R v Rawatxay - [2025] SADC 132

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RAWATXAY
Criminal Trial by Judge Alone
[2025] SADC 132
Reasons for the Verdict of his Honour Judge Durrant
19 November 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
The accused was charged with aggravated recklessly causing serious harm. He elected for trial by judge alone. Self-defence was in issue. The prosecution relied on circumstantial evidence to prove each of the elements of the charged offence, including whether it had excluded beyond reasonable doubt the accused had acted in lawful self-defence. The prosecution led evidence about the number of, nature of, and seriousness of the injuries suffered by DB and about how those injuries had been inflicted, and of observations made of the scene. The testimony of the accused as to the voluntariness of the cause of the injuries to the complainant and as to his acting in self- defence rejected. The evidence of the prosecution accepted and the only reasonable inference open on that evidence drawn that the accused had recklessly used a samurai sword to inflict serious harm on the complainant and had not acted for a defensive purpose. Charge proved beyond reasonable doubt.
Verdict: The accused is guilty of aggravated recklessly causing serious harm.
Criminal Law Consolidation Act 1935 (SA) ss 15, 23; Juries Act 1927 (SA) s 7, referred to.
BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v Western Australia [2008] 232 CLR 438; Aiken v The Queen [2014] NSWCCA 213; Ryan v The Queen (1967) 121 CLR 205; R v Moores (2017) 128 SASR 340; R v Musa (No.2) 2023 111 NSWLR 228; Bell v The King [2025] SASCFC 97; The Queen v Sutton (No.2) (1983) 32 SASR 533, considered.

R v RAWATXAY
[2025] SADC 132

Introduction

The complainant (DB), a type 1 diabetic, and the accused Phonexaysack Rawatxay, had been close friends for over 20 years.
That dramatically changed on 2 April 2023.
DB said he suffered a hypoglycaemic attack at the home of the accused and the prosecution allege the accused used a samurai sword to cause DB serious harm.
The accused was charged with aggravated recklessly causing serious harm and elected for a trial by judge alone.[1]
[1] Information filed 17 January 2024 (FDN13); Aggravated Recklessly Causing Serious Harm, Criminal Law Consolidation Act 1935 (SA), s 23(3); Juries Act 1927 (SA), s 7.
The prosecution led evidence at trial as to the number, nature, and seriousness of the injuries suffered by DB, and about how those injuries had been inflicted, and of observations made of the scene.
The prosecution submitted I should accept that evidence, reject the testimony of the accused who said he had acted in self- defence and draw the only reasonable inferences open; the accused had recklessly used a samurai sword to inflict serious harm on DB and had not acted in self- defence.[2]
[2] Criminal Law Consolidation Act 1935 (SA), Part 3, Division 2.
I have found the accused guilty of the charged offence.[3]
[3] Sufficient reasons must be given to properly explain my verdict but I am not obliged to express all matters, ‘which necessarily have to be stated to a Jury, unfamiliar with the basic principles of law’; BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34 [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia [2008] 232 CLR 438; and Aiken v The Queen [2014] NSWCCA 213.
The Elements of Aggravated Recklessly Causing Serious Harm
To prove the offence of aggravated recklessly causing serious harm, the prosecution had to prove seven elements beyond reasonable doubt.[4]
[4] Criminal Law Consolidation Act 1935 (SA) s 23(3).
The first element was the accused had performed an act or acts.
The second element was his act or acts had been voluntary and deliberate.
The third element was DB had suffered serious harm.
The fourth was that act or acts of the accused had caused that serious harm.
The fifth element was the accused had caused that serious harm recklessly.
The sixth element was the accused had acted unlawfully. In respect of the sixth element, self-defence must be excluded by the prosecution.
Self-defence operates where an accused genuinely believes his conduct was necessary and reasonable to defend himself and his conduct was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed existed.
An accused does not have to prove self-defence; the prosecution must exclude it. The prosecution relied on each of the two ways available to do so.
First, the prosecution submitted it had established he had not genuinely believed his conduct had been necessary and reasonable to defend himself.
Second, the prosecution submitted it had established his conduct had not been, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed he faced.
The seventh element was the accused had used an offensive weapon.
The evidence
The prosecution evidence comprised the testimony of: DB; the senior orthopaedic surgeon who treated DB; the credentialled diabetes nurse educator who assisted DB to manage his condition; a friend of the accused who went to the home of the accused to help work on a car; and police officers who attended at the scene.
The prosecution tendered exhibits which included the sword, photographs of DB’s injuries and the scene and facts agreed.[5]
[5] Exhibit P14- Agreed Facts Document.
The defence case comprised a single exhibit and testimony of the accused.[6]
[6] Exhibit D3.
General directions
While it is not necessary to direct myself in the same way a jury would be directed, I have reminded myself of the following general directions and have elsewhere in these reasons detailed some further specific directions.
To decide this case, I must find facts and draw inferences from the evidence led at trial, as well as apply the law to the facts found.
I must bring an open and unbiased mind to bear, view the evidence clinically and dispassionately, and not let emotion enter my decision-making.
The prosecution and accused are entitled to verdicts free of partiality or prejudice, favour or ill-will and according to the evidence.
As in any criminal case, the prosecution always bears the onus of proving the guilt of the accused. An accused does not have to prove anything.
The standard of proof is beyond reasonable doubt.
Where I refer to something which must be or has been proved or established, or that I must be or have been satisfied of something; that thing must be or has been proved, or I must be or have been satisfied, beyond reasonable doubt. I have made my findings beyond reasonable doubt, unless specified otherwise.
The accused is presumed innocent unless and until the evidence I accept satisfies each element of the charge beyond reasonable doubt.
If the evidence fails to satisfy me beyond reasonable doubt of the offence charged, the accused remains presumed innocent.
The burden of proof is always on the prosecution.
The assessment of witnesses involves a consideration of whether the witness is honest. If satisfied the witness is honest, that assessment then must involve consideration of whether the evidence of the witness was reliable and accurate.
In the assessment of the witness's evidence, I am entitled to have regard to my experience of life, my dealings with other people and common sense.
I am not bound to accept all a witness's evidence or to reject all of it. I am entitled to reject some parts and to accept other parts.
I am entitled to consider the manner of a witness when they gave evidence and how the witness stood up when being cross-examined.
I must keep in mind the different backgrounds, age, personal qualities and characteristics of witnesses and the impact on memory of the elapse of time.
The Witnesses
Evidence of DB
At the time he gave evidence, DB was 48 years old. He said he had suffered from type 1 diabetes since he had been about 15 years of age.
As at 2 April 2023, DB said he had been a close friend of the accused for over 20 years and was the best man at his wedding. He said he would often go to the home of the accused at Blakeview and sleep over on the couch in the lounge.
DB said he and the accused would often work on cars and train for boxing.[7] He said that training involved pad work and combination punches.
[7] T15.
While boxing had been important to DB, he said his type 1 diabetes had prevented him from fulfilling his ambition to become a professional. As well, he said his diabetes had affected his daily life. Particularly, he had to manage his condition by the monitoring and stabilising of his blood sugar levels.[8]
[8] T16-T17.
DB explained a sensor had been installed in his right tricep about two months prior to April 2023 to continually report his sugar levels onto the display of a small handheld device. Before that, he said he had to put blood onto a strip and then into a machine, to obtain a reading of his blood sugar level.
His new device, DB elaborated, would beep if his blood sugar recorded above or below a pre-determined level as set by his nurse educator, Ms Vyas. He said he could then put the device close to his sensor and it would give him a reading.
DB said, as at April 2023, his nurse educator Ms Vyas had set a low level of 3.5 or 3.7 and a high level of 13.[9] He said the beeping would stop only if he pressed an onscreen button.[10] He said also his device would sometimes lose its signal.[11]
[9]     T18.
[10]   T20.
[11]   T21.23-27.
DB said he had understood his device retained his blood sugar readings going back for 6 months, and that it constantly read his sugar level.
When his blood sugar went below the low-level setting, DB said he had been instructed to consume glucose and then carbohydrates.[12]
[12] T22.
DB said he had explained to the accused, his wife Crystal and their son, how his new device had worked. He said each of them had understood that and knew from experience what he needed if his blood sugar was too low.
DB said he had experienced hypoglycaemic attacks, due to low blood sugar, before. He said they made him feel weak and delusional and affected his memory and concentration.[13] Such attacks, he said, would last several hours.
[13] T22.
If his blood sugar exceeded 13.5, DB said he would inject a fast-acting insulin shot. He said he normally injected insulin three times per day in any event.[14]
[14] T23-T24.
DB said, as at April 2023, he had been regularly seeing his nurse educator to discuss his readings from the past fortnight.
On Saturday 1 April 2023, DB said he had gone to the accused’s house to help fix a car; a white Subaru.
He said only he and the accused had been home, and he stayed the night, going to bed after his nightly insulin.[15]
[15] T27.
On Sunday 2 April 2023, DB said he had awoken about 9am, having slept on the lounge. He said he scanned his sugar level using his device.
A screenshot from his device showed three readings for that day.[16]
[16] Exhibit P1 – Screenshot Diabetes Monitoring Device Complainant 2 April 2023.
The first was from 12.29am; 13→. DB said he understood that indicated a steady sugar level. He said that reading had been recorded after he had injected his nighttime insulin.[17]
[17] T29.1-13.
The second reading was from 8.06am of 13.6↑. DB said he had understood that 13.6↑ reading meant his sugar level had still been high.
DB said he recalled, consistent with his usual practice, that he had injected fast-acting insulin that morning.
DB said he recalled having toast and coffee with sugar for breakfast.
After breakfast, DB said he and the accused worked on the car in the driveway, for about two hours. He said about mid-morning, he and DB had shared a point of methylamphetamine and he had smoked his share.
DB said he had felt fine until his device had beeped at 12.10pm (P1). DB said that reading- the third shown on the tendered screenshot- of 3.8↓, had been recorded when he had been underneath the car.
DB said he had understood that reading 3.8↓ to mean his sugar level had been coming down. DB said he had gotten out from under the car and told the accused he needed to have lunch. He said the accused had understood that need from experience, and they went inside the house so he could have something to eat.
DB said he remembered being in the lounge room and next, being in the bedroom of the accused and his wife. DB said he had never been there before.
He said he recalled in the bedroom that the son of the accused had given him a drink and told him to have it. He could not say whether he had drunk it.
While he had a vague recollection of being in an ambulance, DB said his next clear memory was of being at the Royal Adelaide Hospital and of being injured. He said he had cuts to his left hand, throat, left upper back and head.
All those cuts, he said, other than the one to his back, had required stitches. His injury to his left-hand, he reported, had required lengthy surgery.
In cross-examination, DB said his handheld monitoring device had been about the size of a small mobile phone. He said that device, when it detected a low reading, would continue to beep until he rectified that situation.
He accepted, if he had low blood sugar, the accused and his wife and his son, would have known what to do to help.
If his blood sugar was low, DB said, he had trouble going for a run, lifting anything and could be mistaken for being drunk. DB said he had never been violent during a hypoglycaemic attack, but he had passed out.
DB accepted he had been a good boxer; winning 6 or 7 state titles and national titles. He said he had not fought for about 15 years, due to his diabetes.
As for his boxing training, DB said sometimes he did that at his home as well. He agreed he would instruct the accused and his son about boxing techniques.
As for his relationship with the accused, DB said they had disagreements. He said he had never been violent towards him, but he had seen the accused be violent.
DB accepted he had told police in a statement he and the accused had never had any disagreements or that the accused had been violent.
It was put to DB he told police he had not taken drugs or alcohol on 1 April 2023 and 2 April 2023. DB said his statement only related to 1 April 2023.
It was put to DB he had not mentioned to police that the accused had taken methylamphetamine at all. DB said he had not been asked about that by police.
DB accepted his monitoring device created a graph of his sugar levels going back for a couple of months. DB was asked why he had only taken the screenshot P1 rather than download a graph. He replied he had not thought to do that.
He said his reader had been left at the accused’s house when he had been taken to hospital.
DB confirmed he recalled sitting down in the lounge room at the rear and opposite end of the house from the master bedroom.[18]
[18] Exhibit D3.
DB said when hypoglycaemic he could still move around but would be too weak to have a fight.[19] He confirmed he had passed out on the couch that day.
[19] T135.17-26.
DB denied having told the accused he had been accused of assaulting his partner R, his brother, another partner A or that he had knocked someone out at a petrol station and had a fight with an Aboriginal man in an olive grove.
DB accepted the accused had knives and swords at his home.
Evidence of Viju Vyas
Ms Vyas is a certified diabetes nurse educator.
She said DB had been her patient in April 2023 and she had been seeing him every two weeks. She confirmed he had been a type 1 diabetic from the age of 15.
Ms Vyas said the device used by DB as at April 2023, retained readings for two weeks. Ms Vyas said her role had been to provide education to DB to manage his diabetes. She confirmed DB had suffered hypoglycaemic episodes.
Ms Vyas said the receiver used by DB would not work if uncharged and the tricep device would lose its signal if more than 6m from the receiver.
Otherwise, she said if DB’s blood sugar went below its set low level the device would continue to beep until the alarm had been switched off.
Ms Vyas said the settings maintained for DB at April 2023, were 3.9 (low) and 13.3 (high). She said a low sugar level is considered less than 4.0, as determined by Diabetics Australia. She said a blood sugar level above 10 is dangerous. She said a blood sugar level below 4.0 is a hypoglycaemic attack.[20]
[20] T180.10-11.
To retain a blood sugar level reading on the device, she said it had to be at that level for 15 minutes, as the device recorded in 15-minute blocks of time.
Ms Vyas explained a sugar level reading with an upward arrow ↑ indicated a very rapidly rising blood sugar level and a reading with a downward arrow↓ indicated that the sugar level was dropping very quickly.
Through Ms Vyas, a report from DB’s device had earlier been tendered.[21] She confirmed only a monthly summary had been able to be extracted from his device. She said daily summaries for 1 and 2 April 2023, had not been available.
[21] Exhibit P5.
In respect of the symptoms DB might have been suffering at the time of the recorded 3.8↓ reading, Ms Vyas said ‘common symptoms [would be] dizziness, headaches, disorientation, hunger, lack of concentration and feeling nauseous’.[22] Ms Vyas said her goal was to fix the daily lows and daily spikes DB had.
[22] T179.3-6.
Ms Vyas was cross-examined about how the average blood sugar level per day recorded in the report Exhibit P5 had been calculated. She said the average was not a measure she used, as the daily report gave the most useful information.
She explained hypoglycaemia was completely dependent on the sugar level at the time and different to the average sugar level recorded in the report.
Ms Vyas agreed the report showed DB had on Sunday 2 April 2023, scanned his device on four occasions. She explained the screenshot Exhibit P1 showed something different to the result of those manual scans.
Ms Vyas explained her role had been to address spikes and low sugar levels, because of the risk such spikes caused to cardiovascular health.
Ms Vyas confirmed diabetes affected the brain and cognition. She confirmed during a low sugar event, a diabetic would be lethargic and very low in energy.
Evidence of Professor White
Professor White is an expert in pharmacology; the study of the effects of drugs on the body. His expert report was tendered and his expertise accepted.[23]
[23] Exhibit P6.
His report opined that while it was not known when the accused had used methylamphetamine prior to this alleged offending, if he had used methylamphetamine intravenously 30 minutes or more prior, his methylamphetamine blood concentration would have been falling for all the period between the incident and blood collection.
The accused’s blood had been collected at 12.30am on 3 April 2023.
If his methylamphetamine blood concentration had fallen over that period, using an average half-life of methylamphetamine of 10 hours, Professor White determined the likely concentration of the drug in his blood at 5.50pm on 2 April 2023, would have been 0.52mg/l.
Professor White said that concentration was in the range found in experienced users and was sufficient to produce significant effects; ‘toward the upper end of the range commonly found in people using methylamphetamine’.
The typical duration of such effects, he opined, was ‘4-6 hours with rebound effects following that time’. He further opined methamphetamine use, ‘has frequently been linked to aggressive and violent behaviour’.

Professor White confirmed the effects of methylamphetamine usually lasted about 4 to 6 hours, depending on the amount consumed and the way it was administered. As methylamphetamine is metabolised or chemically broken down in the body, he said, its concentration declined over time.
He explained the 10-hour half-life of methylamphetamine was the measure of how rapidly the concentration fell after its peak, to 50% concentration.
The effects of methamphetamine on users opined by Professor White included: feelings of energy; elevation in mood; enhanced feelings of self-confidence; increase in heart rate and blood pressure; appetite suppression; impulsive risky or reckless behaviour; self-confidence; paranoia; hallucinations; delusions; and aggression.
Professor White said that it did not appear a tolerance to methylamphetamine developed over time, as the effects seemed more common in experienced users.
Professor White opined occasional users might reach a concentration lower than 0.1mg, while heavier users would reach a concentration higher than 0.5mg.
The median values for recreational usage, Professor White said, tended to be somewhere around 0.23mg.
Professor White back calculated a sample of DB taken at 7.38pm on 2 April 2023 of 0.28mg, and that his methylamphetamine concentration at 5.50pm of 0.32mg.
Evidence of Dr Robertson
Dr Robertson is a senior orthopaedic registrar. His expertise was accepted.
On 3 April 2023, Dr Robertson said he had examined DB in the holding bay of the Royal Adelaide Hospital emergency area and documented his observations.
He observed DB had one large cut to his scalp, a large cut to the middle of his collarbone, a laceration to his neck, and lacerations to his left forearm and hand.
The large cut to DB’s left forearm, he said, was 20cm by 10cm and took up a large portion of the front side.
A separate large cut, he observed, had been made to the outside or the pinkie side of the palm of DB’s left hand. That cut was significant, he said, and took up most of the palm and wrapped around front and back in the middle of the hand.
Dr Robertson said the scalp injury to DB was an 8cm linear scalp laceration just anterior to the vertex (near the top of the head) through the periosteum of the skull (the thin outer layer bone) and just into the bone itself.
The collarbone injury to DB, he observed, was a 5cm oblique wound over the right middle third of the left clavicle which had penetrated through the most superficial layer of the neck; the platysma.
The laceration to DB’s neck, said Dr Robertson, was a 15cm curvilinear or slightly curved cut to the posterolateral or back/side part penetrating through the platysma and partially into the posterior border of the sternocleidomastoid (the second layer of neck muscle).
Dr Robertson said he had closed DB’s scalp wound in layers with a braided suture and had used a clear dissolvable suture for the last layer.
As for the right clavicle laceration, Dr Robertson said he had closed that cut by using a braided small suture sewn with 3-0 vicryl. He said he had repaired the skin with a Monocryl Monofilament soluble suture (a small clear dissolving stitch).
Dr Robertson said he similarly closed DB’s neck wound muscle with a 3-0 vicryl and the skin with a non-dissolvable monofilament in separate sutures.
Dr Robertson said the neck wound had been large and deep enough to penetrate through the first layer of neck muscle and partially to the deeper layer.
Dr Robertson said under those deeper layers in the neck, superficial to the larger neck muscles, was located the external jugular. He said that deep into that muscle was located DB’s internal carotid artery and internal jugular vein.
As for the injuries to the left forearm and hand of DB, Dr Robertson confirmed he had performed a lengthy operation.
He said he had first performed bone repairs to the hand.
He had fixed the fifth metacarpal with two screws. He had fixed a proximal phalanx with a wire and screw. He said the fourth proximal phalanx had a small fleck of bone and he had stitched that down to the capsule at the joint.
Following that, Dr Robertson said he had repaired the tendons of DB’s left hand, sequentially, from his thumb to pinkie.
The first digit which required repair was the thumb; being the cut to DB’s left hand which had severed about a third of the width of the thumb tendon.
As for DB’s second digit, Dr Robertson said the superficial tendon had been 100% cut through and the deep tendon had been 50% cut through.
As for DB’s third digit he said the superficial tendon had been 50% cut through and the deep tendon had been wholly (100%) cut through.
Dr Robertson said DB’s fourth digit – as to both its superficial tendon and its deep tendon – had also been cut through 100%.
Dr Robertson said as to DB’s fifth digit – the pinkie –both the superficial tendon and the deep tendon had also been cut through 100%.
Dr Robertson said he had observed two lines below the cut of those tendons which were the result of the cut which had wrapped around the side of DB’s left hand. That cut, he said, had severed 100% of the extensor tendon on the back of DB’s hand.
Dr Robertson said he had repaired each of those tendons by a core stitch to bring the edges of the cut together. After that, he said he had used a finer stitch to smooth the rough ends of each of those tendons.
The surgery to complete those repairs had taken 7 or 8 hours, including the time needed to insert the metal implants into DB’s left hand.
Dr Robertson described the injury to the forearm of DB as a more superficial laceration. He said that a large flap of skin, still attached close to the elbow, had been cut through, as well as 90% of the muscle on the front side of the forearm. To repair the forearm, he brought the muscle edges together, as well as the skin.
Dr Robertson said one of the most significant parts of the surgery was his repair of the median or ulna nerve of DB on the pinkie side of the forearm. The ulna nerve gives both motor movement and sensation to the hand.
Dr Robertson said that nerve had been cut completely, to the extent of sensation only, at the point just after the nerve splits into two branches. He said DB could therefore not feel his fourth and fifth digit – his pinkie and ring fingers.
He said the main blood supply to the hand had also been cut through.
In cross-examination, Dr Robertson confirmed the blood sugar reading of DB recorded by the ambulance officers at the scene had been 4.4.[24] He agreed those records did not suggest DB had been given glucagon, glucose or glucose IV.
Evidence of Detective Brevet Sergeant Brook
[24] By reference to Exhibit P7.
DBS Brook attended the tasking to the accused house that night. He observed three people standing in the driveway; the accused, his wife and Mr Matthew Eerden. His impression was: the accused was quite agitated; Mr Eerden was very excitable and hyped-up; and the wife of the accused was panicked.
DBS Brook said he had a conversation with the accused. He asked him whether the injuries to DB had been self-inflicted. He said the accused had said, in a defensive manner, ‘more like self-defence’. DBS Brook said he had observed blood stains on the t-shirt and face of the accused.
When he approached the front door, DBS Brook said he observed DB in the entrance in a slumped sitting position. He saw lots of blood and injuries to his wrist and hand. He described DB as panicked and scared with multiple cut injuries to the top of his head. As well, he observed DB had been wearing jewellery and had a cut injury which had exposed the muscles around his neck.
In cross-examination, DBS Brook said he had not made any notes of his attendance that day. He confirmed he had first mentioned what the accused had said about self-defence in his second statement taken on 12 May 2025. He confirmed that interaction had not been in his first statement taken 21 April 2023.[25]
Evidence of Senior Constable Freeman
[25] The statement DBS Brook attributes to the accused ‘more like self-defence’ is equivocal and I have given it no weight in my overall assessment.
SC Madeline Freeman also attended at about 5.50pm. She said the two men and woman standing outside had appeared calm. She recalled a small amount of blood had been on the accused.
She reported the accused had said to her DB had come at him and he picked up one of the multiple samurai swords he had, in self-defence. She said the accused had pointed out the sword he had used under some bushes in the front garden.
In cross-examination SC Freeman said children were present, but she was unable to recall if they had been there when she had arrived.
Evidence of Constable Pearce
Constable Pearce attended and removed items from the hallway to assist the ambulance officers on scene. He had also recorded a video sweep of the house.[26]
Evidence of Detective Brevet Sergeant Delaney
[26] Exhibit P15.
DBS Delaney was the investigating officer. Through her, the sword and photographs of the clothes worn by the accused upon arrest were tendered.[27]
[27] Exhibit P8 and P9, P11, P12.
DBS Delaney was cross-examined about her statement taking practices in taking statements from DB on 13 April 2023, 19 December 2023 and 8 May 2025. She confirmed he had been given an opportunity each time to read his statement and had not pointed out any errors.
Agreed Facts
Finally, in the prosecution case, facts were agreed as follows:
Toxicology
1.   A blood sample was collected from Phonexaysack Rawatxay at about 12.30am on 3^rd April 2023. Subsequent analysis of that sample showed the presence of the following:
a.methylamphetamine at a concentration of 0.33mg/L (milligrams per litre of blood);
b.amphetamine at a concentration of approximately 0.04mg/L;
c.sildenafil at a concentration of 0.068mg/L.
2.   A urine sample collected at about the same time from Phonexaysack Rawatxay which showed the presence of methylamphetamine, amphetamine, sildenafil and carboxyl THK (11-nor-9-carboxy-∆9-tetrahydrokannabinol).
3.   A blood sample was collected from DB at 7.38pm on 2^nd April 2023. Subsequent analysis of that sample showed the presence of the following:
a.methylamphetamine at a concentration of 0.28mg/L (milligrams per litre of blood);
b.amphetamine at a concentration of approximately 0.06mg/L;
c.fentanyl at a concentration of 1.7mg/L;
d.11-nor-9-carboxy-∆9-tetrahydrokannabinol.
4.   DB was prescribed Fentanyl by emergency services who treated him at the scene.
DNA
5.   A sword was seized by the police outside 2 Northridge Gardens, Blakeview on 2^nd April 2023 (Exhibit PE0059).
6.   Swabs were taken from both the sword handle and the sword blade, both of which were later submitted to the Forensic Science Centre, South Australia for DN analysis.
7.   That analysis was undertaken by a DNA expert, Olivia Handt. The results of the analysis on the handle of the sword return a mixed DNA profile with two contributors to that DNA profile.
a.There was extremely strong support for Mr Rawatxay being a contributor to that DNA profile.
b.There was also very strong support for the complainant, DB being a contributor to that DNA profile.
8.   In relation to the swab on the sword blade, there was a single source DNA profile with one contributor;
a.There was extremely strong support for DB being a contributor to that DNA profile.
9.   A jacket worn by Phonexaysack Rawatxay on 2^nd April 2023 was seized (Exhibit PE0004). The jacket had blood staining. A cutting was submitted to the Forensic Science Centre, South Australia for DNA analysis. The results indicate there was a single source DNA profile with one contributor;
a.There was extremely strong support for DB being a contributor to that DNA profile.
10.   A swab was taken from the exterior side of the bedroom door at 2 Northbridge Gardens, Blakeview. The swab gave a positive result to a presumptive test for blood at FSSA. The results indicate there was a single source DNA profile with one contributor;
a.There was extremely strong support for Mr Briggs being a contributor to that DNA profile.
Crime Scene
11.   All red-brown stains located in the interior or exterior of 2 Northridge Gardens, Blakeview between 2^nd and 3^rd April 2023, which had the Appearance, Behaviour and Context consistent with blood, tested positive to a presumptive test for blood. The presumptive test for blood utilised was the Hemastix.
12.   At approximately 9.15pm on 2^nd April 2023, Crime Scene Investigator, Steven Gresch attended 2 Northridge Gardens, Blakeview and took a folio of photographs marked 1875322, of the exterior of the property.
13.   At approximately 4.45pm on 3^rd April 2023, Crime Scene Investigator, Craig Robertson attended 2 Northridge Gardens, Blakeview and took a folio of photographs marked 1885639, of the interior of the property.
000 Call
14.   Crystal Rawatxay called 000 on 2^nd April 2023 at 5.54pm.
Clothing
15. A singlet (PE00033), ADIDAS shorts (PE00038), Under Armour Top (PE00054), Under Armour Hoodie (PE00055) were seized from 2 Northridge Gardens, Blakeview. They belonged to DB and he was wearing these on 2^nd April 2023. They were not sent for analysis.
Evidence of the Accused
While the accused gave evidence in this case, he did not have to do so. He had a right to silence and did not have to say, do or prove anything.
The accused said that for 20 years prior to the incident he and DB had been great or best friends. While DB had been his best man, he said they were no longer friends.
The accused said he had learnt about DB’s diabetes early on in their friendship. He said he had seen DB having a hypoglycaemic attack and had initially been confused by it. He said they had then openly discussed his condition and he understood from then what his symptoms were and how he could help.
The accused described DB as irresponsible with his diabetes, in the sense he did not look after himself. He said he had seen DB with low blood sugar levels ‘countless times’ in 20 years. High blood sugar, he said, was harder to recognise.
Low blood sugar, the accused said, affected the cognition and behaviour of DB and he often appeared to have not remembered what had happened.
The accused said when DB had a hypoglycaemic attack, coffee with a lot of sugar would help. If too far gone, he would have to coerce DB to drink the coffee. He said the worst attack he knew of was when DB had choked on his tongue.
The accused said he had been aware of the new beeping device.
As for their boxing training, the accused said he had known DB was interested in boxing from the start, but diabetes had stopped him getting in the ring. He said DB had trained with him and with his son and other people.
The accused said he was 160cm tall and weighed about 75kg to 85kg.
The accused said DB had told him of several occasions when DB had said he had been accused, or it had been alleged, he had assaulted someone. He said DB had told him that had happened in respect of his ex-partner, another partner, his brother, an Aboriginal man in an olive grove and a man at a service station.
The accused said DB would sometimes antagonise and make people feel uncomfortable by repeating what the person had said. He considered DB would do that to either amuse himself or provoke a fight.
The accused said he had three children, and an adult daughter. He said his adult daughter, as of April 2023, did not live with him and his wife Crystal. He said his other daughter had still been at home but was away that weekend.
The accused said he collected knives and samurai swords. He said at the time he had about 15 knives and swords in the house and they would often be moved; some were in his bedroom in a box on the side of his bed.
The accused said he had intended to display his knives and swords at his home but had not yet got around to that, as at April 2023.
The accused said on 1 April 2023, DB had come around to his home and had stayed there until he left in an ambulance the following day. The accused said DB had come over before lunch, to work on a car and for them to enjoy each other’s company. He said they had ‘indulged’ in some methamphetamine.
At that time, the accused said the other members of the household had gone for the weekend. He said he had expected his wife and his two children, who went with her, to return some time Sunday night or afternoon.
The accused said he had been addicted to methamphetamine and a user for 20 years. He said he would inject one or two points, two or three times a week. He said he had supplied methylamphetamine to consume on 1 April 2023.
The accused said he and DB each had a point and he then had one point left.
He said DB had smoked his point at the dining room table and after about 45 minutes to an hour later, he had gone into his bedroom and injected a point.
The accused said he put the remainder point in the top drawer of his bedside cabinet on the window side of his bed. He said there was space to walk either side of the bed.
After that, the accused said he and DB had spent the day tidying around the house. He could not recall DB experiencing any difficulty with his diabetes.
The accused could not recall when they had gone to bed. He said he had slept in his bed and DB had slept on the couch in the lounge.[28]
[28] Exhibit P13 at [18], (Image 35).
On Sunday morning, the accused said he and DB had each worked to tidy up the house; ‘whatever looks messy’. He said he had heard DB outside cleaning up the driveway with a pressure cleaner, at about 6am or 7am. He said they had not spoken much that morning, as DB had been outside and he had been inside.
When DB came back inside, the accused said DB had just floated around, while he had been trying to tidy up. His definition of cleaning, he said, given there had been a lot lying around in the house, was to tidy to be able to move around.
The accused said DB had not raised with him any issue with his blood sugar. He said DB stopped communicating with him when inside, but that was not unusual, as it had happened in the past.
The accused said he had spoken to his wife, who had said she would be coming home that afternoon. He said DB had been on the couch at that time.
He said, upon learning that news, he had a ‘lightning fast’ shower and when he had looked at the couch thereafter, DB was not there.
The accused said he went to his bedroom and was taken by surprise as DB was on the bed. He said DB had never been in there before, without his consent.[29]
[29] The accused said DB had been in his bedroom at another house with his permission.
He asked DB, ‘hey bro, what are you doing?’ and got no response. He said DB just laid face down with his arms in front of his head, using them like a pillow.
The accused said, ‘come on [DB] there’s no way you could be asleep in the time it took me to have that shower’. He tried to get a response for quite a while; ‘look [DB] as I said, Crystal is going to be home soon, she’s going to need the bed to lay the baby down’.
The accused said he observed no signs DB had an issue with his diabetes that day or that DB showed any outward sign of being affected by methylamphetamine.
He said he had not felt the effects of the methamphetamine, other than that he had felt a little more alert.
The accused said he had spent 20-25 minutes trying to get a response from DB up until he had heard his wife outside the front door. He said he was ‘pretty annoyed’ with DB at that point.
He remembered, as he went to greet his wife, he had said, ‘I don’t know what your deal is, but, as I said, Crystal is home now’.
The accused said for that whole time, DB had not responded and had just laid on the bed and had not said a word.
He insisted in his evidence DB had not been having a hypoglycaemic attack as his previous experiences of such attacks included that DB had been sweating, had pale skin and had been slurring.
The accused said he greeted Crystal who asked why DB was on their bed. He said she asked, ‘is he having a hypo’.

The accused said he was annoyed and said to Crystal ‘you make him a coffee if you want to be sure or get him a drink’.
At that point, the accused said he tried to gather himself and made his way to the couch. He said Crystal told their son to make a coffee and he sat on the couch, ‘trying to work through my head’.
He said he next heard DB and Crystal speaking from the bedroom, but not what they said. He said he got up.
In the bedroom he saw his son on his side of the bed near the window and Crystal on her side and DB propped up in bed with a drink in his hand.
The accused said he had seized that moment, to go in and get DB off the bed. He said he told DB ‘you don’t make it easy for me some days’.
He said DB looked up at him and smiled and they had got into a sort of hug, which had turned into a wrestle and then into play fighting on the bed.
He said the bed had been about 60cm from the ground to the top of the bed base. He said a samurai sword about 1m long had been leaning against the base of the corner of the bed. He said a cot had been at the end of the bed, which had been used only for storage, as the baby had slept in the bed.
After a minute of play fighting, the accused said he told DB ‘fun-time’ was over and they were going to put the baby down on the bed.
The accused said DB dropped onto the bed flat as he had laid before. He said he had shaken DB two or three times and asked him to get off the bed.
By that time, the accused said he had gone to the foot of the bed and said, ‘[DB] get off the bed man the baby needs to sleep’.
The accused described DB as propping himself up in the bed and as looking at him with ‘antagonising behaviour’. He said DB had spoken at him, in gibberish two or three times.
The accused said he had been thrown by that and had been pretty irate.
He said he told DB ‘I’m not sure where this is coming from but you’re pushing the friendship’.
The accused said DB turned around in response and said, ‘You’re not my fucking blood you can’t tell me what to do’. The accused said he had been cut deeply by that, as they had never spoken to each other that way before.
The accused said he had been ‘quite annoyed and irate’ and had brought up all the bad things which DB had done during their friendship.
The accused said he had, at that point, needed to get away from the situation and walked out of the bedroom and Crystal had followed him outside.
Outside, the accused said he noticed Matthew Eerden, whom he said he knew already was coming. He said he told Eerden ‘I need to go for a drive’.
The accused said when he did leave the bedroom he had earlier said to DB ‘Look, I don’t know where this is coming from, but you’ve crossed the line. I want you gone by the time I get back, I’m going for a drive’.
The accused said he told Crystal ‘okay I’m getting out of here I need some time away from this situation. You wait here, wait for [DB] to leave to make sure he’s gone’.
The accused said Crystal had not wanted to stay and he and Crystal, Matthew, and his children got in the car in the driveway and went for a drive. He said they had returned to the house about 10-15 minutes later.
The accused said he got out the car and told the others ‘just wait a second I’ll just go and check and make sure he’s gone’.
The accused said he had recalled earlier telling DB ‘20 years of friendship you’ve thrown away’.
The accused said DB was propped up on his side of the bed, his legs crossed out in front and with his chin looking downwards and that he told DB, ‘what the fuck are you still doing here’?
The accused said DB swung his legs to the side of the bed and stared at him with his head aggressively tilted forward in his direction.
The accused said DB had used that gesture before when DB had been arguing with someone before a fight. He said DB had never reacted like that to him before.
The accused said he could not say if Crystal had been in the room.
The accused said DB used his right hand to point at him, tilting his head slightly forward and looking at him.
The accused said the distance between the edge of the door to the master bedroom and the cot was about 1.5m.
He said several storage items were on the floor and around the bedroom.
The accused said he felt uneasy and that DB was going to come at him soon and there was no way he was going to make it to the door as DB was so fast.
He said he had told DB ‘stop, stay back don’t even think about it’.
The accused said he pointed at DB and said, ‘don’t even think about it, stay there’ and then grabbed the sword, as he thought that would be enough to make DB think twice about coming at him.
He said he held the sword toward DB, ‘don’t even fucking think about it’, in his right-hand arm straight and he had his left arm pointing at DB.
The accused said the demeanour of DB did not change but he had looked over the accused’s shoulder.
The accused said he had then thrown the sword down in ‘one hard, bang stop’ onto the bed such that it had embedded itself into the bed end.[30]
[30] Exhibit P13, [21]-[22] and [24]-[26].
The accused demonstrated that in the witness box. He held an imaginary sword in two hands in front of his body arms straight out and the imaginary blade pointed to the ceiling of the courtroom.
The accused swung the imaginary sword up with two hands and in a circular motion over the top of his head and then enacted swiftly a swinging motion of the imaginary sword downwards in front of his face with straightened arms onto an imaginary bed frame in front of him. It was a powerful and quick movement.
The accused said as he swung the sword standing just at the bottom side of his wife’s side just near the cot, DB had been sitting on the other side of the bed.
He said, when the sword had stuck in the end of the bed, DB had looked up and had said, ‘you’re fucked’ and ‘had been pointing at him with a straight arm’.
The accused accepted in cross-examination, at that point in time, there had been nothing preventing him from getting through the door behind.
The accused explained the handle of the sword had been leaning on his wife’s side of the bed closest to the door opposite to where DB had been.
The accused said he had grabbed the sword in his right hand and had flicked his wrists into an upright position and had moved half a step down the bed.
The accused said after he had swung the sword down into the bed end, he had yanked the sword out. He said he had then brought it up again in front of himself, holding it by the handle in his two hands, blade pointed up as he had before.
The accused said DB after saying what he did, then jumped onto the middle of the bed, and in one bounce, was on his wife’s side of the bed.
The accused said DB was then about 2m from him on the same side of the bed within arm’s reach of each other.
The accused said he then thought his wife had followed him into the room.
The accused said he had known DB intimately and had known to watch out for DB’s favourite combination; a left jab and a left hook.
The accused said he had tried to get the sword out of the bed quick enough to put it up in front of himself. He said as DB was ‘quite taller than’ him, he had wanted to show him he had a sword in his hand.
He said DB threw a shoulder height left hook from about 1 to 1.5 metres. He demonstrated that as thrown from DB’s shoulder with him holding the sword in two hands in front. He said he felt the sword go away from his front to his left.
The accused demonstrated the movement of his wrist, hands and sword at that point of contact. He held out two clasped hands at arm’s length and twisted his wrists left and angled, to show the tip had tilted at about 45 degrees.
The accused said he assumed DB had ‘hit the sword, slapped the sword away or punched the sword away’.[31] His demonstration was of the sword moving at its tip at a 45-degree angle toward his left shoulder.
[31] T369.21-24.
The accused said DB had used a clenched fist.[32]
[32] T476.31-38.
The accused said he thought the shoulder high left hook had connected with the sword, because his hands had been flung away towards his left shoulder.
The accused demonstrated how he had brought the sword back to a position straight out in front again, with its point up as he anticipated DB would throw a further left-hand punch.
The accused demonstrated the straight left punch DB threw. He said the sword went diagonal again and he then brought it back up again to his right shoulder.
The accused described and demonstrated how he had then backed away toward the door of the bedroom behind him, to keep a distance between the two of them. The accused said he slammed back into the frame of the bedroom door.
The accused said he got the sword back in front of himself and hit the doorframe hard and ‘bounced forward’ and that he and DB ‘collided’.
He said he had his eyes closed and thought ‘I am still standing’.
The accused said he opened his eyes and pushed DB away holding the sword in his right hand (demonstrated) with two flat palms pushing out in front from about his shoulder height.[33]
[33] T372.
The prosecutor asked for a description of that to be recorded on the transcript.
Hearing that request, the accused gave a different version, he said he had the handle gripped in his right hand and had pushed DB holding the sword clenched in his right hand and with an open palm with his left hand. He demonstrated his reviewed actions in pushing DB away; clenched right fist, open left palm.
The accused said he then turned around and ran right into his wife and said, ‘get out, get out’. He said they had then made their way outside.
The accused said the sword hit his forehead when DB and he collided, before he had pushed away with the blade in front in an upright position; point to the top.
The accused said it had all happened very fast and was a bit of a blur. He remembered thinking this is really happening, and to watch out for DB’s left hand.
The accused said as he had turned around and exited the room, he went to his left and the sword in his right hand tilted backwards over his shoulder as he exited the door.
In respect of his intention when he had picked up the sword, the accused said he had done that to make DB think twice about moving on him. The accused said the sword had been a deterrent to allow him to get out of the room.
The accused said any suggestion he had meant to harm DB was ‘absurd’.
The accused said he thought DB had gone into his bedroom to look for the left-over point of methylamphetamine from the day before.
In cross-examination, the accused said he had 15 or more knives and 15 or more swords at home, as at April 2023. He said all his swords had been sheathed. He believed the sword he had used had a sheath; black and made of wood.
He said the sword he used had been leaning on the portable cot, handle up. He said the cot was used for storage as his son slept in the bed. He said his son had been crawling at that time and had started to walk. He confirmed there had been knives in the bedroom, in a box under the bed.
The accused confirmed at the time he banged into the door DB had run into him via his upper torso. He said he had still been holding the sword upright in his two hands and had pushed DB in the chest.
The accused confirmed he had picked up the sword to give himself enough time to get out of the bedroom. He said if he had not picked up the sword. he considered DB would have caught him in an instant.
The accused said he was not sure whether the hand, forearm or knuckles of DB had connected with the sword.
The accused accepted the lacerations to the neck and clavicle of DB were ‘done by the sword’.[34] He said they had been caused by his actions in self-defence.
[34] T491.
The accused said his only option had been to defend himself with the sword.
Prosecution Address
The prosecution relied on four strands of circumstantial evidence: (1) the nature of the injuries sustained by DB; (2) the number of injuries sustained by DB; (3) the seriousness of the injuries sustained by DB; and (4) the way the injuries had been inflicted against DB.
Ms Linale for the prosecution identified those injuries as the lacerations to the neck, back, the top of head, clavicle, left forearm and left hand, of DB.
Ms Linale said there was no dispute the injuries had been caused by the sword.
As to the voluntariness and recklessness of the acts of the accused, the prosecution said the accused was neither a credible nor reliable witness, accepting that DB had no recollection of how those injuries had occurred.
Going to credit, Ms Linale said the evidence the accused had checked the point of methylamphetamine in his drawer, had not been recalled chronologically.
As to the plausibility of the accused version, Ms Linale questioned whether he had really been that fearful of a stare from a man he called a brother who had never been previously aggressive towards him.
The prosecution suggested it was not believable a sword had been leaning near the bed, when children had been living in the house.
Ms Linale submitted the accused had not formed a genuine belief, when he had picked up the sword, that was reasonable and necessary to defend himself.
Ms Linale said the sword had been swung down onto the bed by the accused with such force, the accused had to yank it out. She asked if that was a warning shot to DB and necessary and reasonable in the circumstances.
The prosecution asked me to consider whether swinging the sword, in such a manner in such a cluttered space, had been reckless.
Ms Linale said the evidence of the accused was he was not sure where DB had connected the sword, just that he must have, because it had moved in his hands.
The prosecution asked me to consider why, after that, a man who said he had been in fear of death, would close his eyes as he held the sword in front.
Ms Linale suggested the accused had changed his story. She said he had demonstrated pushing DB away with two open palms and had then changed his account that his right hand had gripped the sword and only his left palm was open.
Ms Linale submitted the injuries to DB could not have occurred, as the accused had described; his evidence was of one connection with DB’s arm or hand, which he had not been sure about.
The prosecution submitted the injuries to DB’s scalp, neck, clavicle and back lateral could not have possibly occurred as the accused explained. Ms Linale said the accused could not say how the injuries to the back or head of DB had occurred.
Notwithstanding the concession made DB had suffered serious harm, Ms Linale said the medical evidence established that element, nonetheless.
The prosecution relied on the screenshot of the reading from 2 April 2023 in Exhibit P1, as the device was a continuous monitor of the sugar levels of DB.
The prosecution relied on the reading of 3.8↓ at 12.10pm, to prove the blood sugar level of DB was in a rapid decline and he had been hypoglycaemic.
The prosecution reminded me Ms Vyas said the monthly data was unreliable and that was why DB, who had a low reading on 2 April 2023, came to have little or no memory of events of that day. Ms Linale submitted I could conclude DB was, at about 5.50pm on 2 April 2023, having a hypoglycaemic attack.
In respect of the evidence of DBS Brook, I was asked to consider what the accused had meant by what was attributed to him, as going only to state of mind.
As for s 15C of the Criminal Law Consolidation Act 1935, the prosecution submitted the accused had not established that defence, for several reasons.
First, because the accused had not ‘genuinely believed [DB] was committing a home invasion’.[35] Second, because the accused had nonetheless engaged in ‘criminal misconduct that might have given rise to the perceived threat’.[36] Third, because the accused mental faculties at the time of the incident had been ‘substantially affected by the voluntary consumption of [methylamphetamine]’.[37]
[35] Criminal Law Consolidation Act 1935 (SA), s 15c(2)(a).
[36] Ibid; s 15c(2)(b).
[37] Ibid; s 15c(2)(c).
Submissions of the Defence
Principally, the defence contended the accused had acted in self-defence.
As to how this incident had happened, Mr Marcus relied on three things.
First, that the prosecution had failed to prove that the serious harm caused to DB had in fact been the result of a voluntary act on the part of the accused.
Second, that the accused had held the requisite belief his actions had been genuinely necessary and a reasonable person standing in his shoes knowing what he knew at the time would consider his actions proportionate to the threat faced.
Third, s 15C applied as the accused had genuinely believed, on the balance of probabilities, DB had been committing a home invasion.
Mr Marcus said it was not in dispute the injuries caused to the left hand and left forearm of DB had been caused by the accused holding the sword as he said.
As for the injuries to DB’s shoulder and head, Mr Marcus suggested I may not be troubled to find they had been caused by the sword but it was disputed all the injuries to DB had been caused by the accused acting voluntarily.
Mr Marcus submitted therefore two real issues and areas of factual dispute arose in this case.
First, whether the accused had acted deliberately when the injuries had been caused. That is, was it a reasonable explanation or hypothesis consistent with innocence that DB had struck the sword or had forced himself onto the sword.
Second, had the prosecution excluded as a reasonable possibility as to the state of mind of the accused, that he had been acting in self- defence.
Mr Marcus submitted DB had been neither a credible nor reliable witness. He submitted where his evidence conflicted with the accused, the evidence of the accused should be preferred.
Mr Marcus said DB had told lies to the court, had withheld information and had been contradicted by other objective evidence. He submitted DB’s evidence had not accorded with common sense and logic and was unreliable.
Under the banner of lies, Mr Marcus relied on what he said were differences between what DB had said in his sworn statements and what he had said in evidence. By way of example, Mr Marcus said DB had said to police he and the accused had never been in conflict and the accused had not been violent.[38]
[38] See T64-T65.
Further, Mr Marcus said that it was open to construe the police statements of DB as stating he and the accused had not taken drugs on the Sunday.
Finally, he said the evidence of DB that he had not read his statements before signing them and that he had sought to excuse his omissions by reference to his use of painkillers and his diabetes, conflicted with the evidence of DBS Delaney.
As for withholding information, Mr Marcus said DB could have obtained a graph from his device for the whole of 2 April 2023, not just the screenshot P1. He submitted he did not because it would not have supported his version of events.
Mr Marcus submitted there was evidence which contradicted DB’s evidence he had a hypoglycaemic attack.
The defence relied upon the reading from the ambulance taken at 6.12pm that DB had a sugar level of 4.4. Mr Marcus described that reading as within DB’s target or healthy range. He submitted it should be assumed that reading had been taken just minutes after the injuries to DB had been sustained.
Mr Marcus said an assessment of that reading, together with the average sugar level for that day of 10.7 in P5, meant DB had not been hypoglycaemic. As I understood that submission, Mr Marcus asked me to draw that conclusion because the average across the shortened day, recorded on 2 April 2023, had been 10.7. Given that average, and the submission that the fourth scan of the device by DB that day had to be after 12.10pm, it followed DB must have been in the safe zone that afternoon.
As I understood that submission, it was premised on the screenshot Exhibit P1 being a record of three of the four tricep scans P5 recorded DB took that day.
Further, submitted the defence, there had been no evidence that police or any other witness had heard beeps. That would have been the case, it was submitted, if the sugar level of DB had not been addressed and it had remained below 3.8. As I understand that submission, it was premised on the handheld device once activated with a low reading, it would have continued to beep until switched off.

Mr Marcus also said the accused had known how to address DB’s low blood sugar and if he had been hypoglycaemic, the accused would have acted and it would have resolved. He pointed out the tankard like glass which could be seen on the bedside cabinet and what he described as a red substance in a glass on the bed, as evidence members of the household had tried to help DB.[39]
[39] Exhibit P13, image 58.
The defence submitted a significant question to be considered was how DB had got down to the bedroom. Mr Marcus said DB’s evidence was he would have been lethargic and accordingly, his explanation did not stack up.
As for the genuineness of the threat held by the accused, Mr Marcus pointed to the obvious size difference between DB and the accused, as well as their different skills as boxers. Mr Marcus said DB accepted if he had attacked the accused, he would have left marks on him and that he had been bigger and stronger.
As for the reliability of DB, Mr Marcus pointed to the significant memory gap DB professed in his evidence.
In respect of the accused, the defence submitted he had given his evidence in a forthright and direct manner and it should be accepted generally, and in preference to that of DB, where it conflicted.
As for the injuries to DB, against the evidence of the accused, Mr Marcus said the accused ‘does not say he did not cause those injuries’.[40]
[40] T556.3-8.
He submitted a very real difficulty in measuring the version of the accused of those injuries without expert evidence to explain how they were caused.
The explanation for those injuries, which the prosecution must exclude as a reasonable possibility, submitted the accused, was they had been caused by the way the accused held his sword, the punches thrown by DB and the collision between the accused and DB, as the accused had described.
That tied into the voluntariness of any acts of the accused, submitted Mr Marcus. He said the accused said he had not hit DB with the sword, but rather DB had hit the sword with parts of his own body.
Mr Marcus described those hits or collisions as ‘either directly through the hook or swipe or whatever we might call the lateral blow struck with the left hand and then that [DB] came upon [the accused]’.[41]
[41] T556.21-23.
As for how the injuries to the left hand of DB had been caused, Mr Marcus submitted ‘whether or not the opening or closing of the fist was a barrier to causing the injury’ is ‘beyond the finder of fact to make without expert evidence’.[42]
[42] T558.
Mr Marcus submitted there was insufficient evidence to prove the accused had struck DB with the sword and the prosecution had not proved the actions of the accused had been voluntary, as there had been no movement of his muscle.
Mr Marcus submitted the accused was passive and had not acted voluntarily.[43]
[43] In that respect Mr Marcus referred to Ryan v The Queen (1967) 121 CLR 205, [213]. R v Moores (2017) 128 SASR 340, [126]-[127] and R v Musa (No.2) 2023 111 NSWLR 228, [7].
As for putting the sword in front - the defence submitted that had not been a reckless act because DB had struck the sword and DB had caused his own injuries.
In respect of the evidence of Professor White, Mr Marcus submitted the impact of methylamphetamine varied from person to person.
In any event, it was submitted, the opinion of Professor White that the consumption of methylamphetamine led to aggression might equally apply to DB.
As for whether the accused had been ‘substantially affected’, as required by s15C, the accused submitted there was no evidence he had been.[44]
[44] Criminal Law Consolidation Act 1935 (SA), s 15C (2)(c).
If the accused had consumed the day before as he said, it was submitted, the effective life of the drug had completed by the time of this alleged offending.
Even accepting there had been .5ml in the blood of the accused, it was submitted, there was no evidence the accused had been ‘affected’.[45]
[45] T653-T564.
As for whether the accused ‘engaged in criminal misconduct that might give rise to the threat or perceived threat’,[46] Mr Marcus submitted no temporal or factual connection between the drugs in the drawer and these events.
[46] T535.33-34.
Mr Marcus submitted no clear and necessary link had been established between the behaviour of DB and the methylamphetamine in the bedside cabinet. He described the proposition of the accused that DB had been looking for the methylamphetamine as simply speculation on his part.
As for the nature of the injuries suffered by DB, Mr Marcus said DB had nonetheless been mobile afterward. It followed, said Mr Marcus, the defensive acts by the accused had been proportional. He submitted one injury was not enough and if the accused had slashed at DB, it was reasonable to do so, more than once.
Mr Marcus urged a cautious approach to consideration of the magnitude of the injuries suffered as a gauge of reasonable proportionality, absent an examination of the rest of the facts, and considering how fights take place.
Mr Marcus contended the accused defended himself against a larger, stronger, heavier, more experienced fighter who behaved aggressively and in a strange way, believing DB had an aggressive temper or reputation for violence.
The defence submitted the accused told DB to leave his home and DB would not go and, in his own home, with his wife and young children present, DB had said to him 'You're fucked' and jumped at the accused.
Consideration
Elements of offence
The prosecution must prove the seven elements of aggravated recklessly causing serious harm: (1) the accused performed an act or acts (2) his act or acts had been voluntary and deliberate (3) DB suffered serious harm (4) the act or acts of the accused caused that serious harm (5) the accused caused that serious harm recklessly (6) the accused had acted unlawfully and (7) the accused had used an offensive weapon.[47]
Real issues in this case
[47] Criminal Law Consolidation Act 1935 (SA) s 23(3).
The third element was not in dispute; DB had suffered serious harm.
Contrary to the assumption of the prosecution in its opening, what acts were performed by the accused with the sword to cause those injuries, and whether those acts had been voluntary, deliberate, and reckless, were in dispute.[48]
[48] The prosecution opened its case on the basis it did not consider it was in dispute the acts were conscious and voluntary; T8.37-9.3.
The defence submitted the prosecution had not excluded as a reasonable explanation or hypothesis consistent with innocence that DB had struck or forced himself onto the sword causing the injuries he suffered.
The prosecution therefore had to establish each of the first, second, fourth, fifth and sixth elements of the charged offence.
In respect of the sixth element, the defence submitted the prosecution had not excluded that the accused had acted in lawful self- defence.
There were therefore two real issues in this case.
First, had the prosecution proved the accused deliberately, voluntarily, and recklessly used the sword to cause DB the injuries he suffered.
Second, had the prosecution excluded as a reasonable possibility the accused acted in lawful self- defence.
Approach to circumstantial evidence
The prosecution relied on circumstantial evidence to prove the accused, voluntarily and recklessly used the sword in the confined space of his bedroom to cause serious harm to DB, and to exclude self-defence.
The prosecution submitted the only reasonable inference or conclusion open was that the accused had recklessly and unlawfully inflicted serious harm on DB.
It was my task to weigh all the evidence and to decide what I accepted and what inferences could be drawn from that evidence.
That assessment was a matter for my experience of life and commonsense.
As this was a circumstantial case, a verdict of guilty cannot be returned unless the circumstances relied upon by the prosecution exclude any rational or reasonable hypothesis, or theory, or explanation, consistent with innocence.
Kourakis CJ has recently distilled the reasoning process giving circumstantial evidence its probative force without assuming the ultimate fact to be proved:[49]
·There are no categories and no attempt should be made to force particular circumstantial evidence into a mould;
·The criteria by which the cogency of circumstantial evidence as proof is to be evaluated must be drawn from life itself;
·The probative force of circumstantial evidence depends on the united force of all the circumstances put together;
·So evaluated, a body of circumstantial evidence may attain a high degree of cogency, notwithstanding its constituent items are, individually, colourless;
·There can be two or more stages of drawing inferences before a conclusion is reached; and
·Medial inferences can be drawn from a body of circumstantial evidence, and form part of the primary material, from which further inferences are drawn.
[49] Bell v The King [2025] SASCFC 97 at [5] referring to The Queen v Sutton (No.2) (1983) 32 SASR 533 per Wells J.
In this case the relevance and cogency of pieces of evidence become apparent when later items of evidence are locked into place, whereupon the relevance and cogency of all the items are demonstrated.
Accused gave evidence
While the accused did not have to prove anything, he gave sworn evidence about his use of the sword. I have kept in mind the accused did not have to prove anything and it was for the prosecution to prove the offence.
Defence counsel submitted I should accept the evidence of the accused as a reasonably possible alternative version of events, going both to the deliberateness and voluntariness of his acts and as to self-defence.
I have assessed the evidence of the accused as part of the whole of the evidence in the same way as any other witness. His evidence is not deserving of less weight because he is the accused.
Approach to expert evidence of Dr Robertson
Dr Robertson gave evidence about the nature, number and the seriousness of DB’s injuries. His orthopaedic surgeon expertise and opinions were unchallenged.
His evidence was an exception to the general rule a witness can only speak to the facts because he was duly qualified and able to express opinions in his area of expertise. While I am not bound to accept his opinion, there is no reason not to.
I accept the evidence of Dr Robertson and his expert opinions.
Dr Robertson was not asked whether the injuries to DB might have been caused by strikes or slashes of the sword to the scalp, neck, clavicle, hand and forearm. He was not asked about the force needed to cause those injuries.
Mr Marcus accepted the accused ‘does not say he did not cause those injuries’.[50] He contended though a ‘very real difficulty measuring the version of events of the accused against those injuries, without expert evidence to explain how they could have been caused’.
[50] T556.3-8.
As to whether the opening or closing of the left fist of DB was a barrier to the cause of the injuries to his left hand, Mr Marcus submitted that was beyond the finder of fact, without the assistance of expert evidence.
As the finder of fact, I can draw inferences as to how the injuries to DB were caused. The cogency of that evidence is to be evaluated from my experience of life, and by application of my common sense.
As this is a circumstantial evidence case, consideration of the facts must be approached in that usual way looking at the items of circumstantial evidence relied upon which are accepted and deciding which facts are established.
The combined strength of those established facts must be considered to draw any inference or inferences which are open.
It is for the prosecution to establish the only reasonable inference is that the injuries to DB were inflicted by the deliberate and voluntary use of the sword, excluding any reasonable explanation or hypothesis consistent with innocence, including that DB struck or forced himself onto the sword thereby causing his injuries or that he had acted in self-defence.
Assessment of DB as a witness
DB gave evidence by CCTV. That does not influence its weight and nor have I drawn an inference adverse to the accused because of that.
DB said he had a limited recollection of what had happened as he lost consciousness due to a hypoglycaemic attack.
DB recalled being in the bedroom and the son of the accused giving him a drink. He realised he had suffered injuries at the Royal Adelaide Hospital.
As the prosecution must prove the accused is guilty, the prosecution must convince me DB’s evidence is true and accurate.
It is not for the defence to show DB was wrong or was lying. There can be many reasons a witness might lie, and I have not speculated about those.
DB’s evidence is not more credible, or believable, because there may be no evidence providing a reason he might lie. I have not concluded the absence of such evidence meant he had no reason to lie and told the truth.
In respect of all the witnesses, I have considered whether they were honest.
To the extent I considered a witness honest, I then considered the reliability and accuracy of their evidence.
Mr Marcus suggested several things going to DB’s honesty and reliability, should cause me to reasonably doubt the prosecution case.
He submitted DB was neither a credible nor reliable witness and that the evidence of the accused should be preferred where it conflicted.
The prosecution submitted I should accept DB suffered a hypoglycaemic attack and reject the evidence of the accused as not reasonably possibly true.
In my consideration of the prosecution case, and any other reasonable hypothesis, theory or explanation consistent with innocence, I have had regard to those submissions about DB and the accused.
If I reject the evidence of the accused, in whole or in part, I must put it aside and consider whether the prosecution has established its case.
I have accepted DB as an honest witness, who was trying to tell me the truth.
In that respect, my assessment of all the witnesses was a matter for my experience of life, my dealings with other people, and my commonsense.
I have considered people vary in backgrounds, intelligence, education, personality, character and age and the way witnesses gave evidence and how they stood up to cross-examination.
As for the demeanour of DB and his manner, he presented at times as defensive and nervous. I have not given it much weight for several reasons.
DB was not a sophisticated or polished witness.
Nor was DB a witness who presented as being highly intelligent or educated.
His defensiveness and nervousness, in my view, reflected his anxiousness about having to give evidence, the impact of the serious injuries he suffered, and his upset about the end of his long-term friendship.
His low-level of literacy was also obvious and relevant to his credit and reliability. DB struggled to comprehend documents and received aid.[51]
[51] I have accepted the evidence of DBS Delaney her practice had been to give witnesses the opportunity to read their statement or have it read to them before signing it and that she believed DB had read his statements and that he did not raise anything with her about them; T67-68.
During his evidence, his monitor also alarmed several times. He was embarrassed and had to take breaks to deal with his diabetes.
DB was candid about his unreliability, because of his memory gaps.
Those memory gaps do diminish DB’s reliability. I have given that weight in my assessment and have kept that in mind where his evidence conflicted with the accused, and in assessing his evidence against other evidence I accept.
I have, given that, assessed DB’s evidence with extra care.
Established facts
I have accepted the evidence of DB and Ms Vyas that DB suffered from type 1 diabetes since he had been about 15 years of age. Ms Vyas had treated DB and is a credentialled nurse educator in diabetes.
There is no reason to not accept Ms Vyas evidence in all respects as honest and reliable. She was a helpful and informed witness.
DB and the accused said: they had been close friends; DB had been his best man; DB would sleep over on the couch in the lounge; and they would work on cars and train for boxing together.
I have accepted that evidence as consistent with their friendship as they had described it and DB’s attendance that weekend.
DB and Ms Vyas said DB had: to manage his diabetes by monitoring and stabilising his blood sugar levels; a sensor had been installed in his arm which reported his sugar levels onto a handheld device; and DB had been using that device for about two months prior to April 2023. I accept that evidence.
DB, the accused and Ms Vyas said his device would beep if his blood sugar recorded above or below a pre-determined level. I accept that evidence.
DB said, as at April 2023, Ms Vyas had set his device to a low level of 3.5 or 3.7 and a high of 13.[52] I prefer though and have accepted the evidence of Ms Vyas she had maintained his settings, as at April 2023, at 3.9 (low) and 13.3 (high).[53]
[52] T18.
[53] T168.19.
I accept the evidence of Ms Vyas a low sugar level was less than 4.0, and a sugar level below 4.0 meant the person was having a hypoglycaemic attack.
Ms Vyas said if DB’s blood sugar went below its low level, his device would beep until the alarm was turned off. She said the sensor would lose its signal about 6m from its receiver. I accept that evidence and the evidence of Ms Vyas that the receiver would not work if it had not been charged.
DB said his device retained readings for 6 months and constantly read his sugar level. For reasons elaborated later, DB poorly understood his device and diabetes. I have not accepted his evidence about how the device worked or what it recorded, unless supported by, or consistent with, other evidence I accept.
I prefer and accept Ms Vyas that the data recorded lasted two weeks. She had been downloading and interpreting it on that basis.[54] I have also accepted the evidence of Ms Vyas that the device continually read DB’s sugar level.
[54] T161.13-15.
I have accepted the unchallenged evidence of DB that he took the photo of the screenshot Exhibit P1.[55] That exhibit was tendered on that basis without objection.
[55] Exhibit P1.
Mr Marcus challenged the honesty of DB, by reference to that exhibit. He submitted DB withheld the graphical information from his device as it did not support his evidence he suffered a hypoglycaemic attack.
Mr Marcus submitted, in combination, Exhibit P1, the average sugar level of 10.7 for 2 April 2023 recorded in Exhibit P5, and the ambulance reading of a sugar level of 4.4 at about 6.15pm on 2 April 2023, supported a conclusion DB had not been hypoglycaemic at 5.50pm on 2 April 2023.
I do not consider DB withheld information he knew would not support the prosecution case. Nor do I consider the combination of evidence just mentioned demonstrates DB was not having a hypoglycaemic attack at 5.50pm.
DB accepted his device could provide a graph. He said he did not think to obtain one for 2 April 2023, when he took the photo of the screenshot, P1.
There is no evidence DB knew how to obtain a graph, knew what information it would contain, or that he would have understood it. DB had a poor understanding of his device and condition; he wrongly thought P1 recorded his manual scans.
Ms Vyas said, ‘[DB’s] literacy level was really, really low’; he could not count calories or determine correct dosages of insulin and he did not know anything about diabetes, did not manage it well, had a poor diet and guessed what food and insulin he needed.[56]
[56] T163; T164.
Whilst Ms Vyas knew more than DB about the device, there were also limits to her understanding about how it worked, the information it contained and the use which could be made of that information.
That reflects her objective which was to eliminate sugar peaks and lows and prevent the serious physical impacts of diabetes.
Ms Vyas agreed Exhibit P5 showed DB had on Sunday 2 April 2023, scanned his device four times. She said the screenshot Exhibit P1 reported stable 15-minute sugar level readings at the time indicated, not those scans. Ms Vyas said only daily summaries helped her and she had no regard to averages.

Having rejected the accused evidence, I have put it to one side and the question remains; has the prosecution proved the guilt of the accused.
As for the submission there is a very real difficulty measuring the evidence about the use of the sword absent medical evidence to explain how the injuries were caused, there is expert medical evidence about the nature of the injuries and what was needed to effect repairs. Further, there is the photographic evidence.
I have kept in mind the extent of the injuries must be assessed carefully, putting aside the shocking and graphic nature of those images and descriptions.
The extensive nature of the injuries should not be diminished though, just because they are gruesome. That they are of that nature, informs my common sense consideration of the force and actions necessary to cause them.
The accused contends by punching or pushing himself into the sword, DB caused those injuries. I have not accepted that account and have rejected it as a reasonable possibility those injuries were caused in that way.
Going to the honesty of the accused, Ms Linale noted his evidence that he checked the point of meth had been in his drawer was not recalled chronologically.
Mr Marcus when leading the accused brought him back to what he had done with the left-over methylamphetamine out of chronological order.
It is not uncommon for witnesses to recall events out of order and for counsel to draw them back to earlier events.
I noted, at the time he gave his evidence about the left-over methylamphetamine, it had been given out of order as he had to be reminded to elaborate about what he had done with the leftover meth.
The accused was an excitable witness. I have given the order in which he recalled that evidence little weight as he tended to rush and was prone to giving a narrative. Mr Marcus simply refocussed the accused, as counsel sometimes must.
As to the plausibility of the evidence given by the accused about his genuine belief he was going to be attacked by DB, Ms Linale questioned whether he had really been that fearful of a stare from a man whom he had called a brother and who had never been aggressive before towards him.
There is force in that submission. I have already set out why I have found that evidence of the accused to be implausible and lacking in sense and why I have rejected it as reasonably possibly true.
Both men said they had a very close relationship for over 20 years. Earlier, they he had been play-fighting. The accused said DB had never been violent towards him yet the accused considered he had to grab the sword to defend himself.
The accused always accepted he had the unimpeded opportunity to exit. Earlier that afternoon, he had walked away, sat in the loungeroom to process his thoughts, and then had gone for a drive to cool down.
The accused said DB had been so quick that he would never have got away. That is also implausible. He was just 1-1.5m from the door if he backed up. On the accused version, DB was sitting down on the other side of the bed.
The accused had by that time picked up a samurai sword, pointed it at DB and had moved towards him. He had the opportunity to easily exit out of the bedroom with the protection of the sword in front and towards DB.
The accused evidence was, knowing DB intimately, he had to watch out for DB’s favourite combination; a left jab and a left hook.
DB was well out of range to throw punches; from the other side of the bed.
The response to that unease, said the accused, was to strike the bed head very hard with a samurai sword, not exit.
I have rejected the evidence of the accused and his belief that he was genuinely under threat at that time.
As to the accused evidence about the punches he said were then thrown by DB, and that they caused the recorded injuries, I have also rejected that evidence as implausible and not making sense, for the reasons explained.
The accused said DB threw a left hook with a clenched fist which caused the upright sword to go away from him to his left. The motion of the sword tipping to a 45-degrees pivot, left from his twisted wrists, makes sense if DB struck the side of the blade from the accused right.[86] That is consistent with the motion of a left hook. The sword was moving away in the same direction as the fist.
[86] T476.31-38.
It does not make sense that motion caused the extensive injuries to the left hand or forearm of DB. They were two separate cuts as Dr Robertson said.
The contact, in respect of that left hook, would have been either to the side of the sword or its back, not the sharp part.
I do not consider the left hand of DB – to the extent of severed bones and tendons– would have been injured by contact with the side of the sword.
The left hook demonstrated by the accused was that the left forearm of DB had been inside the punch. The accused said DB brought the hook around from his shoulder and his forearm had faced inward, as did his clenched fist.
That mechanism or action does not allow contact between the inside of the forearm and the blade. Contact could only have occurred, on the accused evidence, to the back of the sword, as the sharp part of the blade had faced towards DB.
I consider contact with the blunt, square back of the sword could not reasonably possibly cause the cut to the front side of the left forearm of DB.
I reject for the reasons explained, as a reasonable possibility, a left hook as the accused described caused the 20cm by 10cm laceration to DB’s left forearm.
I have applied my common sense and my life experience of the composition and strength of the human body, including of its bones and tendons.
That cut left a 20 by 10cm flap of skin attached closer to the elbow, cut through 90% of the muscle in the forearm and wholly severed the left ulna nerve and the main blood supply to the left hand.
I have also applied my common sense and life experience to whether the left hook caused the separate large cut to the outside or pinkie side of DB’s left hand.
To repair that cut and resultant damage, Dr Robertson had been required to pin bones when he fixed those injuries as part of a surgery that took 7-8 hours.
He had to fix a bone in DB’s left fifth metacarpal with two screws, fix DB’s left proximal phalanx with a wire and screw and stitch down a fleck of DB’s bone in his left fourth proximal phalanx.
The application of common sense tells me the force necessary to cause such bone damage was greater than that described by the accused in his evidence.
By reference to the medical evidence and photos, taking a commonsense approach to the composition and strength of the human body and the bones and tendons of the hand, I reject as a reasonable possibility the left hook as described by the accused caused those injuries.
That separate cut to the left hand took up most of the left palm, wrapped around the front and back to the middle of DB’s left hand.
As well as requiring bones to be pinned, the cut severed the left first digit thumb tendon, severed about a third of the way through the left second digit superficial tendon and the deep tendon to 50%, severed the left third digit superficial tendon to 50% and the deep tendon wholly through, severed the left fourth digit superficial tendon and a deep tendon wholly through, and severed the left fifth digit pinkie superficial tendon and a deep tendon wholly through.
It also created two cut lines below the wholly severed left fifth digit pinkie superficial tendon and deep tendon and severed the whole of the extensor tendon on the back of that left hand of DB.
The accused said he had then brought the sword back up straight in front to defend another expected impact from DB’s left hand; the straight left thrown.
The accused demonstrated that straight left-hand punch thrown by DB as he had backed away and hit against the doorframe hard and ‘bounced forward’.
The accused said they collided chest first. It is reasonably possible that DB hit the sword and contacted with the sharp part of the blade as they collided.
I have considered whether, if DB had again struck the sword or if DB had collided with the sword with his chest and head, whether the hand and forearm injuries suffered by DB could have reasonable possibly been caused by those acts.
I reject as a reasonable possibility those actions caused the separate injuries to the left forearm, left hand, left neck, left clavicle, top of head and latissimus dorsi, as recounted by Dr Robertson and DB.
It does not make sense a sword blade held as the accused said, as he and the sword had gone backwards such that it hit his own forehead and moving away in the same direction as the straight left fist, caused any of those injuries.
It does not make sense the force or movement generated by the bounce forward caused any of those injuries.
I reject as a reasonable possibility those actions caused the laceration to the left forearm by reference to the photos of those injuries in evidence, the description of those injuries and the surgery required and my common sense and life experience as to the composition and strength of the human body.
I have also applied my common sense and life experience to what would be required to cause the separate large cut to the outside or pinkie side of DB’s left hand by reference to the photos in evidence, the description of those injuries, the surgery and the composition and strength of the human body.
For the same reasons as with the left hook, I reject as a reasonable possibility the straight left punch caused those injuries.
As for the cut to the latissimus dorsi, there is no scenario in which the actions of the collision or any use of the sword recounted by the accused could have caused a cut to the back of DB. There is no evidence DB had his back to the accused.
I reject that injury was reasonably possibly caused by the punches and collision as described by the accused.
The accused then said that, as he exited the room turning to his left, he still had the sword in his right hand. He said it had been tilted backwards over his shoulder but he did not report any contact had been made with DB at that time.
The sword was tendered. The handle is about 30cm long. The blade is about 75cm long. In total the sword is about 1m in total length. The handle is solid and heavier than the blade; the weight of the sword is in the handle.
As for the 8cm linear scalp laceration anterior to the top of the head that went through and into the thin outer layer of bone, there was no evidence given by the accused as to a mechanism to explain or hypothesise that injury.
It is of course for the prosecution to exclude as a reasonable possibility that injury occurred during the interaction with DB, as either described by the accused, or in some other way consistent with innocence.
Analysing the account of the accused that DB threw his left straight punch, the accused held the sword vertically in front as DB’s chest collided with him.
DB is taller than the accused. It is conceivable if DB had his head down at the time of that collision, and there had been contact between the blade and his head, some injury to DB might have occurred.
The accused said the sword had been pushed back, as the collision occurred.
I reject as a reasonable possibility the bounce back, as described by the accused, caused the cut suffered to the top of the head by DB into his skull bone. In doing so I have considered the injury, the surgery required to fix it and the strength of a human skull.
My common sense and life experience tells me it is not reasonably possible the collision as described caused the skull injury suffered by DB.
As for the injury to the neck, there was no evidence of contact to that area. The accused described, after the left hook, the tip of the sword going down 45⁰.
I exclude as a reasonable possibility the laceration to the neck of DB was caused by that sideways movement. There is no evidence of any contact in that area. The cut went through into the first layer of neck muscle.
I have applied my common sense and life experience to what would be required to cause that cut to the neck. I have done so by reference to the photos in evidence, the description of those injuries and the surgery and the composition and strength of the neck muscles of the human body. I reject as a reasonable possibility the collision, as described by the accused, caused those injuries.
As for as the injury to the left clavicle, there was similarly no evidence of contact to that area of DB’s body during the collision.
For the same reasons as with the neck injury, I exclude as a reasonable possibility the injury to the clavicle was caused by the 45⁰ sideways movement of the sword or the collision as the accused described it.
As for the left straight punch, the movement of the sword if struck would have been toward the accused. I exclude as a reasonable possibility that movement caused the injuries to either the neck or collarbone of DB.
I am satisfied, based on observations of the photos of the injuries and the evidence of Dr Robertson and the whole of the evidence, that each of the injuries to DB were caused by separate contact with the sword.
Having excluded the accused version of events as reasonably possibly causing those injuries, it is for the prosecution to prove they were caused by the deliberate and voluntary acts of the accused.
I am satisfied on the whole of the evidence I accept, those separate injuries were caused by separate blows or strikes of the sword in the bedroom. I am satisfied the accused voluntarily and deliberately struck those blows.
I have applied my common sense and life experience, having regard to the strength of human muscles and bone and tendons and the nature and extent of the injuries as described by Dr Robertson and the surgery required to fix and repair.
That is the only reasonable explanation given the evidence I accept about the number of, nature of, and seriousness of the injuries suffered by DB and from my assessment of the observations made of the scene.
I have, in respect of the cause of those injuries, excluded any other reasonable explanation, theory or hypothesis consistent with innocence.
I am satisfied the actions of the accused were deliberate, voluntary or reckless acts on his part, in using the sword in the confined area of the bedroom.
I am satisfied the accused caused serious harm to DB as the result of separate, voluntary and deliberate acts.
I am satisfied, as the only reasonable hypothesis or explanation from the evidence I have accepted, the accused struck DB with the sword several times to his head, his neck, his collarbone, his back, his left forearm and his left hand, with force sufficient to cause the injuries DB suffered.
I am satisfied the use of the sword in that way and with that force in the confined space of the bedroom was both voluntary and reckless.
I am satisfied of each of elements one, two, three, four, five and seven of the offence charged in this case, beyond reasonable doubt.
Self- defence
As for the sixth element, as self-defence is enlivened the prosecution must prove the accused acted unlawfully; that is, he did not act in lawful self-defence.
Self-defence operates where an accused genuinely believes his conduct was necessary and reasonable to defend himself; and his conduct was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed to exist.
The prosecution has the onus of proof. The prosecution must show beyond reasonable doubt the accused did not act in self-defence. The accused does not have to prove self-defence. The prosecution must exclude self-defence by proving beyond reasonable doubt the accused’s conduct was not done in self-defence.
There are two ways to prove the accused did not act in self-defence.
First, the prosecution can establish the accused did not genuinely believe his conduct was necessary and reasonable to defend himself.
Second, the prosecution can establish his conduct was not, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed he faced.
If the prosecution does not prove either of those two pathways, I must find the accused not guilty. It is not for the accused to show he did act in self-defence.
The prosecution can prove the sixth element by reference to the accused’s state of mind; by showing he did not genuinely believe his conduct to be necessary and reasonable to defend himself.
I must look at all the circumstances, including what the accused said and did.
If there is a reasonable possibility he thought it reasonable and necessary to use the samurai sword to cause the injuries to DB, the prosecution has not proved the first pathway.
I have already rejected as a reasonable possibility the version of events given by the accused as to the cause of those injuries.
I am satisfied the injuries were caused by the accused by multiple blows or strikes of the sword to the head, neck, clavicle, left hand, and left forearm.
The accused said he picked up the sword because he wanted to get away and make DB think twice about moving on him.
The accused said he had sense of unease about the situation he found himself in as DB was a boxer, had a reputation for violence and was doing what he had previously done before getting in a dispute or a fight with others.
The accused said he picked up the sword and positioned it towards DB as a deterrent to allow him to get out of the room.
The accused proffered a reason for the behaviour of DB, that he had gone into his bedroom to look for the point of methylamphetamine left over from the night before. He said he checked and the bag was still there but had moved.
While counsel for the accused disavowed that explanation as speculation it goes to what the accused said he had thought at the time and his state of mind as to the genuineness of his belief about the threat he said he faced.
The accused said he considered the only option open to him, in the circumstances, was to pick up the samurai sword to enable his escape or defence.
As for the genuineness of threat, Mr Marcus said the size difference between them was significant and their respective skills as boxers disparate.
The accused said he thought DB was going to come at him soon; that is, the threat was imminent. He said he thought there was no way he was going to make it to the door because DB was so fast.
I am satisfied the accused could have exited the room, without being caught by the accused if he had come at him, at all relevant times.
Initially DB was on the bed, sitting and facing the window. DB would have had to have stood up, come around the bed to its end or come over the bed. The double bed and cot were between DB and the accused. At that point in time, the accused had the sword and had positioned it toward DB, between DB and his exit.
The distance between the accused and the door was about 1 to 1.5m and the distance between the accused and DB, was the length of the bed and the cot between them.
The accused had just come through the bedroom door. His way back was clear. His wife and Eerden were outside. He held the sword in front of himself between DB and the door. He could have easily exited.
DB had never been violent towards the accused before; they had enjoyed a very long friendship. DB had boxing skills but he never used them on the accused.
DB was often at the home of the accused family and the son and wife of the accused had just been caring for him, and DB cared for the accused and his family.
The accused did not exit and said to DB ‘stop, stay back don’t even think about it’. He said the demeanour of DB did not change as DB remained staring at him with his head tilted forward. The accused said he then pointed at DB and said, ‘don’t even think about it, stay there’ and that DB had stayed put.
The accused said he thought picking up the sword and taking a step closer to DB was the only response to make DB think twice about coming at him. That does not make sense and is implausible when considered in context.

The position of DB had not changed; he could still then have exited the room.
The accused could have talked to DB or called his wife in or called Eernden for help or asked any of them to call the police.
The accused said he had held the sword out toward DB in his right hand with his arm straight and his left arm pointing at DB. The accused said DB looked over his shoulder. His position on the bed had not changed when he did.
The accused did not at that point exit out the door when DB remained on the bed. The accused had the samurai sword in his right hand toward DB and was about 1 to 1.5 metres from the exit to the room. He again did not back out with the sword up. He stood his ground.
The accused then swung the sword in his two hands up and in a circular motion over the top of his head and downwards into the bed with enough force to embed it into the wooden end such that it got stuck and had to be yanked out.[87]
[87] Exhibit P13, [22].
DB, he said, had at that time been staring and pointing at him. The accused provided an explanation for that act; a warning to DB. I am satisfied the accused could have still exited the room at that point; DB remained on the bed.
The accused said DB looked up and said, ‘you’re fucked’ and ‘had been pointing at him with a straight arm’. DB remained on the bed.
The accused accepted there was then still nothing preventing him from getting through the door behind.
The accused said it was after he said that when DB moved to the same side of the bed. As he did that, the accused stayed where he was; back to the door about 1- 1.5m away from an exit.
The accused said DB was then about 2m from him, on the same side of the bed. The accused still held the sword in front and towards DB.
The accused said, knowing DB intimately, he had to watch out for DB’s favourite combination; a left jab and a left hook and needed the sword upright in front to defend those blows.
At no point before then had DB been near enough to hit the accused.
In all the circumstances as I have described, I do not accept the evidence of the accused he genuinely believed DB would strike him at the time he picked up the samurai sword and when he had used it (bang) to hit the wooden bed end and that he could then have easily exited the bedroom.
DB and the accused had been metres apart, with a bed and cot between them. DB was staring but had never been violent towards the accused before in their very long friendship. He was not being in any way violent towards the accused then; beyond what the accused considered to be an aggressive gesture.
Just a short time before the accused said he and DB had been play fighting. DB was at the home of the accused as he had many times. The son and wife of the accused had just cared for DB consistent with the mutual affection they all held.
The accused could have easily exited out the bedroom door and outside the house as he had done when he had gone for a drive earlier.
This interaction had been going on for quite some time; most of the afternoon.
Going to his state of mind, the accused repeatedly said he had been angry and irate at DB and that he had to take a break and get out of the house.
When he returned the accused had immediately said to DB ‘what the fuck are you still doing here?’ That goes to his state of mind and his earlier professed anger toward DB.
A short time later he picked up a samurai sword because DB’s stare had made him uneasy. Shortly after he struck the sword with a bang and hard, so it stuck in the wood end of the bed and had to be yanked out. That goes to his state of mind and continuing anger at DB.
The second way the prosecution can prove this element involves considering the accused’s conduct from an objective view.
I must decide whether his conduct was reasonably proportionate by reference to the threat the accused thought he faced and put myself in the accused’s shoes at the time, facing the situation and the threat he thought he was facing, and decide whether his actions were reasonably proportionate.
There are a few principles I must take account of when deciding whether his conduct was reasonably proportionate.
A person can use more force than faced with, but there is a limit where the force used is so much greater than the threat faced that it becomes excessive, or disproportionate.
A person generally cannot be expected to calmly and carefully judge how much force to use when faced with violence.
I must consider other options the accused had available. Could he have run away or escaped? Self-defence is not a last resort, but the availability of other options might lead to a conclusion the accused’s actions were excessive.
As to the sixth element, going to his state of mind and whether he was acting in self-defence, I am satisfied the prosecution has excluded the accused genuinely believed his conduct necessary and reasonable to defend himself.
In all the circumstances, I do not consider the accused genuinely believed his conduct in picking up the sword was necessary and reasonable to defend himself.
The prosecution has also excluded the conduct of the accused was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed to exist.
I have relied on the nature of the injuries caused by separate strikes or blows and have rejected the submission of the defence that more than one blow was required, as DB had been able to move into the hallway.
I consider his conduct in striking multiple blows or strikes to cause the injuries to not be reasonably proportionate. The accused struck DB multiple times to cause separate cuts to his head, left hand, left forearm, neck, clavicle and back.
The accused said the threat he believed he faced was of being struck by DB with his favourite punch combination.
I consider the force used by the accused was disproportionate to that threat of being struck with a fist and was so much greater than that threat.
The force used was excessive or disproportionate.
As I have also found, the accused could have escaped.
Criminal Law Consolidation Act 1935 (SA)- s15C
I have been satisfied the prosecution has excluded that the accused genuinely believed the conduct to which this charge relates was necessary and reasonable for a defensive purpose.
Consequently, s 15C is not enlivened and it is not necessary, given my findings about self-defence, for me to determine the matters raised by the parties.[88]
[88] Criminal Law Consolidation Act 1935 (SA), s 15c(2)(a).
The accused submitted he had established he genuinely believed DB to be committing a home invasion, that he was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat and that his mental faculties were not substantially affected by the voluntary and non-therapeutic consumption of a drug.
The prosecution submitted the accused had not established that defence.
First, because the accused had not ‘genuinely believed [DB] was committing a home invasion’.[89]
[89] Ibid.
Home invasion means a serious criminal trespass in a place of residence.[90]
[90] Ibid, Part 6A.
That offence has several elements: (1) that DB entered a private place being a place not open to the public; (2) the private place was a place of residence; (3) DB entered or remained in the private place as a trespasser; (4) DB knew he was a trespasser or was reckless as to whether he was a trespasser; and (5) DB entered or remained in the private place intending to commit a specified offence.
Second, the prosecution says 15C does not apply as the accused had engaged in ‘criminal misconduct that might have given rise to the perceived threat’.[91]
[91] Ibid, s 15c(2)(b).
The prosecution says the accused supplied or was in possession of methylamphetamine.
Third, the prosecution says the accused mental faculties at the time of the incident had been ‘substantially affected by the voluntary consumption of [methylamphetamine]’.[92]
[92] Ibid, s 15c(2)(c).
In respect of each of those issues, Mr Marcus elaborated contrary arguments which it is not necessary for me to consider.
Verdict
For those reasons above, I find the accused guilty.