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 58Criminal: Trial by Judge alone
STEIN J.
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.
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…
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Details
- AGLC
- R v Sahlstorfer (No 2) [2024] SASC 58
- Case
- [2024] SASC 58
- Decision Date
CaseChat Overview and Summary
In the matter of R v Sahlstorfer (No 2), the court was tasked with determining the culpability of the accused, Tobias Sahlstorfer, for the murder of Mark Boyce. The prosecution presented evidence of a violent altercation involving multiple individuals, including Sahlstorfer, Joshua Grant, and the deceased. The crux of the case revolved around whether Sahlstorfer had the requisite intent to cause grievous bodily harm or death at the time of the incident, and whether his actions were a substantial cause of Boyce's death.
The legal issues before the court included the interpretation and application of the elements required to prove murder under South Australian law. This encompassed establishing causation, voluntary and deliberate actions, specific intent, and the absence of lawful excuse or defence. The court had to weigh the credibility and reliability of key witnesses, particularly given the inability to cross-examine one deceased witness, Samuel Perkins, whose evidence was admitted under statutory provisions.
The court carefully analysed the evidence, taking into account the agreed facts and the circumstances surrounding the incident. It concluded that there was no reasonably open hypothesis consistent with Sahlstorfer's innocence regarding the charge of murder. The prosecution successfully demonstrated that Sahlstorfer's actions were a substantial cause of Boyce's death, were voluntary and deliberate, and were carried out with the intent to cause grievous bodily harm. The court found that no lawful excuse or defence applied.
In light of the findings, the court found Sahlstorfer guilty of murder. The detailed analysis and reasoning provided in the judgment ensure a clear understanding of the court's decision, based on the evidence and legal principles applied.
The legal issues before the court included the interpretation and application of the elements required to prove murder under South Australian law. This encompassed establishing causation, voluntary and deliberate actions, specific intent, and the absence of lawful excuse or defence. The court had to weigh the credibility and reliability of key witnesses, particularly given the inability to cross-examine one deceased witness, Samuel Perkins, whose evidence was admitted under statutory provisions.
The court carefully analysed the evidence, taking into account the agreed facts and the circumstances surrounding the incident. It concluded that there was no reasonably open hypothesis consistent with Sahlstorfer's innocence regarding the charge of murder. The prosecution successfully demonstrated that Sahlstorfer's actions were a substantial cause of Boyce's death, were voluntary and deliberate, and were carried out with the intent to cause grievous bodily harm. The court found that no lawful excuse or defence applied.
In light of the findings, the court found Sahlstorfer guilty of murder. The detailed analysis and reasoning provided in the judgment ensure a clear understanding of the court's decision, based on the evidence and legal principles applied.
Orders
Orders of the court
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Background
Background to the litigation
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 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 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. 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 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). 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). 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
Evidence
Evidence Before The Court
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”). The evidence was given by Mr Perkins during the trial of Mr Grant for the murder of Mr Boyce. 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 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 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. 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 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). 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). 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
Decision
Reasons for decision
STEIN J
There is no reasonably open hypothesis consistent with Mr Sahlstorfer’s innocence on the charge of murder. Conclusion I find Mr Sahlstorfer guilty of murder. APPENDIX A Agreed Facts – Exhibit P84Digital Video Recorder1.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 Grant3.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 Services10.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 Hospital16.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 Lb. 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 South27.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 Australia28.DNA samples were obtained from the following persons in the course of the investigation:a. Mark Robert Boyce (the deceased)b. Mr Grantc. 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 Phone31.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 Release36.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 Address40.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 Clubhouse43.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 D901.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.
Ratio Decidendi
Legal Principle Established
Established by: STEIN J
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