support the hypothesis that the accused was the offender in each of those cases.
The defence argues that Ms Baxter was unreliable in her memory and there were elements of instability and dyslexia and possible mental health problems in her presentation to the court. Indeed, Ms Baxter was a discursive witness who often answered questions in a colloquial and conversational manner. It was clear that she was stressed and upset at having to give evidence in court and in having to relive the events of the day. The defence submit that she could have been wrong about which of the two males that she saw attacked her, and that in the totality of the circumstances the court should be careful in relying on the detail of Ms Baxter’s evidence or her description of the man who attacked her.
The defence argues that it is perfectly reasonable that any member of a particular group of people in each other’s company might commit different offences on any given day, and do so prior to then separating. The defence puts that the accused was found with only some of Ms Baxter’s property, indicating that others with the accused may well have offended against Ms Baxter.
The three witnesses who gave evidence on oath as to the facts were all honest witnesses doing their level best to recall the facts.
Ms Carli was a clear, thoughtful witness whose evidence was convincing, and the court finds, accurate.
Ms Baxter was a dyslexic, nervous and stressed witness, still obviously highly traumatised by what had happened to her. Her level of recall appeared to vary as she became more upset in the witness box, and consequently the level of detail she recounted varied at different stages of her evidence. There were some inconsistencies in her evidence. She was, however clear and consistent in her evidence as to which of the two males attacked her, and her description of that person matches the description given by the independent witness.
Ms Inglis was a clear and articulate witness whose evidence was, at the end of the day, compelling and reliable.
The court accepts the evidence of the witnesses Ms Carli, Ms Baxter, and Ms Inglis beyond reasonable doubt.
At the end of the day, in the court’s view, the prosecution case is a compelling and deceptively simple one.
The similarity of the violent, sudden, unprovoked attacks on women, all within a short space of time, in adjacent locations, by a person with a distinctive appearance, build, age and ethnicity and wearing identical clothing, to the proven attacks by the accused of that same distinctive appearance, build, ethnicity, age and near identical clothing, simply excludes the reasonable possibility that the disputed attacks were committed by any other person.
Further, both disputed attacks were commenced by a kicking motion, as were the proven attacks conducted by the accused per agreed counts 2 and 6.
That two separate series of similar attacks would occur, commenced by kicking, in the same location, at the same time, in the ways similarly described, by two separate people of the strikingly similar descriptions, is just not a reasonable possibility, notwithstanding Mr Kirby’s comprehensive submissions to the contrary. There was ample opportunity for the accused to discard, hide or give the rest of Ms Baxter’s property to someone else prior to his ultimate apprehension by police.
It is proven beyond reasonable doubt that, in relation to Count 1, the accused without lawful authority, damaged the property of Lin Andrews Real Estate Pty. Ltd., a motor vehicle, by kicking it. The damage was over $2000 but less than $30,000. The objective elements of Count 1 are proven beyond reasonable doubt.
It is proven beyond reasonable doubt that, in relation to Count 3, the accused committed theft upon Ms Baxter, and used force in order to commit that theft, by first kicking her leg from under her and then continuing to assault her thereby committing the objective elements of robbery. It is therefore unnecessary to consider the alternative Counts 4 and 5. The objective elements of Count 3 are proven beyond reasonable doubt.
As the objective elements of Counts 2, 6, 7 and 8 were formally conceded by the defence, it is unnecessary to provide detailed reasons in relation to those offences. The court has however reviewed the tendered evidence in relation to those offences, and finds the objective elements of each of those counts proven beyond reasonable doubt.
Conclusion
The objective elements of Counts 1, 2, 3, 6, 7 and 8 are proven beyond reasonable doubt. It is unnecessary therefore to consider alternative Counts 4 and 5.
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