R v Nemeth - [2008] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NEMETH
[2008] SADC 112
Reasons for the Verdicts of His Honour Judge Tilmouth
4 September 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON
Trial by judge alone - accused charged with aggravated serious criminal trespass in a place of residence.
Held: Accused found guilty as an accessory.
Meaning of the expressions "committed the offence in company with one or more other persons" and "entered", considered.
Criminal Law Consolidation Act 1935 (SA) s5AA, s170(2), referred to.
R v Cooper (1978) 17 SASR 472; R v Brougham (1986) 43 SASR 187; R v Welker [1962] VR 244, applied.

R v NEMETH
[2008] SADC 112
Preliminary

The accused Michael Nemeth and a co-accused Lionel Ashley Carbine, were presented at the August 2008 circuit sessions of the court sitting at Port Augusta, on an information of 7 April 2008, charging them jointly with aggravated serious criminal trespass in a place of residence[1].
[1] Section 170(2) Criminal Law Consolidation Act 1935 (SA), the ‘Act’ in these reasons.
The prosecution allegations
The facts alleged to constitute the offence, are that at about 8.40pm on Wednesday 10 October 2007, the victim John Guiney was at home watching television, in the lounge room of his home, situated on the corner of Whait Avenue and Dickens Street, Port Lincoln. He was in the company of his girlfriend Jasmine Saunders, his friend Mr Gatti, Gatti’s girlfriend Tahlia and her sister Ebony, although for the most part the women appear to have been in a kitchen situated towards the rear of the house.
Upon hearing noises outside, he checked a surveillance monitor set up in the lounge room, connected to a camera facing down a path leading to the front door. He claims to have seen the accused Nemeth take three or four steps up a pathway leading towards the front porch, carrying a bat of “some sort”. As he had known Nemeth for three to four years, there was no issue as such, of his capacity to recognise him. He also purported to recognise his voice.
Guiney said he heard voices yelling his name “telling me to come outside”, although his evidence did not appear to particularly attribute these words to Mr Nemeth[2]. Guiney says he then heard something hit the front inner door (there was another screen door on the outside), which swung partly open towards the inside of the lounge room. According to his evidence, Nemeth was trying to get inside, by pushing at the door, which Guiney and his friend Jack Gatti closed, by pushing it from the inside. He noticed Nemeth was accompanied by an Aboriginal person, Mr Carbine. It was at this point that police were called.
[2] T23 L14.
It is these alleged events which found the charge of aggravated serious criminal trespass in a place of residence, the particulars being on the day and at the time mentioned, both Mr Carbine and Mr Nemeth entered or remained in the building comprising the home occupied by Mr Guiney as trespassers, knowing he was there and with the intention of committing the offence of assault upon him.
Pre-trial issues
Mr Carbine pleaded guilty on arraignment. As Mr Nemeth pleaded not guilty, submissions as to sentence in relation to Mr Carbine were postponed, pending the outcome of Mr Nemeth’s trial. The trial was set to commence at Port Augusta on Friday 22 August 2008 and a jury duly summoned. However, on that morning an application for trial by judge alone was filed on behalf of Mr Nemeth. It appears that in the days immediately preceding the trial, a number of potentially troubling issues were ventilated between counsel on both sides. They expressed the view that if a jury were empanelled, complicated directions would be required, which may, or may not, have been sufficient to overcome potential prejudice to the accused Nemeth.
The court accepted these submissions at face value, rather than entering into the fine detail, in case that might compromise the trial itself. Accordingly an order was made immediately before arraignment on the first day of the trial, one that was not at all opposed by the prosecution, for a trial by judge alone, and insofar as necessary dispensing with the formal requirements under r16 of the Juries Rules 1996.
As it transpired, the complications anticipated by counsel became only too apparent during the course of the hearing. For his part, Mr Guiney was sentenced in this court on 10 September 2007, following his plea of guilty to the offence of impeding an investigation[3], to eighteen months imprisonment with a nine months non‑parole period, suspended upon entering into a bond for two years[4]. He was said to have failed to co-operate with the police, refusing to tell them the identity of a driver of a vehicle known to him. The alleged driver was eventually charged with causing death by dangerous driving in relation to events occurring on 25 October 2005, at Port Lincoln. Guiney was jointly charged with the driver on the above offence, but pleaded guilty on the second day of the trial.
[3] Criminal Law Consolidation Act s241(1).
[4] T142 L10-13 and Exhibits D4-D7 inclusive.
To compound matters still further, it also turns out the accused himself was subject to an eight-month suspended sentence, imposed 8 March 2007, coupled with a bond to be of good behaviour for a period of three years. This was obviously still in force as of 10 October 2007 when the subject events took place[5]. For the present it can be seen these features would present obvious difficulties in composing adequate directions for a jury to act upon, still less directions capable of avoiding any prejudice or potential miscarriage. In particular, knowledge that the accused was on a suspended sentence, might well have been enough in itself, to deliver a miscarriage of justice. The dilemma for him was that he was forced to disclose this in order to furnish a motive for Mr Guiney to false implicate him in the charged offence, as we shall see.
[5] T142 L10-13.
The evidence in the case
Returning to the facts of the case, Mr Guiney was adamant that the accused entered his property, came up the path to the front door and tried to force his way into the home. They had known each other for several years, a fact that was not disputed. It was disputed that he participated in the way alleged by Guiney. It was put to him that the incident sprang from events taking place shortly after lunchtime that day, when there was an exchange initiated by Mr Guiney and his friends, as they drove past Nemeth’s mother’s home in Sellan Street, not that far from Mr Guiney’s home. Present at the time were Nemeth himself and certainly at least two Aboriginal men, Mr Carbine and Josh Saunders (unrelated to Jasmine). It is alleged that Mr Guiney’s group directed racist taunts towards them[6]. The prosecution case is, in a nutshell, that the events later that evening, are explicable as being in retaliation for these earlier insults.
[6] T35 L32 – 36 L24.
Mr Guiney gave a statement to the police the following day, 11 October 2007. In it he referred to this lunchtime incident, but made no mention of Mr Nemeth being present, although he did in his evidence and he did in a statement given on 21 August 2008, that is the day before the trial commenced. It was put squarely to Mr Guiney by defence counsel, that Mr Nemeth although outside when these later events unfolded, got no further onto the property than a telegraph pole located on the footpath area just outside the gate, as seen in Exhibit P1, photograph 1.
The prosecution also called Mr Guiney’s girlfriend, then and now, Jasmine Saunders. She overheard some of the events outside, but saw very little herself. She was initially in the kitchen with the two other women. Upon hearing a kefuffle she came into the lounge room to see Guiney “frantically holding the [front] door” with his foot on the ledge of the window, giving him leverage[7]. She could hear people yelling from outside, recognising amongst them, the voice of the accused Mr Nemeth[8]. As it happens, she had known Nemeth since first year high school[9].
[7]    T55 L6-L8.
[8]    T55 L31.
[9]    T73 L19.
A great deal of evidence was elicited from her as to her understanding of the relationship between the accused and Mr Guiney arising out of the charge against Mr Guiney, tried in the District Court sitting at Port Augusta during early September 2007. In fact she sat through the proceedings. It was tolerably clear from the admissible evidence, that Mr Guiney harboured a grudge against Mr Nemeth, amongst other reasons, because of Nemeth’s role in it. To quote her evidence “Mr Guiney was particularly upset with Mr Nemeth”[10] over the outcome of his trial, so that afterwards they continued to “abuse each other”[11]. Following the sentence imposed on Mr Guiney, according to Saunders, there were a number of chance meetings, when words were exchanged on both sides. They clearly had a major falling out to the point that they disliked each other. This issue will be considered further, later in these reasons.
[10] T66 L19-21.
[11] T67 L34.
A neighbour of Guiney’s, Mr Males, also gave evidence for the prosecution. He was disturbed that night by outside noises to the point of going outside and into his front yard to investigate. There he observed a number of men enter Mr Guiney’s yard. He recognised Mr Nemeth walking “out front”[12] towards the house and reckoned “he hit the security camera off its hinges”[13]. Males also referred to another big man without any clothing on his upper body, which he later thought was the co-accused Lionel Carbine, judging from photographs 33 and 34 contained in Exhibit P1. Next, he saw the accused smashing at least one window to the house[14]. Mr Males conceded telling police he was willing to go to Court in order to try and support Mr Guiney[15].
[12] T79 L20.
[13] T8 L36-37.
[14] T90 L33.
[15] T92 L1-L11.
The final civilian witness for the prosecution was another occupant of Mr Guiney’s house that night, Mr Gatti. He gave evidence supporting the general tenor of events as alleged, but in the end that did not, one way or the other, throw much light on whether or not the accused was a participant in these events.
The prosecutor, Mr Morrison called two police officers, Sergeant Taylor and a woman police officer, Constable Nelson. They attended the scene shortly afterwards that evening, made certain observations and undertook certain investigations, including the arrest and interrogation of the accused and Mr Carbine. As their investigation is not really in contest, it is not necessary to go into detail, except to point out that the evidence coupled with various agreed facts, demonstrates conclusively that blood trails left by the bleeding finger of Mr Carbine, led from the front of the house to the car outside, whose windows were smashed that night. They then proceeded to trail for over a hundred metres down Dickens Street in the direction of where Nemeth and Carbine lived, from which direction the group came towards the house in the first place.
The defence case
Mr Nemeth did not give evidence, nor did he adduce any other evidence. Of course, no adverse inference is to be drawn at all from the exercise of that fundamental right. Nor can his failure to give evidence fill any gaps or provide a make-weight in the prosecution case, if there is otherwise insufficient proof: Tumahole Bereng v R[16]. When considering the case against him, it is important to bear in mind there is no forensic or other circumstantial evidence linking him with the crime. Unlike Mr Carbine, there is no evidence of his blood or DNA being found near the front door where a vigorous struggle took place on all accounts, providing a concrete link with the events or the scene. Nor is there any suggestion of any bodily injury about his person, particularly on his arms or legs, which might have been expected if he were the intruder, struggling to push the door open.
[16] [1949] AC 253 at 270.
The defence does however rely on admissions, some of them self-serving, made by Mr Nemeth during the course of a record of interview commencing about 9.50 that evening at the Port Lincoln Police Station, conducted in the presence of Traeger and Nelson. The video of this was tendered (Exhibit P2) and a transcript was used as an aide memoire in order to understand what was said (some of which was not particularly clear): that was marked MFI P3.
During the course of this, the accused did say in relation to the events just after lunchtime that day, that he was at the front of his house having drinks with his friends, when Mr Guiney drove past, yelling out some uncomplimentary and racist remarks (answers 31, 38 and 41). In relation to the central events later on, he confessed to being outside Guiney’s house whilst Carbine was “just going off and all that” (answer 49). Although hearing windows smash, he claimed to have advanced no further than the stobie pole mentioned earlier (answer 55).
He also suggested a motive, or at least a partial motive, why Mr Guiney might harbour a grievance against him (answer 66):
… he is going to get me down there, trying to get, because he knows that I am looking at like, I don’t know how many months or whatever, I am looking at, and he knows, and he knows I know, he is on a good behaviour bond and all that there, from when we went to court in Port Augusta”.
Mr Guiney denied all knowledge of this state of affairs[17]. As there is no other underlying evidence suggestive of the fact that he did or must have known of Nemeth’s suspended sentence, it is not reasonably possible that he did, in this state of the evidence.
[17] T34 L14 – LL29.
He went on to say that after hearing windows broken, he started to walk off, when he heard the back window of the car being smashed as he did so (answer 80). He denied allegations of direct involvement in those events. His counsel Ms Burgess, emphasised other passages suggesting his role in going to the Guiney house was a reluctant one and for the purpose of trying to stop Carbine (answers 45, 46 48, and 54), although they are rather faint in going that far. These various answers are of course available as evidence in the defence case, to be evaluated in the light of the fact that they were not made on oath, were not tested in cross-examination, whether they are supported by any other evidence, and to the extent that they may be self-serving: Mule v The Queen[18].
[18] (2005) 79 ALJR 1573 at [22].
The charge against Mr Guiney
The driver of the vehicle in question, Guiney’s co-accused in that trial, was alleged to be one Shayne Gurr. The Crown case against Mr Guiney was that after Gurr hit a cyclist whilst driving a utility, he then fled the scene, whilst Mr Guiney followed him on a scooter. Both Guiney and Gurr were seen in conversation with each other shortly afterwards. Guiney later returned to the scene and spoke to police, denying any knowledge of the identity of the driver. That was the foundation for the charge of impeding the investigation, as it was the prosecution case that he knew it was Mr Gurr. These facts were to be established through other witnesses in the prosecution case.
Mr Nemeth provided a statement to police in relation to the investigation dated 28 October 2005, which did not implicate Mr Guiney in any offending in relation to the events of 25 October 2005. On the second day of the trial over the luncheon break, the prosecutor proofed Mr Nemeth. Material implicating Mr Guiney in the offence charged was disclosed for the first time, revealing a conversation Nemeth had with Mr Guiney at the scene, when he told Nemeth the person getting out of the Ute looked like Shayne Gurr.
The prosecutor then proceeded to disclose this to defence counsel. On the basis of this fresh information, counsel for Mr Guiney advised the court of a change of instructions. Consequently a plea of guilty was taken in front of the jury on 6 September 2007. It is implicit in this context, that the prosecutor proposed to call Mr Nemeth to give evidence to that effect. The undoubted fallout following these events is pointed to by the defence as giving him a strong motive for falsely implicating Mr Nemeth in the charge now under consideration.
Elements of the Offence
The accused stands charged with aggravated serious criminal trespass in a place of residence. Four essential ingredients fall to be proven, beyond reasonable doubt. The first is that the accused entered or remained in a place of residence, or alternatively was criminally complicit in the commission of that offence. As this is the central issue in contention, that will be considered in detail later.
The second is entering or remaining intentionally as a trespasser, without the consent of the occupier. The third ingredient is that at the time of entry the intention was to commit an offence, namely an assault on Mr Guiney. A fourth ingredient, the element of aggravation, is that the crime was committed in company with one or more other persons and/or knowing another person was lawfully present in the place of residence at the time.
There is no doubt this was a place of residence. Both Guiney and Saunders said they had lived there for some time and this evidence was not disputed. The second ingredient requires proof of entry. The evidence was that the front door, albeit unlocked, was pushed or punched from the outside from the closed position up to halfway open. An arm and a leg at the very least came through the gap at this time, so the question is whether this is a sufficient intrusion, to constitute the requisite entry?
“Place of residence” is defined to include “a building, structure … or part of a building, structure”: s170(3). Trespass is therefore committed when an accused “enters or remains” in or on a residence as defined, but the extent of entry is not specified under the Act. It appears Parliament intended proof of entry to accord with legal concepts developed under the now repealed offences of breaking and entry. At common law entry was completed once any part of the intruder’s body, or an instrument used for the purpose, protrudes even fractionally into the premises: R v Welker[19]. This ingredient is therefore made out on the above evidence, by proof of the insertion of an arm and a leg into the residence. Equally the circumstances were that on no account was Guiney consenting to the intrusion – he was actively resisting it.
[19] [1962] VR 244 at 245. and the authorities cited therein, and see, R v Meal 3 Cox 70, R v Davis (1823) Russ v Ry 499 [168 ER 917).
The next consideration is whether or not there was any intention to commit an assault. It appears that whatever happened shortly after lunchtime that day, the group going to Mr Guiney’s house that evening, seemed intent on confronting him, judged by their words and actions. This is tolerably clear from the evidence of what Mr Guiney and Mr Males overheard, noted above, the threatening manner in which the group approached the front door, knocking the security camera from its peg, the sustained attempt to force the door open and the fact that at least one and possibly two weapons, including the aluminium baseball bat carried by Mr Carbine, were being wielded at relevant times. In point of fact the evidence of the neighbour Mr Males was even more direct in that respect, as he saw three or four men come into the yard in what he described as a “very aggravated way”[20]. He overheard abuse “come outside we will bash you”, just before claiming to see Mr Nemeth hit the security camera off its hinges[21].
[20] T79 L14.
[21] T80 L24-38.

The fourth ingredient is whether or not the offenders, whoever they were, were acting in company. The precise statutory prescription demands proof that the offender “committed the offence in company with 1 or more other persons”: ss5AA(1)(h) of the Act. This expression attracts common law concepts of complicity. That being so the question is, as Bray CJ suggests in R v Cooper[22]:
…construing those words, as I think they should be construed, as meaning the physical participation of more than one person …..committed by one and the other two might have been merely principals in the second degree, or accessories before the fact, e.g. by standing aloof and keeping watch.
This passage was cited in R v Brougham,[23] in which King CJ considered (Mohr and Von Doussa JJ concurring)[24]:
… it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required.
This latter passage was adopted in R v Button & Griffen[25], in R v Jacobs[26], and in State of Western Australia v Dick[27].
[22] (1978) 17 SASR. 472 at 475.
[23] (1986) 43 SASR 187 at 188.
[24] Above at 191.
[25] (2002) 54 NSWLR 455; (2002) 129 A Crim R 342 at [112].
[26] (2004) 151 A Crim R 452 at [152] (NSW).
[27] (2006) 161 A Crim R 271 at [50].
All witnesses speak of there being a number of participants, certainly at least two and possibly three or more, so irrespective of their precise roles, this element is made out, putting aside for the moment the question of the accused’s participation. Irrespective as to whom those words may be attributable, given the expressions used, that stick(s) or handle(s) were wielded and the manner of going about forcing entry, there can be no doubt those in the front yard and near the door, must have been present for the purpose of participating in gaining unlawful entry to the residence for the purpose of assaulting Mr Guiney, or at the very least must have been there with the intent of wilfully assisting or encouraging that end, or of physically participating if required: R v Clarkson[28], R v McCarthy & Ryan[29], R v Cuong Quoc Lam[30], R v Golding & Edwards[31].
[28] [1971] 1 WLR 1402 at 1406.
[29] (1993) 71 A Crim R 395 at 409.
[30] [2008] VSCA 121.
[31] [2008] SASC 68 at [42-43].
The alternative aggravating feature is that provided for under s170(2)(b), that is whether another person was known by the offenders to be present at the place of residence at the time of the trespass, or were reckless about whether anyone was in the place. The latter is not applicable to this factual situation. Not much attention was directed to this consideration by counsel, as it is clear on the evidence there were people inside and that must have been obvious to those outside, whose very object it was to engage them.
This conclusion is confirmed by the fact that the television was on, and a light was over the front porch, so it is beyond question that it would have been known to anyone about the front yard or at the front door, there would be people inside the residence at the time. Accordingly that element is also proved to the requisite standard. That returns the enquiry to the first element, namely whether it has been proved Mr Nemeth was the man trying to gain entry by forcing his way through the front door of the house as alleged, in order to confront Guiney, or alternatively whether he was complicit in a plan.
Was Mr Nemeth involved in the commission of this offence?
Mr Guiney was emphatic that the accused was at the forefront of the action and that he could be seen clearly on the monitor of the security camera, before it was smashed. He deposed to seeing him take three or four steps whilst watching the monitor, that he was carrying a bat of some sort and was wearing either a hood or a beanie[32]. He maintained Nemeth was the one partially forcing open, and managing to place a foot and an arm through the gap of the door. In addition he purported to recognise his voice, although he fell short in his evidence of necessarily ascribing the source of the telling words, such as his name or of demanding him to come outside, to Mr Nemeth[33].
[32] T21 L3-L11.
[33] T23 L12-L17.
During the course of his evidence he said the door “swung open a bit”, that he jumped up and ran towards the door and that he “could see Michael behind the door trying to come in”[34]. When asked why he gave evidence saying Mr Nemeth was trying to get in and what made him think that, he responded “because of all the yelling and that, he was yelling out my name”[35], stating he saw him just for a split second.
[34] T23 L24-L34.
[35] T24 L5-L8.
Objectively viewed, it is difficult to see how he could have recognised Mr Nemeth in this fleeting situation, if only a leg and an arm came through the door. Implicit in the answer just quoted is the fact that he rather assumed, because of the prominent position of Mr Nemeth as seen on the monitor, that he was the intruder at the door trying to force entry. This is confirmed by his later evidence to the effect that the door was opened, but not very far and not for very long, because he was able to push it closed whilst calling for the help of his friend Mr Gatti[36].
[36] T25 L14-L31.
Gatti, who gave no evidence of any prior knowledge of Mr Nemeth or any of the other outside participants for that matter, spoke of looking at the monitor at the same time Mr Guiney must have been. He described the image as “a bit blurry”, the people he did see were “all wearing hoods”[37] and he particularly remembered one wearing a hood “covering their face up”[38]. Although Mr Males said the group comprising Mr Nemeth “went around the corner to the front door so I couldn’t see what was happening…”[39], that is by no means conclusive. In point of fact his description of their approach was somewhat different, to the extent that he said they advanced “side‑by-side”[40], whereas Guiney had them effectively positioned in single file[41].
[37] T97 L22-L34.
[38] T105 L20-L27.
[39] T81 L – L3.
[40] T87 L 29.
[41] T42 L37-38.
Given all this evidence, and given the inherent probability that Mr Guiney most likely jumped to the conclusion that Nemeth was at the front door, together with the fact that Mr Guiney was reluctant to admit there were problems in relations between him and the accused, a relationship which Justine Saunders very fairly conceded was that they were really “enemies”[42], and given the fact that the other witnesses do not throw any light on who precisely it was at the front door, there is necessarily a reasonable doubt that it was Mr Nemeth who was the intruder on this occasion.
[42] T72 L37 – T73 L12.
Added to these factors, remains the compounding consideration that Guiney might have continued to harbour such animosity towards Mr Nemeth arising from the aftermath of his own trial. Consequently he might have considered the events furnished the opportunity to exact revenge, even thought it is difficult to appreciate that he would take the inordinately large risk of making another false report to the police, whilst he remained on a suspended sentence for doing just that.
That conclusion is reinforced by the altercations by way of the verbal exchange earlier that day, having racial connotations, which more than likely upset Mr Carbine and precipitated his prominent role in these later events. It is known that his blood was traced all the way to the front door at the height of the latch and lock, at the precise point the struggle around the door must have occurred, as clearly seen in the photographs P1, numbers 9 through 14, inclusive. Those earlier events might or might not have also affected Mr Nemeth, and they might or might not have given him reason to support Carbine in the later events, but it is not established beyond doubt that this was certainly the position as regards him. His guilt or otherwise stands to be judged from proven participation in the events later that evening, if anything, rather than being judged from the events taking place earlier.
But the disposition of this case does not rest there. There remains for consideration the evidence referred to above, given by Ms Saunders and Mr Males in particular. The former spoke of recognising the voice of Mr Nemeth from her position in the lounge room when Mr Guiney was “frantically holding the door”[43]. In her case as well as that of Mr Guiney, no issue was taken as to their acquaintance with Mr Nemeth, or with their capacity to recognise his voice, such that no questions of the kind raised in such cases as R v Smith[44] and Bulejcik v The Queen[45], relating to the particular pitfalls in voice identification, arise for consideration in this particular instance: see also R v Corke[46].
[43] T55 L6-L31.
[44] (1986) 7 NSWLR 444.
[45] (1996) 185 CLR 375.
[46] (1989) 41 ACrimR 292.
The latter recognised Mr Nemeth wearing a hooded jumper whilst carrying a stick or a handle of some description, initially near the front gate of the house and then walking towards the house “out the front and, yeah, he hit the security camera off its hinges … then they went out of sight because there was the yard and they went around the corner to the front door so I could not see what was happening at the front door”[47]. This was plainly a reference to the portico, which from his position in the neighbouring front yard, served to obstruct his view of what transpired at the front door, as can be appreciated by reference to the photographs Exhibit P1, numbers 1, 2, 3, 4, 8, 9 and 15. The view Mr Males actually had, more than likely corresponds, more or less, with that shown in photograph 15, even though he was probably further to the right than the photographer must have been, when it was taken.
[47] T79 L19 – T81 L3.
It was sought to counteract the evidence of these two witnesses, by suggesting they were so “aligned” with Mr Guiney, and so much in his camp they were to be doubted as reliable or accurate, or even truthful in relation to these aspects of their evidence, placing Mr Nemeth squarely in the group of intruders on the property.
An initial impediment facing this contention is that neither witness purported to be comprehensive or emphatic about Mr Nemeth’s involvement. Ms Saunders only recognised the voice and even then she did not attribute critical words to him. In addition, despite the criticisms of defence counsel, Ms Saunders’ evidence was most forthright in acknowledging the problems between Mr Nemeth and Mr Guiney. When questioned under cross-examination about the antagonisms that were said to have arisen following the court case and the circumstances leading Mr Guiney to plead guilty, she rather frankly conceded that “things worked out for the better” and she was equally frank in accepting, indeed volunteering, that Mr Guiney and Mr Nemeth continued to abuse each other afterwards[48].
[48] T67 L16-L35 and T72 L20-L25.
More than that, when pressed on her particular affiliations in relation to the matter, her evidence was especially convincing[49]:
[49] T72 L26 – T73 L16.
QI know you are thinking that now. What I want to suggest is, as a result of the difficulties that went with the court case, all of the stress, that’s why you are upset with Mr Nemeth.
AYeah, but why didn’t John go smash his house up instead of him coming and smashing our house up? If John was really upset with him I think John would have proceeded to do that instead of the other way around.
QYou are obviously suggesting now that Mr Nemeth was the person responsible for doing all the damage.
ANot all the damage because I knew other people were there because I heard his voice. They were enemies so I’m going –
QBasically you are going on what Mr Guiney told you that it was Mr Nemeth doing most of it that night.
AAnd what I think of course.
QThat’s as a result of your experience with the system and obviously Mr Nemeth’s role in that.
ASay that again.
QThat’s because of what happened during the whole court process and knowing Mr Nemeth’s role in all that.
AWell, I know that he was only just living down the road and I knew that they were enemies and I heard his voice there and I’m going by what I think, not by what John thinks.
QThat’s exactly why you think Mr Nemeth did this because you knew they were enemies and you knew there had been difficulties; isn’t that right.
AYeah, and I heard his voice.
In the result the evidence of Ms Saunders was straightforward, measured, did not embellish or overstate things and her response to the particular allegation was appropriate and wholly believable.
When it comes to Mr Males, it can be accepted that he was a friend of Guiney’s, quite apart from the fact that they were neighbours. Like Ms Saunders, Mr Male’s evidence partially covered the events, but once again he did not pretend to comprehensively implicate Mr Nemeth. He did not claim to see the critical events, because of the configuration of the porch. Had he desired to embellish matters, he might have added much more than he did. He freely conceded the situation between the two men was “pretty tense”[50], attributed the words “John come outside, we are going to bash you”, effectively to Mr Carbine rather than to Mr Nemeth[51] and also volunteered that Carbine was acting “more aggressive, swinging the most[52].
[50] T86 L9-L10.
[51] T88 L17-L33.
[52] T91 L5.
Males denied giving evidence supporting Mr Guiney, but conceded, as mentioned earlier, in a statement given to police on 20 October 2007 that he said “I am willing to attend court over this if I have to because I want to try and keep the peace and help John out”[53]. When taxed on this particular statement, his evidence was[54]:
QWhat I want to suggest is that the reason you suggested Mr Nemeth did things on this particular night is because you were wanting to try and help John out.
ANo, I didn’t think it was necessary for him to mess up the house, that’s what I meant by help him out.
[53] T91 L38 – T92 L3.
[54] T92 L6-L11.
There was some debate during final submissions as to precisely what this evidence meant. On the whole, it appears to be suggesting that he really did not want to get involved on either side (just wanted to keep the peace), but because Mr Nemeth had “messed up” the house to the extent that he had, Mr Males was willing to go to court if that became necessary.
Considering closely all the evidence and scrutinising carefully the evidence of both Ms Saunders and Mr Males, at first individually and then collectively, in combination with all the other evidence, the court nevertheless finds there can be no doubt that Mr Nemeth was one of the willing participants in these events, that he entered the yard and must have been in the close vicinity of the front door when it was breached.
His counsel submitted there was a reasonable possibility, consistent with innocence, that he remained near the light pole outside the yard, as he claimed in the record of interview. This view of the events she argued, was given some impetus by the evidence of Males who described him as initially “walking out the front…near the front gate” with one of the group remaining “hovered” in that vicinity[55]. The obvious problem with this is that Males then continues to have Mr Nemeth under direct observation from a position of 10m away, with the benefit of the front porch light on.
[55] T79 L20 , T80 L11 and T87 L15 – L19.
Another consideration is that both Saunders and Guiney, attribute the voice of Mr Nemeth as one of a number emanating from the group, so that whether he was in the vicinity of the light pole or not, it must have been loud enough for them to hear and recognise from inside the house. The conclusion is inescapable that he was an active participant in the proceedings and lending encouragement by his presence nearby and his vigorous and audible voice.
There is some scant evidence that he was drinking that night, although when interviewed some two and a half hours or so later, there was no visible sign that he was much affected by then. The police did not refer to any signs of intoxication when they first spoke to him, about an hour after these events. Even allowing for his appreciation of events to be clouded by the effects of alcohol, it must have been obvious to him standing near the light pole (assuming that was the case) and even more obvious from inside the yard, that the others were in a belligerent frame of mind, were targeting Nemeth with the threats recited above to come outside, not to mention the fact that a noticeable and audible confrontation was transpiring at the front door, which he must have heard and if not seen.
On that basis he becomes criminally responsible as an aider and abettor at the very least, for the foundation offence committed by one or more of the other participants. It follows that he would be guilty of the offence charged in any event as an accessory.
Conclusion and verdict
For the reasons articulated above, the court is not able to make a finding to the criminal standard that the accused was the intruder at the door of Mr Guiney on the evening in question. It is however in such a position as to his participation in the charged offence as a party to a joint criminal adventure for that purpose. If contrary to that conclusion, and assuming a reasonable possibility that he stood outside the front gate near the light pole referred to in the evidence, the court finds that he aided and abetted the commission of that offence in any event.
The consequence of these conclusions is that the court finds the accused guilty of the offence of aggravated serious criminal trespass in a place of residence, committed on Wednesday 10 October 2007 at Whait Avenue Port Lincoln. A verdict will be entered accordingly.