R v Sahlstorfer (No 2)

[2024] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v SAHLSTORFER (No 2)

Criminal Trial by Judge Alone

[2024] SASC 58

Reasons for the Verdict of the Honourable Justice Stein  

19 April 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE

On 30 January 2017, Mr Boyce was chased, detained and beaten by three men and later died from his injuries. The accused was charged with the murder of Mr Boyce contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The prosecution case relied on circumstantial evidence.

Held.

1.      The accused is guilty of murder

Criminal Law Consolidation Act 1935 (SA) s 11, referred to.
De Gruchy v R (2002) 211 CLR 85; Plomp v R (1963) 110 CLR 234; Ryan v The Queen (1967) 121 CLR 205; Royall v The Queen (1991) 172 CLR 378; R v McDonald (2015) 123 SASR 313; Kural v The Queen (1987) 162 CLR 502; Peacock v The King (1911) 13 CLR 619; R v Baden-Clay (2016) 258 CLR 308; R v Perks (1986) 41 SASR 335; R v PL (2009) 261 ALR 365; R v Moffatt (2000) 112 A Crim R 201; R v Gardiner [2015] SASCFC 107; McAuliffe v The Queen (1995) 183 CLR 108; Mitchell v The King (2023) 276 CLR 299; Likiardopoulos v The Queen (2012) 247 CLR 265; Miller v The Queen (2016) 259 CLR 380; R v Polanski [2005] SASC 361; Barca v The Queen (1975) 133 CLR 82; Dent v The King [2024] SASCA 12; Shepherd v The Queen (1990) 170 CLR 573; R v Singh [2019] SASCFC 51; R v Tartaglia (2011) 110 SASR 378; Nasaris v The Queen [2021] SASCA 143; R v Quist (2017) 127 SASR 471; Brooks v The Queen (2012) 36 VR 84, considered.

R v SAHLSTORFER (No 2)
[2024] SASC 58

Criminal: Trial by Judge alone

STEIN J.

1. On 30 January 2017, Mr Mark Boyce was attacked by three men.  The attack involved a series of punches and kicks delivered in a period of about 30 seconds.  Mr Boyce was found unconscious shortly after the attack and was taken by ambulance to hospital.  He did not regain consciousness and died on 8 February 2017. 

2. The attack was captured on very poor quality closed circuit television (“CCTV”) footage.  The footage of the incident showed Mr Boyce running down the road pursued by a man who caught up with him.  A small dark car and a larger light car pulled up alongside them.  The driver of the small dark car got out of the vehicle and inflicted a series of blows on Mr Boyce.  The driver of the other car and the man who had pursued Mr Boyce on foot joined in the attack. 

3. Mr Sahlstorfer was charged with the murder of Mr Boyce pursuant to s 11 of the Criminal Law Consolidation Act SA (1935). 

4. For the reasons below, I have concluded the prosecution has established beyond reasonable doubt that Mr Sahlstorfer was guilty of the murder of Mr Boyce. 

   Brief outline of the prosecution case

5. I set out below a high level summary of the prosecution case to assist in understanding the evidence.

6. In general terms, the prosecution case was that on 30 January 2017, three men (Mr Sahlstorfer, Mr Grant and Mr E[1]) were looking for Mr Perkins, a friend of Mr Boyce.  Prosecution alleged that Mr Sahlstorfer, Mr E and Mr Grant knew each other through a mutual association with the Hells Angels outlaw motorcycle club. 

   [1]    Mr E’s name is suppressed.

7. In the evening of 30 January 2017, Mr Perkins was initially at Mr Robbie Thaller’s house, and he later moved to Mr Boyce’s house which was located in the same street.  Through Mr Thaller, Mr Perkins had arranged to get a lift with Mr Christopher Wheatley.  Mr Perkins was to be collected from Mr Boyce’s house.  At around the time Mr Wheatley arrived to collect Mr Perkins from Mr Boyce’s house, two vehicles, a small dark vehicle followed by a larger light coloured SUV, were driven past Mr Boyce’s house three times.  On the prosecution case, the first of the two cars was a Toyota Echo driven by Mr Sahlstorfer with Mr Joshua Grant in the front passenger seat, followed by a silver Toyota RAV4 driven by Mr E.

8. On the fourth occasion, as the two vehicles approached Mr Boyce’s house, Mr Boyce was standing alongside Mr Wheatley’s car speaking with Mr Wheatley.  For reasons which will be explained below, at this time, Mr Perkins was on the roof of Mr Boyce’s house.

9. Two of the men got out of the small dark car.  Following a verbal exchange, Mr Boyce ran down the street.  He was pursued by the passenger of the small dark car who caught up with Mr Boyce further down the street, overpowered and restrained him.  The two other men drove their cars down to where Mr Boyce was being held.  The two men got out of their cars and went over to where Mr Boyce was being held.  The driver of the small dark car immediately attacked Mr Boyce and the other two men joined in what prosecution described as a short and brutal incident in which Mr Boyce was repeatedly punched and kicked.  The three men then got back into the cars and drove away.

10. The attack left Mr Boyce with severe head injuries which were ultimately fatal.  The subsequent post-mortem examination revealed the cause of death was blunt force trauma to the head. 

11. The prosecution contended that when Mr Boyce walked out to the car, he walked into an ambush, the intended target of which was Mr Perkins. 

12. The prosecution case relied in part on evidence given by Mr Perkins, now deceased, at a previous trial regarding the events leading to Mr Boyce’s death.  

13. The prosecution case also relied in part on the CCTV footage and mobile telephone records which were alleged to show relevant contact between telephones subscribed in the name of, or used by, individuals involved in the incident.  Data was said, among other things, to place Mr Sahlstorfer’s mobile phone in the vicinity of the street at the time of the attack and to show Mr Sahlstorfer’s mobile phone made a call to Mr Wheatley at the time Mr Wheatley was waiting in front of Mr Boyce’s house to collect Mr Perkins.  

14. Prosecution also relied on evidence said to connect Mr Sahlstorfer with the small dark car and Mr E with the large light car in the CCTV footage and to establish Mr Grant as the passenger in the small dark car. 

15. Prosecution alleged that Mr Sahlstorfer is guilty of murder on the basis of joint enterprise or, alternatively, on the basis of extended joint enterprise. 

    Brief outline of the defence case

16. Mr Sahlstorfer’s predominant defences related to identity and intention.  Mr Sahlstorfer disputed that the evidence established beyond reasonable doubt that he was the driver of the small dark car and involved in the attack or the intention was to cause grievous bodily harm to Mr Boyce. 

    Trial by judge alone

17. Mr Sahlstorfer elected for a trial by judge alone pursuant to s 7(1) of the Juries Act 1927 (SA).

    Legal directions

    Burden of proof

18. Mr Sahlstorfer is presumed to be innocent.  The prosecution bears the onus of proving each element of the offence beyond reasonable doubt.  A reasonable doubt is one I am prepared to entertain after hearing all of the evidence.  Mr Sahlstorfer does not have to prove anything.

    Right to silence

19. Mr Sahlstorfer was not obliged to give evidence and he chose not to give evidence.  I must not draw any inference adverse to him or the case his counsel put forward from the exercise of his right to remain silent.  I must not, and have not, speculated on the reasons why he did not give evidence.

    Expert evidence

20. Prosecution relied on a number of expert witnesses.  I must consider the evidence of the expert witnesses together with the evidence of all other witnesses.  I must determine what of their evidence I accept, what weight is to be attached to that evidence and any inferences that arise from the evidence.  In assessing the evidence of an expert witness, relevant factors for my consideration include the qualifications of the witness, the extent to which their evidence accords with other evidence and their impartiality.  I am entitled to accept or reject their evidence in whole or in part in the same manner as any other witness. 

    View

21. After the prosecution opening, a view was conducted of Hill Street.  The view does not constitute evidence and was conducted for the purpose only of assisting me to understand the evidence subsequently called.

    Exhibits and aide memoires

22. The exhibits included CCTV footage and photographs.  I was provided with a number of aide memoires including a summary of processed CCTV files,[2] CCTV footage timeline,[3] and a summary of phone call details.[4]  Those documents are not evidence and were provided only as aide memoires for the purposes of assisting me. I have relied only upon my assessment of the CCTV footage, processed footage and telephone records. 

    [2]    Exhibit P6.

    [3]    Exhibit P54.

    [4]    Marked for identification (“MFI”) D91.

    Discreditable conduct

23. Mr Sahlstorfer is a member of the Hells Angels Motorcycle Club.  Evidence about his membership was led by prosecution as relevant to a number of matters, including his association with Mr Grant and Mr E, the close relationship between the address of a Hells Angels Motorcycle Club clubroom and the address on a phone said to be that of Mr Sahlstorfer and the discovery of a Toyota Echo buried at Ponde (a property used by the Hells Angels Motorcycle Club).  I address separately below in my reasons the permissible purposes for which I may use the evidence.  I must not use the evidence to reason that because Mr Sahlstorfer is a member of the Hells Angels, he is the sort of person who is more likely to have committed the charged offence.  I have not used any of the evidence for such an impermissible purpose. 

    Motive

24. Motive is not an element of the offence and the prosecution does not have to prove motive.[5]  However, the absence of any motive is a circumstance that can favour an accused.[6]

    [5]    De Gruchy v R [2002] HCA 33 at [32]; (2002) 211 CLR 85 at 93-4 (Gaudron, McHugh and Hayne JJ).

    [6]    De Gruchy v R [2002] HCA 33 at [28]; (2002) 211 CLR 85 at 92-3 (Gaudron, McHugh and Hayne JJ), quoting Plomp v R [1963] HCA 44 at [6]; (1963) 110 CLR 234 at 250 (Menzies J).

    Section 34KA

25. I admitted the transcript of evidence given by Mr Perkins, now deceased, pursuant to the provisions of s 34KA of the Evidence Act 1929 (SA) (“Evidence Act”). 

26. The evidence was given by Mr Perkins during the trial of Mr Grant for the murder of Mr Boyce. 

27. The admission of the evidence of Mr Perkins in circumstances in which defence cannot cross-examine him results in forensic disadvantage.  I have taken into account the inability to cross-examine in assessing the reliability and credibility of the evidence of Mr Perkins.  It would be improper for me to take into account the outcome of the trial of Mr Grant in which Mr Perkins gave evidence and I have put aside my knowledge of that outcome. 

    Agreed facts

28. Pursuant to the provisions of the Evidence Act, the parties agreed 51 facts which are set out below in these reasons.

    Elements of the offence of murder

29. A person commits murder if that person causes the death of another person, deliberately and unlawfully, while intending to cause death or grievous bodily harm.

30. In order for an accused to be found guilty of the charge, the prosecution must prove beyond reasonable doubt each of the following elements of the offence:

    1.the act or acts of the accused were a substantial cause of the death of the victim;

    2.the act or acts of the accused were voluntary and deliberate, that is, they were the result of the exercise of the accused’s will;

    3.the act or acts of the accused which caused death were done with the intention to kill or cause grievous bodily harm to the victim.  The intention must exist at the time of the act or acts which caused the death of the victim;

    4.no lawful excuse or defence applied to the killing.

    Intention

31. In order to prove specific intention, the prosecution must adduce evidence of circumstances sufficient to allow the inference beyond reasonable doubt that the accused had the requisite intention at the time of performing the acts which were the substantial cause of the victim’s death.[7] 

    [7]    Ryan v The Queen [1967] HCA 2 at [25]-[27]; (1967) 121 CLR 205 at 217-218 (Barwick CJ); Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 393 (Mason CJ), 401 (Brennan J), 414 (Deane and Dawson JJ), 426 (Toohey and Gaudron JJ), 458 (McHugh J); R v McDonald [2015] SASCFC 99; (2015) 123 SASR 313 at [29] (Kourakis CJ).

32. The state of mind of a person is a fact which can be inferred from what a person does and says.[8]  The intention with which a person did something may be inferred, including from the person’s actions at the relevant time.[9]  An inference must rest on something more than mere conjecture to be reasonable.[10]

    [8]    Kural v The Queen [1987] HCA 16 at [2]; (1987) 162 CLR 502 at 504 (Mason CJ, Deane and

    [9]    Kural v The Queen [1987] HCA 16 at [2]; (1987) 162 CLR 502 at 504 (Mason CJ, Deane and

    [10] Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 661 (O’Connor J); R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

33. The requisite intention for the offence of murder is the intention to kill or cause grievous bodily harm.  Grievous bodily harm generally does not require explanation, but, if explained, means really serious bodily harm.[11]

    [11] R v Perks (1986) 41 SASR 335 at 337 (King CJ), 345-348 (White J; O’Loughlin J agreeing).

    Causation

34. The prosecution must prove that the acts relied on as causing death were a substantial or significant cause of death.[12]  The question of causation is to be determined as a matter of common sense, recognising that the purpose of the inquiry is to attribute legal responsibility in a criminal action.[13]  It is not necessary for the prosecution to identify a precise act which causes death in order to prove murder or manslaughter.  This includes cases in which the accused committed a series of acts in which the fatal blow cannot be identified.[14] 

    [12] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 398 (Brennan J), 411 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ).

    [13] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 387 (Mason CJ), 411-2 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ), 441 (McHugh J), citing Campbell v The Queen [1981] WAR 286 at 290 (Burt CJ).

    [14] R v PL [2009] NSWCCA 256; (2009) 261 ALR 365 at [46]-[50] (Spigelman CJ); R v Moffatt [2000] NSWCCA 174 at [26], [61], [66]; (2000) 112 A Crim R 201 at [26], [61], [66] (Woods CJ).

    Joint enterprise

35. A joint criminal enterprise exists where two or more people enter into an agreement to carry out acts involving the commission of a crime.  If the offence is committed while that agreement remains on foot, all those participating are guilty, regardless of the particular role each played.[15]

    [15] McAuliffe v The Queen [1995] HCA 37 at [12]; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Mitchell v The King [2023] HCA 11; (2023) 276 CLR 299 at [13]-[14] (Kiefel CJ) and [54]-[55] (Gordon, Edelman and Steward JJ).

36. The elements of liability under the doctrine of joint criminal enterprise are:[16]

    1.the accused entered into an agreement with one or more other people to commit the offence;

    2.the accused participated in the joint agreement;

    3.while the agreement was on foot, one or more of the parties to the agreement did the acts necessary to commit the offence; and

    4.the accused had the state of mind necessary to commit the charged offence.

    [16] Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 at [19] (French CJ); Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).

37. The agreement does not need to be express and may be inferred from the conduct of the persons involved.[17]  The relevant understanding or agreement can be formed immediately before the commission of the relevant acts.[18] 

    [17] Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); McAuliffe v The Queen [1995] HCA 37 at [12]; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ).

    [18] R v Polanski [2005] SASC 361 at [24] (Nyland J).

    Circumstantial evidence

38. The prosecution case against Mr Sahlstorfer is circumstantial.

39. When the case against an accused is based substantially upon circumstantial evidence, the trier of fact cannot return a verdict of guilty unless the circumstances are inconsistent with any reasonable hypothesis other than the guilt of the accused.[19]  It is necessary not only that the accused’s guilt should be a rational inference but that it should be “the only rationale inference that the circumstances would enable [the fact finder] to draw…”.[20]

    [19] Barca v The Queen [1975] HCA 42 at [11]; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ); Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634 (Griffith CJ).

    [20] Plomp v The Queen (1963) 110 CLR 234 at 252 (Menzies J).

40. The force of circumstantial evidence lies in the combined strength of different items of evidence which together become increasingly persuasive.[21]  In Plomp v The Queen (“Plomp”), Dixon CJ, quoting Martin v Osborne, said:[22]

    If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.

    [21] Dent v The King [2024] SASCA 12 at [34] (Livesey P and Lovell JA, Nicholson AJA agreeing).

    [22] Plomp v The Queen (1963) 110 CLR 234 at 243 (Dixon CJ), quoting Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 (Dixon J; Latham CJ agreeing).

41. An inference must be based on more than mere conjecture to be reasonable.[23]  The trier of fact should not engage in tortuous reasoning or stretch credulity to explain each individual circumstance as being consistent with innocence.[24] 

    [23] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Dent v The King [2024] SASCA 12 at [38] (Livesey P and Lovell JA; Nicholson AJA agreeing).

    [24] Dent v The King [2024] SASCA 12 at [38] (Livesey P and Lovell JA, Nicholson AJA agreeing).

42. In considering a circumstantial evidence case, the evidence is not to be considered piecemeal.  There may be evidence which, considered in isolation, is consistent with an inference of innocence.  However, all of the circumstances established by the evidence must be considered and weighed in determining whether there is reasonably open on the evidence an inference which is consistent with innocence.[25]

    [25] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Dent v The King [2024] SASCA 12 at [39] (Livesey P and Lovell JA; Nicholson AJA agreeing).

43. Resolution of the case depends upon assessment of all the evidence which includes any inferences, explanations, and submissions put forward on behalf of the accused.[26]

    [26] Dent v The King [2024] SASCA 12 at [41] (Livesey P and Lovell JA; Nicholson AJA agreeing).

1. Mr Sahlstorfer is not to be found guilty of murder unless the circumstances, as established by all of the evidence, exclude any reasonable explanation consistent with innocence. If on all of the evidence there remains any rational inference consistent with Mr Sahlstorfer’s innocence, he must be acquitted.

2. I must first consider the evidence and decide which facts I accept are established. Having done so, I must consider what inferences can be drawn from those established facts.

   Shepherd principles

3. I must determine whether I accept the submission by counsel for Mr Sahlstorfer that this is a case in which the principles in Shepherd v The Queen[27] (“Shepherd”) apply.  Counsel submitted that this is a Shepherd case and thus that proof that the small dark vehicle seen in the CCTV footage is Mr Sahlstorfer’s Toyota Echo is a critical link in the chain, rather than a strand in a rope (using commonly referred to metaphors), requiring proof beyond reasonable doubt.

   [27] [1990] HCA 56; (1990) 170 CLR 573.

4. The requirement to meet the burden of proving all elements of the offence beyond reasonable doubt does not mean that every fact and every piece of evidence relied upon to prove an element by inference must be proved beyond reasonable doubt.  In Shepherd, the High Court concluded that it is not the case that in a matter based on circumstantial evidence a jury may only properly draw an inference of guilt upon individual items of evidence all proved beyond reasonable doubt.  However, if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt.[28]  That is the case whether the intermediate fact is a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence.[29]

   [28] Shepherd v The Queen [1990] HCA 56 at [14]-[15]; (1990) 170 CLR 573 at 585 (Dawson J) (with whom Gaudron and Toohey JJ each concurred).

   [29] Shepherd v The Queen [1990] HCA 56 at [8]; (1990) 170 CLR 573 at 581 (Dawson J).

5. Justice Dawson stated:[30]

   On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning.

   [30] Shepherd v The Queen [1990] HCA 56 at [5]; (1990) 170 CLR 573 at 579 (Dawson J).

6. In R v Singh (“Singh”),[31] this Court considered whether a certain fact was an indispensable link in the chain of reasoning leading to conviction.  Justice Doyle (with whom Peek and Parker JJ agreed) explained the process of considering a Shepherd direction and determining whether a fact is an indispensable intermediate fact. 

   [31] [2019] SASCFC 51.

7. Justice Doyle said an indispensable intermediate fact is a fact which, in the context of the case, is an indispensable step in the process of reasoning towards an inference of guilt. In such a case, the jury must find that fact proved beyond reasonable doubt before acting on it.  Justice Doyle continued to say:[32]

   In determining whether, in a particular circumstantial case, a Shepherd direction is appropriate, it will be necessary to consider the role and significance of the particular evidence or fact in respect of which the direction is said to be appropriate. If, by reason of either the inherent role or significance of that evidence or fact in the case, or in light of the way in which the case has been conducted, it forms an indispensable link in the chain of reasoning towards the defendant’s guilt, then such a direction may be appropriate.

   An item of evidence or fact is more likely to be characterised in this way in a case involving a small number of circumstantial facts. As McHugh J said in Shepherd v The Queen:

   Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances – often numerous – which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.

   In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied upon to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilty beyond reasonable doubt.

   [32] R v Singh [2019] SASCFC 51 at [89]-[90] (Doyle J; Peek and Parker JJ agreeing).

8. In R v Tartaglia (“Tartaglia”),[33] Sulan J (with whose reasons Peek J relevantly agreed) suggested that an item of circumstantial evidence may be considered an indispensable link in the chain of reasoning (thus warranting a Shepherd direction) where there are facts which, if not established despite other items of circumstantial evidence, would result in the Crown case collapsing.[34] 

   [33] [2011] SASCFC 88; (2011) 110 SASR 378.

   [34] R v Tartaglia [2011] SASCFC 88; (2011) 110 SASR 378 at [10] (Sulan J; Peek J agreeing).

9. In Singh, Doyle J noted that the Court is generally reticent to isolate particular items of circumstantial evidence to be the subject of a Shepherd direction.[35]

   [35] R v Singh [2019] SASCFC 51 at [101], [102] (Doyle J; Peek and Parker JJ agreeing). The Court of Appeal referred to the analysis by Doyle J of the authorities concerning the circumstances in which it may be necessary to give a Shepherd direction in Nasaris v The Queen [2021] SASCA 143 at [37] (Livesey P, Doyle and David JJA). In that case the Court of Appeal concluded a Shepherd direction was not required.

10. In order to determine whether or not this is a Shepherd case, it is necessary for me to consider the circumstantial evidence in the context of the prosecution case.  I return to consider the applicability or otherwise of Shepherd below.

    Location

11. Hill Street, Elizabeth South runs in an approximately north-south direction.  At its northern end it intersects with Fairfield Road and at its southern end with Thompson Street.  Number 11B Hill Street, where Mr Boyce lived, is located on the eastern side of Hill Street towards the northern end of Hill Street.  Number 20 Hill Street, where Mr Thaller lived, is on the western side towards the southern end of Hill Street.  Number 11B Hill Street can be seen from number 20. 

12. The unit at 11B Hill Street sits between 11A and 11C and the three dwellings are adjoined.  The unit runs in an approximately east-west direction.  The front door is on the street side.  A hallway runs down the length of the unit with the family room at the rear of the unit.  Sliding doors from the hallway open to a courtyard on the southern side of the dwelling closest to 11C.[36]

    Events of the evening according to witnesses

    [36] Exhibit P8

    Mr Perkins

13. Mr Perkins was present in Hill Street on 30 January 2017 and observed and heard the two vehicles, heard the driver speak and witnessed Mr Boyce running down the street.  As Mr Perkins’ evidence sets out some relevant context and background to other evidence, I commence with a summary of the transcript of his evidence.[37] 

    [37] Exhibit P55.

14. Mr Perkins knew Mr Boyce and had known him since he was 14 years old.  In January 2017, Mr Boyce was living at 11B Hill Street, Elizabeth South.  In 2016, Mr Perkins was released from prison on parole conditions.  He had failed to comply with those conditions and was aware that a warrant had been issued for his arrest.  Mr Perkins was on the run, spending time all over the place and at houses in Hill Street, was attempting to avoid police attention and avoiding other people because he had behaved in a way which might have resulted in him making enemies.  After being released on parole, Mr Perkins went to “Robbie’s house” (Mr Thaller’s house) with people he knew.  Mr Thaller’s “missus”, Ms Erin Bourke, who was pregnant at the time, was at Mr Thaller’s house.  Mr Perkins told Mr Thaller he was on the run and Mr Thaller said he was welcome to stay there.  During about a month until the incident when Mr Boyce died, Mr Perkins spent approximately a quarter of his time at Mr Thaller’s house, predominately in the garage.

15. Mr Perkins knew Mr Grant and saw him at Mr Thaller’s house on an occasion during the daytime.  Mr Perkins was in the garage and it was possible to see who was coming up and down the driveway on the CCTV screen.  He saw Mr Grant arrive at the house in a little, blue car which parked on the same side of the road as Mr Thaller’s house.  Mr Grant then got out of the car and Mr Thaller met him at the end of the driveway.  Mr Perkins also knew a man by the name of Toby Sahlstorfer.  He saw him at 20 Hill Street on the CCTV screen when he arrived in a Range Rover about a fortnight before Mr Boyce’s death.  Mr Perkins said there was a conversation between Mr Thaller, Mr Sahlstorfer and the driver of the vehicle.  Mr Thaller left with Mr Sahlstorfer in the car for perhaps 20 minutes.

16. On 30 January 2017, Mr Perkins went to Mr Thaller’s house in the evening by car, arriving when it was still daylight.  Mr Perkins wanted to go see someone else at a different area and tried to arrange a lift.  Two women, Ms Erin Withers and Ms Brooke Surman, agreed to give him a lift.  However, when they tried to get there to collect Mr Perkins, they were pulled over by police.  Mr Perkins could see the flashing lights on the CCTV screen.  As he was on the run, he panicked and got someone at Mr Thaller’s house to go out the front to see who it was.  The person described the car and Mr Perkins knew it was the car the two girls had come to get him in.  Mr Perkins thought one of them might give up his location so he decided to move on.  He asked Mr Thaller to organise him a lift.  Mr Thaller agreed and told him one of his mates, Mr Wheatley, would come and get him.  Mr Perkins knew Mr Wheatley from being at the house. 

17. Mr Perkins did not want to hang around at Mr Thaller’s house knowing the police were close by.  He left to go to Mr Boyce’s house.  He did not want to take his backpack to Mr Boyce’s in case he needed to run from the police.  Mr Thaller said he would organise for Mr Wheatley to come by and grab the bag so it would be in the car when Mr Wheatley came to get Mr Perkins at Mr Boyce’s house.  Mr Perkins left the bag and ran or jogged up the road to 11B Hill Street; it was dark when he arrived.  Mr Boyce was inside 11B Hill Street with some of his friends, all called Matthew.  Mr Perkins knew two of them by the nicknames “Fat Matt” and “Superman”.  Mr Perkins went into the lounge room at the back of the house with the other Matts and at some point asked if Mr Boyce would go with him. Mr Boyce said he was happy to go with Mr Perkins.  At the time of the discussion, Mr Boyce was wearing a black T-shirt.

18. Mr Perkins described the layout of the house and said he had a ladder in the little courtyard area so he could run up, go on the roof and over the back fence.  Mr Perkins said he and Mr Boyce organised the ladder for that reason.

19. Sometime later, Mr Perkins become aware that his lift had arrived by telephone or a message from Mr Thaller and went out the front to ask the driver of the car if Mr Boyce could come with him.  Mr Wheatley was in the driver’s seat of a dark green VF Commodore parked out the front of 11B Hill Street on the wrong side of the road, facing towards Fairfield Road.  Mr Perkins spoke to Mr Wheatley through the window and asked if it was alright if Mr Boyce could come to which the driver responded “yeah, tell him to hurry up”.[38]

    [38] Exhibit P55 at T453.19-453.20.

20. At that point, Mr Perkins saw two cars travelling south from Fairfield Road.  He noticed the headlights and said they were not travelling fast.  The one in the front was “littler” than the one behind and had a faded roof.  Mr Perkins described the exhaust as having a different sound which made him think it was a sports exhaust.  The smaller car was a “bluey” colour and the car behind was larger “like a RAV4 or something” and a darker “champagney” colour.  He could not see if anyone was in the car because of the headlights.  Mr Perkins walked back to the house and closed the door, leaving it slightly open.  He looked out and saw the little car in front had stopped at the back of Mr Wheatley’s car adjacent to the boot and the driver was leaning forward over the passenger seat, looking at the door to the house.  There were two people in the smaller car.  He could not see who was in the other car.

21. Mr Perkins went up the hallway and into the kitchen and looked for something to protect himself as he was worried he might have to defend himself.  Mr Boyce asked him what was going on and he said it was something out the front.   Mr Boyce told him to relax and that he would go out there and Mr Perkins told Mr Boyce not to go outside.  Mr Perkins said he was going onto the roof and used the ladder to do so.  Mr Boyce was at the sliding door and assisted Mr Perkins by putting his foot on the ladder.   Mr Boyce asked Mr Perkins what he was doing and he responded that something was going on out the front and he wanted to have a look at what it was and where they had gone.  Mr Perkins got onto the roof and saw Mr Boyce walking back in through the sliding door, into the hallway.

22. Mr Perkins described where he was located on the roof by reference to a photograph.  When he got up on the roof he came back over the verandah, over the angled part around to where the angle started coming down the coping of the roof; once he got to that position on the roof, he could see Mr Wheatley’s car in the same position with the lights on and Mr Wheatley inside.

23. Mr Perkins said when he went up to the roof, he heard “where the fuck’s Sam?” spoken three times.  Mr Perkins moved to the front of the point of the roof and saw Mr Boyce out the front on the passenger side of Mr Wheatley’s car on the roadside. He could see the two cars stopped, the little car had moved a bit past Mr Wheatley’s car and was in front and the larger one was perhaps 10 metres behind.  Mr Perkins saw two people get out of the smaller car and one out of the larger car, the driver door of the larger car was open and the driver had one leg in the car and his right leg on the ground.  After he heard “where the fuck’s Sam?” spoken by the driver of the little car, Mr Perkins described the passenger as being in a “bridging” motion, standing with his chest puffed out, and his body language appeared as “ready to attack”.   The man who got out the driver’s side of the car said the words in an aggressive tone, and when asked whether the words were said with any kind of accent, the answer was “yeah, a bit of an accent.  It wasn’t Aussie, you know what I mean, yeah”.  Mr Boyce said “I haven’t seen him” or “he’s not here” or words to that effect and then Mr Boyce ran around the front of Mr Wheatley’s car, putting his hand on the bonnet to get around the car quicker as he had thongs on.  Once he came around the driver’s side of Mr Wheatley’s car, he passed the back passenger door and boot, heading towards Mr Thaller’s house down the footpath.  The passenger of the smaller car was standing at the back of Mr Wheatley’s car near the boot and began chasing Mr Boyce.  At the same time, the drivers of both cars got in and started driving down the road.  As a result of the foliage, Mr Perkins lost sight of Mr Boyce as he was being chased past the big bushes going into the neighbour’s hedge.  The man chasing Mr Boyce was not far behind him and was still on the road.  Mr Perkins said the two cars drove down quickly, the little car was in the front and the larger car was behind.   When he was on the roof, Mr Perkins heard Mr Boyce, heard a noise two or three times and then heard car doors.  He could not see the cars but could hear them and thought they went left at the end of Hill Street.  At that point, Mr Thaller was still at the front of Mr Boyce’s house.  Mr Perkins described himself as “buzzing” and “freaking out”, he said he could not get close to Mr Boyce because he did not want to see him, he knew what had happened and he blamed himself.  “Fat Matt” went to pick up Mr Boyce’s girlfriend and they organised to get an ambulance.   Mr Perkins went back into the house and was arrested on the Parole Board warrant that night.

24. Mr Perkins said the smaller car was blue with a faded roof, he could see the roof from where he was.  Mr Perkins described the man who got out of driver’s side of the smaller car as about his height, perhaps a bit shorter than six foot, but maybe he would be just average height if he was looking parallel to the road.  He described him as having a fit build.  He said he was wearing a hat and a T-shirt that he thought was lighter coloured with darker coloured shorts.  Mr Perkins thought the man who got out the passenger side of the blue car was a bigger build, about the same height.  He was wearing a reddish T-shirt which was darker coloured and had glittery, shiny stuff on it.  The man who got out of the larger car did not get out completely, but he thought he was taller and skinnier and had shorter hair that was a bit longer on the top.

25. Mr Perkins was shown the CCTV footage.  At the footage from 9:08 pm,[39] he recognised himself as the person with the backpack.  From 10:01 pm,[40] Mr Perkins recognised Mr Thaller going to the front door and recognised himself in the red Adidas singlet.  At that point, Mr Perkins described himself heading to 11B Hill Street, waiting for the lift from Mr Wheatley at which point he did not have his bag with him.  Mr Perkins at 10:34 pm[41] recognised the man coming around the car as Mr Wheatley and recognised the item placed in the car as his Nike bag.  At 10:35 pm,[42] Mr Perkins recognised the rear car lights of Mr Wheatley pulling up.  At 10:36 pm,[43] Mr Perkins said the figure coming out the house was him.  Mr Perkins said that was the first time he went out and then walked in and closed the door.

    [39] Exhibit P9 at 49:51 (this refers to the timecode of the compilation).

    [40] Exhibit P9 from 1:32:57.

    [41]  Exhibit P9 from 2:05:25.

    [42] Exhibit P9 at 2:06:50.

    [43] Exhibit P9 at 2:07:35.

26. In cross-examination, Mr Perkins said he spoke to Detective Britton about 10 days after the incident, Detective Britton typed his statement onto a computer and read it back to him and he then signed each page as correct.  Mr Perkins was asked questions about his description of the clothing worn by the men and the stance of the driver of the small dark car by reference to the statement he gave to Detective Britton.  Mr Perkins could not recall what he told Detective Britton as it was a while ago but agreed that if it was in his statement that is what he would have told Detective Britton and it would have been correct at the time.  It was put to Mr Perkins that when he was at Mr Thaller’s house he was smoking amphetamine to which he said that he smoked pipes every day.  Mr Perkins denied taking fantasy and could not recall what he told Detective Britton about “gee gee”.  Mr Perkins agreed that the “Italian guy was shouting people gee gee” on the night of the incident but did not see Mr Boyce take any “gee gee”.  When asked whether he told Detective Britton that “Cuzzy” had come to the house earlier that day and had given “Boycey some juice with the Italian bloke, he was buzzing a bit”, Mr Perkins agreed that was true.  Mr Perkins said it was probably himself “buzzing”.[44]  

    [44] Exhibit P55 at T501.14.

1. It was put to Mr Perkins that he did not describe the larger car to the police in his statement 10 days after the incident as a Toyota RAV4.  When asked whether it was what he described as a silver four-wheel drive, Mr Perkins agreed.  Mr Perkins said he described the other car as a blue Holden Barina and said “yes, that’s correct, the shape of it, you know what I mean, a little car”.[45] 

   [45] Exhibit P55 at T502.23-24.

2. In cross-examination, Mr Perkins agreed that the driver of the smaller car was the one speaking to Mr Boyce, the passenger of that vehicle chased Mr Boyce down the road, and the other driver of the larger vehicle was getting out of the car.  Mr Perkins said he did not hear any yelling from out the front of the house before the people disappeared.

   Agreed facts – Constable West’s note of debrief with Mr Perkins[46]

   2.At about 2:30 am on 31 January 2017 Officer Trent West conducted a debrief with Sam Perkins in the cells at Elizabeth Police Station.  He obtained from Mr Perkins, a description of the three men said to have been involved in the attack on Mr Boyce.  Officer West recorded the descriptions provided by Mr Perkins in his notebook.  D89 records the description of the males as provided by Mr Perkins.

   [46] Exhibit D90.

3. The handwritten notes taken by Officer West are as follows:[47]

   [47] Exhibit D89.

   0230 Perkins debrief – (0230) (Elizabeth cells)
   Surge - the Russian (linked up to everyone) (to get product) (drugs)
   (Male 1) (no specific OMCG association)
   Athletic. Approx 35 years
   Caucasian Russian
   Short sandy hair
   No facial hair; No tattoos
   Driving blue Barina with faded roof
   Lives just off Port Rd/Tapleys Hill Rd. (Heard him have conversation with Boyce) to the effect of “Where’s Sam”

   *Blue Barina – Driver*

   Passenger had red tee-shirt (chased Boyce) of blue Barina
   Caucasian (male 2)
   Late 20’s
   Hat (possibly black) (no other details)

   Third male in silver 4WD (male 3)
   Ethnic
   Tall (Approx 30 years).
   Caucasian
   Dark beard, spiked hair – woggy
   Black tee-shirt

   Late 20’s/30. Looked like a club member. Could not recall who (no other details to substantiate)

   Mr Crampton

4. In the evening of 30 January 2017, Mr Matthew Crampton was at 11B Hill Street, Elizabeth South.  Mr Crampton travelled to Hill Street with a friend called Mr Matthew Marshall, who went by the nickname “Fat Matt”.  They travelled together in Mr Marshall’s LandCruiser to go to 11B Hill Street to pick up his trailer.  He thought he arrived late at night.  When he arrived, he, Mr Marshall and Mr Boyce went to the family room which was the farthest room away from the street.  Another man, also called Matt, with the nickname “Superman”, arrived afterwards as did Mr Perkins, perhaps about 15 minutes later. 

5. Mr Crampton said Mr Perkins was trying to organise a lift to go somewhere and asked Mr Boyce to go with him.  Mr Boyce said he would go with Mr Perkins and asked Mr Marshall, Mr Crampton and “Superman” if they wanted to hang around and they decided to do so.  Mr Crampton recalled that while Mr Boyce proceeded to get ready, Mr Perkins went to the front of the house.  Mr Crampton remained in the family room and could not see what Mr Perkins was doing.  He thought Mr Perkins may have been gone for three to five minutes.  Mr Crampton said that while Mr Boyce was getting ready to go with Mr Perkins he came back to the lounge and asked where Mr Perkins was.  Mr Boyce then proceeded to go out the front looking for him. 

6. Mr Crampton believed Mr Perkins was on the roof from the amount of noise he was making in the courtyard area and hearing footsteps on the roof.  Mr Crampton said there was a ladder kept in the courtyard area.  He did not see Mr Perkins climb up the ladder, but he heard it.  After he heard noises from the roof, at which time Mr Boyce was out the front looking for Mr Perkins, Mr Marshall went and looked for Mr Boyce.  Mr Marshall came in on the phone a few minutes later saying that Mr Boyce had been bashed up.  Mr Crampton then walked down Hill Street towards the Thompson Street end and saw Mr Boyce on the ground.  Mr Boyce was unconscious.  People came out from other houses and attempted to assist Mr Boyce.  When Mr Crampton walked out the front door and looked down the road and walked down the road he did not see any cars moving up or down the street. 

7. Mr Crampton said when they arrived at 11B Hill Street they parked Mr Marshall’s vehicle in the street on the same side as 11B Hill Street, on the Fairfield side, in front of the house to the north of 11A. 

8. In cross-examination, Mr Crampton said he had met Mr Perkins once or twice and that he was a drug user.  As far as he knew, Mr Perkins used methamphetamine.  Mr Crampton had not seen him use methamphetamine that night and nobody used methamphetamine while he was there. 

9. When taken to the statement Mr Crampton provided to police, Mr Crampton was reminded that he told police “Sam was telling us that he had told Mark not to go out there” and that Mr Crampton had said he did not know what Mr Perkins told Mr Boyce, but he was upset and muttering to himself.  Mr Crampton said Mr Perkins was saying something about Serge but he did not know who Serge was or what it was about.  Mr Crampton agreed that Mr Perkins was in an agitated state. 

   Mr Rozenboom

10. Mr Matthew Rozenboom, nicknamed “Superman”, was also at 11B Hill Street when Mr Boyce was injured.  He travelled to 11B Hill Street in Mr Marshall’s vehicle to collect Mr Marshall’s trailer.  When they arrived at the house, they went to the back and sat on the lounge and watched TV with Mr Crampton and Mr Marshall.  Mr Rozenboom did not think anyone else was there at the time but then Mr Perkins and Mr Boyce turned up. 

11. Mr Rozenboom recalled Mr Perkins trying to arrange a lift to go somewhere, but did not know who he was calling.  Mr Rozenboom thought Mr Boyce asked to go with him.  Mr Boyce started putting on a T-shirt and from what he could remember, Mr Perkins went to the courtyard and climbed onto the roof.  Mr Rozenboom could hear noises on the roof.  Mr Boyce then went out the front door.  The last Mr Rozenboom saw of Mr Boyce was him leaving the family dining room area and walking towards the front door.  Mr Rozenboom recalled seeing Mr Perkins enter the courtyard and then he lost sight of him.  He thought Mr Boyce would have gone after that.  It was about the same time that he heard noises on the roof which sounded like someone walking across the roof.  Mr Rozenboom thought Mr Marshall then went out.  He heard something had happened to Mr Boyce and Mr Marshall was in distress on the phone.  Mr Rozenboom did not go and see Mr Boyce. 

12. In cross-examination, Mr Rozenboom confirmed he did not see Mr Perkins come down off the roof.  He agreed Mr Perkins was distressed and said that it was meant to be him.  Mr Perkins mentioned the name Serge but Mr Rozenboom could not recall Mr Perkins saying he had seen Serge.  Mr Rozenboom did not see Mr Perkins use drugs that night and he did not know of anyone else using drugs that night.

13. Mr Marshall did not give evidence due to illness. I have not drawn any adverse inference from the failure to call him.

    Ms Bourke

14. Ms Erin Bourke was living at 20 Hill Street on 30 January 2017 with her then partner, Mr Thaller and a friend, Mr Sicari.  At the time, she was heavily pregnant, giving birth in February. 

15. Ms Bourke said that in the early hours of 31 January 2017 police woke her up and seized the CCTV unit.  She was out on 30 January 2017 with a friend and she thought she returned before midnight at which time Mr Thaller was at home inside the house.  She recalled Mr Sicari returning home a little bit after her.  Ms Bourke confirmed Mr Sicari was a particularly short man. 

16. Ms Bourke drove in from the Fairfield Road end of the street.  She said she did not recall seeing any cars as she drove along Hill Street. 

17. In answer to many questions, Ms Bourke said she could not remember. 

18. Ms Bourke was shown the CCTV footage and confirmed she was the pregnant lady walking in the front door of 20 Hill Street.

    Mr Thaller

19. Mr Thaller was living at 20 Hill Street, Elizabeth South in January 2017.  He said he had been living there for about one year together with Ms Bourke, his partner and his friend, Mr Sicari.  Mr Thaller had a CCTV footage recording unit with a number of cameras placed on the outside the house showing different angles of the front yard, driveway and carport which all recorded to a recording unit.  Mr Thaller had a monitor inside the house and one in the garage that allowed him to see what was happening outside in real time. 

20. Mr Thaller knew Mr Wheatley who had been a friend for years.  He saw Mr Wheatley weekly and Mr Wheatley sometimes visited his house.  They had mutual friends.  At January 2017, Mr Thaller had known Mr Grant for years.  Mr Grant would occasionally visit him and he would occasionally socialise with him.  Mr Thaller did not recall Mr Grant visiting his house on 30 January, nor having an injury to one of his arms.  Mr Thaller knew Mr Sahlstorfer but not as an associate.  He did not remember seeing him in the days leading up to the incident.  He did not recall when he last saw Mr Sahlstorfer prior to the evening of the incident. 

21. Mr Thaller had only just met Mr Perkins through another friend staying at his house and was probably introduced to Mr Perkins a week before.  He said Mr Perkins had been visiting him but he did not think he stayed in his house and could not recall how many times Mr Perkins had visited.  Mr Thaller had met Mr Boyce perhaps three or four times.  Mr Thaller thought he saw Mr Perkins on 30 January 2017 and said he visited at night time when he came looking for a lift.  He did not recall the time but said it was sometime between sunset and midnight.  Mr Thaller thought Mr Perkins asked for a lift so he called one of his mates, Mr Wheatley, to give Mr Perkins a lift and Mr Wheatley agreed.  Mr Thaller thought Mr Perkins left and did not come back. He said he did not see Mr Wheatley on the night until after the attack.  Mr Thaller was alerted to the assault by his girlfriend who got home and called him when she was in the driveway asking what was going on. He said he met her at the front door and then went out and saw Mr Boyce unconscious on the ground.  Mr Thaller thought he had seen Mr Wheatley before but did not remember him coming to the house before Mr Boyce’s assault. 

22. Prior to Mr Boyce being assaulted, Mr Thaller was out the front on the phone trying to get Mr Perkins a lift from Mr Wheatley.  He did not recall making any phone calls to Mr Perkins that night.  He could not remember communicating with Mr Perkins regarding whether he had been successful in arranging a lift for him.  Mr Thaller said he assumed Mr Perkins was at Mr Boyce’s house when he called Mr Wheatley because Mr Perkins walked that way from his house. 

23. Mr Thaller was shown CCTV footage from 30 January 2017 including particular points at which certain people appear.  Mr Thaller confirmed the CCTV footage showed him sitting on the trailer and he thought the person who appeared on screen at 10:00 pm[48] was Mr Perkins; he thought the person who pulled into his driveway and got out of the driver’s seat at 10:29 pm[49] was Mr Wheatley; and the person who walked out the front door carrying a backpack at 10:34 pm[50] was possibly Mr Wheatley.  He did not recall anyone arriving.  Mr Thaller confirmed the particularly short man in the CCTV footage was Mr Sicari and agreed that Mr Sicari was shown parking his car and then walking to the front door at 10:36 pm.[51] 

    [48] Exhibit P9 at 01:31:05.

    [49] Exhibit P9 at 02:00:47.

    [50] Exhibit P9 at 02:05:46.

    [51] Exhibit P9 at 02:07:57.

24. During cross-examination, Mr Thaller confirmed Mr Perkins regularly used methamphetamine.  He said he used methamphetamine with Mr Perkins at some point during the day, however, did not recall “an Italian bloke” arriving during the day driving a Holden Barina.  He did not recall someone shouting people fantasy and did not witness Mr Perkins take fantasy.  Mr Thaller did not note whether Mr Perkins would become agitated when using methamphetamine and thought Mr Perkins was paranoid all the time.  He did not know a man called Serge. 

    Mr Sicari

25. Mr Sicari was not called to give evidence.  A statement of 7 June 2017 was read into the transcript on the agreed basis that the statement represented the evidence Mr Sicari would have given if he were called.

26. In his statement, Mr Sicari said at about 9:00 pm on 30 January 2017, he finished his shift and left to travel back to 20 Hill Street, Elizabeth South.  He was driving a blue 1998 Holden VS Statesman.  Between about 9:40 pm and 9:45 pm he was travelling west on Fairfield Road trying to turn left into Hill Street.  As he turned left, there was a small dark car almost in the middle of the road on Hill Street facing north at the junction with Fairfield Road.  There was another car parked on Hill Street facing south from the kerb close to Fairfield Road.  The position of the cars did not allow him to get past them.  He beeped his horn to get the small dark car to move and it moved forward slightly and he was able to fit through to travel south on Hill Street.  He could hear the small dark car had a loud exhaust when it moved forward.  As Mr Sicari was travelling south on Hill Street he saw a four-wheel drive vehicle travelling towards him in the opposite direction, travelling north on Hill Street.  The four-wheel drive travelled to the end where it stopped to the right side of the small dark car that was still there.  Mr Sicari said he parked outside 20 Hill Street, facing north towards the two cars he had seen.  The two cars were side by side and it appeared as if they were talking to each other. 

27. When Mr Sicari arrived home, Mr Thaller was playing FIFA on the Xbox in the loungeroom.  He got out of his work clothes and went and had a shower.  At some point after he arrived home, Ms Bourke and Mr Wheatley arrived at the house.  Mr Wheatley used to come and go from the address.  Mr Sicari did not really know him.  After Mr Sicari had got out of the shower he saw lights out the front of the house on the CCTV screen.  He went out the front and saw a male, who appeared to be unconscious, on the footpath in the front of number 18.  He did not see what had happened.  There were people gathering and the ambulance officers told them to go away. 

28. Mr Sicari did not recall when Mr Wheatley left the house that night.  He did not recall being out the front of the house with Mr Thaller after he got home and before he walked out the front and saw Mr Boyce on the ground.  He was not aware Mr Wheatley was down the road before he walked out the front and saw Mr Boyce. 

29. Mr Sicari described the small car blocking him from getting into Hill Street as a small dark coloured hatch, possibly green with a detectably loud exhaust system.  He heard the exhaust when it moved forward.  He did not see the driver as the windows were up.  It had tinted windows.  He would describe the vehicle as a year 2000 model.  It did not look like “a bomb”.  He described the four-wheel drive vehicle as a big, normal sounding vehicle with bright headlights.  He was not sure of the colour, make or model.  It was possibly black.  

    Agreed facts – Erin Withers and Brook Surman[52]

    Police Attendance in Thompson Street, Elizabeth South

    27.At approximately 9:00pm on 30 January 2017, members of the South Australian Police force pulled over a vehicle in Thompson Street, Elizabeth South.  They remained at the location for long enough to search the vehicle and arrest the driver on a warrant.  The occupants of that car were Erin Withers and Brook Surman.

    [52] Exhibit P84.

    Serge “the Russian”

30. Mr Serge Zaporashenko did not know Mr Boyce and gave evidence that he did not know anything about the death of Mr Boyce.  He was never involved in an assault with other men in a suburban street in Elizabeth South and had never been to Hill Street, Elizabeth South. 

31. Mr Zaporashenko said he knew Mr Perkins and he had an altercation with Mr Perkins about a car Mr Perkins stole from him perhaps about four of five years before police were first speaking to him about Mr Boyce.  Mr Zaporashenko said he had never owned a Toyota Echo or silver Toyota RAV4. 

32. Mr Zaporashenko confirmed he was Russian and had been in Australia since 1994.  He had a few workshops including one at Para Hills West for the storage of cars.  Mr Zaporashenko said in 2017, about six cars would be stored in the premises.  A Holden Barina was never stored at the workshop.  He confirmed “100 percent” there was not a Ford Laser inside his workshop.  Mr Zaporashenko was not aware of anyone driving a Ford Laser and did not recall a blue Ford Laser with a faded roof.  The outside area was shared premises with about 20 workshops at the location and there could have been any car in the carpark. 

33. Mr Zaporashenko said Mr Perkins did not owe him money.  There was a physical altercation between Mr Perkins and Mr Zaporoshenko after Mr Perkins stole a car.  Mr Zaporashenko saw Mr Perkins on Port Road and they had an altercation which involved blows.  This occurred well before 2017, perhaps eight to 10 years ago.  Mr Zaporashenko said he was in the car as a passenger with someone driving and he jumped out.  He did not restrain Mr Perkins but they had a “tiff” through the window of the car and Mr Perkins was not tied up.

    Agreed facts – Search at workshop premises[53]

    1.At about 14:30 (2:30pm) on 31 January 2017, Officer Tiller attended a two-story workshop at premises, XX Beafield Road Para Hills West.[54]  Outside of this premises Tiller observed a blue Ford Laser motor vehicle with a faded roof.

    [53] Exhibit D90.

    [54] Address details have been partially redacted.

    Mr Boyce’s treatment and death

34. The following facts were agreed in relation to the attendance of South Australian Ambulance Services at Hill Street, the subsequent medical treatment and the death of Mr Boyce.

    Agreed facts – Medical treatment of Mr Boyce[55]

    [55] Exhibit P84.

    South Australian Ambulance Services

    10.Paramedics Anastasia Bougesis and Hannah Andia were talked to attend Hill Street, Elizabeth South on 30 January 2017 at 10:47pm.  They arrived at the front of 18 Hill Street at 10:54pm.  They were the first Ambulance on scene.

    11.Mr Boyce was unconscious and unresponsive.  He was incontinent to urine.  He was observed to be sweating profusely, breathing loudly and snoring.  No large blood loss was observed.  His t-shirt was cut off him and placed on the fence of 18 Hill Street, to enable medical treatment to be provided.

    12.Ms Bougesis observed a scrape mark to Mr Boyce’s right knee and scrape marks to both feet.  Ms Andia felt a lump approximately 1.5cm in diameter to the left side of the base of Mr Boyce’s skull (along the occiput). 

    13.Paramedics attempted to support his airway and they applied a collar to protect his neck.

    14.At 10:56pm a second Ambulance arrived, with Paramedics James Kosmala and Alexandra Penn.

    15.At 11:08pm Mr Boyce left the scene in the Ambulance with Paramedics Bourgesis and Andia.  He arrived at the Lyell McEwin Hospital at 11:12pm where he was handed over to a resuscitation team.

    Lyell McEwin Hospital

    16.On arrival at the Lyell McEwin Hospital Mr Boyce was in a poor condition.  He was unresponsive and his blood pressure was high.  He was sweating profusely.

    17.Mr Boyce was noted to have bruising and swelling to both ears, around his left eye and the left side of his cheek.  There were abrasions to his face.

    18.There was blood in his mouth that required suctioning and the right side of his nose appeared as though it had been bleeding.  Abrasions and deformities to both knees were noted.

    19.On 31 January 2017 at about 1:00am Mr Boyce was transferred to the Royal Adelaide Hospital for further treatment.

    20.On 8 February 2017 Mr Boyce died in the Royal Adelaide Hospital.

    21.Shortly after the admission of Mr Boyce to hospital, blood was taken from him and forwarded to SA Pathology.  The blood sample was subsequently seized by South Australian Police and delivered to Forensic Science SA for toxicology analysis.

    22.The blood was analysed by Christine Nash, a forensic scientist qualified to examine blood for the presence of drugs and other chemicals.

    23.No alcohol was detected.

    24.The following drugs were detected in the blood:

    a.     Approximately .26 mg methylamphetamine per L

    b.    Approximately .04 mg amphetamine per L  

    25.The presence of amphetamine in the blood is likely to be from the metabolism of methylamphetamine by the body.

    26.No other prescription drugs or drug of abuse were detected.

    Dr Charlwood

1. Dr Cheryl Charlwood is a forensic pathologist employed by Forensic Science SA.  She has significant expertise which was not challenged.  Dr Charlwood conducted the post-mortem examination of Mr Boyce.  When Dr Charlwood prepared her reports she had access to medical notes from both the Lyell McEwin Hospital and the Royal Adelaide Hospital concerning the treatment of Mr Boyce. 

2. Dr Charlwood attributed death to blunt force head injuries.[56]  Dr Charlwood concluded from the overall pattern of injuries that the injuries were consistent with a physical altercation, particularly the bruising to the soft tissues of the face including over the cheekbones and periorbital tissues of the skull fracture.  Dr Charlwood considered the bruising to the face and scalp consistent with blunt force impacts or blows but she could not determine the exact number and nature of such blows or the exact aetiology from the pathology alone.

   [56] Exhibit P63.

3. Dr Charlwood considered the blunt force head injuries of the type seen are known to occur with impact, acceleration, and deceleration forces with sheering associated tangential forces applied to the brain.  These cause relative movement of the brain within the skull and within brain tissues themselves with subsequent tearing and rupture of delicate cortical blood vessels, sheering and tearing within tissue planes of the brain substance, contusions and haemorrhages.  Such injuries induce secondary brain swelling, comprising perfusion of the brain which in turn will further aggravate and compound brain injury, oedema and swelling, and can induce extensive hypoxic ischemic damage and subsequent brain death, as was seen in Mr Boyce’s case.

4. Mr Boyce’s survival of nine days between the attack and his death had consequences for Dr Charlwood’s assessment of injuries observed.  Given the intervening period from the injury, the healing process will result in both internal and external changes and can cause more damage to the brain and consequently injuries may not appear as they would have appeared at the time of the assault.

5. Dr Charlwood observed periorbital bruising (around the eye) which was consistent with blunt force trauma.   Bruising could be from an object striking the deceased or the deceased striking an object or as a result of shifting under gravity.   It was not possible to accurately estimate age of a bruise by appearance.  Mr Boyce had a basal skull fracture which would result in blood leaking in and around the eye.  Bruising of the right periorbital region was confirmed, extending into the right cheek tissue over the zygoma (cheekbone), upper mandible, and the temple.  There was a bruise over the mid-left zygoma in the lower orbital region consistent with blunt force trauma.  There was also bruising to the superior orbital region on the left side. 

6. A number of injuries were noted on the chest, trunk, abdomen and upper limbs and there were a number of bruises and abrasions on the legs and feet.  None of the bruises and abrasions to the arms and legs were medically significant and they had no contribution to death.  Dr Charlwood was able to exclude any form of disease or underlying illness as relevant to death other than in the central nervous system.  

7. On internal examination, Dr Charlwood noted patchy merging bruising to the right frontal aspect with bruising extending into the muscle on the side of the head.  There were bruises to the facial soft tissues and on the left side of the scalp.  The skull demonstrated a fracture within the right anterior cranial fossa, the thin bone over the surface of the eye at the base of the skull, extending backwards into the sphenoid measuring approximately 6.3 centimetres in length.  The jaw was intact. 

8. The brain was extremely swollen and congested.  Dr Charlwood’s visual observation agreed with the clinical history.  The scans and impressions were of a significant brain injury.  The brain was swollen with excess fluid within the brain which could be consistent with unconsciousness from the time of the assault.  Dr Charlwood observed focal subdural haemorrhage over the surface of the brain and a little extradural haemorrhage in the region of the fracture on the under surface of the right lobe of the brain. 

9. Dr Charlwood placed the brain in a fixative solution and sent it to Professor Blumberg, neuropathologist.  Dr Charlwood received his report and met with him to discuss it.  Professor Blumberg’s assessment confirmed the brain was swollen with congestion and with subarachnoid haemorrhage closely applied to the surface of the brain.  There was cerebellar tonsillar grooving towards the under surface of the brain where it had been pushed downwards. 

10. Dr Charlwood said brain swelling can be caused by trauma and in this case, she considered the swelling was evidence of trauma.  There were contusions to the brain and many small haemorrhages within the brain caused not just by contact but by the associated movement of the brain.   When the brain moves within the skull it can impact fibrous membranes and the skull surfaces but also the white matter and grey matter can move on each other affecting the cell processes and the small vessels within the brain producing haemorrhages. 

11. Dr Charlwood said greater forces tend to result in more haemorrhage and more injuries.  Mr Boyce had several areas of haemorrhage and some haemorrhaging within the spaces within the brain.  Dr Charlwood said ventricular haemorrhages within the brain are usually associated with severe forces.  Dr Charlwood confirmed that there may be no correlation with the impact of an object and the area injured on the brain.  In this case, many of the haemorrhages were not bruises to the surface of the brain but haemorrhages within the soft tissue of the brain. 

12. Dr Charlwood observed scattered petechial haemorrhages which are small, usually vascular, injuries where small vessels are damaged because of the movement of the brain and the disruption of the tissues.  Such petechial haemorrhages are often characteristic of shearing forces.  Blunt force trauma can cause the head to move violently resulting in sudden acceleration and deceleration. 

13. Dr Charlwood was unable to offer any opinion as to the number of blows that may have been inflicted.  Any potential patterning in bruises would have dispersed after nine days. 

14. Dr Charlwood said it was difficult to venture an opinion as to the sort of force required to fracture the skull in the area of Mr Boyce’s skull fracture as force is subjective.  While it would depend on people’s individual susceptibilities, when bone is fractured she considered the force required would be at the severe end of the spectrum.  Dr Charlwood said that due to the multifocal nature and extensive haemorrhage and intraventricular haemorrhage in the brain she thought the degree of force was severe.

15. Dr Charlwood was asked to assume three days before the assault on Mr Boyce that he fell off his motorbike, got up, was seen running, was able to push the bike back to his house and in the days that followed moved purposefully and without any sign of inconvenience.  Dr Charlwood did not see anything on examination that might suggest the incident three days prior had any causative effect of death.

16. During cross-examination, Dr Charlwood agreed that it may be possible to see various injuries to the brain from a single application of force and you could get some of the petechial gliding contusions and some intraventricular haemorrhage.  Dr Charlwood agreed that the fracture to the skull would have associated injuries to the brain itself, saying that potentially severe force causing the facture will also cause movement of the head and the brain and the tissues on themselves.   It was possible to postulate that the fracture was caused by a single application of force which may have produced a variety of signs of injury within the brain as it moved within the skull. 

17. Dr Charlwood thought she had not referred in her report to the degree of force required to cause the injuries because force is a subjective estimate.  She could not remember the estimate she gave at the trial of Mr Grant about the degree of force required and could not recall giving evidence that “if you could say mild, moderate to severe, you would expect it to be the moderate to severe causing that fracture to the skull base”.[57]  Dr Charlwood said usually because a bone is involved, the force will be towards the higher end of the force spectrum, and the distribution of injuries and the intraventricular haemorrhage would usually be associated with more severe force to the brain.  She did not know why she said “moderate to severe” but thought perhaps she was trying to estimate that the part of the fracture was through the thinner part of the skull over the orbital roof as well as the temporal bone.  Potentially a moderate to severe potentiality is a descriptive for the degree of force required on a thin part of the skull.  Dr Charlwood agreed the fracture site was at one of the thinner portions of the bony structures of the skull but the fracture went up the side of the temporal bone which is not as thin.  She agreed the fracture could potentially be caused by moderate to severe force.  She considered the application of force was to the general area of the fracture site because there was underlying bruising to the right side of the head and overlying scabbing. 

    [57] T520.14-16.

18. Dr Charlwood said it was not possible to quantify the degree of force required to cause a traumatic brain injury due to the complicated biomechanics and unpredictable individual biological responses that are involved.  The clinical impression was of a diffuse brain injury with scans reported as consistent with diffuse axonal injury.  Although traumatic axonal injury comprises a spectrum, diffuse axonal injuries are considered to lie at the high end of the spectrum where the strains on axons have resulted from severe forces leading to irreversible damage in a widespread or diffuse distribution.  Dr Charlwood explained her reference to subjective was meant in a medical sense, given the number of variables involved.  Dr Charlwood said it is difficult to say if severe brain injury necessarily implies severe force because, in Mr Boyce’s case, there were not just the initial injuries but the body’s response to those injuries which can cause further problems to the brain itself because of the swelling and interruptions in vascular flow and those secondary effects will damage the brain as well. 

19. Dr Charlwood agreed it was impossible to tell the sequence of injuries. 

20. Dr Charlwood was aware of a second impact syndrome usually seen in young male athletes experiencing a concussion from which they seem to recover but then a seemingly minor injury afterwards results in the brain undergoing massive swelling.  Dr Charlwood said such cases do not have the haemorrhages and contusions associated with Mr Boyce’s case.  Dr Charlwood agreed that according to literature this could occur even though the first injury to the brain might not necessarily appear to be too significant.    However, she would not consider that a prior head trauma to Mr Boyce might impact on the degree of injury she observed at autopsy because of the severity of the injuries that were present including shearing injuries and not just brain swelling.  Dr Charlwood considered second impact issues were not applicable to Mr Boyce because of the distribution of actual injuries in Mr Boyce’s case, including the fracture and the intraventricular haemorrhage. 

21. Dr Charlwood would not ascribe any of Mr Boyce’s injuries to a fall off the motorcycle if Mr Boyce had not had concussion, not sought medical advice or had any problems after the accident.  Having reviewed the CCTV footage showing Mr Boyce falling off the motorbike, her opinion was that any impact between the motorcycle rider’s head and the road surface would not have had any bearing on her findings at autopsy and she did not change her opinion.  Dr Charlwood agreed that her position would be strengthened by footage showing Mr Boyce walking down the road holding a drink, talking to people and socialising with them several hours prior to death and seemingly behaving in a normal and purposeful manner. 

    CCTV footage processing

22. CCTV footage seized from 20 Hill Street shows part of the events of the evening. 

    Agreed facts – Recovery of CCTV footage[58]

    [58] Exhibit P84

    Digital Video Recorder

    1.On 31 January 2017 at 12:22am Detective Brevet Sergeant of Police Benjamin Horley, seized a Digital Video Recorder (DVR) from the inside of 20 Hill Street Elizabeth South.  The DVR appeared to be connected to a monitor and camera system at the house.  The DVR was seized and booked in the South Australia Police secure property storage system with the identifying number 17/B47685-7.

    2.The time that appears on the face of that CCTV footage is half an hour behind the actual time at the location shown, with a margin of error of plus or minus one minute.

23. Before I address my observations based on my viewing of the CCTV footage, I turn to the evidence concerning steps taken to process the CCTV footage.  Unprocessed and processed CCTV footage was tendered.

24. Detective Britton reviewed the CCTV footage seized from Hill Street and prepared a compilation of footage spanning a number of days of images recorded by the CCTV footage unit.[59]  He ran off working copies and a working hard drive. 

    [59] Exhibit P9.

25. Dr Sorell is a senior lecturer at the University of Adelaide in the Faculty of Science, Engineering and Technology.  He is the principal consultant and director of Digital Forensic Sciences Australia and an adjunct professor of forensic science at Tallinn University of Technology in Estonia.  Dr Sorell has a Bachelor of Science in Theoretical and Experimental Physics from the University of Adelaide; a Bachelor of Engineering in Computer Systems Engineering (First Class Honours) and a PhD and a Graduate Certificate in Management.  Dr Sorell has been a consultant, particularly to law enforcement, but also to defence, in digital evidence matters and has given evidence in the Supreme Court, the District Court and other courts, particularly about CCTV footage.  Dr Sorell has been teaching since 1999 and has supervised PhD, Masters and Honours students in matters relating to digital video.  Dr Sorell supervises students in digital forensics and digital forensic science and teaches courses at the Tallinn University of Technology in Estonia.  Dr Sorell explained that his background assists him to give evidence about CCTV footage as a CCTV system is an electronic system comprised of an electronic sensor connected to a digital storage medium requiring advanced signal processing and compression which relates directly to the way in which computers store information and process multimedia information. 

26. Dr Sorell’s expertise was not challenged and I accept his expertise.

27. In 2017, Dr Sorell was retained by SAPOL to consider the CCTV footage, assess it and process it.  Dr Sorell was asked to process the CCTV footage as cleanly as possible to get the cleanest possible view that could be used in the investigation.  Dr Sorell said there are severe limitations as to what can be done with poor quality footage.  Poor quality can arise by the way in which the video is compressed during which information the eye does not tend to perceive can be lost.  Dr Sorell said with this poor quality footage not much could be done and it was important that as little as possible would be done to avoid further damage to make the most of the CCTV footage. 

28. When given the hard drive and the DVD-ROM, Dr Sorell validated that the footage he had received was consistent with what he played back from the video recorder.  From there, the video was imported to video editing software called “Final Cut Pro” and then certain sections were isolated and processed.  After importing the video into the software, Dr Sorell was asked to address particular parts of the footage. 

29. Dr Sorell used tools such as zooming to isolate a section of the screen and then expanding that out.  He applied a blurring filter.  Dr Sorell explained the purpose of applying a blurring filter is to address the visual impact of zooming which results in the sharp edges of individual pixels impacting the visual impact.  Blurring removes high level detail not present in the original image so as to not mislead the viewer.  Dr Sorell explained that blurring is a well known and well-established process in image processing. 

30. In some instances, Dr Sorell slowed down the footage by reducing the frame rate by a factor of four. 

31. Dr Sorell adjusted some colour, tone and brightness deliberately in order to better see some shapes in the footage such as different panels on a car or features of hubcaps.  In doing so, the footage loses the ability to differentiate the colours seen in the footage.  In the case of this CCTV footage, there was no way of reliably determining the actual colour of objects. 

32. Dr Sorell explained that he is always conscious to ensure that what is seen in the processed footage was present in the original as supplied and has not been synthesized as a consequence of the processing. 

33. Dr Sorell explained that camera 5, which pointed up Hill Street in a northerly direction towards the fence, had visible light behind it.  That camera operated in colour but behind the fence in the foreground the footage had poor lighting so the features in the footage were predominantly from whatever was lit, including by car headlights.  Camera 6, which pointed across Hill Street, was operating in infrared mode.  There was not sufficient visible light as a consequence of which the scene was illuminated in infrared.  A tree in the front yard which was backlit dominated the footage, as a consequence of which the camera’s sensitivity for objects in the street was limited. 

34. Dr Sorell was asked to address isolated sections of the CCTV footage.  Dr Sorell’s general process was to play that piece of footage unedited and then process it in a way to better assist the interpretation of the footage such as by zooming in, blurring, slowing down and, where appropriate, applying colour, brightness and contrast adjustments to better see the features in the footage.  Dr Sorell prepared a DVD containing a series of separate files resulting from the processes he employed.[60]

    [60] Exhibit P5.

35. Dr Sorell explained that because he was making a direct copy of a binary digital file there was no further loss of quality in the process and what was produced was the same video files he produced from his editing process. 

36. Each of the files produced by Dr Sorell were played and Dr Sorell explained each instance of processing employed by him.  For example, in the case of the file “Boyce-C6-1628-Z2” Dr Sorell recognised footage from camera 6 with a timestamp of 16:27:58.  The first sequence was the CCTV footage zoomed in by a factor of two followed immediately by the same footage at a reduced speed.  Each of the processes applied by Dr Sorell were itemised in the index in exhibit P6.

37. The file naming system used by Dr Sorell contained the reference to the camera from which the footage was taken and the time, so for example, C5-2204 was the footage from camera 5 and 2204 was a reference to 10:04 pm.  Dr Sorell explained that the files “Boyce-C5-2204”, “Boyce-C6-2203”, “Boyce-C5-2206”, “Boyce-C6-2206”, “Boyce-C5-2208”, “Boyce-C6-2208”, and “Boyce-C5-221323” commenced with the unprocessed footage immediately followed by the same footage with the processes applied by Dr Sorell.  The files “Boyce C5 – Assault HD”, “Boyce-C5-2211”, and “Cam56-221325” commenced with processed footage and did not contain the unprocessed segments. The segment “Boyce C5 – Assault” contained only the unprocessed footage. 

38. In the case of the video depicting the assault, Dr Sorell processed by zooming in and also using high definition resolution with appropriate filtering to give him more control over the field of view and to provide the clearest view possible.  In the footage depicting the assault, Dr Sorell dimmed part of the screen to highlight a particular area of interest. 

1. I accept Mr Munn’s evidence that the area where the VIN number should have been stamped onto the centre of the truss at the top in the plenum area was missing with a section removed and that he could not think of any reason for its removal. 

2. The depth under the soil at which the Toyota Echo was located, the destruction in part of the vehicle by fire, the absence of the VIN number and the compliance plate and the partial dismantling of the chassis with hand tools supports an inference that the Toyota Echo was deliberately burned, partly dismantled and buried.  I draw that inference and I also infer that those steps were conducted with a view to ensuring the Toyota Echo would not be located. 

3. In drawing these inferences, I have not overlooked the defence submissions including to the effect the Toyota Echo was used in burnouts at Ponde and that the appearance of the vehicle at Ponde in its wrecked condition does not mean much in the context of the condition and value of the vehicle.  I have drawn the inferences above based on all of the evidence including the location in which the Toyota Echo was discovered and the state of its remains.

4. I cannot form any conclusion about which individuals were involved in the partial destruction and burying of the Toyota Echo and I do not use those matters to suggest consciousness of guilt.  However, I infer that those steps could not have occurred on Ponde without the knowledge and involvement of Hells Angels members given the evidence, which I accept, about the ownership, use, location and layout of Ponde and the limited ability for members of the public to obtain access. 

5. Only limited observations can be made from the CCTV footage about the driver of the small dark vehicle, primarily that he was wearing a pale T-shirt.Mr Perkins gave evidence that the driver, after getting out of the vehicle, yelled “where the fuck’s Sam” three times in an aggressive tone and with a bit of an accent, which “was not Aussie”.  I accept Mr Perkins was located in a position where he could hear the driver.  I accept Mr Perkins’ evidence that he heard the driver of the small dark vehicle speak with an accent which was not Australian. 

6. Mr Perkins said the driver of the small dark car had a light coloured T-shirt and a hat on and the passenger was a fit build and wearing a T-shirt, not a jacket or jumper.  In his evidence Mr Perkins described the driver of the Toyota RAV4 as taller and skinnier than the driver and passenger of the small dark vehicle who he thought were about the same height.  Mr Grant and Mr Sahlstorfer are roughly similar heights while Mr E is taller.[234] 

   [234] Exhibits P68; Exhibit P69; Exhibit P70.

7. Earlier in his evidence, Mr Perkins was asked if he knew Mr Sahlstorfer and responded that he did.  Defence relies on that evidence together with Constable West’s notes and Mr Crampton’s evidence that Mr Perkins was muttering about Serge the Russian when he got off the roof.  Constable West’s notes of his discussion with Mr Perkins at 2.30 am on 31 January 2017 record Mr Perkins referring to “Serge the Russian” and a description which includes “Caucasian, Russian, short sandy hair, no facial hair, no tattoos, driving a blue Holden Barina with a faded roof” and included a location where Mr Perkins thought Serge the Russian lived.  I accept Mr Perkins gave that description to Constable West. 

8. Given the inability to cross-examine Mr Perkins, it is not possible to assess matters such as whether Mr Perkins thought he was describing to Constable West the man he saw from the roof or whether it was possible he was describing the man he knew as Serge the Russian because he thought it was Serge and if so, why. 

9. At this point I turn to address my observations of Mr Zaporoshenko given defence’s reliance on the references to “Serge the Russian”. 

10. Mr Zaporoshenko leaned back in his chair while giving evidence but did not appear ill at ease.  He answered questions shortly and directly.  He acknowledged getting into a fight with Mr Perkins and hitting him.  He was very firm in his denials in cross-examination concerning the vehicles which may have been in his workshop premises and that he did not know about the vehicles in the car park area.  When prompted whether he was sure about his answers in cross-examination, he maintained his denials.  While recognising it is not likely Mr Zaporoshenko would make admissions if he had been involved in the offending, he appeared willing to give his evidence.  His demeanour and his evidence did not give rise to doubts about his reliability and credibility.  In accepting his evidence, I take into account all of the other evidence including the telecommunications evidence and the evidence about the types of cars seen in the CCTV footage which support the veracity of Mr Zaporoshenko’s evidence.

11. I accept that Mr Perkins described the driver of the small dark vehicle to Constable West as not having tattoos.  Defence place reliance on Mr Perkins’ reference to no tattoos, given Mr Sahlstorfer’s obvious tattoos.  Mr Perkins also described the passenger and his description referred to that man as Caucasian, late 20s, with a hat, possibly black.  No other details were provided.  Mr Perkins did not describe the passenger of the small dark vehicle by reference to having tattoos or not having tattoos.  Mr Grant has visible tattoos on his left arm (those on his right arm would have been obscured by the cast).[235]  Mr Perkins gave evidence the passenger was wearing a T-shirt.  Given the extent of tattoos on Mr Grant’s left arm, which was not covered by clothing, the absence of any reference by Mr Perkins at the time of speaking to Constable West to the passenger of the small dark car having tattoos gives rise to doubt about the reliability of the reference to no tattoos.  Mr Perkins did not identify the passenger as Mr Grant, despite recognising him in the CCTV footage, or refer to the cast, which also gives rise to the possibility his descriptions of the features of the individuals involved may have been flawed. 

    [235] Exhibit P72.

12. I turn to consider whether the prosecution has proved beyond reasonable doubt that Mr Sahlstorfer was the driver of the small dark vehicle and that Mr Sahlstorfer was one of the three assailants in the attack on Mr Boyce in light of all of the evidence.  I have avoided addressing the evidence piecemeal.  I have carefully reviewed the totality of the evidence to consider whether I am able to exclude all reasonable hypotheses consistent with Mr Sahlstorfer’s innocence and whether the matters pressed upon me by the defence rest upon any more than mere conjecture.[236]  In particular, I must consider whether the totality of the evidence excludes any reasonable hypothesis consistent with Mr Sahlstorfer’s innocence in Mr Sahlstorfer not being present and involved in the attack.  I must then consider whether the prosecution has proved beyond reasonable doubt that Mr Sahlstorfer is guilty of murder or the alternative of manslaughter.

    Does the totality of the evidence exclude all reasonable hypotheses consistent with Mr Sahlstorfer being the driver of the small dark car?

    [236] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47].

13. I have concluded that the totality of the evidence excludes all reasonable hypotheses consistent with Mr Sahlstorfer not being the driver of the small dark vehicle, or put differently, with someone other than Mr Sahlstorfer being the driver.  Without referring again to all of the evidence, the following matters are significant in my conclusion: the association between Mr Sahlstorfer, Mr E and Mr Grant; the association between Mr Thaller and Mr Wheatley, Mr Thaller and Mr Grant and Mr Grant and Mr Wheatley; Mr Perkins’ presence at 20 Hill Street and then 11B Hill Street; the fact Mr Thaller arranged a ride for Mr Perkins with Mr Wheatley; the characteristics of Mr Sahlstorfer’s Toyota Echo, in particular the faded roof and the “hotdog” muffler; the evidence of Mr Perkins concerning the faded roof and the evidence of Mr Perkins and Mr Sicari concerning the sports exhaust on the small dark car; Mr Greer’s opinion the small dark vehicle was a Toyota Echo and the larger silver vehicle was a Toyota RAV4; the consistency of the larger silver vehicle with the Toyota RAV4 available to Mr E; the lack of sighting of both the Toyota RAV4 available to Mr E and Mr Sahlstorfer’s Toyota Echo after the police media release; the location and state of Mr Sahlstorfer’s Toyota Echo when found at Ponde; the conclusion Mr Grant was the passenger of the small dark vehicle; the call charge records supporting the inference the phone subscribed to Mr Sahlstorfer moved from Valley View to Pooraka to Elizabeth Vale in about the half hour leading up to the attack; the repeated drive-bys in Hill Street; the interest in the occupants of the vehicles in 11B Hill Street when Mr Perkins was at 11B Hill Street; the phone call from the phone subscribed to Mr Grant’s girlfriend to Mr Wheatley at 10:12 pm; the phone call from the phone subscribed in the name of Mr Sahlstorfer to the phone subscribed in the name of Mr Wheatley at precisely the time Mr Wheatley was parked in front of 11B Hill Street and the two vehicles were driving down Hill Street; the call from the phone subscribed in the name of Mr Sahlstorfer to the phone subscribed in the name of Mr Grant at 11:05 pm after the attack; Mr Perkins’ reference to the driver of the small dark vehicle having an accent; and the evidence that Mr Sahlstorfer has a slight accent when angry.

14. In my view, the evidence in its totality is compelling in excluding any reasonable hypothesis consistent with Mr Sahlstorfer not being the driver of the small dark vehicle and one of the three attackers. In reaching that conclusion I have not overlooked the evidence which is inconsistent or potentially inconsistent with the prosecution case and the defence submissions.  This includes, but is not limited to, the reference by Mr Perkins to Serge the Russian and the description given to Constable West, including no tattoos; the references by Mr Sicari to tinted windows, the car possibly being green; and the defence hypotheses concerning the state of the Toyota Echo at Ponde and the absence of an ability to prove precisely the position of the phone subscribed to Mr Sahlstorfer.  In my view those matters do not preclude that conclusion because the totality of the evidence leads to the overwhelming inference that Mr Sahlstorfer was the driver of the small dark vehicle.  On all of the evidence I do not consider there is a reasonably open inference that Mr Zaporoshenko was one of the three men.  I infer that Mr Perkins’ reference to “Serge the Russian” must have been mistaken.  I have not overlooked the inability to cross-examine Mr Perkins or defence’s submission that Mr Zaporoshenko would not admit to involvement. Even without Mr Zaporoshenko’s testimony, and taking into account Mr Perkins’ account to Constable West and the other evidence about “Serge the Russian”, the evidence in its totality is sufficiently compelling to prove Mr Sahlstorfer’s presence and involvement in the attack. 

15. I consider it inherently implausible that the telephone services subscribed in the names of Mr Grant, Mr E, Mr Wheatley and Mr Sahlstorfer were not being used by those men on 30 January 2017.  I infer the interactions between them related to finding Mr Perkins for a purpose that was not friendly.  I do not consider there is a reasonably open inference consistent with the phone calls between them being unrelated or, of particular importance, that the phone call at 10:39 pm from the 350 number (Mr Sahlstorfer) to the 683 number (Mr Wheatley) was unrelated or coincidental at the crucial time in the drive-by sequences.  I also consider inherently implausible and dismiss as far-fetched the possibility that all of the matters to which I have referred above would have coincidentally occurred if Mr Sahlstorfer was not the driver of the small dark car and thus the principal assailant in the attack on Mr Boyce.  Those combined, related occurrences are not capable of explanation consistent with a reasonable hypothesis of innocence.  Mr Sahlstorfer’s involvement is the only rational inference or conclusion that the circumstances I find proved enable me to draw.

    Has prosecution proved Mr Sahlstorfer guilty of murder?

    Murder - Joint enterprise

16. Given I have concluded Mr Sahlstorfer was the driver of the small dark vehicle observed in the CCTV footage, the question remains whether the prosecution has proved beyond reasonable doubt that Mr Sahlstorfer committed the offence of murder and, in particular, whether the totality of the evidence excludes any reasonable hypothesis consistent with Mr Sahlstorfer’s innocence of that charge.

17. In order to find Mr Sahlstorfer guilty of murder on the basis of joint criminal enterprise, I must find beyond reasonable doubt that Mr Sahlstorfer entered into an agreement with one or more of Mr Grant and the driver of the other vehicle to kill or cause grievous bodily harm to Mr Boyce, and while that agreement was on foot, Mr Boyce was murdered in the presence of Mr Sahlstorfer.

18. While I accept defence’s submission that any joint enterprise prior to the start of the chase must have related to Mr Perkins, that does not preclude the formation of an agreement in relation to Mr Boyce at the time Mr Grant started to chase Mr Boyce and the other two men followed and the three men attacked Mr Boyce together.  The absence of words also does not preclude such an agreement.  When Mr Perkins was not located, the men in combination chased down and attacked Mr Boyce without apparent motive given their interest in Mr Perkins.  I infer that the men chased Mr Boyce after they failed to locate Mr Perkins.  I infer from the CCTV footage that the men acted together, in unison, once Mr Grant started chasing Mr Boyce.  The CCTV footage shows that the driver immediately ran back to his car as Mr Grant started chasing Mr Boyce.  Both drivers followed the two men running down the road without any delay.  On getting out of the small dark car, the driver (Mr Sahlstorfer) immediately inflicted blows in the manner I have described above while the passenger (Mr Grant) restrained Mr Boyce.  The driver of the other vehicle joined in, and all three men delivered blows. 

19. I infer from the behaviour of the three men observed on the CCTV footage that all three acted consistently with each other and with a common purpose of inflicting blows on Mr Boyce.   It is readily apparent from the CCTV footage that the three men acted together by tacit agreement moving immediately to follow Mr Grant when he started the chase.  I find beyond reasonable doubt that Mr Sahlstorfer entered into an agreement with one or more of Mr Grant and the driver of the larger vehicle to attack Mr Boyce and participated in that agreement.

    Intention

20. I turn to consider whether the agreement was an agreement to inflict grievous bodily harm or whether it was an agreement to do something less.  I consider that question together with the question whether the blows which were the cause of death were delivered with an intention to cause grievous bodily harm or some lesser intention.  The same evidence is relevant to both issues.

21. Defence submitted that the disposal of the Toyota Echo does not speak to the intention with which the attack was committed.  I agree that the partial destruction and disposal of the Toyota Echo does not necessarily lead to an inference of a state of mind consistent with murder. 

22. I have considered the evidence in its entirety in assessing what inferences can be drawn concerning state of mind as to the nature of the joint enterprise and the intention with which the blows were delivered.[237]

    [237] R v Quist [2017] SASCFC 37; (2017) 127 SASR 471 at [121]-[122] (Peek J), quoting Brooks v The Queen [2012] VSCA 197; (2012) 36 VR 26 84 at [50]-[58], [61]-[67] (Weinberg JA; Bongiorno JA and Forest AJA agreeing).

23. The men acted simultaneously and immediately upon Mr Boyce fleeing in the way I have set out above. 

24. Based upon my close consideration of the CCTV footage, I find that the driver of the small dark vehicle, Mr Sahlstorfer, delivered a number of the kicks and punches.  He moved rapidly from his car to Mr Boyce and commenced attacking him immediately.  I find that after delivering a number of blows, Mr Sahlstorfer stepped back and then moved forward in a motion consistent with a forceful kick.  He moved aside to allow the driver of the larger vehicle to join in the attack.  Mr Grant then stopped holding Mr Boyce.  Mr Sahlstorfer and the other men continued to kick Mr Boyce while he was lying down.  I find that Mr Sahlstorfer and the other men continued to attack Mr Boyce after Mr Grant had stopped restraining Mr Boyce and he was lying on the pavement.  I infer that Mr Boyce did not fight back. 

25. I find that the blows were delivered with force and to Mr Boyce’s head.  This is consistent with Dr Charlwood’s evidence concerning the location of the injuries and the degree of force to which I have referred above. 

26. While I cannot determine which precise blow or blows were the substantial cause of death, the CCTV footage demonstrates consistency in the observable force with which blows were delivered by the men during the attack and I infer that the blows were delivered with the same intention. 

27. I conclude the prosecution has proved beyond reasonable doubt that the joint enterprise into which Mr Sahlstorfer entered and participated was an agreement to cause grievous bodily harm and the blows which were a substantial cause of death were delivered with that intention.  In my view that is the only inference available from the conduct of the men as seen in the CCTV footage. 

28. While the attack was short, which may be thought to militate against an intention to commit grievous bodily harm, it was violent and frenzied.  The attack was sufficient to result in fatal injuries in a very short time.  Blows were directed at Mr Boyce’s head, which is a vulnerable location.  Mr Boyce was rendered quickly unconscious and he never regained consciousness. 

29. The rapidity of the blows, the direction of the blows, the observable force and, significantly, the continued kicking of Mr Boyce after he was lying on the pavement belies any lesser intention.  The CCTV footage does not support an inference that the men ceased the attack once Mr Boyce was on the ground. 

30. The absence of a weapon or any uncertainty about precisely how many blows were delivered does not cause me to doubt my conclusion.  While the men did not utilise a weapon, they employed their fists and feet as weapons in the delivery of a series of punches and kicks including blows directed at Mr Boyce’s head. 

31. I do not consider there is reasonably open an inference consistent with an intention only to cause harm or serious injury in view of the ferocity and nature of the attack generally, blows aimed at Mr Boyce’s head and the continued kicking when Mr Boyce was prostrate. 

32. It follows that prosecution has proved beyond reasonable doubt that there was an agreement between the three men to cause Mr Boyce grievous bodily harm, Mr Sahlstorfer participated in the agreement and, while that agreement was on foot, Mr Boyce was murdered in the presence of Mr Sahlstorfer.

33. There is no reasonably open hypothesis consistent with Mr Sahlstorfer’s innocence on the charge of murder.

    Conclusion

34. I find Mr Sahlstorfer guilty of murder.

    
    

    APPENDIX A

    Agreed Facts – Exhibit P84

    Digital Video Recorder

    1.On 31 January 2017 at 12:22am Detective Brevet Sergeant of Police Benjamin Horley, seized a Digital Video Recorder (DVR) from the inside of 20 Hill Street Elizabeth South.  The DVR appeared to be connected to a monitor and camera system at the house.  The DVR was seized and booked in the South Australia Police secure property storage system with the identifying number 17/B47685-7.

    2.The time that appears on the face of that CCTV footage is half an hour behind the actual time at the location shown, with a margin of error of plus or minus one minute.

    Medical Treatment of Mr Grant

    3.On Friday 27 January 2017, Joshua Roy Grant attended at the Lyell McEwin Emergency Department.

    4.He received medical treatment for an injury to his right hand.

    5.X-Rays revealed a fracture at the base of his right little finger.

    6.A backslab plaster was applied to his right hand, which covered the right back and outside of the forearm up to the elbow.

    7.Mr Grant attended the Lyell McEwin Hospital on 3 February 2017 where the injury was reassessed and a new backslab plaster was applied.

    8.He reattended the hospital on 7 February 2017 when the plaster was removed.

    9.Whilst at the hospital, Mr Grant provided a telephone number on which he could be contacted.  The number was 04XX XXX 307.[238]

    [238] Telephone numbers have been partially redacted.

    South Australian Ambulance Services

    10.Paramedics Anastasia Bougesis and Hannah Andia were talked to attend Hill Street, Elizabeth South on 30 January 2017 at 10:47pm.  They arrived at the front of 18 Hill Street at 10:54pm.  They were the first Ambulance on scene.

    11.Mr Boyce was unconscious and unresponsive.  He was incontinent to urine.  He was observed to be sweating profusely, breathing loudly and snoring.  No large blood loss was observed.  His t-shirt was cut off him and placed on the fence of 18 Hill Street, to enable medical treatment to be provided.

    12.Ms Bougesis observed a scrape mark to Mr Boyce’s right knee and scrape marks to both feet.  Ms Andia felt a lump approximately 1.5cm in diameter to the left side of the base of Mr Boyce’s skull (along the occiput). 

    13.Paramedics attempted to support his airway and they applied a collar to protect his neck.

    14.At 10:56pm a second Ambulance arrived, with Paramedics James Kosmala and Alexandra Penn.

    15.At 11:08pm Mr Boyce left the scene in the Ambulance with Paramedics Bourgesis and Andia.  He arrived at the Lyell McEwin Hospital at 11:12pm where he was handed over to a resuscitation team.

    Lyell McEwin Hospital

    16.On arrival at the Lyell McEwin Hospital Mr Boyce was in a poor condition.  He was unresponsive and his blood pressure was high.  He was sweating profusely.

    17.Mr Boyce was noted to have bruising and swelling to both ears, around his left eye and the left side of his cheek.  There were abrasions to his face.

    18.There was blood in his mouth that required suctioning and the right side of his nose appeared as though it had been bleeding.  Abrasions and deformities to both knees were noted.

    19.On 31 January 2017 at about 1:00am Mr Boyce was transferred to the Royal Adelaide Hospital for further treatment.

    20.On 8 February 2017 Mr Boyce died in the Royal Adelaide Hospital.

    21.Shortly after the admission of Mr Boyce to hospital, blood was taken from him and forwarded to SA Pathology.  The blood sample was subsequently seized by South Australian Police and delivered to Forensic Science SA for toxicology analysis.

    22.The blood was analysed by Christine Nash, a forensic scientist qualified to examine blood for the presence of drugs and other chemicals.

    23.No alcohol was detected.

    24.The following drugs were detected in the blood:

    a.     Approximately .26 mg methylamphetamine per L

    b.    Approximately .04 mg amphetamine per L  

    25.The presence of amphetamine in the blood is likely to be from the metabolism of methylamphetamine by the body.

    26.No other prescription drugs or drug of abuse were detected.

    Police Attendance in Thompson Street, Elizabeth South

    27.At approximately 9:00pm on 30 January 2017, members of the South Australian Police force pulled over a vehicle in Thompson Street, Elizabeth South.  They remained at the location for long enough to search the vehicle and arrest the driver on a warrant.  The occupants of that car were Erin Withers and Brook Surman.

    Forensic Science South Australia

    28.DNA samples were obtained from the following persons in the course of the investigation:

    a.     Mark Robert Boyce (the deceased)

    b.    Mr Grant

    c.     Tobias Sahlstorfer

    29.Each of these samples were appropriately stored before being delivered to Forensic Science SA for the purposes of DNA analysis and comparison.

    30.The following exhibits were delivered to Forensic Science SA for DNA analysis and comparison:

    a.     A pair of black shorts removed from the deceased on his admission to the Lyell McEwin Hospital (17/B47685-3)

    b.    A blood swab taken from the scene by CSI officer Adam Dennis at scene marker 1 (17/B47685-4)

    c.     A black T-shirt bearing a design with the words “The Doctor 46 Valentino Rossi” seized from a fence at the front of 18 Hill Street Elizabeth South (17/B47685-5)    

    Perkin’s Phone

    31.On 31 January 2017 at about 1:50am, Brevet Sergeant Trent West attended at 11B Hill Street, Elizabeth South.

    32.Samuel Perkins was located in the premises and a phone was seized from his person and booked into the South Australia Police secure property storage system with the identifying number 17/B47685-8.

    33.Item 17/B47685-8 was extracted by Yi-Chi Lin of the South Australian Police Electronic Crime Section.

    34.The extraction was reviewed and the international mobile equipment identity (IMEI) number on that handset was 86390702472561.

    35.The IMEI is reflected in the call charge records for the service number

    
    

    04XX XXX 285.[239]

    [239] Telephone numbers have been partially redacted.

    Media Release

    36.On 2 March 2017, the South Australian Police media unit published a media release regarding the investigation into the death of Mark Boyce.

    37.A text of that media release is produced and now marked as exhibit P83.

    38.The media release was dated 2 March 2017.

    39.On that same date, police also released CCTV footage recorded by the CCTV unit at 20 Hill Street, Elizabeth South.  The footage shows the bashing of Mr Boyce, and the two cars used by the perpetrators of that bashing.  The footage was subsequently aired on free to air television.  This was the first public release of the footage showing the two vehicles.

    Residential Address

    40.At as 30 January 2017, Tobias Sahlstofer and [Ms R][240] resided at XX The Circuit, Walkley Heights, South Australia.[241]

    [240] The name of Mr Sahlstorfer’s partner has been redacted.

    [241] Address details have been partially redacted.

    Beachwood Court, Gulfview Heights

    41.On 25 October 2017, Senior Constable Michael Randells attended XX Beachwood Court, Gulfview Heights.[242]  He was the allocated exhibits officer.  He was handed registration papers regarding a Toyota Echo, registration WSL073 by Brevet Sergeant Andrew Jervis.

    [242] Address details have been partially redacted.

    42.This item was seized and booked into the South Australia Police secure property storage system with the identifying number 17/B47685-70.

    Hells Angels Memberships and Clubhouse

    43.As of 30 January 2017, Tobias Sahlstorfer was a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club.

    44.Tobias Sahlstorfer became a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club in June 2012.

    45.As of 30 January 2017, Mr E was a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club.

    46.Mr E became a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club in June 2012.

    47.Mr Grant was a hang around for the Adelaide Chapter of the Hells Angels Motorcycle Club as of 30 January 2017.  He became a prospect for the Adelaide Chapter of the Hells Angels Motorcycle Club prior to 26 October 2017 and most likely on 11 August 2017.

    48.From at least 3 August 2008 until 2015 the clubhouse of the Adelaide Chapter of the Hells Angels Motorcycle Club was at XX Albert Street, Clarence Gardens.[243]

    [243] Address details have been partially redacted.

    49.As of 30 January 2017, the clubhouse was no longer in use.

    Agreed Facts – Exhibit D90

    1.At about 14:30 (2:30 pm) on 31 January 2017, Officer Tiller attended a two-story workshop at premises, XX Beafield Road Para Hills West.[244]  Outside of this premises Tiller observed a blue Ford Laser motor vehicle with a faded roof.

    [244] Address details have been partially redacted.

    2.At about 2:30 am on 31 January 2017 Officer Trent West conducted a debrief with Mr Perkins in the cells at Elizabeth Police Station.  He obtained from Mr Perkins, a description of the three men said to have been involved in the attack on Mr Boyce.  Officer West recorded the descriptions provided by Mr Perkins in his notebook.  D89 records the description of the males as provided by Mr Perkins.

    
    

Dawson JJ).

Dawson JJ).

See, eg, R v Gardiner [2015] SASCFC 107, in which cause of death was blunt head, chest and abdominal trauma but death from a particular cause could not be ascribed.