R v Riny (No 2) - [2018] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RINY (No 2)
Criminal Trial by Judge Alone
[2018] SADC 133
Reasons for the Verdict of His Honour Judge Chivell
13 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Accused charged with aggravated causing harm with intent to cause harm. Identity of the offender the primary issue. Rational inference consistent with innocence not disproved by the prosecution beyond reasonable doubt.
Verdict: not guilty.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(c)(i), s 24(1) ; Evidence Act 1929 (SA) s 29; Juries Act 1927 (SA) s 7; R v Pringle [2017] SASCFC 9; R v Kamleh [2003] SASC 269; R v Christie [1914] AC 545; R v Thomas [1970] VR 674; R v Strausz (1977) 17 SASR 197; R v Salahattin [1983] 1 VR 521, referred to.

R v RINY (No 2)
[2018] SADC 133
The Charges

Wol Magot Door and Lual Riny were jointly charged with aggravated causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). The charge was of the aggravated offence on the basis that:
(a)the offence was committed while each defendant was in the company of the other and another person;
(b)the victim of the offence was a police officer acting in the course of his official duties.
Mr Door was also charged with aggravated theft of an Apple iPhone, a phone cover, a Commonwealth Bank card, a BankSA Mastercard, a driver’s licence and $20 cash. The charge is of the aggravated offence on the basis that he committed the offence knowing that the victim was a police officer acting in the course of his official duties.
The defendants both elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927 (SA). Mr Door was represented by Mr Charman and Mr Riny by Mr Richter. Mr Pearce QC, with Mr Foundas, appeared for the Director of Public Prosecutions. Both defendants entered pleas of not guilty.
On 28 November 2018, the second day of the trial, Mr Door pleaded guilty to both charges. The allocutus was administered, and he was remanded to a later date for sentence. The trial continued in relation to count 1 against Mr Riny.
The Undisputed Facts
In the early morning of 1 November 2015, V, an off-duty police officer, was walking in Rundle Mall in the Adelaide CBD. He was alone. He had been at a friend’s ‘buck’s night’ earlier in the evening.
V was walking east along the southern side of Rundle Mall when he became aware of three young men of African appearance in front of him. They were jumping up and hitting overhead advertising signs. They were ‘egging each other on’.[1] When one of them jumped up and hit a sign, it was damaged and fell to the pavement.
[1] T 25.
V began taking photos of the three men with his iPhone. As he and the men reached the pedestrian crossing at Pulteney Street, one of the them said ‘You can’t take photos of us’, or words to that effect. V said he told them he was a police officer. One of them asked to see his badge. He said that he did not have it with him.
When the lights changed, the three young men crossed Pulteney Street, turned right and walked south along the footpath. V followed. By this time, he was speaking to the police communications operator on his iPhone.
The three young men turned left into York Street, a narrow street which runs parallel with Rundle Street. V lost sight of them momentarily. He followed them into York Street.
When he entered York Street, V saw only two of the men. They were walking east. V then saw the third man in an ‘alcove’ to his left. This man approached him from his left and behind him. The other two men turned and walked back towards him. V was still talking on the iPhone. The behaviour of the three young men had all the hallmarks of an ambush.
V has no memory of what happened next. The recording of his conversation with the police operator[2] shows that he made a loud exclamation, no doubt at the time the first blow was struck.
[2] Exhibit P3.
The incident was recorded on closed circuit television by a camera installed on the western side of Pulteney Street. The video recording from the camera shows V being brutally assaulted by all three men. Firstly, he was hit from behind by the man who had been in the alcove. He appears to stumble and fall to the pavement. He was then kicked and stomped on by all three men. The man from the alcove picked up his iPhone and used the edge of it as a weapon to hit him in the head. At one point, V was on his hands and knees and was being kicked and stomped on, primarily in the head. He fell over onto his back, and was kicked and hit again. He was unconscious by then.
The three men ran off down York Street. The man from the alcove was carrying V’s iPhone. Its cover contained the other articles mentioned in the information in count 3, the bank cards, driver’s licence and cash.
Issues
There is no dispute that V was harmed by the three men who assaulted him, and that the three men intended to cause harm. The dispute is about the identity of the three men.
By his pleas of guilty, Mr Door confessed that he was one of the men. That can be accepted beyond reasonable doubt. But, of course, evidence of that confession is not admissible against Mr Riny. I ignore it for the purpose of evaluating the strength of the case against Mr Riny.
It is the prosecution case that Mr Door was the man in the alcove who threw the first punch, and who took V’s iPhone and the other property. It is also the prosecution case that Mr Riny was the slightly taller man wearing bright white ‘hi-top’ boots, and who punched and kicked V in the head several times.
The identity of the third man has not been ascertained. He has been referred to in evidence as ‘TJ’.
It is the defence case that Mr Riny was not the man in the white shirt and the white boots who assaulted V. Mr Riny gave evidence that between 9 and 10 p.m. on 31 October 2015, he arrived at a house in Andrews Farm, in the far-northern suburbs, where an 18^th birthday party was being held for a friend, Ms Grace Anei. Mr Riny said that between midnight and 1 a.m., he was involved in a fight with a man known as ‘J-boy’. Mr Riny said he was not in the Adelaide CBD at the time of the attack on V. He slept at the Andrews Farm house in a bedroom occupied by three other people, including Ms Aman Akol, who also gave evidence, until about 10 a.m. the next morning. At that time, Ms Anei and her boyfriend drove him back to his house at Golden Grove, where he showered and changed. After that, they drove to another social function at Cowandilla. While he was at Cowandilla, he was attacked by J-boy again and stabbed with a knife, as a result of which he was conveyed to the Royal Adelaide Hospital. While he was at the hospital, he was apprehended by the police.
General Directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.
However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt;
·the burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused;
·the accused is under no obligation to give evidence. If he does not, no adverse inference may be drawn against him. If he does, he does not undertake any onus to prove or explain anything. That remains with the prosecution. His evidence is not to be discounted merely because he is the accused. That would deny him the presumption of innocence. His evidence should be assessed in the same way as that of the other witnesses;
·even if the evidence of the accused is disbelieved completely, that does not bolster the prosecution case. It is as if he had not given evidence at all;
·proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient;
·every element of each offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is not guilty.
Circumstantial Evidence
The case against Mr Riny is entirely circumstantial. There is no identification evidence. V has no memory of the events in the lane. There were no eye-witnesses, and the CCTV video material is insufficiently clear to provide more than a general description of the offenders, including their height and build and some identifying features such as hairstyle and the clothes they were wearing.
The assessment of circumstantial evidence involves a consideration of each item of circumstantial evidence, and then an assessment of the totality of that evidence. Items which considered alone might have only slight probative value, may achieve greater significance when viewed in combination with other items of circumstantial evidence. An item, when considered alone, might be explained by coincidence, but when considered with other items of circumstantial evidence, such an explanation may be less satisfactory.
A conclusion of guilt beyond reasonable doubt may only be reached by circumstantial evidence if guilt is the only rational inference to be drawn from it. If a rational inference consistent with innocence arises from the evidence, then the prosecution has failed to prove its case beyond reasonable doubt, and the appropriate verdict is not guilty.
It is the defence position that there is a rational inference to be drawn from the evidence, which the prosecution has failed to disprove beyond reasonable doubt, that Mr Riny was not one of the three men who attacked V. The central issue in the trial is whether this contention is correct. If it is, Mr Riny is entitled to be acquitted of the charge.[3]
[3] See R v Pringle [2017] SASCFC 9 per Hinton J, and the cases discussed therein.
Elements of the Offence
The elements of the offence of aggravated causing harm with intent to cause harm are as follows:
1.the accused caused harm to V;
2.the accused intended to cause harm to V; and
3.the harm was caused without lawful excuse.
The circumstances of aggravation, either or both of which must be proved beyond reasonable doubt if the offence is to be regarded as aggravated, are:
(1)that the offence was committed in company;
(2)that the offence was committed against a police officer with the knowledge that the police officer was acting in the course of his official duties.
Mr Richter made it very clear that the only issue in dispute in this trial is the identity of the offender, and thus element 1.[4] If I am satisfied beyond reasonable doubt that Mr Riny was the man in the white shirt and the white boots who is shown in the CCTV footage kicking and stomping on V, then it follows that all of the other elements of the offence and the circumstances of aggravation have been proved beyond reasonable doubt.
[4] T 20, T 272.
This concession also applies to the mental element of the second circumstance of aggravation. Section 5AA(1)(c)(i) of the Criminal Law Consolidation Act provides that where this circumstance of aggravation is alleged, it must be proved that the accused knew that the victim of the offence was a police officer at the time of committing the offence.
The Prosecution Case
Time Line
Mr Pearce submitted, and I accept, that the following is a broad outline of the times at which relevant events occurred:
·31.10.15 – a Halloween party organised by Ms Awaak Yout commenced at the Mantra Hotel;
·1.11.15 – 12.32-12.33 a.m. – three men arrived at the Mantra Hotel. CCTV shows one man, identified by Ms Yout as Wol Door, another man who Ms Yout says was introduced to her as ‘Lual’, and a third man whom she knew only as ‘TJ’;
·1.11.15 – 1.10 a.m. – attendees at Ms Yout’s party left the Mantra Hotel at the request of management;
·1.11.15 – 1.34 a.m. – CCTV in Pulteney Street and Rundle Mall shows three men, one of whose clothing is indistinguishable from that worn by Mr Door at the Mantra Hotel. I will refer to him for the time being as ‘the man in the blue shorts’. They crossed Pulteney Street and entered Rundle Mall, walked west and then stood in a group on the southern side of the Mall in the vicinity of the Apple store;[5]
·1.11.15 – 1.44 a.m. – the same three men then walked east, back towards Pulteney Street. At around the same time, V came into view, also walking east;
·1.11.15 – 1.48 a.m. – all four men reached the western kerb of Pulteney Street and awaited the traffic lights. V had his left hand up to his ear, indicating use of the iPhone;
·1.11.15 – 1.51 a.m. – the three men, having crossed Pulteney Street to the eastern side, proceeded to walk south along Pulteney Street, followed by V. The three men then turned left and walked east along York Street;
·1.11.15 – 1.51 a.m. – a CCTV camera on the western side of Pulteney Street, looking directly east into York Street, depicted the man in the blue shorts initiating an attack on V, from behind and to his left, by hitting him in the head. V stumbled and fell to the pavement. The three men proceeded to punch, kick and stomp upon V. The man in the blue shorts picked up V’s phone and used it as a weapon to hit him about the head. The three men then ran east along York Street out of view, leaving V apparently unconscious on the pavement;
·1.11.15 – 2 a.m. – a CCTV camera in Grenfell Street depicts three men, who were clearly the same three men who were involved in the attack, in the general vicinity of the Crown & Anchor Hotel in Grenfell Street;
·1.11.15 – 12.30 p.m. – police arrived at Mr Door’s house at Renown Park. The house was searched and blood-stained clothing seized, including blue shorts, a grey T-shirt, a black shirt with grey collar and button panel, black socks and grey/brown shoes;
·1.11.15 – 12 midnight – Mr Riny was stabbed in an altercation at a social function at Cowandilla. An ambulance was called and Mr Riny was conveyed to the Royal Adelaide Hospital;
·2.11.15 – 11.40 a.m. – police attended at the Riny residence at Golden Grove and seized clothing from a bedroom.
The Evidence
[5] There was no dispute by Mr Riny that the man identified by Ms Yout as Wol Door and the man depicted on CCTV in Rundle Mall and later in York Street assaulting V, was Mr Door.
CCTV – Mantra Hotel
When the three men arrived at the Mantra Hotel at around midnight on 31 October 2015, they were clearly depicted on CCTV, both in the foyer of the hotel and in the corridor of the fifth floor of the hotel, [6] outside the room hired by Ms Yout for the party.
[6] Still pictures from which are Exhibits P4 and P5.
The CCTV video clearly depicts the three men being met by Ms Yout, wearing a white dress, in the foyer.
The first man, slightly shorter than the other two, wore his hair in a distinctive style consisting of a ‘mohawk’ cut with shaved sides, and with the hair on top and down the back of his head in short dreadlocks. He was wearing a black shirt with a grey collar and a grey button panel, with the sleeves rolled up above the elbow. Underneath the shirt was a plain grey round-necked T-shirt. He was also wearing blue shorts, black socks and grey/brown shoes with a prominent white sole. This was the man Ms Yout identified as the person she knew as Wol Door and whom she had invited to the party.[7]
[7] T 37.
The second man, who she says was introduced to her as Lual,[8] was wearing a plain white shirt with long sleeves, long blue trousers, and bright white hi-top shoes or boots.
[8] T 39.
The third man, about the same height as the second man, wore a baseball cap, a white T-shirt, black pants and black shoes with prominent white soles. This is the man Ms Yout identified as TJ.
It is the prosecution submission that these three men are the same three men depicted in the Rundle Mall CCTV video, since they are the same height, the same build and their clothes are indistinguishable. I accept that submission.
The Introduction
Ms Awaak Yout said that she organised the Halloween party at the Mantra Hotel.[9] She invited Mr Door to the party. She had known him for about a year. She identified him sitting in the dock.[10]
[9] T 36.
[10] T 36.
Ms Yout said that Mr Door and two friends arrived at about midnight. She said that she had met TJ before, but not the other man. She said this ‘other guy’ was wearing a white shirt[11] and white boots.[12] She said she was sitting in the living room with others when she was introduced to this man. She could not remember who introduced her. This person said it was ‘Lual’ and that she responded, ‘Nice to meet you’. She said that she and ‘Lual’ were quite close together at the time, within touching distance.[13] She acknowledged that the room was noisy.[14] She denied that it was possible that this man was introduced as ‘Riny Lual Riny’.[15] She accepted that she did not know whether the man heard the introduction.[16]
[11] T 39.
[12] T 41.
[13] T 40.
[14] T 51.
[15] Riny Lual Riny is the name of the accused Lual Riny’s brother.
[16] T 52.
It is the prosecution case that this introduction is a piece of circumstantial evidence that the person introduced was Lual Riny.
As discussed in my ruling on the voir dire,[17] it is the prosecution position that it can be inferred from Ms Yout’s evidence that this was a social situation, and that if the introduction was incorrect, it is to be expected that the person being introduced would have demurred in some way. It was not a situation where the person might be expected to exert his right to silence.[18]
[17] 26 February 2018, [2018] SADC 12.
[18] R v Kamleh [2003] SASC 269; R v Christie [1914] AC 545; see also R v Thomas [1970] VR 674; R v Strausz (1977) 17 SASR 197; R v Salahattin [1983] 1 VR 521.
I reject the submission that there is no evidence from which it may be inferred that the person introduced heard the introduction. Ms Yout refuted the possibility that the noise was such that she would have misheard the introduction. There was no evidence of any indication from the person being introduced that he did not hear what was said. In circumstances where a person is being introduced, and the person being introduced does not clearly hear the introduction, it might be expected that he would indicate that.
I conclude that this introduction is a piece of circumstantial evidence that the person being introduced was Lual Riny, the accused.
After the Party
After they were ejected from the hotel, various people who had been at the party were mingling outside. According to the time line, this would have been sometime after 1.10 a.m. Ms Yout said that she heard one of the three men in the group, which included the man she recognised as Mr Door, say that they were going to catch a taxi ‘up north’. [19]
[19] T 47.
The prosecution suggests that this is a piece of circumstantial evidence that the three men, including Mr Door and Mr Riny, intended to return to the party at Andrews Farm. I accept that.
CCTV – Rundle Mall
A plan of the CCTV cameras installed in Rundle Mall and surrounding areas is Exhibit P8. The video recorded by the cameras is contained in a USB, Exhibit P9. A bundle of 74 still photographs taken from this video is Exhibit P1. When taken together, this video record clearly demonstrates the movements of V’s eventual attackers, and indeed V’s movements, in Rundle Mall prior to the attack. I have already described these movements.

The defence submits that on the CCTV evidence, the prosecution is unable to exclude the reasonable possibility that the man in the white shirt and white boots was not Mr Riny, but was in fact his brother, Riny Lual Riny. Mr Richter submitted that the following facts support this submission:
·the similarity of appearance of the two men, demonstrated by photographs Exhibits P23, P24 and P27;
·the arrest photograph of Mr Lual Riny demonstrates that he is of similar height to Mr Door, at 186 cm or thereabouts, whereas Mr Riny Lual Riny is closer to 189 cm. I am unable to make a finding about that, it seems to me that Mr Lual Riny as depicted in the photographs P23 is taller than 186 cm, and closer to 188-189 cm;
·Mr Riny’s evidence (which I will discuss later in these reasons) that he and his brother wear each other’s clothes on a regular basis.
I will take these submissions into account when assessing the circumstantial evidence as a whole.
Clothing Seized – Wol Door
When the police attended at Mr Door’s home in Renown Park at about 12.30 p.m. on 1 November 2015, they seized:
·a pair of shoes, variously described as grey/brown with a prominent white sole. These shoes are indistinguishable from the shoes worn by Mr Door the previous night. There were bloodstains on these shoes which were then subjected to DNA analysis;
·a pair of blue shorts, also indistinguishable from the shorts worn by Mr Door the night before, on which there were bloodstains. These were subjected to DNA analysis;
·a black long-sleeved shirt with a grey collar and grey button panel. The sleeves were rolled up to above the elbow. There were bloodstains on the shirt but these were not tested;
·a plain grey T-shirt. Bloodstains on the T-shirt were not tested.
The fact that these clothes, which are all indistinguishable from the clothes worn by V’s attacker the previous night, were seized from Mr Door’s house provides strong circumstantial evidence that Mr Door was one of V’s attackers.
Clothing Seized – Lual Riny
When the police attended Mr Riny’s residence at Golden Grove at 11.40 a.m. on 2 November 2015, they found:
·a pair of white boots which appear indistinguishable from the white boots worn by the man in the white shirt who was part of the group who attacked V the previous night. Mr Riny conceded in evidence that the boots were his.[20] There were bloodstains on the boots which were subjected to DNA analysis;
·a pair of blue trousers, also indistinguishable from the trousers worn by the man in the white shirt who was part of the group who attacked V the previous night. There were bloodstains on the trousers which were also subjected to DNA analysis.
[20] T 163.
Mr Riny gave evidence that he was sharing the bedroom from which these clothes were seized with his brother, Riny Lual Riny. He said that the clothes depicted in several of the photographs belonged to both of them, and that his brother wore his clothes and his shoes regularly.[21] He said they shared the bedroom to the extent that they both slept in the queen-size bed.[22]
[21] T 163.
[22] T 195.
DNA Analysis
As mentioned, a number of items of clothing seized from the homes of Mr Door and Mr Riny were subjected to DNA analysis. Ms S T Brozyna is a forensic scientist employed at Forensic Science SA, where the DNA analysis took place. Ms Brozyna gave evidence relating to this analysis. Her report is Exhibit P28.
The results of the DNA analysis were compared with an analysis of reference samples taken from Mr Door, Mr Riny, V and another man called Atem Machok.[23] Mr Machok is not before the court. As to the items seized, the analysis produced the following results:
[23] T 132.
(1)left shoe seized from Mr Door’s house – on the shoe were several red-brown stains. These stains gave a positive result to a presumptive test for blood. A swab of one such stain on the front medial side of the sole of the shoe revealed a mixed DNA profile of two contributors. Ms Brozyna commented:
it is greater than 100 billion times more likely to have obtained (such) a DNA profile if [V] and an unknown are the source of the DNA rather than two unknown individuals being the source of the DNA.[24]
[24] T 138.
This result provides strong evidence that V’s blood was on Mr Door’s shoe, leading to a strong inference that Mr Door was one of V’s attackers, the man in the blue shorts;
(2)a similar blood-like stain on the shoelace of the left shoe also produced a positive result for the presumptive test for blood. A cutting taken from the shoelace also revealed a mixed DNA profile of two contributors. Ms Brozyna commented:
it is greater than one hundred billion times more likely to have obtained the evidence DNA profile if Mr Riny and an unknown are the source of the DNA profile rather than two unknown individuals being the source of the DNA profile.[25]
[25] T 141.
This result provides strong evidence that Mr Riny’s blood was on Mr Door’s shoe. This leads to an inference that Mr Door and Mr Riny had been in company at some point in the relatively recent past. There is no evidence that Mr Riny suffered an injury during the attack on V, so it cannot be inferred from this evidence that Mr Riny was present with Mr Door during the attack.
(3)blue shorts seized from Mr Door’s house – as to the blood-like stains on the shorts, DNA analysis revealed a mixed profile with two contributors. Ms Brozyna commented:
it is greater than one hundred billion times more likely to have obtained this evidence DNA profile if Mr Riny and another unknown are the source of the DNA profile, rather than two unknown individuals being the source of the DNA profile.[26]
The results of this DNA analysis lead to the same inference which arises from the analysis in (2) above.
(4)white shoe seized from Mr Riny’s house – samples were taken from a bloodstain on the shoelace of the right shoe. DNA analysis revealed a mixed profile with two contributors. Ms Brozyna commented:
it’s greater than 100 billion times more likely to have obtained evidence DNA profile if Mr Riny and an unknown are the source of the DNA profile rather than two unknown individuals being the source.[27]
Mr Door and Mr Machok were excluded by this analysis, and the likelihood that V was not a source of the blood was favoured as a result of the testing.[28]
This result does not lead to any inference other than an inference that at some stage Mr Riny bled on his own shoe.
[26] T 143.
[27] T 146.
[28] T 145.
Defence Case – Alibi Evidence
Mr Riny elected to give evidence, and he called two witnesses, Ms Grace Anei and Ms Aman Akol. I direct myself that:
·Mr Riny was under no obligation to give evidence. He had the right to remain silent. No adverse inferences can be drawn against him by virtue of his exercise of that right;
·the defence evidence should be assessed in the same way as the other witnesses in the case – in particular, the presumption of innocence applies when assessing Mr Riny’s evidence;
·in electing to give and call evidence, Mr Riny assumed no onus of proof. He was under no obligation to prove or explain or clarify anything. The onus to prove its case beyond reasonable doubt remained at all times on the prosecution.
The following time line arises from the defence evidence:
·31.10.15 – 9 p.m.-10 p.m. – Mr Riny arrived at Andrews Farm for Ms Anei’s 18^th birthday party;
·1.11.15 – midnight to 1 a.m. – a fight took place between Mr Riny and a man called J-boy;
·1.11.15 – 3.30 a.m. – the people who stayed overnight at the house at Andrews Farm went to bed;
·1.11.15 – 10 a.m. – Mr Riny, Ms Anei and her boyfriend left Andrews Farm and drove back to Mr Riny’s house at Golden Grove, where he showered and changed, and the group then drove to the social function at Cowandilla.
Mr Riny gave evidence that on the evening of 31 October 2015, he was a guest at the party for Ms Anei’s 18^th birthday at a house at Andrews Farm. It is an agreed fact that Andrews Farm is 37.4 kilometres by road from Adelaide. It is not disputed that, having regard to speed limits and traffic lights, the journey would take approximately one hour.
Mr Riny said that he arrived at Andrews Farm at around 9 to 10 p.m.[29] He denied that he left the party after that until the next morning.[30]
[29] T 164, T 172.
[30] T 186.
Ms Anei gave evidence that Mr Riny ‘probably’ arrived around 9 to 10 p.m.[31] This is suspiciously similar to Mr Riny’s estimate of his arrival time. Ms Anei had little idea of the time she arrived at the party. In evidence, she said she arrived there at around 6 p.m.[32] She conceded that she told the police in December 2017 that she arrived between 8 and 9 p.m.[33] I place little weight on her evidence as to when Mr Riny arrived at the party, or what he did after that.
[31] T 210.
[32] T 209.
[33] T 224.
Ms Akol was a more impressive witness. She said that she saw Mr Riny between 9 and 9.30 p.m.[34]
[34] T 232.
As to Mr Riny’s fight with J-boy, Mr Riny thought that this took place ‘around midnight’.[35] He later modified that to between midnight and 1 a.m.[36]
[35] T 165.
[36] T 172.
Ms Anei did not refer to the fight in her evidence. She does not seem to have been specifically aware of it.
Ms Akol said that the fight took place at about 1 a.m.[37] When cross-examined about that, she said that she remembered the time because at one stage at the party they needed more to drink. She checked the time to see if a bottle shop would be open. When she realised it was 1 a.m., it was clear that none would be open.[38]
[37] T 233.
[38] T 239.
Ms Akol conceded that she told the police that she’d ‘had a few drinks that night so my memory of the times isn't that great’.[39] She also conceded that she told the police that the fight was between 1.30 and 2 a.m.[40]
[39] T 240.
[40] T 241.
Ms Akol was quite insistent about this time, and refused to back down when being cross-examined about it.
Having regard to the time line outlined earlier, this evidence is completely incompatible with the prosecution case. On the prosecution case, Mr Riny was with Mr Door and TJ at around 12.30 a.m. at the Mantra Hotel. They were among the guests who left the Mantra at 1.10 a.m. He was one of the three men seen on CCTV when they crossed from Pulteney Street towards Rundle Mall, walked west along the Mall, hung around the Apple store, turned east at 1.44 a.m., reached Pulteney Street in a group with V at 1.48 a.m. and were involved in the attack upon V at 1.51 a.m. He was in the group of three men seen on CCTV[41] in Grenfell Street near the Crown & Anchor Hotel at 2 a.m.
[41] Exhibit P26.
That being so, if Mr Riny returned to Andrews Farm after the attack, he could not have arrived until about 3 a.m. at the earliest. For the same reason, Mr Riny could not have been involved in the fight with J-boy until sometime after 3 a.m. at the earliest.
In order for me to be satisfied beyond reasonable doubt that Mr Riny was one of V’s attackers, I would need to be satisfied beyond reasonable doubt that Mr Riny’s evidence about the fight with J-boy, and Ms Akol’s evidence about that same topic, is untrue.
One piece of evidence which is significant is that Ms Anei gave evidence that both Wol Door and TJ were at the party at Andrews Farm.[42] Ms Anei also told the police that Mr Riny, Mr Door and TJ arrived together.[43] In evidence, she sought to backtrack from that statement. She suggested that she was pressured by the police officer to make that statement. She was noticeably discomfited by her cross-examination on this topic and was a most unsatisfactory witness.
[42] T 214.
[43] T 216.
Brevet Sergeant Richter, the officer who took the statement from Ms Anei, was called in rebuttal pursuant to s 29 of the Evidence Act 1929 (SA), and he gave evidence that he did not put any pressure upon Ms Anei to say that. I accept his evidence about that.
Contrary to Ms Anei’s testimony, Mr Riny denied that either Wol Door or TJ was at the party.[44] Ms Akol also denied seeing either of them at the party.[45]
[44] T 187.
[45] T 236-7.
For all these reasons, and Ms Anei’s evidence that she became quite intoxicated that evening, I can place little weight on her evidence. I do not find that Mr Riny, Mr Door and TJ arrived back at Andrews Farm together, or that Mr Door and TJ arrived at all.
Ms Akol said that after the fight, the party began to wind down and people began leaving. By about 3.30 a.m., only the people staying the night at Andrews Farm were left.
Ms Akol said that four people, including Mr Riny and herself, slept in the same bedroom from around 3.30 a.m. Theoretically, this gave Mr Riny time to get from Adelaide back to Andrews Farm, but allowed no time for the fight or for the other guests leaving afterwards.
Consideration
I am satisfied beyond reasonable doubt that Mr Door was one of V’s attackers. The CCTV video of his appearance, build and clothing, Ms Yout’s evidence that he was at the Mantra Hotel, his clothing being indistinguishable from that worn by one of the attackers, and the DNA evidence leading to the inference that V’s blood was on his shoe after the attack, all lead to this conclusion.
The prosecution has presented a strong circumstantial case that Mr Riny was one of V’s attackers. The evidence of the introduction to Ms Yout, Mr Riny’s ownership of the distinctive white shoes which are indistinguishable from the shoes worn by V’s attacker, Mr Riny’s blood on Mr Door’s shoe, Mr Riny’s blood on his own shoe, and Mr Riny’s friendship with Mr Door, when considered as a whole, would be sufficient to create a rational inference that Mr Riny was one of the attackers.
The competing inference, that Mr Riny was not one of the attackers, must be excluded by the prosecution beyond reasonable doubt. If the competing inference was reliant on Mr Riny’s evidence alone, I would exclude it. But it is supported by Ms Akol’s evidence, and by the CCTV evidence that he could not have left the city after the attack and returned to Andrews Farm until 3 a.m. at the earliest.
In those circumstances, I am unable to exclude beyond reasonable doubt the inference that Mr Riny was not one of V’s attackers.
Accordingly, my verdict is ‘not guilty’.