R v Saipani

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Saipani
Citation:	[2020] ACTSC 191
Hearing Dates:	23, 29–30 June, 1–2 July 2020
DecisionDate:	15 July 2020
Before:	Murrell CJ
Decision:	Guilty of aggravated burglary.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Aggravated burglary – Joint commission
Legislation Cited:	Criminal Code 2002 (ACT) ss 45A, 311, 312 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 49, 57 Supreme Court Act 1933 (ACT) ss 68B, 68C
Parties:	The Queen (Crown) Javarne Saipani (Accused)
Representation:	Counsel M Howe (Crown) J Purnell SC with A Costin (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused)
File Number:	SCC 100 of 2019

MURRELL CJ

The trial

Pursuant to s 68B of the Supreme Court Act 1933 (ACT) (SCA), on 12 May 2020 Mr Saipani (the accused) elected to be tried by a judge alone and his legal practitioner certified that he had been advised in relation to the election and had made the election freely.

When arraigned before me sitting as a judge alone, the accused pleaded not guilty to the offence that, on 5 November 2018 with Kyle Butkovic and Ibrahim Kaddour (the co-offenders), he entered or remained in a building, a unit in Lyneham (the unit), as a trespasser with intent to commit an offence that involved causing harm, or threatening to cause harm to anyone in the building, and at the time he was in company and had an offensive weapon.

Crown case

The Crown case was that, in the early hours of 5 November 2018, the accused and the co-offenders entered and/or remained in the Lyneham unit as trespassers. Inside, they committed acts of violence against DX and KM. At least two of the men were armed; Mr Butkovic was armed with an electrical discharge device and Mr Kaddour was armed with a knife.

The Crown relied on s 45A of the Criminal Code 2002 (ACT) (Criminal Code) to argue that the accused was guilty by virtue of “joint commission”.

The Crown identified two “pathways” to a finding of guilt by joint commission.

First, prior to entering the unit, the accused and the co-offenders reached an agreement to commit an aggravated burglary by entering the premises as trespassers with intent to harm or threaten harm.

Second, once the men were inside the unit, an agreement evolved whereby the accused and the co-offenders would remain on the premises as trespassers with intent to threaten or cause harm, despite being asked to leave.

Defence case

In opening, defence counsel outlined the defence case. He said that the three men had been invited to the unit, and the accused was invited into the premises. The accused was not present when the co-offenders were asked to leave as he was in a bedroom with DX. By the time that he emerged from the bedroom, the co-offenders were interacting amiably with the other occupants and had ceased to be trespassers.

Legislation

Section 311 of the Criminal Code provides:

311 Burglary
(1)A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent—
…
(b)to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or
…

Section 312 of the Criminal Code provides:

312Aggravated burglary
A person commits an offence (aggravated burglary) if the person—
(a)commits burglary in company with 1 or more people; or
(b)commits burglary and, at the time of the burglary, has an offensive weapon with him or her.

Section 45A of the Criminal Code provides:

45A Joint commission
(1)A person is taken to have committed an offence if—
(a)the person and at least 1 other person enter into an agreement to commit an offence; and
(b)either—
(i) an offence is committed in accordance with the agreement; or
…

(2)For subsection (1) (b) (i), an offence is committed in accordance with an agreement if—
(a) the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct—the result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.

…
(4)A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement.

Elements of the offence

On the first pathway proposed by the Crown, the Crown must prove the following elements:

(a)The accused and the co-offenders entered into an agreement to enter the unit as trespassers with intent to harm or threaten harm to KM.
(b)The accused and the co-offenders intended that an offence would be committed under the agreement.
(c)An offence of aggravated burglary was committed in accordance with the agreement that:
(i)the conduct of one or more of the men involved entering the unit as a trespasser with intent to harm or threaten harm to KM; and
(ii)the conduct of one or more of the men involved being in company with one or more others while entering the unit; or
(iii)the conduct of one or more of the men involved having an offensive weapon with them while committing burglary (entering as a trespasser with intent); and
(iv)the conduct of one or more of the men was of the same type as the agreed offence.

On the second pathway proposed by the Crown, the Crown must prove the following elements:

(a)At the unit, the accused and the co-offenders entered into an agreement to remain there as trespassers with intent to harm or threaten harm to KM.
(b)The accused and the co-offenders intended that an offence would be committed under the agreement.
(c)An offence of aggravated burglary was committed in accordance with the agreement in that:
(i)the conduct of one or more of the men involved remaining in the unit as a trespasser with intent to harm or threaten harm to KM; and
(ii)the conduct of one or more of the men involved being in company with one or more others while remaining in the unit; or
(iii)the conduct of one or more of the men involved having an offensive weapon with them while committing burglary (remaining as a trespasser with intent); and
(iv)the conduct of one or more of the men was of the same type as the agreed offence.

The defence agreed that the two pathways were available and that, in relation to each pathway, the above elements were the relevant elements.

Principles of law, warnings, and directions

I set out the principles of law that I apply for the purpose of arriving at a verdict: s 68C(2) SCA. I also set out the warnings, directions, or comments that I would have given had the matter been tried before a jury: s 68C(3) SCA.

The Crown bears the onus of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty. If I have a reasonable doubt about his guilt, I must return a verdict of not guilty.

In order to prove the charge beyond reasonable doubt, the Crown must prove each legal element of the offence beyond reasonable doubt. The Crown need not prove each disputed fact beyond reasonable doubt (unless proof of that fact is essential to proof of a legal element). The legal elements are set out at [12] and [13] above.

In making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and that contained in the exhibits. I must apply my common sense. I must bring an open and unbiased mind to the evidence and consider it dispassionately and logically.

I must consider the reliability of witnesses, looking both at their honesty and the accuracy of their memory. Logically, it may be that a witness should be accepted on one matter but not another; if it is logical to do so, I may accept one part of a witness’s evidence and reject another part of the witness’s evidence. If it is logical to do so, I may attach different weight to the evidence of different witnesses.

In this trial, the evidence of DX was given by audio-visual link from a remote room with a support person present. That is usual practice. I draw no adverse inference against the accused and the evidence of DX is accorded no greater or lesser weight because it was given in that way: Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 49, 57.

There was evidence of contemporaneous statements:

(a)by KM to Mr Jones (a paramedic) that he had been “assaulted by three others” to whom he “owed” money;
(b)by DX to First Constable Thackray that he had been “tasered” and “bashed”; and
(c)by TE to the neighbour that men had “broken into” the unit and were still there.

This evidence is relevant in two ways. First, it is relevant to an assessment of the credibility of the witness who made the complaint. Second, it provides some evidence of the facts asserted, although it is evidence of a different quality to that of direct evidence.

The accused did not give evidence. He was entitled to exercise this aspect of his “right to silence” and I draw no adverse inference from his decision to do so.

The accused’s version of events emerged through other witnesses, particularly KM.

If the Crown satisfies me that the accused’s version of events could not reasonably be true and I reject it, that does not strengthen the prosecution case. It is neutral. I still need to consider whether, on the evidence that I find to be reliable, the prosecution has proved the charge beyond reasonable doubt.

Evidence and assessment of witnesses

Ibrahim Kaddour

Mr Kaddour said that, as at November 2018, he was friends with Mr Butkovic and the accused, and that KM was “a friend of friends”. He “assume[d]” that KM was a friend of the accused.

On the evening of 4 November 2018, he was at Mr Butkovic’s home with the accused, Mr Butkovic, and Mr Butkovic’s parents.

He said that he had no recollection of being at MC’s unit because he had been very intoxicated and had not “[snapped] out of [it]” until four days later, when he regained his faculties and found himself in a cell at the Alexander Maconochie Centre.

He denied that he would have gone to the unit to recover money and said both that he did not assault or threaten anyone within the unit and that he did not recall doing so.

Assessment of Mr Kaddour

Mr Kaddour was an extremely evasive witness who, on occasions, denied propositions before recovering himself and correcting his evidence to say that he did not recall the matter. I do not accept that the degree of his intoxication affected his memory as much as he claimed. I place no reliance on his evidence.

Kyle Butkovic

Mr Butkovic said that, as at November 2018, he was friends with Mr Kaddour and the accused. He was also friends with KM, whom he saw regularly, maybe once or twice a week, generally at Mr Butkovic’s home.

On the evening of 4 November 2018, Mr Kaddour and the accused were at his home “just hanging out”. Mr Kaddour was “rather intoxicated”. Mr Butkovic himself was under the influence of a pharmaceutical drug.

KM invited the three men to attend the unit “just to chill … [or] have a drink or something”.

When they arrived, DX or one of the women opened the door and greeted them. DX recognised the accused, greeted him as an old friend, and invited everyone in.

One woman was present at the unit, together with DX and KM.

There was an altercation. It started with an argument between DX and KM. There was a “scuffle”. DX picked up a baton and appeared to be about to strike Mr Butkovic. KM told him to put it down, saying words to the effect of “don’t hit Kyle”. Mr Butkovic punched DX once.

Mr Butkovic also said that he did not recall that the accused was in the room during the scuffle; either the accused remained in the bedroom where he had been chatting to DX or he had his back turned during the scuffle. The accused and DX were in the bedroom for most of the time that the group was at the unit.

MC asked him and Mr Kaddour to leave. He did not know why. He responded in a friendly manner, saying something like “okay”. However, they remained there for about an hour after they had been asked to leave, until the police arrived. During this period, the conversation continued, and they had a drink of bourbon and cola.

Mr Butkovic said that he did not recall whether the altercation occurred before or after MA asked them to leave.

Mr Butkovic said that did not recall picking up a gold baton at any stage. He first saw a gold baton during the altercation. He did not recall that Mr Kaddour had a knife.

Those present consumed alcohol only (or, in cross-examination, consumed both drugs and alcohol) until the police arrived.

Mr Butkovic and his companions were present at the unit for one to two hours.

Assessment of Mr Butkovic

Mr Butkovic was an unreliable witness who aligned himself with the accused. There was a clear contradiction in his evidence that, on the one hand, DX was involved in an altercation but, on the other hand, DX and the accused were in DX’s bedroom when the altercation occurred. In evidence-in-chief, Mr Butkovic recalled some important events only when pressed. However, in cross-examination, he readily agreed with most propositions that were put.

I place reliance on Mr Butkovic’s evidence only to the extent that it is consistent with (and, preferably, corroborated by) the evidence of less partisan witnesses.

MC was the sole lessee of the premises. She resided there with her partner, TE.

DX was staying in the unit on a temporary basis, occupying the second bedroom. MC said that her current relationship with DX was not good as he owed her rent money. She had used cocaine with DX once or twice.

As at November 2018, KM was a good friend and frequent visitor. She had consumed drugs with KM. He usually had Valium on him, a drug in which she was not particularly interested. Sometimes she took cocaine with him. Her relationship with KM was now poor. KM was present on the day after the incident and, subsequently, she received a few messages from him. Otherwise, since the incident, she has had no contact with him.

A few days prior to 4 November 2018, MC hosted a Halloween party at which marijuana and Valium were consumed. At the party, KM supplied blue pills. It was KM not DX who was the supplier. KM supplied DX with Valium at the party and that was the only time that she had seen DX with “little blues”. She and TE had slept for three days after the party. A woman, FJ, had been at the party and had “hit it off” with DX. By the evening of 4 November 2018, MC was no longer hung over from the Halloween party.

The record of an interview of MC by officers of the Office of the Director of Public Prosecutions (DPP) on 28 October 2019 (Exhibit 4) states:

[DX] supplied little blue Valiums to everyone at Halloween party. [DX] also tried to sell her cocaine. [KM] gave drugs to people at Halloween party.

MC said that this was a recording error; it was KM, not DX who had tried to sell her cocaine.

Prior to 5 November, MC did not know Mr Kaddour, Mr Butkovic, or the accused.

On the afternoon of 4 November 2018, police attended the unit and alerted MC to the fact that her front door had been damaged and would not open. At that time, DX was in the city with KM and FJ. MC understood that they were shopping.

MC called a locksmith. In cross-examination, she agreed that it could have been as late as 11:30 PM that she rang the locksmith.

Later, possibly about 8 PM (it was dark), DX returned home with KM and FJ. DX used a fire extinguisher that was outside the door, further damaging the door and enabling it to be opened.

Soon after returning, KM became angry or frustrated as he wanted to leave the apartment to make a phone call but could not open the door. He left by the balcony.

About half an hour after leaving, KM returned and fell asleep on the couch in the lounge room.

During the evening, MC smoked four or five bongs of marijuana and drank a bottle of cider, but she did not become particularly intoxicated. DX was smoking marijuana. KM was asleep whenever MC went into the lounge room. TE smoked a little marijuana before she went to bed.

For most of the evening, MC was in her bedroom. She remained awake, waiting for the locksmith.

Much later in the evening, closer to 11 PM or 12 AM, after she had called the locksmith but before he arrived, MC heard a polite knock. The kitchen light was on, illuminating the loungeroom and entry area. MC went to the front door, thinking that it was the locksmith. DX also went to the front door.

MC opened the door a crack and saw Mr Kaddour (although she did not know him at the time). When she asked whether he was a locksmith, he looked confused. Mr Butkovic came to the door behind Mr Kaddour. DX opened the door.

Someone shone an intense light like a blue strobe light from the porch area outside the front door towards MC, who was “blinded” for about 30 seconds to a minute.

No one suggested that KM had invited the men to the unit. MC was pushed to one side by DX and hurt her ankle. DX greeted the third man (the accused) and seemed happy to see him. DX said something like “hello, come in, let’s talk” while the man was still standing outside. DX also said to the accused “I haven’t seen you for ages”.

The next thing that MC knew was that three men had entered the unit.

Mr Kaddour and Mr Butkovic approached KM and seemed to be trying to rouse him. They yelled at him, saying something like “where’s the money”. One of the men may have punched KM. At one point, KM said “get off me”.

MC thought that it was as she was leaving the lounge room to warn TE about the men that DX was hit with a gold baton or taser (Exhibit 2). The baton was swung towards DX although she did not recall seeing it make contact. She was “pretty sure” that the assailant was Mr Butkovic rather than Mr Kaddour. DX was struck with a fist to the head. She believed that she had seen Mr Kaddour’s fist strike DX on the side of the head. She was sure that DX had been hit and that she had seen “contact”, but she could not be sure about who had hit him. She saw Mr Butkovic use the baton in a threatening way towards KM.

The record of MC’s interview by the DPP on 28 October 2019 (Exhibit 4) states that MC referred to both KM and DX being punched “a few times asking for money” and that the “guy punching [DX] was wearing rings and could feel dents in head”.

MC said that, after DX was hit, the accused and DX went to DX’s bedroom and the two men remained in the bedroom with the door closed.

MC went to her bedroom and told TE to “go and hide” and “call the cops”. She also checked on FJ, who was “out to the world” in DX’s bedroom. Then she saw DX and the accused approaching DX’s room so she assumed that FJ “would be okay”. She returned to the lounge room.

When she returned to the lounge room, Mr Kaddour and Mr Butkovic were standing with KM by the couch. They were “very angry” with KM. They demanded “where’s the money?” and “show us where the money is”. Mr Kaddour punched KM a few times in the ribs. MC was pretty sure that, by this stage, DX and the accused were in the bedroom with the door closed.

Up to this point, MC had not seen KM being hit, although he could have been struck in her absence. He seemed semiconscious and rattled.

At one stage—possibly at this point—MC asked the men “Why are you in my apartment?” and said “Leave my place. This is my apartment … Go away” and “The cops are on the way”. They responded “Sorry, but we have to talk to [either KM or DX, MC was unsure]”. They said “We’ll leave but we’re taking [KM] with us”.

Mr Butkovic and Mr Kaddour asked MC for a charger for the taser and she said that she did not have one. She realised that the baton/taser was uncharged as she had seen the men press the button that was designed to activate it, without success.

Mr Butkovic offered MC the gold baton as a “gesture of goodwill”, saying “take this, I’m not going to hurt you, we’re not here for you”. Mr Butkovic had the baton on his person. She was not sure whether it was in his jacket. She sat on the lounge, concealing the baton behind her.

About five or 10 minutes after MC had warned TE, TE came halfway down the hall towards the lounge room. Mr Butkovic grabbed the blue strobe torch and shone it in TE’s eyes. MC stepped between the two and said to Mr Butkovic “That’s my girlfriend, please don’t touch her”. MC asked TE to “get out of here” and TE returned to the bedroom.

The blue strobe torch looked like Exhibit 9, although MC recalled it as being more chunky. Previously, she had not seen the torch. MC believed that, at this point in time, DX was still in his bedroom with the accused.

MC said to Mr Kaddour and Mr Butkovic “let’s discuss this, let’s smoke some weed”. At that stage, KM was “quite out of it” and seemed to be trying to speak to the men.

The men calmed down and reassured MC that they had no intention of hurting her.

Later, Mr Kaddour suggested to MC that they trade the baton for a switchblade knife that he had. She took the knife but did not return the baton. At no stage did she see the open blade of the knife. The knife looked like Exhibit 10, but she recalled it as being dark grey rather than green in colour.

DX came out of the bedroom looking for a frozen item to cover his injured eye. He found some frozen meat and put it against his face. She thought that the accused was still in the bedroom. She is not sure whether DX returned to the bedroom or stayed in the lounge room.

In any event, it was about that time that “everything started to calm down a little bit and everyone was trying to … talk a little bit more”. Mr Kaddour and Mr Butkovic sat on either side of KM.

DX and the accused were in the bedroom up to the point that DX came out to look for something frozen. When they came out, she invited them to sit down and have some marijuana. They were in the lounge room when the police arrived.

All three men apologised. It was towards the end of the night, while they were smoking weed, that the accused apologised.

About a third of the way into events, the locksmith arrived. At that stage, the accused was in the spare bedroom and the others were in the lounge room. The locksmith was there for about 30 minutes, working on the outside of the door. Before the locksmith left, she paid him and asked him to call the police. When the accused emerged from the bedroom he said that he would pay for the lock repair.

The police arrived at about 4 or 4:30 AM. At that stage, DX and the accused were still talking. MC does not think that KM was conscious.

When the police arrived, she ran to them and continued running to the outside of the premises, where she met up with a police officer and TE. She told the police what had happened. When she first spoke to police, she believed that four people had entered the premises (she was not sure at that time whether it had been three or four men).

She went through the apartment with the police. They located a knife on a couch (Exhibit 10) and a knife on the ground in DX’s bedroom, just inside the door to the left (Exhibit 3). Previously, she had not seen the either knife.

MC believed that about four to five hours had elapsed between when the men entered the apartment and when the police arrived.

Two days later, she went to hospital with TE and DX, who had swelling to one side of his head. She had a very sore ankle.

MC saw no animosity between DX and the accused; they had seemed very friendly.

Afterwards, DX had bragged about attacking people in the apartment, but she had not seen him attack anyone.

Assessment of MC

MC was a reasonably reliable witness.

In written submissions, senior counsel for the accused stated:

She appeared to be doing her best to be honest and accurate as to what she remembered clearly on some aspects her evidence is inaccurate.

I agree with that assessment. I am satisfied that she was doing her best to tell the truth. She made appropriate concessions. She did not seek to implicate the accused; she said that he had apologised and offered to pay for the damage to the lock.

MC conceded that she had been intoxicated and said that her memory of events was poor. Nevertheless, in her evidence-in-chief, she had a reasonably good recall of detail. Her conduct on the night in question and the coherence of her account suggested that she was not overawed by events and that stress or fear probably had only a limited effect on her capacity to absorb what was happening.

Cross-examination revealed several significant inconsistencies in her evidence. Her sense of times and timing was clearly wrong in significant respects and she was uncertain about the order in which some events had occurred.

There were inconsistencies between her evidence and the statements that were recorded as having been made to officers of the DPP on 28 October 2019 (Exhibit 4), particularly in relation to whether DX supplied drugs at the Halloween party. It is impossible to say whether the DPP notes reflect mistaken recording or confused accounting, but I accept MC’s evidence that it was KM, not DX, who was the drug supplier. MC made it clear that she disliked both men and her confident statement in evidence that it was KM who was the drug supplier accorded with that of TE.

The locksmith said that MC did not ask him to call the police. Whether she did or did not is an issue of little significance in relation to the assessment of MC’s credit. It may be that she was confused on the night and thought that she had asked him to call the police when she had not.

TE gave evidence that she knew the accused from primary school (although it was not until after the incident that she realised the connection) but she had no prior knowledge of Mr Kaddour or Mr Butkovic.

As at November 2018, DX had been living in the apartment for about two weeks.

KM attended the apartment about three times a week to “hang out”. He was a drug dealer but, as far as she knew, he did not supply drugs from the unit.

At about 5 or 5:30 PM on 4 November 2018, she and MC were woken by police who alerted them to an attempted break-in.

Later, DX returned to the apartment with KM and FJ. There was a discussion concerning the attempted break-in. MC, DX and TE went to a friend’s place and were absent for about one and a half hours, returning at about 10:30 PM. Meanwhile, KM remained at the unit in order to protect it against further intrusion.

When she returned to the unit, she went to bed. Before she fell asleep, she had two cones of marijuana but no other alcohol or drugs.

At about 11:30 PM to 12:30 AM, she was woken by MC telling her to wake up as “there are people in our house”. MC told her to get out and call the police.

After she woke up fully, she went into the hallway to investigate. She saw a man whom she did not recognise. He had longish, blonde hair and was wearing a green camouflage jacket (Mr Butkovic). He pulled out a light and she was “strobed” by a blinding blue light.

When she came to, she saw KM in front of the lounge being beaten by a short, dark-skinned man with a tattoo on his neck (Mr Kaddour). The man was punching KM “quite ferociously” in the face, chest, and elsewhere with a closed fist. He struck KM between three and 10 times. KM was just standing there.

She saw the gold baton (Exhibit 2) on the kitchen bench.

The man with the light was standing in the corner of the dining room.

At that point, the accused was standing in the dining area with DX.

TE walked towards MC, who was in a chair next to KM. MC told her to go to the bedroom and call the police.

TE’s phone was uncharged. She walked around the unit for a short period. As she was in the hallway walking towards the bedroom, she heard the accused say, “I’m so sorry ladies, I didn’t realise this was your house”. At that stage, she was in the hallway behind the accused and DX was near the accused. She heard vague yells and shouts of “Give me the money, give me the fucking money”. She returned to the bedroom.

On two occasions, TE saw DX and the accused speaking to each other in DX’s bedroom. The bedroom door was “mostly open”. She did not see any animosity between DX and the accused.

On reaching her bedroom, TE hesitated before jumping out the bedroom window. As she was part way out the window, the shorter dark-skinned male (Mr Kaddour) came up behind her and was half onto the bed. She saw something silver in his hand and he “[tried] to stab” her. DX was behind him, an arm’s length away. In her police statement, TE did not mention an attempted stabbing.

TE let go of the railing and landed on the ground, hurting her ankles. She alerted a neighbour, asking him to call the police. She ran towards the front of the building, where she encountered police.

TE said that it was about 10 to 12 minutes after MC woke her that she jumped out the window and it was no more than five minutes later that she saw the police. In cross-examination, she said that it was five to 10 minutes before she jumped out the window and five to seven minutes later that she saw the police. However, as she believed that the police had arrived at about 1:30 AM, it may have been more than 10 to 12 minutes before she jumped out the window.

When she and MC returned to the unit, they found several knives. A flick knife was found in the cat litter in DX’s room (Exhibit 10). A knife was located on the esky near the front door. On the couch, there was a green camouflage jacket containing a small bag of white powder. The knife that is Exhibit 3 was found somewhere in the unit. Prior to the incident, she had not seen the strobe light (Exhibit 9), the knives, the baton, or the camouflage jacket.

Assessment of TE

TE was a reasonably reliable witness. She said that she had observed only part of the incident and she made appropriate concessions. Her perspective differed from that of MC and the details of their evidence varied such that, despite their relationship, it seemed unlikely that there had been cross-contamination of their evidence, and none was suggested.

Like other witnesses, TE’s recollection of times and the impression that she had of the duration of the incident varied greatly from that of the other witnesses. Her evidence was inconsistent with that of MC and other witnesses who said that there was a lengthy period at the end of the incident when events “calmed down” and the accused and co-offenders joined the occupants of the unit, drinking and taking marijuana. That significant time period is “missing” from her recollection.

On the other hand, as she witnessed (and had the opportunity to absorb) only a limited amount of what occurred, her recollection of those matters may be better than that of other witnesses.

DX said that he had met KM through MC. He always had a lot of pills on him and DX thought that he dealt—or may have dealt—in cannabis, Xanax and Valium. At the unit, drugs were sold by KM and MC.

DX used cannabis as he had chronic pain. He did not sell drugs.

About three days prior to 4 November 2018, there was a Halloween party. He did not supply drugs at the party. KM was “on drugs” at the party. On 4 November, there was an unconscious woman in Mr DX’s bedroom, who had passed out at the party and been asleep in his bed for three nights. He had not known that her name was FJ. He had not “hit it off” with her at the Halloween party. At the Halloween party, he had been more interested in a man.

As at 4 November 2018, KM had had a falling out with MC. KM had wanted to talk to her about a sexual assault, but she had not wished to discuss the matter. DX decided to go out with KM and see whether he was genuine in what he was saying. FJ was not with them. He and KM went to an Irish pub in the city. DX was drinking beer and became very intoxicated. KM was drinking mixers.

DX said that he was out from about 4 PM to 10–11:30 PM. Previously, he had said that it was at 8 to 9 PM when he went out with KM. He had also said that it was between 4 and 7 PM.

While he was out with KM, DX noticed that he had missed calls from MC. He became worried and headed back to the unit. He and KM arrived at the unit at 11 or 11:15 PM. He also said that it was at about 11:15 that he received a call from MC.

When he arrived at the unit, he saw damage to the front door’s handle area. Using a fire extinguisher, he bludgeoned the handle off, broke the lock, and entered. This took about five minutes.

DX gave a confused account of what happened after he returned to the unit and before the accused and co-offenders arrived. As far as I can gather, he recalled that events unfolded as follows.

They all smoked cannabis and played on the Xbox. DX sat on the couch and did not leave the unit at that point. MC contacted a locksmith to fix the door and then they continued to play video games. He also said that it was after midnight that MC or TE rang a locksmith.

MC and KM had a verbal disagreement and KM became agitated and aggressive. MC and KM had a “screaming match” during which MC pointed a chef’s knife at KM and told him that she did not want to continue the friendship. DX told KM that MC did not want him in her life and that he should stay away. They did not have a physical fight; because of a medical condition, DX avoids fights as well as contact sports. MC asked KM to leave and he left by climbing over the balcony.

MC, TE, and DX continued smoking cannabis and playing the Xbox. The cannabis was kept in a communal bowl on the coffee table. There was also alcohol on the table.

After 10 or 15 minutes (in cross-examination he said that it was 20 to 25 minutes or 30 minutes), at about midnight, KM returned and was very apologetic. He was distraught and crying. He sat on the couch, took some blue pills, became quite sedated, and “passed out” after about 20 minutes.

At about midnight, KM was awoken by a phone call or buzz. He started answering phone calls in an erratic manner, becoming quite agitated and panicky because he had missed calls while he was asleep. He was “freaking out”. KM said that he needed to get out of the unit. KM went downstairs. DX assumed that it was in order to answer phone calls. KM asked DX to drive him somewhere, but DX declined.

In evidence given on 19 November 2019, DX had said that the main period of agitation by KM was between 11:30 PM and 12:15 AM.

DX said that he had never had a conversation with KM about buying and selling drugs and there was no such conversation on 4 November 2018.

KM returned to the unit. MC, KM, and DX were in the loungeroom. DX was unsure of TE’s whereabouts, but he thought that she was in the loungeroom.

Five or 10 minutes after KM returned, at about 1 AM to 1:30 AM, there was a “regular” knock on the door and DX went to open it, assuming that it was the locksmith. MC also approached the door, standing behind him and to his left. DX saw a shorter Middle Eastern man (Mr Kaddour) and asked, “Are you the locksmith?” Mr Kaddour responded, “Locksmith?”.

A bright strobe light was shone in DX’s eyes. It blinded him for a second or two.

When he regained his sight, he saw a Caucasian man with quite long hair (Mr Butkovic) in front of him holding an object.

Mr Kaddour and Mr Butkovic assaulted him at the doorway.

Mr Butkovic produced a metallic item, the gold baton/taser (Exhibit 2), put it directly into DX’s chest and “electrocuted” him. DX’s body “seized up” and he lost control of his bladder. He spat at the man.

Mr Kaddour hit DX on the right side of his face/temple more than 20 times (DX stopped counting at 20). DX’s glasses were damaged and knocked from his face. There were multiple injuries to his head. There may have been hits to the left side of his face as well, but he was mainly hit on the right side.

On 9 November 2018, DX told police that he was struck continuously to the left side of the head. He also said that he had seen Mr Butkovic before he had seen Mr Kaddour, that he had recognised the accused as he had been to school and played rugby with him, and that the accused had stopped Mr Kaddour from assaulting him.

In his evidence in this trial, DX said that, after he was struck, he saw the third male, a largish man, in the doorway (the accused). He thought that the man was a Mr Lou Saipani, with whom he was acquainted through playing football.

DX was pushed backwards into MC.

The three men walked through, into the unit.

DX did not recall inviting the men to enter. He did ask the man whom he thought was Lou Saipani what it was all about. Up to the point of entry, apart from asking about the locksmith, he said nothing. He did not greet the accused or invite anyone into the unit.

Mr Kaddour and Mr Butkovic held knives towards him and—he believed—towards MC.

KM was on the couch. One of the men went up to him and began to wake him up, yelling his name and starting to shake him.

DX said that his police statement was incorrect in that it recorded that he had sat down on the couch and the accused had sat down next to him.

Rather, Mr Kaddour walked DX to the kitchen with a knife at his throat and instructed him to grab garbage bags and put property into them. The knife was like a hunting knife. DX grabbed garbage bags.

While DX was in the kitchen, the accused went to where KM was on the couch.

Mr Kaddour walked DX to DX’s bedroom, where DX filled about two garbage bags with clothing and personal belongings, including cash earnings in envelopes from employment at a restaurant. He was there for five to 10 minutes.

They returned to the kitchenette area as they had run out of garbage bags. DX placed the full garbage bags in the kitchen area as indicated in Exhibit 7.

KM was being assaulted by Mr Butkovic and the accused, who were attacking him, yelling and punching his torso. The accused was leaning over KM as Mr Butkovic hit KM’s chest. DX thought that MC was sitting on a couch.

After standing in the kitchenette, DX went to look for TE. When he was in the hallway just outside her bedroom, he saw her climbing out her bedroom window. Mr Kaddour had a knife in his hand and was advancing towards her. He was about two metres from her. DX grabbed him. Mr Kaddour turned around and the knife caught DX’s left arm, causing a small laceration. Mr Kaddour smacked DX in the head and told him to return to the lounge room. DX did so.

When he returned to the lounge room, he saw that KM was being assaulted, mainly by Mr Butkovic. He did not see the accused throw any punches. (It is unclear whether this incident is the same as that referred to at [154] above.)

The accused obtained an ice pack (or frozen meat or peas) from the freezer and applied it to DX’s right eye.

The accused asserted that DX was hiding something in his bedroom. They went to the bedroom, where they remained for about 10 minutes. DX did not voluntarily take the accused to his bedroom. They were sitting on a mattress on the bedroom floor. DX spoke to the accused about rugby union. DX’s pet cat emerged and he begged the accused not to kill her. The accused told DX that KM had “screwed him over”. The accused apologised that he was in the unit, saying that he had thought that it was KM’s unit and had not known that anyone else lived there.

DX denied that he was in the bedroom with the accused for most of the night.

The accused instructed DX to return to the living room and he did so.

Mr Kaddour and Mr Butkovic were assaulting KM. It looked like they were trying to “put him onto their arms as if to carry him”. The accused told Mr Kaddour to calm down. This was just before the police arrived. DX also said that he had been in the kitchen when the accused had told Mr Kaddour to calm down.

MC was in the lounge room. At some point in the evening, Mr Kaddour gave the baton to MC.

In the lounge room, the accused sat down with DX and they smoked cannabis.

A locksmith attended while the men were still in the unit. DX thought that the locksmith would have been able to see what was occurring in the unit.

When the police arrived, he told them that most of his possessions had been stolen.

On the night, DX smoked “quite a lot of cannabis” (about $50 worth) and consumed a large amount of alcohol.

Prior to the night, he had never seen Exhibit 3.

DX said that, on the night, he had sustained knee injuries when he was struck to the knees by the gold baton. He had not been injured on gravel. Bruises to his chest were caused by the electrical device. Marks on his arm were caused by punches (but in cross-examination, he said that he could not recall how the injury was caused). A laceration to his neck was caused by the knife in the bedroom (as marked on Exhibit 6). The scratch on his left arm and another scratch on the top of his hand were caused by Mr Kaddour in TE’s bedroom.

On 7 November, DX went to Woden Hospital. He told the nurse that he had been experiencing some spots in his right eye and felt concussed. The hospital undertook an electrocardiogram (ECG), which revealed no head injury. He went to an ophthalmologist and discovered that his right retina had become detached.

In the week after the incident, DX moved out of the unit. He did not owe rent. He helped MC and TE move to Wamboin/Bywong, NSW. He stayed with them for a short time, until there was a falling out. Later, when he tried to collect his cat and other belongings, MC threatened him with a gun.

DX said that, in November 2018, his mental health had been poor. Consequently, his memory and understanding of the incident was better now than at the time of the incident.

DX agreed that he had lied to KM by telling him that he was a police informant. Further, he had falsely claimed to have saved FJ from attack by Mr Kaddour.

DX’s hospital notes

Exhibit 11 were the records of DX’s hospital attendance on 7 November 2018. The nursing assessment records:

alleged victim of home invasion on Monday AM. Bruising to chest / knife held to throat / bat to knees/ ?[closed head injury] / forearm pain / ? deformed nose / head LACS … Occasional left eye spots appear, stun gun to chest. ? [closed head injury]

The doctor’s notes record:

Reported opened door to 3 men on Monday morning approximately 1:30 AM. [Patient] was awake and 2 female housemates and 1 male friend at this time awaiting locksmith.
Locksmith called due to attempted break in earlier that day.
[Patient] reported on entering the house the three men attacked him. He reported sustaining multiple injuries; … [patient] reported multiple punches to head … “stun gun” to chest … strangled w hands + knife held to throat … pushed to ground “gravel” and kicked … [patient] reported a number of hallucinations since this time … hallucinations related to drugs. [Patient] reported smoking 1–2 cones of marijuana since home invasion. … Since Monday [patient] reported occasional blackspots in L vision + palpations …

The notes detailed multiple bruises on DX’s torso and upper arms, consistent with the injuries visible in the photographs taken by the police on Friday, 9 November 2018: Exhibit 6.

Assessment of DX

In many respects, DX’s memory was unreliable. It was affected by the trauma of the incident itself, his general mental health, and the degree of his intoxication at the time of the incident. He readily admitted that he suffered from impaired memory, that his mind had “locked off” a lot of the events of the night, and that he had problems with memory recall.

DX presented as an anxious and emotional individual who was somewhat preoccupied with his physical and mental health and his cat. On numerous occasions (mostly in cross-examination), DX was asked about the assault at the doorway. On each occasion, he became extremely upset and tearful. I have no doubt that this emotion was genuine. Plainly, he was terrified by the events of 4 and 5 November 2018 and it was agonising to relive them.

DX’s evidence revealed numerous substantial inconsistencies with statements made (or not made) on other occasions. For example, the hospital records refer to strangling, being pushed to the ground and kicked (matters to which no reference was made in evidence), and dysfunction in the left eye (rather than the right eye, as stated in evidence). In his police statement, DX did not refer to collecting items of property in large garbage bags. In the statement, he said that Mr Kaddour had punched him on the left side of his face, rather than the right side, and that he had invited the accused to come in to “discuss what it is all about”.

Regrettably, DX was subjected to lengthy and repetitive cross-examination that occupied almost the whole of Tuesday, 30 June 2020. Many questions were multifaceted, resulting in answers that lacked clarity and, therefore, lacked utility. As it proceeded, the cross-examination became increasingly oppressive and seemingly devoid of legitimate forensic purpose. Towards the end of the day, after allowing counsel a further opportunity to put relevant matters, I terminated the witness’s gruelling ordeal. When given the opportunity to put any important matters that had not yet been put, counsel asserted that there was significant additional material that could not be put in the time allowed. However, he did not elaborate on the nature of the material and there appeared to be no proper reason to require the witness to return on the following day. I excused the witness.

I am satisfied that DX made a genuine effort to tell the truth and that, in relation to critical events, especially those at the beginning of the incident, his memory was accurate in a general sense. However, from DX’s perspective, the incident was dynamic and traumatic throughout. Where his evidence is uncorroborated by that of more reliable witnesses, I accord it limited weight.

KM said that he has known MC for three to five years. As of September 2018 (but not November 2018), she was a friend. Despite characterising her as someone other than a friend, he said that, at the time of the incident, he saw her regularly, at least weekly. They would “hang out” and play video games at her unit.

KM met TE about three years ago, through MC. He met DX through MC about six months prior to November 2018. DX was “an acquaintance” who was staying at MC’s unit.

At the Halloween party, he saw DX distributing what he thought was MDMA. A week or two before 5 November 2018, at the unit when all three “would have been present”, DX had given him cocaine to “try”.

KM said that he has known Mr Butkovic for about five years. As at November 2018, Mr Butkovic was a good friend whom he saw every couple of weeks. He still sees Mr Butkovic regularly.

He knew Mr Kaddour but did not associate with him. He now sees Mr Kaddour “now and then”.

He knew the accused as an “acquaintance” but did not associate with him.

As at 5 November, he used Valium and smoked weed, but nothing else. He did not sell drugs. He did not purchase drugs from Mr Kaddour, Mr Butkovic, or the accused, and they did not sell drugs. He did not owe money to Mr Butkovic, Mr Kaddour, or the accused.

KM recalled having a drink with DX at an Irish pub in the city for an hour or so and that they may have had the drink at lunchtime on 4 November 2018. At the Irish pub, he imbibed about two drinks. Afterwards, he went home.

On the evening or night of 4 November 2018, KM went alone to MC’s unit to drink and play video games. The three occupants were present. He and DX drank alcohol (Woodstocks, he thought), and everyone played video games and “smoked a bit of weed”. They were there for several hours. He did not recall having left the unit at any stage, but he was not sure.

In the presence of MC and TE, DX “tried to get [him] to push [sell] … MDMA and coke in Civic for him”. He declined. DX became “pretty aggressive”, insisting “You are going to push these”. He replied that he would not do it as he had children and could not afford to go to prison. DX told KM that he (DX) was a police informant and for that reason they would not get caught.

DX then hit KM on the left shoulder and ribs with a long weapon or “baton of some sort”, which KM thought may have been black and about 30 to 50 centimetres long. In November 2019, he stated that it was “black” and “thick”. In these proceedings, he stated that it could have been black but he was colour blind, so he could be mistaken. At the same time, DX pressured him to sell drugs. DX had never previously assaulted him.

Eventually, KM told DX “I will call friends who may be able to help, instead of me”. DX told him to “go ahead”. KM’s real intention was to obtain the assistance of friends so that he could escape from DX.

In the presence of MC, TE, and DX, KM tried unsuccessfully to call Mr Butkovic via Facebook and then called the accused because he knew that Mr Butkovic and the accused were good friends. He invited the accused to the unit. He must have provided the address. He was expecting the accused and Mr Butkovic to come, but not Mr Kaddour.

The occupants of the unit and KM waited for an hour or two to calm the situation, still drinking and smoking cannabis. The women and DX were doing “nangs” (nitrous oxide). KM did not remember whether, during this period, there was further discussion between himself and DX regarding the sale of drugs. He did not leave the unit because he was frightened. Throughout the period, DX held the baton in a threatening manner.

The door had been broken days before.

There was a knock and DX opened the door. DX said “Hey Javarne” and waved in the accused, Mr Butkovic, and “Ibby” (Mr Kaddour). MC may also have walked to the door.

Everyone sat for a while in the lounge room. KM could not recall what, if anything, was said or by whom. Everyone continued drinking and smoking cannabis, except he did not believe that the three men smoked cannabis.

As soon as he tried to make his escape with the three men, DX moved to strike Mr Butkovic from behind with the baton. KM prevented the assault by kicking DX near his left hip. DX responded and there was a scuffle as KM and the three men tried to retrieve the baton from DX. DX threw and received punches. Either Mr Butkovic or “Ibby” hit KM (due to confusion in the scuffle) and the other man hit DX. Someone removed the baton from DX and placed it on the kitchen bench.

During the scuffle, the accused was in the room but he did not become involved. MC and TE were also present but uninvolved.

Afterwards, they all sat down and drank again. He sat between the accused and Mr Butkovic.

At no stage did he see DX go to his bedroom with the accused.

After they sat and drank, the next thing that KM recalled was the arrival of the police.

By the time that the police and ambulance arrived, KM was in very bad condition. At one stage he was “not very conscious”. Not only was he suffering from the earlier assault by DX, but he was very intoxicated. He had taken Valium that day (for anxiety). Over the course of the evening, he had 10 to 14 cans of Woodstock.

KM declined to go to hospital by ambulance, in part to ensure that DX did not go to his house. He told the paramedics that he did not want to go to the hospital because he wanted to ensure that his partner and children were safe. He denied informing paramedics that he “[owed] money to the people who assaulted me”, that his assailants were “well known Comanchero bikie members”, that he had been “assaulted by 3 others at a friend’s house”, that he had been “hit from behind multiple times by hands and possibly implements”, and that he “needed to go home to ensure his partner and children were safe … because the people who assaulted him knew where he lived”. In cross-examination, he corrected his evidence, saying that he did not recall making those statements.

The police took him back upstairs and he remained there until the following morning, “passing in and out of consciousness”, and then went home.

At the scene, he did not tell the police what had occurred. He did not say that the men whom they had arrested were his defenders.

In the scuffle, he sustained a shattered cheekbone and, as a result of the assault by DX, he received a serious shoulder injury requiring reconstruction and broken left ribs.

In November 2019, KM said that he had not given a statement to the police as he had been told that DX was a police informant and, consequently, he did not trust the police.

Assessment of KM

KM was a tall, confident man. It seemed improbable that he would be attacked or readily intimidated by an anxious individual such as DX, especially in the presence of Mr Butkovic and Mr Kaddour (assuming that they were, as he said, his protectors). On several occasions, KM appeared to find the proceedings amusing. He professed an excellent recall of some details (such as the alleged vicious assault by DX) and an almost complete absence of recall of others that one would expect him to remember (such as what he had said when he invited the men to MC’s unit). He could not describe the baton with which he said that he was threatened for one to two hours, other than to say that it was “black” and “thick”; in fact, the only “baton” that was found at the premises was slender and a distinctive gold colour. In evidence-in-chief, he frequently prevaricated, but he readily agreed with propositions that were put in cross-examination.

KM’s account contradicted that of MC and TE and defied common sense. I cannot accept that MC and TE could have forgotten a vicious assault upon KM by DX, mistakenly thought that it was KM rather than DX who was the drug dealer, or forgotten that, over a period of one or two hours, DX had intimidated KM with a baton. KM professed certainty about the fact that the accused did not accompany DX to DX’s bedroom (a matter disputed by no other witness). He denied implicating Mr Kaddour, Mr Butkovic, and the accused when he spoke to the paramedic, although he agreed that he had refused to go to the hospital because he wanted to go home. On his account, he wished to do so in order to protect his family from DX. Yet he did not go home; instead he remained at MC’s unit into the following day. On the other hand, if he had been fearful of the accused and the co-offenders (as suggested by the paramedic’s note), his fears would probably have been allayed by their arrest. He could not explain why he had failed to protest to the arresting police that the men whom they were arresting had been attempting to rescue him, rather than injure him.

I am well satisfied that KM told paramedics that he had been assaulted by persons to whom he owed money and that that was the truth.

I have no doubt that, in all key respects, KM’s evidence was thoroughly unreliable. However, that fact does not strengthen the prosecution case. It simply means that I put KM’s evidence to one side when considering whether the prosecution has proved the offence beyond reasonable doubt.

First Constable Thackray

First Constable Thackray said that, at 3:50 AM on 5 November 2018, he and Constable Catton received a request to attend “[the unit] in Lyneham” in relation to a break-in and they arrived at the unit a short time later.

As he approached the unit block, he saw a woman who was highly distressed.

The entry door to the unit was damaged. It was slightly open, but he could not see inside.

He opened the door. There were five males inside: four seated on the lounge and another perched on the back of the lounge. The man perched on the back of the lounge had longer, wavy hair, and was wearing a jacket (Mr Butkovic).

He requested identification. DX said that he needed to go to another room to obtain his identification and First Constable Thakray followed him. In that room, DX said words to the effect of “The three males in the living room shouldn’t be there. I have been tasered, bashed and one of them has stolen my wallet. I think they have also bashed [KM] who is the one on the lounge not moving”.

KM was on the couch and appeared to be semi-conscious. He had blood around his mouth and on his hands.

One by one, First Constable Thackray spoke to each of the three men outside.

When the officer asked Mr Butkovic what he was doing there, he may have said that he had been invited and was having drinks with the girls. First Constable Thackray searched his jacket and located a black laser light in the jacket, which he seized.

Mr Kaddour said that he had been invited inside or was having drinks. He may have said that he knew “[KM]”.

The accused said that he was there because he knew “[KM]”. He appeared to be intoxicated. Later, the officer was told by the forensic officer at the ACT Watchhouse that the accused was unfit for interview.

First Constable Thackray requested an ambulance for KM, who walked to the ambulance, heavily assisted by police. However, he refused assistance and was left at the apartment.

First Constable Thackray asked DX whether he wanted to be examined by an ambulance officer but DX said he would seek medical attention by himself. DX was intoxicated to some extent.

DX was photographed four days later, on Friday 9 November 2018, when he gave his statement. At that time, his mental state appeared to be fine. First Constable Thackray did not recall DX mentioning large garbage bags. Among other things, DX stated that, at 12:55 AM on 5 November 2018, he had received a call from MC, that Mr Kaddour had pushed Mr Butkovic out of the way and immediately started to punch DX to the left side of the head, that he had recognised the accused as he used to go to school with him and later played rugby with him, that he had invited the accused in to discuss “what it is all about”, that the accused had prevented another man from punching DX and that the men had then come inside.

Constable Catton

On the night of 4/5 November 2018, a few minutes after receiving notification of a 000 call at 3:47 AM, Constable Catton and First Constable Thackray attended the unit in relation to a disturbance.

The front door of the unit was ajar, the wood around the lock had disintegrated and the door would not shut.

When she entered, she saw five men. The accused was sitting on a couch with Mr Kaddour. DX was standing at the end of a couch. Mr Butkovic was seated and there was a large gold torch (as she then thought, Exhibit 2) and a small black torch (Exhibit 9) near where he was sitting on a bar stool. She seized the gold item. When received by forensics, it did not function due to low battery charge but when it was tested with new batteries it emitted an electrical charge.

On a coffee table she saw a bowl of cannabis, bongs, and small pills in a small clip-seal bag, which she thought were MDMA.

KM was lying prone on a lounge. There was dried blood around his lips and facial injuries. He could not communicate properly. The police called an ambulance.

DX assisted KM by obtaining a frozen item and putting it on KM’s injuries. DX appeared to be “unnerved”.

The ambulance arrived about 20 minutes after it had been called. Police assisted KM downstairs to the ambulance.

To her knowledge, DX did not mention two large garbage bags.

There was a woman in the bed in DX’s bedroom, FJ. Constable Catton tried to speak to her on the night and later, but without success.

From the premises, additional items were recovered by another police officer: Exhibit 10 (which was found either down the side of the couch or in the kitty litter in DX’s room) and Exhibit 3 (which was found at the other location).

The statement from the locksmith was obtained in about mid-November 2019.

The locksmith

On the night of 4/5 November 2018, at about 11:30 PM, the locksmith was contacted by a female home occupier who said that her door had been kicked in and she needed it secured for the night. He attended the site, a unit in Lyneham. He arrived about 20 to 30 minutes after receiving the call, before midnight.

He spoke to the woman outside the unit. She was “a little flustered”. The door was badly damaged (there was a hole where the lock should have been).

The job took no more than 30 minutes. In fixing the door, he would have used a power tool several times. He entered the unit at one point. Inside, he saw a man whom he cannot now describe. The man asked questions about the job.

When he had finished, the woman paid him, and he left. No one asked him to call the police and he did not see anything that made him concerned.

The neighbour

As at 4 November 2018, the neighbour was living in the unit below the unit in question and knew the female occupants of that unit.

He was awoken after midnight, possibly about 1 AM, by loud banging and noises coming from the unit above. Initially, it was thudding. Later, it sounded like people or furniture moving around. At one stage there was the sound of an electric motor or drill.

At about 3 AM, he heard scuffling in the courtyard outside his bedroom. TE came to a window and said “some men had broken into the apartment” and they were still there. In evidence, he said that TE had also said “They had weapons and were threatening them” but in his police statement there was no reference to weapons.

Having ascertained that TE had not rung the police, he called 000.

Mr Jones

In November 2018, Mr Jones was employed as an intern paramedic. At 4 to 5 AM on 5 November 2018, he attended the Lyneham unit with a male paramedic.

Police asked them to examine a tall man who was walked to the ambulance. They assessed him and noted their observations on a case sheet within 30 minutes of the examination. He had multiple haematomas (lumps or bruises) on his scalp, a tender lower cervical spine, swelling and minor abrasions to his nose, pain in the right lateral chest, pain in the left knee on palpation, pain and reduced movement in the left shoulder, and some blood on his left hand. There was no significant bleeding. The case sheet recorded “alcohol involved”.

According to the contemporaneous note, KM said that he had “been assaulted by … three others much larger than him, being hit from behind multiple times with hands and possibly implements” and “he owes money to the people … they are well known Comanchero bikie members”. He did not agree to go to hospital, stating “I’ve been beaten worse before” and “he needed to go home to ensure his partner and children were safe … because the people who assaulted him knew where he lived.” Mr Jones conceded that KM may have said “person” rather than ”people” and that there was some doubt about whether KM had referred to “three” assailants; otherwise he was confident that his note was a correct record of what was said.

Findings of fact

I am satisfied that the following facts are established by reliable evidence.

MC was the lessee of the unit and was entitled to determine who entered and occupied the premises. As at 4 November 2018, MC and TE were permanent occupants and DX was a temporary occupant.

On 4 November 2018, there was an attempted break-in to the unit. At about 11:30 PM, MC telephoned a locksmith and asked that he attend and secure the front door to the unit.

KM was a drug user who enjoyed a reputation as a drug supplier. A few days before 4 November 2018, he supplied blue pills to partygoers at a Halloween party.

Mr Butkovic and KM were well acquainted; they saw each other regularly.

KM owed money to Mr Butkovic, Mr Kaddour, and/or the accused.

On the night of 4 November 2018, KM was visiting MC’s unit. He became angry, agitated and/or frustrated and he was concerned about making a telephone call or calls. Later, intoxicated, he fell asleep on the couch.

That evening, the accused was with his friends, Mr Butkovic and Mr Kaddour, at Mr Butkovic’s home. Following a communication with KM and having been advised by him of the address of the unit, the three men decided to go to MC’s unit.

Mr Butkovic, Mr Kaddour, and the accused went to the unit to see KM. The men did not know MC or TE (although it was later discovered that TE had been to primary school with the accused). Before they arrived at the unit, the three men were unaware that the women were the principal occupants of the unit.

Prior to the locksmith attending the unit sometime after 11:30 PM, the three men arrived at the unit and knocked. They brought with them two knives (later located on a couch and in DX’s bedroom) a distinctive gold taser/baton and a blue strobe torch. The baton was in Mr Butkovic’s possession.

MC and DX went to the front door, expecting the locksmith. Immediately, one of the three men shone an intense blue strobe light into their faces, temporarily blinding and frightening them. DX was pushed or stepped back into MC, causing her to injure her ankle.

MC did not greet the men or invite them in. When DX recovered from the strobe light, he greeted the accused and seemed happy to see him. DX said something like “hello, come in, let’s talk” while the man was still standing outside. DX also said to the accused “I haven’t seen you for ages”. It is likely that this “invitation” was issued before the accused and the co-offenders entered the unit.

After entering the unit, Mr Kaddour and Mr Butkovic immediately approached KM, and attempted to rouse him to consciousness, yelling something like “where’s the money?”. Mr Butkovic threatened KM with the gold taser/baton and swung it at DX. Mr Butkovic or Mr Kaddour (probably Mr Kaddour) punched DX to the side of his head.

As a result of the assault, DX sustained significant swelling to his head, which he later sought to reduce with a makeshift ice pack and for which he sought medical assistance on 7 November 2018, alerting the hospital authorities to the possibility of a closed head injury.

The accused was present when the co-offenders demanded that KM give them money and when DX was assaulted.

After the assault, DX went to his bedroom. It is probable that he was accompanied by the accused rather than Mr Kaddour. The two men remained in DX’s bedroom for a significant period. There was no overt animosity between them.

MC woke TE, warned her about the intruders, and asked her to call the police.

MC returned to the lounge room. Mr Butkovic and Mr Kaddour remained very angry with KM. They continued to demand that KM give them money. Mr Kaddour punched KM.

At about this stage, MC directed Mr Butkovic and Mr Kaddour to leave the apartment, warning them that the police had been alerted. They said that they would only leave if they took KM with them.

It is quite likely that the accused and DX were still in DX’s bedroom when MC told the men to leave.

TE walked towards the lounge room and Mr Butkovic blinded her with the blue strobe torch. After she recovered, TE witnessed Mr Kaddour punching KM repeatedly.

As TE left the loungeroom she heard shouts of “give me the money, give me the fucking money” (inferentially, coming from the lounge room).

In the hallway, TE saw the accused and DX. The accused apologised, saying “I didn’t realise this was your house”.

MC “calmed” the situation by persuading the men to “talk about it” and “smoke some weed”. They did “calm down”, voluntarily surrendering the gold taser (which was by then without charge) and, later, a knife.

DX emerged from his bedroom and obtained a frozen item to put against his injured face before joining the others in the lounge room. The accused also joined the others.

Thereafter, the occupants, the accused, and the co-offenders sat around, drinking and smoking marijuana.

TE jumped from the bedroom window, chased by Mr Kaddour. She alerted the neighbour that men had broken into the apartment and were still there.

The neighbour rang police at about 3:30 to 3:50 AM.

When police arrived, DX told them that the accused, Mr Butkovic, and Mr Kaddour “shouldn’t be here”. He said that he had been “tasered” and “bashed”. In fact, DX had been “bashed”. He may not have been “tasered”; he may simply have been struck with the baton/taser.

At 4 to 5 AM, paramedics attended. KM told the paramedics that he had been assaulted because he “owed money” to the assailants.

Element 1: Was there an agreement to which the accused was a party and what was the content of any agreement?

I am satisfied beyond reasonable doubt that the accused and the co-offenders agreed to go together to the unit. They had been given the address by KM. They went there for the purpose of recovering money that KM owed to one or more of them. It was part of the agreement that, if necessary, threats and/or force would be used to extract the money. It was an implied part of the agreement that they would enter the premises and would remain there for as long as was necessary to extract the money from KM.

In concluding that there was such an agreement, I have had particular regard to the following facts.

Prior to the men attending the unit, there was a communication between KM and either Mr Butkovic or one of the other men. Although it was only Mr Butkovic who had a close association with KM, all three attended the premises late at night. They took with them two knives, a taser/baton, and a blue strobe torch. Upon arrival, Mr Butkovic was armed with the gold taser/baton. As soon as the door was opened, one of the group terrified DX and MC by “blinding” them with the blue strobe torch. No one sought MC’s permission to enter. Immediately after the men entered, Mr Butkovic and Mr Kaddour began to threaten KM and demand money from him, and thereafter they continued to do so.

When the agreement was reached, the men probably did not know that anyone other than KM was at the unit. They were prepared to enter and remain regardless of whether they had KM’s consent to do so. They anticipated resistance; otherwise they would not have gone armed.

I am satisfied that the accused was party to the agreement. There was no legitimate reason for him to attend the premises in the company of the co-offenders. He was present when DX and MC were “blinded”. Immediately after the group entered, he witnessed the threats made to KM and the assault on DX and saw the baton/taser that was wielded by Mr Butkovic. Yet, he remained at the premises, never questioning what was occurring, and only later asking the co-offenders to “calm down”.

Although common sense suggests that, when the group agreed to go to the unit to extract the money from KM and prior to entry, the accused knew that the co-offenders were taking offensive weapons with them, I accept that there is a possibility that he did not. However, he must have realised that each member of the group was attending in the company of each other member.

There is no reasonable possibility that KM invited Mr Butkovic—let alone his companions—to the unit to socialise. It was not KM’s unit. He did not mention any invitation to MC. It was late at night. KM was inebriated. Had the visit been in response to a social invitation, the men would not have commenced their visit by blinding DX and MC with a strobe light and immediately threatening KM.

It may be that DX “invited” the group into the premises to “talk” after he recognised—or thought that he recognised—the accused. As far as this element is concerned, that is irrelevant; the agreement was reached prior to the group entering - or being “invited” to enter - the premises.

Element 2: Did the accused and his companions intend that an offence would be committed under the agreement?

I am satisfied beyond reasonable doubt that the accused and the co-offenders intended that, to the extent necessary to recover money owed by KM, one or more of them would force entry, remain upon the premises, and threaten to cause harm to KM.

The circumstances in which the group arrived and the conduct of Mr Butkovic and Mr Kaddour immediately after they entered the premises shows that, from the outset, it was their intention to enter the premises and remain there as long as was necessary to extract money from KM; later, that is what Mr Butkovic and Mr Kaddour told MC.

Element 3: Was an aggravated burglary committed in accordance with the agreement in that each physical element of that offence occurred?

I am satisfied beyond reasonable doubt that an offence of aggravated burglary was committed in accordance with the agreement.

All three men entered as trespassers in that they did not have MC’s permission to enter. It was not a case of entering with permission that was later withdrawn. Alternatively, the men had DX’s permission to enter and “talk”; they did not have his permission to enter for the purpose of threatening and assaulting persons within the unit.

Further, at least Mr Butkovic and Mr Kaddour remained in the unit as trespassers. At no point did MC give permission for those men, who were strangers to her, to remain within her unit assaulting and threatening KM. Had she consented to their presence, she would not have gone immediately to warn TE to leave the unit and call the police.

The circumstances permit no conclusion other than that, at the time of entry and while they continued to threaten and assault KM, Mr Butkovic and Mr Kaddour remained on the premises as trespassers with intent to harm or threaten harm to KM. In this endeavour, Mr Butkovic and Mr Kaddour were in the company of each other. In addition, each possessed an offensive weapon. Mr Butkovic possessed the baton/taser and Mr Kaddour possessed the knife, which he later offered to surrender to MC.

The conduct of Mr Butkovic and Mr Kaddour constituted an aggravated robbery; it was conduct of the same type as the agreed offence.

Verdict

The accused is guilty of the offence that, on 5 November 2018 with Kyle Butkovic and Ibrahim Kaddour, he entered or remained in a building, the unit, as a trespasser with intent to commit an offence that involved causing harm, or threatening to cause harm to someone in the building (KM), and at the time he was in company.

I certify that the preceding two hundred and ninety-three [293] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date:

[2020] ACTSC 191

15 July 2020