R v Simpson, Warrior & Austin - [2016] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SIMPSON, WARRIOR & AUSTIN
Criminal Trial by Judge Alone
[2016] SADC 33
Reasons for the Verdicts of His Honour Judge Muscat
5 April 2016
CRIMINAL LAW
Defendants jointly charged with one count of Aggravated Serious Criminal Trespass in a Place of Residence and one count of Aggravated Assault Causing Harm.
Totality of evidence has failed to prove guilt of the defendants beyond reasonable doubt.
Verdicts: Not guilty of Counts 1 and 2.

R v SIMPSON, WARRIOR & AUSTIN
[2016] SADC 33
Introduction

Cassius Alex Donald Simpson, Joshua Clifford Warrior and Leon Monty Austin are jointly charged on an Information dated 4 August 2015, with the following two offences relating to an alleged home invasion:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cassius Alex Donald Simpson, Joshua Clifford Warrior and Leon Monty Austin on the 29^th day of March 2014 at Port Pirie, entered or remained in the place of residence of Kenneth Miller as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
It is further alleged that Cassius Alex Donald Simpson, Joshua Clifford Warrior and Leon Monty Austin committed the offence whilst Kenneth Miller was lawfully present in the place of residence, and that they knew of his presence, or were reckless as to whether anyone was present in the said place of residence.
It is further alleged that Cassius Alex Donald Simpson, Joshua Clifford Warrior and Leon Monty Austin committed the offence in company with each other.
It is further alleged that Cassius Alex Donald Simpson, Joshua Clifford Warrior and Leon Monty Austin used or threatened to use an offensive weapon while committing the offence, namely a knife, machete or pole.
Second Count
Statement of Offence
Aggravated Assault Causing Harm. (Section 20(4) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cassius Alex Donald Simpson, Joshua Clifford Warrior and Leon Monty Austin on the 29^th day of March 2014 at Port Pirie, assaulted Kenneth Miller and thereby caused him harm.
It is further alleged that Cassius Alex Donald Simpson, Joshua Clifford Warrior and Leon Monty Austin committed the offence in company with each other.
It is further alleged that Cassius Alex Donald Simpson, Joshua Clifford Warrior and Leon Monty Austin used or threatened to use an offensive weapon while committing the offence, namely a knife.
Each defendant is presumed innocent of the charges that he faces. The prosecution bears the onus of proving the charges against each defendant beyond reasonable doubt.
None of the defendants gave or called any evidence. I have not drawn any inference against them or the submissions which have been made to me on their behalf because of that.
The prosecution tendered police interviews conducted with Simpson and Warrior, in which each denied committing the offences. That evidence formed part of the overall evidence considered by me when determining if the prosecution had proved the offences charged.
I have considered the case against each defendant separately and only upon the admissible evidence against that particular defendant.
The prosecution case relied almost entirely upon the evidence given by the occupiers of the alleged home invasion. Unless I accept their evidence beyond reasonable doubt, the defendants must be acquitted.
Having carefully assessed the witnesses and evaluated the evidence, I am not satisfied of the guilt of any of the defendants of either count charged. My reasons follow.
The Prosecution Case
Kenneth Miller
At the time of the alleged incident, Kenneth Miller (hereafter referred to as Miller) was living at 5 Fisher Street Port Pirie with his partner, Taliah Edwards (hereafter referred to as Edwards) and their two young children. Edwards was also pregnant with their third child.
Miller said that on 28 March 2014, he and Edwards had gone to bed at about 9 or 10 pm. They slept in the main bedroom at the front of the house. Their two young children were asleep in the lounge room; one lying on a mattress on the floor, while the other was on the couch.
At about 1:30 am Miller said that he was awoken by Edwards, who was saying: ‘someone’s knocking on the door, bashing on the door.’[1] Miller said that he heard Cassius Simpson banging on the front door saying: ‘open up it’s Cassius, open up.’[2] He said that he had known Simpson as an acquaintance for several years.[3]
[1]    T 49.
[2]    T 50, 128.
[3]    T 50.
Miller said that he got out of bed and opened the front door. At that time the screen door was still locked. As he looked through the screen door, he said that he saw four men standing outside. He identified them as Cassius Simpson, Joshua Warrior, Leon Austin and another person whom he did not know.
Miller said that he had known Warrior ‘for years.’[4] He said that he had never met Austin before but knew who he was.[5] Miller described the fourth person as a ‘black fellow’[6] , with a beard and shortish hair and wearing a green T-shirt.
[4]    T 50.
[5]    T 51.
[6]    T 51.
Very soon after Miller opened the front door he said that his son began to cry so he turned to attend to him without saying anything to the men outside.
Miller said that he then heard Simpson say something but was unable to make out what as his focus was on his son. He denied that Simpson was challenging him to a fist fight.[7]
[7] T 193.
Miller said that the next thing that happened was ‘bang, bang, bang, bang, the [screen] door getting kicked in, and that’s when [I] just freaked and, yeah, tried to get [my] kids out of there.’[8]
[8] T 52.
He said that it only took the men two or three kicks to break the screen door down. When Miller first realised that the screen door was being kicked in, he grabbed hold of one of his sons and handed him to Edwards, who by now was in the lounge room. He then took hold of his other son and also handed him to the waiting Edwards.
Miller said that Edwards then retreated into the main bedroom with their children.[9]
[9] T 64, 213.
Miller said that as he turned around he noticed that the four men had entered into the lounge room. He described them as having entered at ‘pretty much the same time.’[10]
[10] T 53, 54.
He said that Austin was threatening him, saying: ‘I’m going to kill you, you white motherfucker.’[11] Miller said that Austin was holding a black handled kitchen knife, about 10cm in length. Miller said he recognised Exhibit P4 as the knife Austin was holding.[12] He said that he asked Austin if ‘this can wait ‘til I get my kids out of here please.’[13] Miller said that Austin was ‘making stabbing motions’ towards him with the knife.[14]
[11] T 53, 64.
[12] T 63.
[13] T 53.
[14] T 53.
Miller said that each of the other men were also armed with knives and that they were trying to attack him ‘all at once.’[15] He said that Simpson was also armed with an iron bar.[16]
[15] T 60.
[16] T 149.
Miller said that Simpson was pointing the blade of the knife at him and attempting to stab him with it from a distance of about half a metre.
Miller said that Warrior was holding ‘a funny looking knife’ that he had never seen before and which was about 35-40cm in length. He said that it had a ‘blacky silver coloured handle.’[17] He described it as a ‘long knife’, which looked similar to a machete but had a ‘funny, long blade.’ Miller said he recognised Exhibit P3 as the knife being carried by Warrior.[18]
[17] T 61, 151-152.
[18] T 63.
Miller said that the man who he did not know was armed with a machete.
Miller said that all four men were abusing and threatening him.[19] He said that they were throwing items at him and following him as he was retreating from the lounge room into the hallway.
[19] T 63, 64.
He said that he was struck on the ear by an ornament thrown at him when he was picking up his second son. He said that after he was struck he felt dizzy before handing his son to Edwards. He described being hit on the left side of his head in the area of his ear. He said that he felt blood running down his head and then ‘started seeing black and [he] became really dizzy.’[20]
[20] T 67-68, 137, 139-140.
Miller said that the unknown man, who was armed with the machete, then swung it over the top of everyone else in the hallway. He said that he first noticed the machete when he was backtracking into the hallway through to the kitchen. He described the machete as: ‘a bit old, a bit haggard looking, broken, silver and about 50cm long.’[21] Miller said that he recognised Exhibit P5 as the machete with which the unknown man was armed.[22]
[21] T 62.
[22] T 63.
Miller said that the unknown man then dropped the machete on the floor in the area between the kitchen and hallway. Miller said that he bent down and picked up the machete with his left hand, despite being right handed. He said that he then took a ‘left-to-right swing’ with the machete as he was moving upright.[23] Miller said that he only swung the machete once and that he had struck someone with it. He then moved into the kitchen and forced the kitchen table up against the doorway and placed his body weight against it in an attempt to prevent the men getting any closer to him.
[23] T 66.
He said that he still had hold of the machete in the kitchen while the men were ‘chucking dinner plates at him, bowls, bits of wood and pretty much everything.’[24] He said that the men were in the hallway swearing and throwing things at him and yelling that ‘[they’re] going to kill [him]’ and ‘you wait cunt, I’ll come back.’[25]
[24] T 67.
[25] T 72.
Miller said that when he saw the opportunity, he ran out of the back door into his rear yard. He said that he then jumped over the back fence into his neighbour’s property whilst still in possession of the machete.
He said that once in his neighbour’s back yard, he ‘bashed on his neighbour’s window’ but there was no answer, so he hid there until he saw the flashing police lights. When he noticed that the police had arrived, he jumped back over the fence and met them around the driveway of his house. He said that he had left the machete in his neighbour’s back yard.
Miller said that, once he had jumped over his back fence into his property, he noticed that Simpson was in the bathroom.[26] He said that he could see Simpson through the slightly open bathroom window and that Simpson appeared to be washing himself in the basin.
[26] T 183.
He said that the police then sat him down on an old couch behind the driveway gates of his property.
He said that the four men were abusing him in front of the police. He said that Simpson was ‘out the front wandering around, talking to the police and making a joke of it.’[27]
[27] T 77-78.
Miller was then taken to hospital by ambulance where he was treated. He received a number of stitches for a laceration to his head, behind the left ear. He said that he also sustained some bruises on his legs from being struck by the various objects which were being thrown at him during the attack inside his home. He suffered grazes on his knees from falling over the back fence when fleeing his attackers.
Miller said that about two months after the incident he saw Simpson at the Port Pirie Courthouse. He said that Simpson approached him and shook his hand, saying: ‘I’m sorry for that night. [Joshua Warrior] told me lies when he was drinking.’[28] He later agreed in cross-examination that Simpson said: ‘I’m sorry. When I’m drinking I do silly things and Josh told me some stuff that night.’[29] He accepted that this was different to what was recorded in his written police statement dated 25 November 2015, where he said that Simpson denied any wrongdoing and was blaming Warrior. Miller claimed in evidence that Simpson had said a number of different things during their encounter at the Courthouse.[30] I am not prepared to act upon what Miller has said in his evidence as an admission by Simpson, given the obvious inconsistency with his police statement and the ambiguity over exactly what was said.
[28] T 79.
[29] T 186.
[30] T 186.
Miller was exhaustively cross-examined in an attempt to discredit him.[31]
[31] Particularly by counsel for Simpson, who later had to withdraw after she acknowledged having acted for Miller on previous occasions.
Miller denied that he had had any previous problems with Simpson.[32] He denied owning a machete and striking Simpson on the head with it whilst on the footpath outside of his home.[33] Miller also denied that Edwards had been across the street at 2 Fisher Street on the night (as did Edwards in her evidence).
[32] T 196.
[33] T 197, 242.
Miller denied causing the injury to his ear himself.[34] He denied that any of the weapons that the police seized from his home, including the machete, belonged to him.[35] He admitted to owning a sword, which he said that he had purchased from eBay and had kept under his bed.[36]
[34] T 177.
[35] T 81.
[36] T 261–262.
Miller gave evidence with reference to the photographs in Exhibit P1 that his house was not ‘trashed’ before the four men invaded his home. He said that the damage depicted in the photographs was caused by the intruders.
He repeatedly denied hitting Simpson with a machete on the street and then trashing his own house so as to ‘set up’ the defendants.[37]
[37] T 248.
Miller accepted that he was diagnosed with schizophrenia at the age of 13 years. He frankly accepted battling his mental illness over the years. He said that he had been taken off medication approximately five years ago and was not taking any medication for his mental illness at the time of the incident, nor when giving evidence. He described the effects that his mental illness has had on his behaviour, as including an inability to cope with daily tasks and feelings of extreme anxiety. He said that he ‘feels anger like other people [sic] and that [he] does not always lash out when he gets angry.’[38] He said that he has previously experienced suicidal thoughts and had spent time in hospital because of his mental illness.
[38] T 85.
He also accepted that he used to binge drink alcohol and that was a problem for him. He said that he stopped drinking to excess after his first child was born four years ago and was not drinking alcohol on the night.
There was no evidence adduced from any police officer, ambulance officers or treating nurses or doctors that he was suffering the effects of his mental illness on the night of the incident, or that he was intoxicated or affected by drugs.
I did not detect any signs of his mental illness when he was giving evidence.
Miller has an extensive criminal history dating back to 2001, when he was a youth, to as recently as February 2015. He has a number of convictions for various forms of assault, robbery, carrying weapons, theft, illegally using vehicles, damaging property, threatening to cause harm and unlawful sexual intercourse. He did not shy away from his past criminal activities when being cross-examined about them.
During his very lengthy cross-examination he demonstrated a good recall for detail. Indeed, rather than undermining his reliability, the cross-examination on his criminal past demonstrated his ability to accurately recall information.
Whilst I have had regard to his criminal record as a factor affecting his character and therefore potentially his honesty, it has not caused me to totally disregard his evidence.
I formed the impression that he was a very unsophisticated person, who was attempting to answer questions to the best of his ability.
Taliah Edwards
Edwards said that it was Miller’s father’s birthday on the day of the incident and that he had attended their home for a few hours from about 2:00 pm, where they had coffee and a chat. She said that they did not drink any alcohol. She said that she prepared dinner after Miller’s father had left and that she did not go out with the children or Miller that night. She said that the children were sleeping in the lounge room, with one child on a mattress on the floor and the other on the couch.
Edwards said that she and Miller went to bed after the children fell asleep, which was around 10:00 pm.
After going to bed, the next thing that she remembered was Simpson banging on the front door saying: ‘Let me in, it’s Cassius.’[39] She said that she nudged Miller and said: ‘babe, babe, someone’s at [the] window.’ She said that Miller replied to Simpson by saying: ‘Go away we’re in bed or we’re sleeping.’[40] She said that they laid there for a while and then she heard more banging on the door. She heard Simpson say: ‘It’s Cassius, get out here.’ She agreed that she told the police that Simpson had said that about 10 times,[41] although she denied that Simpson was challenging Miller to a fist fight.
[39] T 271.
[40] T 271, 334.
[41] T 390.
She said that Miller got out of bed before she did and that he went into the lounge room. She said that she followed and was only 20 seconds behind him.
Edwards said that she was worried about her children, so she rushed out to them. When she entered the lounge room the children were screaming and Miller was picking up their son from the mattress.
She said that she had not seen Miller open the front wooden door nor did she see anyone damage the screen door, although it was clearly damaged.
Edwards said that Simpson was standing inside the lounge room near the mantelpiece. She said that she did not see anyone else in the house at that time. She said that she did not see Simpson with a knife or an iron bar at that time either.
She later saw Warrior and Austin inside the lounge room with another Aboriginal male, whom she did not recognise. She said that she only noticed that the other men were in the lounge room once she picked up her youngest son.
She said that she had known Simpson for between three to four years.[42] She had known Warrior for a similar length of time[43] and did not know Austin as well as the others, having only met him a few times when he in was the company of Simpson and Warrior.[44]
[42] T 271.
[43] T 274.
[44] T 274.
After Miller handed her their eldest son from the couch she said that they started backing off from the lounge room into the hallway. She said that Miller told her to place their children inside the back room.[45] She said that she did not take the children into the main bedroom, as Miller claimed in his evidence.[46]
[45] T 350.
[46] T 415.
She said that all four intruders were armed with knives and swinging them in an attacking motion.
She described Simpson as holding a small fishing or kitchen knife which was about 30cm in length with a black handle. She identified Exhibit P3 as the knife Simpson was holding.[47]
[47] T 277.
She said that she ‘vaguely remembered’ another ‘blade’, which was long and square but did not remember the handle of that knife or who was holding it.
Edwards said that Warrior also had a knife but she was then unable to say who of the other two men (Austin and the unknown man) had a knife, despite stating earlier that all four men were armed.[48] She was unable to describe the knife that Warrior had but agreed that it looked similar to Exhibit P4.[49]
[48] T 279, 395.
[49] T 406.
She accepted during cross-examination that she had told a police officer that Warrior was holding a knife which had a square blade and looked like a meat cleaver.[50] She explained in evidence that she did not actually know what a meat cleaver was.[51] She said that she did not know why she gave a description of a knife as a meat cleaver without knowing what a meat cleaver looked like. She denied that she was lying and also denied that she had spoken to Miller about the knife before giving her statement to the police.[52] Ultimately, she said that she did not know the difference between weapons.[53] I am satisfied that she described the weapon as a meat cleaver without appreciating what one looks like. What is material is that she claimed to have seen Warrior in possession of a weapon that was similar in appearance to Exhibit P4.
[50] T 407-408.
[51] T 408.
[52] T 408.
[53] T 409.

Edwards said that Simpson, Warrior and Austin were standing in a line in the middle of the lounge room. The unknown man was standing behind them. She said that the men were handing ornaments from the mantelpiece to each other and then throwing them at her and Miller.
Edwards said that Miller was blocking her and their children from the ornaments which were being thrown at them. Many of the ornaments were small and made of glass.[54] She said that she was struck by some of the ornaments on her legs, the side of her body and her arm but she could not say who of the men had thrown the ornaments which struck her.[55]
[54] T 275, 302
[55] T 279, 328.
She said that she was in the lounge room with Miller and the men for between one and two minutes[56], before taking her children into the back bedroom.[57] She said that she then placed the children on the mattress in that bedroom and then turned around to close the door before standing in front of it.
[56] T 280, 347.
[57] Bedroom 3 in Exhibit P2.
Despite this she said that she then opened the bedroom door and was standing outside watching things unfold.
Edwards said that Miller was in the hallway, facing the men with his head down because things were still being thrown by the men at him. She said that she saw Warrior and Simpson entering the hallway while someone else was throwing something. The men were very abusive and threatening to kill her and Miller.
Edwards said that she then saw Miller swing the ‘blade’ with his right hand whilst his head was down.[58] She said that Simpson told Miller to back off and that Simpson then turned around, at which point Miller hit Simpson to the back of the head with the blade.[59] She recognised Exhibit P5 as the weapon which Miller had used to strike Simpson.[60] She could see that Simpson was bleeding from the head after being struck with the weapon.
[58] T 288, 294.
[59] T 294.
[60] T 289.
Edwards said that Simpson then began to ‘jump up and down’ before he ran out of the house through the front door. She said that Simpson then re-entered the house about 60 seconds later.[61] She described Simpson as still wearing the same clothes he had on before he was struck by Miller, after he re-entered the house.[62]
[61] T 295, 401.
[62] T 295.
She said that the last she saw of Miller was him backing off into the kitchen with the four men still in the hallway trying to stab him with their knives and yelling that they were going to kill him.[63] She said that Miller kept yelling at the men to leave. She said that when the men were yelling that they were going to kill Miller, she ran into the back bedroom because she was very ‘shaken up and scared.’[64]
[63] T 290.
[64] T 289.
Edwards described witnessing Miller being struck on the back of the head (on the left side) by the ornaments which were being thrown at them by the men. She said that after Miller was hit, ‘his head went down a bit’ and she noticed blood on the back of his head. She did not see who threw the ornament that struck Miller.
Edwards said that she then took both of her children and climbed out of the back bedroom window.[65] She then ran to the side of the house to leave the property through the driveway gates but as the gates were closed, she placed her children over the neighbouring side fence, which adjoins 3 Fisher Street. Once she had placed the children over the fence, she said that she witnessed Miller climbing over their back fence.
[65] T 289–290.
She said that she placed her eldest child over the fence first and was in the process of placing her youngest child over the fence when a number of women from across the street arrived and assisted her with the children.[66] She said that once she felt that her children were safe she ran from her backyard into the front yard of her property. She said that she met the women, who had taken her children, in the driveway of 3 Fisher Street.[67]
[66] Courtney Carlton and four or five others from across the street: T 292, 432–433.
[67] T 293.
Edwards said that while she was speaking with the women, the four men came out of her house through the front door and all, but particularly Simpson and Warrior, began yelling abuse at her.[68]
[68] T 293-294.
She said that she pointed the men out to the police who then arrested them.[69]
[69] T 396.
Edwards said that Miller owned two weapons, one which she described as a ‘tomahawk’[70] which he kept in the linen cupboard, and the other a sword, which was wrapped in a towel and which he kept underneath their bed.[71]
[70] T 285–287, 324–325.
[71] T 285–287, 322-323.
She agreed that she told the police on the night that Miller had ‘picked up his machete off the display unit and started swinging it with his head facing down protecting himself.’[72] In her evidence she said the machete did not belong to Miller. She explained this important difference by saying that she initially thought it was Miller’s machete until she saw it and realised that it was not his.[73] I did not find this to be a satisfactory explanation, as the weapons she described Miller as owing did not include a machete, which is the very weapon she told the police that he owned, including describing the very location where he kept it in the house. This is an important consideration affecting not only Edwards’ own credibility but also Miller’s, particularly in light of the DNA evidence found upon an examination of the other weapons seized by the police.
[72] T 399.
[73] T 399.
Like Miller, Edwards also came under heavy criticism during cross-examination. She was extensively cross-examined by counsel for Warrior concerning her pram, which was photographed under the porch of 2 Fisher Street.[74] Edwards was unable to account for the pram being under the porch. She recalled that the pram was given to her by one of the women who had helped collect her children from over the fence. She claimed in evidence that the children were then placed in the pram and remained there at all times.
[74] See photographs 9 and 10 of Exhibit P1.
Counsel for Warrior strongly submitted that this evidence was telling and revealed that Edwards was a liar and as such she should not be accepted by me as a truthful witness concerning the events that she said unfolded in her home that night.
I am not prepared to reject Edwards’ evidence on account of her failure to explain why her pram was under the porch at 2 Fisher Street. Much was happening after the police arrived at the scene that morning. Edwards was being spoken to by the police; her partner, Miller, was being conveyed to hospital; the police were photographing the scene and she was unable to return to her own home until the police had completed their investigation. In the circumstances she may simply be mistaken that her children were always in the pram following the incident which she described. Indeed, in re–examination Edwards stated that she was uncertain how long she was standing on the corner of Fisher Street and Anzac Road before Courtney Carlton brought her pram to her.[75]
[75] T 447-448.
Edwards denied that she had attended at 2 Fisher Street on the night. She denied that Simpson and Miller had engaged in a fight on the street and that that was when Miller ‘chopped’ Simpson to the head with the machete.[76] She denied that after Simpson was ‘chopped’, Miller returned to their house and that Simpson then made his way to the front of 2 Fisher Street.
[76] T 399–400.
Edwards denied that their kitchen was normally in the state depicted in the photographs.[77] It was suggested to her by counsel for Warrior that her house was usually in a mess, which she denied. Edwards (and indeed Miller) could not explain why the pot plant was underneath the kitchen table as photographed because it was usually on top of the table or on the kitchen buffet.[78] The clear suggestion being made during cross-examination was that this demonstrated the falsity of their evidence that Miler was being attacked in the kitchen and had used the table as an obstacle to keep the men at bay.
[77] T 298, 316, 442–443.
[78] T 444.
Edwards denied that their house was deliberately damaged by Miller so as to deflect the police attention from his attack on Simpson or that she fled the house with the children to get away from Miller who was ‘out of control’ on the night.[79]
[79] T 440.
Contrary to the evidence of Edwards and Miller, the photographs plainly reveal that their house and property were not kept in a tidy state. The kitchen certainly appeared very untidy, as did all of the bedrooms. I am not prepared to accept their evidence that the state of the kitchen, as photographed, was caused by the defendants. However, I also reject as a reasonable possibility that Miller was responsible for the damage to the front screen door, the lounge room and the hallway. Such a scenario, in my view, is not only implausible but also contrary to what Simpson said to the police during his interview.
Police witnesses
The prosecution called a number of police officers who attended Fisher Street that morning. Senior Constable Muhsin arrived at Fisher Street at 1:37 am on Saturday 29 March 2014 and observed Simpson walking out of the house at 5 Fisher Street. He said that Simpson was not wearing a top and was bleeding from his head. He said that he did not remember whether Simpson was holding a blue towel to his head. Simpson slowly walked towards him holding his head from which blood was dripping onto the ground and along his body.
Senior Constable Muhsin observed Miller walk through the back yard towards the driveway gates. He said that Miller appeared distressed and that he had a slight laceration on his left ear. Miller was then treated by ambulance officers.
Senior Constable Muhsin later detained Austin and conveyed him to the Port Pirie Police Station where he was interviewed.
Constable Dolgitskiy said that he arrived at Fisher Street before the ambulance. He said that when he was standing in the driveway of 5 Fisher Street he observed Simpson walk out of the house. Simpson was not wearing a top and he also appeared to be wet. He said that Simpson had a cut to the left side of his head, which appeared to be 5cm in length. He could not recall if Simpson was holding a towel to his head. He left Simpson with another police officer while he and Constable Brown walked through the house.
He observed blood on the lounge room floor and that the room was trashed. He inspected other rooms in the house, which all had a similar appearance. He noticed a significant amount of blood on the bathroom floor, which was also wet.
Constable Walton said that she arrived at Fisher Street at about 1:30 am on Saturday 29 March. She said that there were other police officers already in attendance upon her arrival. She observed Simpson walking out of the driveway of 5 Fisher Street. He was only wearing shorts or tracksuit pants. He was not wearing a top and was holding a blue towel to his head. His chest was covered in blood.[80]
[80] T 464.
Simpson walked towards her and she asked if he was alright. Simpson then sat down on the gutter where he allowed her to inspect his injuries. She said that she remained with him until the ambulance arrived and then travelled with him to the hospital.
None of the police officers gave any evidence that the defendants were abusive towards either Miller or Edwards or that they were directed to arrest anyone by either Miller or Edwards.
Brevet Sergeant Hamilton was the crime scene investigator. He arrived at 5 Fisher Street at about 3:44 am. He took a series of photographs which became Exhibit P1 and also collected a number of samples and seized a number of weapons.
Simpson’s heavily blood stained T-shirt was located on the driveway of 5 Fisher Street and seized. It is clearly depicted in the photographs, Exhibit P1.
Brevet Sergeant Hamilton gave evidence that blood drops inside the house, along the driveway and on the surface of the street, appeared to be ‘passive blood drops.’[81]
[81] Caused by gravitational forces.
Three weapons were collected from the scene, namely:
i.Exhibit P3 - a black handled serrated knife found on a cabinet in the hallway of 5 Fisher Street and depicted in photographs 50 and 51;
ii.Exhibit P4 - a long bladed knife located underneath the front doormat of 5 Fisher Street, as depicted in photographs 63, 64 and 65, and
iii.Exhibit P5 - a machete found in the rear yard of 371 Anzac Road, which adjoins directly behind 5 Fisher Street, as depicted in photographs 68 – 71. Miller stated that he left the machete in his neighbour’s backyard.
DNA evidence
As I have already stated, Miller denied that any of the weapons belonged to him and claimed that they were being carried by the four intruders inside his home.[82]
[82] Other than when he picked up the machete after it was dropped by the unknown intruder.
DNA samples were taken from Miller, Simpson and Warrior. No DNA sample was taken from Austin.
The weapons were subjected to DNA analysis.[83] The results of the comparative analysis can be summarised as follows:
[83] The results are contained in the forensic report of Rebecca Windram, Exhibit P9.
a.Simpson’s DNA matched the DNA profile found on the white T-shirt located on the driveway of 5 Fisher Street.
b.DNA extracted from various blood samples found inside the house and on the front door at 5 Fisher Street matched Simpson’s DNA.
c.A swab of the handle of the knife, Exhibit P3, revealed a mixed DNA profile of two contributors. Both Warrior and Simpson were excluded as being contributors to the profile. Miller was not excluded from the mixed DNA profile. The other contributor is unknown.
d.A single source DNA profile from a blood like stain on the blade of the knife, Exhibit P4, matched Simpson’s DNA.
e.There were three contributors to the DNA on the handle of the knife, Exhibit P4. Both Miller and Simpson were contributors, while Warrior was excluded. The third contributor is unknown.
f.The blood like stain on the blade of the machete, Exhibit P5 was a single source DNA profile that matched Miller’s DNA.
g.The blood like stain on the handle of the machete also had a single source DNA profile which matched Miller’s DNA.
h.The handle of the machete had three sources of DNA. Both Miller and Simpson were found to be contributors, while Warrior was excluded.

Police interviews with Simpson and Warrior

The prosecution tendered police interviews conducted with Simpson and Warrior, which consisted exclusively of self serving statements. Whilst Austin was also interviewed there is no evidence of what he said, as the police have lost the recording.
The prosecutor invited me to dismiss what Simpson and Warrior said in their police interviews as being ‘uncorroborated, untested and unsworn statements.’[84] In effect, the prosecutor was submitting that what each said to the police were lies and so their accounts should be rejected. If this was so, one wonders why the prosecutor tendered the interviews at all.
[84] Prosecution closing argument T 565-566.
That evidence, having been tendered by the prosecution, now forms part of the whole of the evidence before the court. The prosecution is now required to exclude what Simpson and Warrior have said as a reasonable possibility. I have had regard to what Simpson and Warrior said in their respective police interviews when considering whether the prosecution has proved the offences charged against them.[85]
[85] Whilst not the same as sworn evidence I have closely examined each police interview and have considered whether what was said raises a reasonable possibility of the innocence of any or all of the defendants: Mule v R (2005) 221 ALR 85.
The record of interview of a defendant cannot be used against any other defendant in the case. As such I have not used what Simpson or Warrior has said in their interviews wherever it implicated another defendant. However, where what a defendant has said to the police raises a reasonable possibility consistent with another defendant’s innocence, then it may be used for that purpose. This was the approach counsel for Austin invited me to take, which I accept is a correct statement of the law. For example, if what Simpson said to the police is a reasonable possibility of what occurred on the night, then all three defendants would be not guilty of the charges, as framed and presented by the prosecution.
Cassius Simpson ROI
Simpson took part in an interview with Detective Holmes and Probationary Constable Walton on 29 March 2014, commencing at 4:33am. The recording[86] and a transcript[87] were tendered in evidence. The transcript of Simpson’s responses was so inaccurate that I have not relied upon it at all as an aide.
[86] Exhibit P7.
[87] Exhibit P8.
As best as I can make out, Simpson’s interview can be summarised as follows:
·At the time of the interview he said that he was ‘sort of’ still suffering from the effects of alcohol he had consumed that night. He was also in pain and feeling dizzy and drowsy from having been injured.
·He had been at 2 Fisher Street where his niece Courtney Carlton lived.
·He had consumed six cans of VB beer and some wine from a four litre cask. He said that he was ‘really drunk.’
·He was wearing shorts and a white shirt on the night.
·He decided to confront Miller because Miller had been picking on his [Simpson’s] nephew and nieces. Miller had been ‘cheeky’ and acting like a ‘big shot.’
·He was going to tell Miller off with words and not violence.
·He stood at the front fence of 5 Fisher Street yelling at Miller to come outside saying ‘Kenny it’s me Cassius. You’re a man, why don’t you try me [like fist to fist].’
·He said that while he wanted to fight ‘fist to fist’, Miller ‘picked up a weapon.’ He didn’t know what weapon Miller had picked up but described is as ‘a big sharp thing.’ Miller came out of his house ‘flashing a knife.’
·Miller ran up to him ‘full force’ and struck him with the knife (later he said it might have been an axe or a machete).
·When asked where he was struck, Simpson first said ‘at his [Miller’s] place’ then quickly said ‘no, no, no, on the road.’
·All that he remembered was Miller running towards him.
·He denied striking Miller.
·After being struck he turned to walk away and then felt blood running over his body. He said that he tried to walk away, then ‘bang, I was knocked up for a while and blood came pissing all on my body.’
·Others were screaming and asking him if he was alright.
·He started to feel weak. He may have blacked out.
·After he was hit everyone was worried about him. Warrior came to his assistance. His niece Courtney was there with him too. Warrior was holding him down and talking to him to keep him awake.
·Warrior called the police and an ambulance.
·He had lost a lot of blood.
·He said that he did go inside Miller’s house but only after he had been struck by Miller.
·He said that someone then ‘booted in’ Miller’s front door; ‘caved’ it with their foot. He didn’t know who, but said that it wasn’t either Warrior or Austin. He had just got up off the road when the door was kicked in. The door wasn’t kicked in when he was in Miller’s front yard. He said that the door was kicked in after he had been ‘smacked in the head’ by Miller.
·He had taken off his white shirt which was covered in blood. He was staggering or wobbling when he took off his shirt because he was losing a lot of blood.
·He had taken his shirt off because he wanted to ‘flog’ Miller. He was being restrained by Warrior and Austin. He said that he wanted to hit Miller with his fists.
·Warrior was attempting to calm him down. He said that everyone was trying to hold him back, someone had grabbed him and he then ‘slipped’ out of his shirt.
·He said that he wanted to ‘do the same thing to Miller’, namely strike him, but without a weapon. He wanted to ‘smack Miller’s lights out.’
·He wanted revenge for what Miller had just done to him.
·He said that Miller had gone back into the house to grab more weapons. Miller was ‘screaming, grabbing a knife and everything. Miller went off his head.’
·He entered Miller’s house through the broken front door. He was still very weak from being struck to the head and losing so much blood.
·Both Warrior and Austin were inside Miller’s house with him as they were concerned for his welfare. Warrior and Austin were trying to ‘guard’ him. He said that Warrior and Austin came inside the house with him, trying to stop him and calm him down.
·Once he was inside Miller’s house, Miller began throwing things at him so he moved back. He then picked something up but didn’t want to throw it at Miller so he dropped it back down.
·He said that Warrior and Austin were simply trying to protect him and that neither threw nor damaged anything inside Miller’s house.
·He said that neither he nor Warrior and Austin had anything in their hands.
·Miller then took off, so he went into the bathroom and washed himself down.
·He did not see Taliah Edwards or any children inside the house. He said that he had seen Edwards earlier in the night, drinking with his ‘mob’ across the street at his niece’s house.
·After he washed himself down he walked outside of Miller’s house.
·The blood inside Miller’s house was his.
·He said that he never struck Miller. He said that he ‘never even touch[ed] his [Miller’s] face. I never even bashed him up.’
·He said that Miller did not sustain any injuries.
·He said that all of the blood inside Miller’s house was his and that the police could look for DNA in the house and the only fingerprints that the police would find would be Miller’s on the knife.

If what Simpson has said occurred is a reasonable possibility then, as I have already observed, each defendant is entitled to be acquitted.
Whilst Simpson has admitted entering Miller’s house as a trespasser, with the intention of assaulting Miller, his version is so far removed from the factual basis alleged by the prosecution, through Miller and Edwards, that it could not form the basis of any finding of guilt of the counts charged. The prosecution has not sought to prove either count on the factual basis claimed by Simpson in his police interview and indeed urged me to totally reject his account and accept beyond reasonable doubt what both Miller and Edwards said happened.
Whilst there are some incongruities in Simpson’s version of events there are parts of what he has said which is supported by the evidence, such as his claim that he was calling Miller outside. This was denied by Miller but confirmed by Edwards. Further, his T-shirt was found in the driveway, consistent with being removed there, as he claimed, when he was attempting to enter Miller’s house for his revenge.
Simpson stated that immediately after Miller struck him outside, Miller ran inside his house to get more weapons. After Miller entered his house Simpson said that someone then broke down Miller’s front screen door. For this to have occurred, the front wooden door must have been open.
Simpson stated that once he had been struck by Miller, Warrior and Austin stayed with him trying to calm him down and to see that he was alright. If that were true, then another person would have had to come onto the property and have kicked down the screen door. On Simpson’s account, he does not know who kicked the front screen door despite being very close at the time. I am satisfied he was not being truthful about this and lying so as not to implicate either himself or Warrior and Austin in forcing entry into the house.
Simpson’s account of what happened inside the house also does not accord with other parts of his version. He said that after Miller had struck him and ran back inside the house, he was angry and wanted revenge to the point where both Warrior and Austin were holding him back, before he ‘slipped out of his shirt.’ Simpson said that he then entered inside Miller’s house, with Warrior and Austin, and that Miller was throwing things at them. Simpson said that he picked something up but then decided against throwing it at Miller so dropped it back down. I find it unbelievable that Simpson would have entered Miller’s house in an angry, revengeful state and allowed Miller to throw things at him without throwing anything back, especially once he had picked an item up as he said he did.
It is more likely that once inside the house Simpson and the others went after Miller and an attack was taking place as alleged by Miller and Edwards.

Joshua Warrior ROI

Warrior was interviewed by Detective Holmes and Constable Muhsin on 29 March 2014 commencing at 5:58 am. A transcript of the record of interview was tendered as part of the prosecution case.[88] In it, Warrior gave a different version of events to that given by Miller and Edwards. His version is also different to the version given by Simpson to the police. What Warrior said in his interview can be summarised as follows:
[88] Exhibit P13.
·He was walking his young daughter in a pram to his ‘ex’s’ [Courtney Carlton’s] home at 2 Fisher Street from his mother’s home when ‘[Simpson] got jumped by two fellas.’[89]
·Simpson was ‘getting his head stomped on.’[90] He said that Miller was one of the two men who had attacked Simpson. He did not know who the other man was.[91]
·He said that Simpson was driving his car and then jumped out and ‘a big blue started happening out of nowhere.’[92]
·He said he had seen the ‘whole lot.’ Miller started ‘booting in [Simpson’s] head and that’s when I said ‘Kenny [Miller] leave him now, he’s had enough’ and [Miller] is calling [Simpson] a nigger, ra, ra, ra and [Miller] kept booting [Simpson]. I said that your two business not mine.’[93]
·He said that Miller came out at Simpson ‘bang like that, then I dunno, I just stepped back with my daughter cause she was in the pram.’[94]
·He said that he then put his daughter inside his ‘ex’s house’ and then went outside to ‘sort it out but they busted [Simpson] up pretty bad.’[95]
·He denied being involved in anything.[96]
·Later he said Simpson went inside [5 Fisher Street] and ‘they busted Simpson up.’[97]
·He did not go to Miller’s house. He was with his ex and his child because his daughter was getting scared.[98] His daughter was crying in the pram.[99] He denied entering Miller’s house, saying ‘I never walked over there. I’m sitting back ... had my daughter ... I had the pram so how would they blame me.’[100]
[89] ROI Q12-13.
[90] ROI Q203-205.
[91] ROI Q15.
[92] ROI Q55-56.
[93] ROI Q 210-11.
[94] ROI Q58.
[95] RO1 Q13-15.
[96] ROI Q112.
[97] ROI Q140.
[98] ROI Q178-179, 189-191.
[99] ROI Q 213-215.
[100] ROI Q169.
Warrior has therefore denied, in the most unambiguous terms, ever being at 5 Fisher Street, let alone having entered the house as alleged by Miller and Edwards.
I reject Warrior’s account of what happened. There was no evidence of Simpson driving a car leading up to the incident or that Simpson was being attacked by two men. There was no evidence of Simpson being kicked or ‘booted’ by Miller and another man as Warrior has claimed.
My rejection of Warrior’s version does not mean that he is guilty of the offences charged. The evidence of Miller and Edwards must still satisfy me beyond reasonable doubt of his guilt.
Summary and Analysis of Closing Arguments
The prosecution case is that there was a home invasion in the early hours of the morning of 29 March 2014 at 5 Fisher Street, Port Pirie. It contends that Simpson, Warrior, Austin and an unknown man, whilst armed with various weapons, committed the serious criminal trespass into the home of Miller and Edwards as part of a joint criminal enterprise to assault Miller.
The entire prosecution case depended upon my accepting the evidence of Miller and Edwards as being truthful accounts of the events of that night. Naturally the focus of counsels’ addresses was on the evidence given by Miller and Edwards. Each defence counsel was critical of their evidence, submitting that they were not credible witnesses.
Counsel for Simpson submitted that Simpson was surprisingly frank in his interview with the police. He suggested that his answers were spontaneous and did not have the air of being concocted or contrived.[101] He invited me to accept what Simpson said to the police as being an honest account of what happened on the night.
[101] T 568.
I do not need to accept everything that Simpson told the police. Indeed, I am satisfied that in some parts of his interview he has not been truthful, as I have already explained. Critically, however, if his version of an admitted trespass to assault Miller is a reasonable possibility then he must be found not guilty as it stands in contradistinction to the prosecution case.
Counsel submitted that Miller’s failure to mention to the police on the night that he had picked up a machete dropped by the unknown intruder and then struck Simpson with it was telling against his honesty.[102] Further, it was submitted that Edwards’ statement to the police on the night that Miller had used his own machete to strike Simpson with was in fact the truth. Her later retraction certainly tells strongly against her credibility.
[102] T 575.
Miller said that he had always told the police that he had picked up the machete and hit someone with it.[103] He said that he did not know why it was not included in his first statement but was clear that he had told the police about it.[104] Miller said that he realised he had struck Simpson when the police at the scene told him about how much blood Simpson had lost and that Simpson needed to be taken to hospital.[105] This is why Miller said that he named Simpson in his second police statement as the person he had struck.[106] He denied that he only stated he had used a machete to strike Simpson with because Detective Holmes informed him of the DNA results.
[103] T 174.
[104] T 174.
[105] T 173.
[106] T 173.
Detective Holmes denied being prompted to speak with Miller by the DNA results of the weapons,[107] yet a statement was nevertheless taken from Miller by him[108] specifically to cover the important topics not mentioned by Miller in his initial police statement.[109] I am satisfied that the DNA results triggered the obtaining of the additional statement from Miller. There can be no other logical explanation given the very specific contents of that statement which was taken only after the DNA report of the forensic scientist was produced.[110]
[107] T 509-513.
[108] Addendum statement of Kenneth John Milller dated 12 February 2015.
[109] Initial police statement provided by Kenneth Miller at 3:40 am 29 March 2014.
[110] Statement of Rebecca Windram dated 22 September 2014.
I agree with counsel’s submission that it is very concerning that Miller did not mention a very important aspect of the home invasion, namely his use of one of the intruder’s weapons to strike Simpson, when he was first spoken to by the police. This omission certainly impacts on the credibility of Miller’s account of the attack.
Counsel also suggested that Miller’s and Edwards’ account of being confronted by four armed men and not being seriously injured defied belief, given the confined space in which the attack was taking place in their home. Further, that Miller’s account of how he picked up the machete with his left hand before swinging it from left to right is fundamentally inconsistent with the injury which Simpson sustained to the left side of his head.[111] As I pointed out during addresses, all of that very much depended on precisely where Simpson was standing and which way he was facing at the time he was struck with the machete. He may have seen the machete being swung and turned away to avoid it, thereby accounting for the injury to the left side of his head. Indeed this is how Edwards described the strike to Simpson’s head. Further, both Miller and Edwards said that Miller swung the machete as he was ducking down and making his way up. Miller said that he did not know where the machete had struck when he swung it. However, as I have already observed, all of this must be viewed against the critical omission by Miller of the use of the machete and of Edwards’ initial assertion to the police that it was actually his machete which was used to attack Simpson.
[111] T 576.
Counsel for Simpson was also critical of the amount of detail Edwards was able to provide in her evidence. He submitted that it is unlikely she witnessed what she claims to have and it is possible she was confused or recounting events that had been discussed later with Miller. It was suggested that if events unfolded as she described them, one would have expected her to have been concentrating more on the safety of her children rather than watching what the others were doing and as such would not have been able to accurately see what happened. Edwards said her primary concern was the safety of her children which she attended to. One must not lose sight of the fact that what Edwards was describing occurred over a very short space of time, something in the order of a minute or two, before she fled through the bedroom window with her children. Nevertheless, as counsel argued, Edwards’ concern was indeed for the safety of her two children, yet having retreated very quickly into the rear bedroom she then claims to have somehow witnessed the attack on Miller from outside the bedroom door. This is inconsistent with her natural concern for the safety and welfare of her children. One might have expected her to barricade herself in the rear bedroom or promptly flee outside the window as she eventually did.
Miller was challenged in cross-examination about the number of men who he said had invaded his house that night. It was put to him that in his second police statement he had said that there were three men who had invaded his home. Miller agreed that that was what was in his statement but said that he was told by police to leave the fourth man out as he was unable to identify him.[112] Detective Holmes, who had taken the second statement from Miller, denied telling Miller not to mention the fourth person when providing that additional statement. While Detective Holmes may not have directly told Miller not to mention the fourth person, Miller may have been left with the impression that he should not focus on the man whom he could not identify, when making his additional statement. Miller was not the most sophisticated of witnesses and admitted that he had difficulty reading. I was not troubled by this inconsistency.
[112] T 168.
Counsel for Warrior submitted that there was no home invasion at all and that Miller and Edwards had trashed their own home, and lied about what happened, in order to avoid Miller being charged with striking Simpson on the street with a weapon. As counsel bluntly put it: ‘This is a deliberate set up. That is our case.’[113]
[113] T 590, 591.
In the alternative, it was submitted that if I was satisfied that Warrior did enter the house, the prosecution must exclude that he did not do so for a defensive purpose, that is, to extract Simpson or protect Simpson from further attack by Miller.[114] I did not understand this submission when it was being made, as it cut right across what Warrior told the police in his interview that he never entered the house. It was also not how counsel cross-examined Miller or Edwards either. Perhaps in making this submission she was relying on what Simpson said to the police in his interview as a fallback position rather than relying on her client’s clear instructions that he did not enter onto the property, let alone enter inside the house. I reject the hypothesis put by counsel that Warrior entered Miller’s house in order to protect Simpson and thus his entry into Miller’s house was not unlawful.
[114] T 583.
Counsel for Warrior also submitted that Miller and Edwards were not credible witnesses and had been evasive in their evidence. She submitted that they each tried to ‘patch up things when they were caught out.’ Edwards, it was submitted, could not recount her evidence without repeating everything from beginning to end. This was not the impression I formed of either witness, who each remained extremely patient throughout their very lengthy and demanding cross-examination. Contrary to counsel’s submission, I found both Miller and Edwards to have remained largely consistent throughout their evidence.
Counsel focussed heavily on the photographs of the house, which she submitted revealed that Miller and Edwards had ‘arranged things’ to appear as though there had been a home invasion. I am not persuaded by this argument either. The photographs clearly support what Miller and Edwards claim happened. The damage to the front screen door especially, which according to counsel was caused by Miller, tells most strongly against her submission. It, as well as the other photographs, clearly contradicts counsel’s submission that ‘we see a couple of marks on a door but apart from that there’s no identification of a trashing in that house.’[115] I simply cannot accept this submission in the face of the objective evidence of the damage to the house. I find that neither Miller nor Edwards caused the damage to their own home as asserted by counsel. I reject her submission that Miller damaged his own screen door so as to implicate the defendants.
[115] T 589.
Counsel also submitted that there were discrepancies between the evidence of Miller and Edwards. For example, she said that they differed as to which room Edwards went into with the children once their home was being invaded. In my view, given the speed at which events were unfolding it is hardly surprising both would have different recollections of events, which is typical of human memory. This difference alone has not caused me to doubt the veracity of their account of the home invasion.
Counsel for Warrior was also extremely critical of Edwards’ evidence concerning the pram, which she submitted revealed that Edwards ‘really came unstuck.’ Earlier in my reasons I addressed this point and rejected that it adversely affected Edwards’ credibility.
Counsel was also critical of Edwards’ evidence about placing her children over the side fence as being incredible. I did not find Edwards’ evidence about that to be so. Edwards said that she escaped with her children from the window in the back bedroom and made her way to the side of the house to safety. There she placed her children over the fence and whilst doing so, a number of women from 2 Fisher Street assisted her. I see nothing incredible in that account.
Photographs 38 and 39 of Exhibit P1 revealed a damaged stool in the hallway. Edwards did not recognise the stool as belonging to her. Miller, on the other hand, believed it to belong to them. I do not find it at all troubling that Miller and Edwards disagreed as to whether it was their stool or not. It is hardly incredible not to know every piece of household furniture in one’s possession at any given time.
Counsel for Warrior drew attention to what was clearly a broken leg from that damaged stool photographed underneath the front porch of 2 Fisher Street as shown in photograph 10 of Exhibit P2. The location of the broken stool leg at 2 Fisher Street is a piece of evidence connecting a person or persons at 2 Fisher Street with the damaged stool found in 5 Fisher Street. Warrior was arrested inside the house at 2 Fisher Street later that morning and Simpson admitted he had been at the house before the confrontation with Miller.
I am satisfied that the broken stool leg from 5 Fisher Street was taken to 2 Fisher Street and dropped in the location where it was photographed. There is no other reasonable explanation for the presence of the broken stool leg at 2 Fisher Street. This is a piece of circumstantial evidence supporting the evidence of Miller and Edwards of the attack in their home by a group connected to 2 Fisher Street.
Edwards was also criticised regarding her evidence about the weapons. I have not overlooked this important aspect of her evidence, but in a setting which was both extremely frightening and unfolding very quickly, it is understandable that mistakes can be made as to the appearance of certain weapons or who was carrying them or where they were in the house. However, her initial statement that Miller had used his own machete taken from the display unit stands in a different light and impacts on her credibility generally.
Finally, counsel was critical of the police investigation submitting it was not thorough, for example witnesses were not spoken to nor a close examination conducted of 2 Fisher Street where a blood stain was photographed by the front door and sampled but never analysed. Obviously the case must be decided only upon the evidence presented and whether that evidence in its totality is sufficient to prove the offences charged.
Counsel for Austin submitted that the evidence of Miller and Edwards was insufficient to establish that the trespass was for the reasons alleged in the particulars of the counts charged.
Counsel seemed to concede that Austin went to the front door of Miller’s house but submitted he went no further than that. It was submitted that whilst Austin was present when Miller opened the front door and for part of the ‘flare up’ that followed, Austin then left and did not enter the house, as both Miller and Edwards asserted. There is simply no evidentiary basis for this submission. As I reminded counsel his questions do not amount to evidence unless his propositions were adopted or accepted by the witness and neither Miller nor Edwards agreed with what was put to them.

He submitted that Simpson’s interview with the police was an explanatory rather than an exculpatory account and free of artifice.
Counsel submitted that if Simpson’s version to the police was correct, then Miller had come out of his house with a weapon upon being challenged to a fight by Simpson and then ‘chopped’ Simpson on the head on the street, which would provide strong motive for both Miller and Edwards to lie about what had happened. He also submitted that Simpson was extremely frank in his interview to the point where he admitted having a motive to enter Miller’s house and attack him but only in response to first having been attacked by Miller with a machete on the street. This, it was submitted, was an example of Simpson’s honesty such that his account should be accepted as true.
Counsel submitted that an unusual feature of the case was that Simpson, having committed such a violent home invasion, would then choose to remain inside Miller’s house and use his bathroom to wash the blood off himself. This, it was submitted, was so remarkable as to support Simpson’s account over that of Miller’s and Edwards’.
Counsel also submitted that it was implausible and unreasonable to suggest, as both Miller and Edwards did, that three or four men, armed with knives of various sorts, would be attacking Miller in such a confined area with knives, yet Miller only sustained a minor injury to the back of his left ear. Counsel submitted that in the scenario painted by Miller and Edwards, Miller would not have stood a chance from the attack which each described. It was submitted that it was incredible to suggest that Miller could have picked up a machete and struck one of his attackers causing serious injury, yet avoided serious injury himself from a group of men pressing close around him while attempting to stab him with various weapons. This, it was submitted, raised at least the reasonable possibility that Miller was not being attacked with knives.
If what Miller and Edwards described as happening was true, then counsel submitted that Miller should have been more seriously injured than he was or possibly even killed. Counsel submitted that this, of itself, demonstrated that the men were not armed and that Miller and Edwards have both lied because Miller had committed a serious offence in having seriously wounded Simpson with a machete on the street.
Miller said that he reacted very quickly to the attack and retreated into the narrow hallway and then into the kitchen where he used the kitchen table as an obstacle between himself and those attacking him before he fled out the back door. The prosecution submitted it may just have been fortuitous that Miller was not seriously injured but it is not incredible.
Finally, counsel submitted that there might have existed confusion in Edwards’ mind between Austin and the fourth unknown Aboriginal man she described being present inside her house. I reject this submission, as in my view, both Miller and Edwards were clear that Austin was present and inside the house. Miller, in particular, was clear about the threats being made to him by Austin inside his house whilst Austin was armed.
Blood trail evidence
All counsel in their addresses submitted that the blood trail supported what Simpson said to the police, namely that he was attacked outside by Miller before making his way into Miller’s house to wash the blood from his body.
The photographs reveal passive blood drops inside the house, as well as in the front yard of 5 Fisher Street and along the surface of the street between 2 and 5 Fisher Street.
There is little doubt that Simpson was bleeding profusely from the wound to his head. His heavily blood stained T-shirt was on the driveway of 5 Fisher Street. There was no dispute either that Simpson was bleeding heavily after he was struck with the machete by Miller or that he was inside Miller’s house at one point in time.
The blood was described by Brevet Sergeant Hamilton as non-directional passive blood drops, namely deposited from either a stationary or slow moving source and not from someone who was running, as Edwards described Simpson doing, after he was struck with the machete by Miller. If that were so, then counsel submitted that there would be evidence of ‘cast-off blood stains’ which are absent from the scene. However, if Simpson was resisting Warrior and Austin as he claimed he was, then in those circumstances, one might equally expect to have seen some cast-off blood at the scene. The absence of cast-off blood does not totally detract from what Edwards observed.
Counsel for Simpson submitted that there were two distinctive blood trails suggesting that what Simpson said to the police was correct.
However, Edwards said that after Simpson was struck with the machete he immediately ran outside and returned about 60 seconds later. This would account for a blood trail outside of the house. In addition, when Constable Walton arrived at the scene, she observed Simpson walking out of the front door of 5 Fisher Street holding a blue towel to his head. If that is correct, then on Simpson’s account to the police there should only have been the single blood trail leading into the house as the towel would have stemmed the blood flow.
In my view the evidence of the blood trail in this case is equivocal.
Simpson could have been struck inside the house, as both Miller and Edwards have said, and then he exited, as Edwards observed, walking out of the driveway and then onto the street. He could have then removed his T-shirt, which was heavily stained with blood, used it to temporarily stem the blood flow, walked back up the driveway, and thrown his shirt on the ground before re-entering the house. He could then have made his way into the bathroom, washed himself and then used the blue towel to again stem the flow of blood before exiting the property and eventually sitting in the gutter (where the large transfer of blood was found[116]) until being taken away by the ambulance. This could account for the trail of blood on the street surface and on part of the driveway.
[116] Exhibit P1, photograph 2.
However, as I have observed the blood trail is equally consistent with Simpson’s claim that he was struck outside by Miller and then made his way inside the house to exact his revenge before using the bathroom to wash himself.
Evidence relating to the weapons
Each counsel strongly submitted that the DNA evidence found on the knives did not support what Miller and Edwards have said about each defendant being armed with a knife.
The absence of a DNA sample taken from Austin and obviously from the unknown alleged fourth offender meant that no comparison could be made with the mixed DNA profile obtained from any of the weapons.
DNA profiles found on the machete, Exhibit P5, contained the DNA of both Miller and Simpson. Miller admitted using it to strike Simpson. Blood like stains on the handle and the blade matched Miller’s DNA profile. Miller said that he was bleeding from the cut to his head after being struck with an object thrown at him from the lounge room, which could account for his DNA at those locations and so supports his account.
It is unsurprising that Simpson’s DNA is on the machete as he was struck with it, although one wouldn’t have expected his DNA to be on the handle. There also existed a third unknown contributor to the mixed DNA profile found on the machete handle. This lends some support to Miller’s evidence that the machete was initially being carried by the unknown attacker before he dropped it, allowing Miller to take it up and strike Simpson with it.
However, of concern, is that Miller could not account for the presence of his DNA on the knives, Exhibits P3 or P4. Likewise, there was no explanation from either Miller or Edwards for the presence of the knife, Exhibit P3, on the cabinet in the hallway, other than it was left there by one of the defendants.
I note the very low statistical weighting of Miller’s DNA in relation to Exhibit P3. I also note that there were two contributors to the DNA found on the handle. Whilst both Simpson and Warrior are excluded, I also note that there was no reference DNA from Austin or obviously from the unknown intruder.
Exhibit P4, which was the oddly shaped knife found underneath the front door mat, was found to contain both Miller’s and Simpson’s DNA, as well as that of a third unknown contributor. A blood like stain on the blade revealed a single source DNA profile which matched Miller’s DNA. The handle contained a mixed DNA profile from three contributors. Both Miller and Simpson were contributors. Warrior was excluded, leaving a third unknown contributor.
Once again it is of concern that there was simply no explanation from Miller for the presence of his DNA on this knife.
Simpson’s DNA could be accounted for because he was bleeding, although I note that the location of this knife was almost entirely covered by the front door mat and Simpson’s DNA was found on the handle, which as revealed in the photographs is completely covered by the door mat.[117]
[117] See Exhibit P1, photographs 63-64.
It is possible that Miller was mistaken as to who carried Exhibit P4 into the house. He said that it was being carried by Austin, not Simpson. It is certainly possible that Simpson was armed with this knife. How it ended up underneath the front door mat is a mystery. Counsel for Warrior submitted that Miller deliberately planted the knife underneath the front door mat to implicate the defendants and deflect the police from focusing their investigation on his attack of Simpson. I do not accept this submission. As with her other submissions that the defendants were ‘set up’ or ‘framed’ by Miller and Edwards, I consider it unlikely that Miller and Edwards would have done so in the limited time available to them.
It is possible that the knife was dropped by Simpson after he was struck by Miller inside the house and as he made his way outside, as Edwards said he did. It is possible that the door mat was disturbed by persons leaving the house thus covering the knife. The photographs reveal that the door mat is positioned at the far edge of the entrance as if it had been moved as I suggested. As Simpson’s DNA is on the handle, it supports the conclusion that he carried it into the house and was holding it during the attack.
Whilst Warrior’s DNA was not found on any of the weapons seized it does not follow that he was not armed. He may have taken the weapon with him when he left the house.
Nevertheless, it is for the prosecution to exclude all reasonable possibilities consistent with the defendants’ innocence and in my view it has not done so. My discussion of the DNA evidence simply illustrates the point.
Conclusions
I have taken into account the various criticisms made by counsel for the defendants about the evidence given by Miller and Edwards, as set out above, and closely considered the blood trail and DNA evidence, particularly the evidence of Miller’s DNA found on Exhibits P3 and P4. The DNA evidence is particularly troubling, as there appears to be no rational explanation for Miller’s DNA on the knives, unless he handled the weapons, which he strongly denied. The defence has submitted that this must raise doubts as to his credibility. I agree that the DNA results raise far too many unanswered questions such as to cast a reasonable doubt over the evidence of Miller and Edwards.
In the end, whilst I found that both Miller and Edwards presented as satisfactory witnesses, there remained a number of troubling aspects in their evidence which has caused me to have a reasonable doubt. Put another way, I find that the prosecution has not excluded what Simpson told the police occurred as a reasonable possibility, as I cannot reject it on an assessment and evaluation of all of the evidence.
Even accepting the objective evidence that supports the forcing of the screen door, there were simply too many aspects of the evidence as I have noted and which has left me with a reasonable doubt that the trespass occurred in the circumstances as detailed by Miller and Edwards.
Those concerns can be summarised as follows:
a.The unlikelihood that Miller, being confronted by four angry and armed men at close proximity, could manage to repel them without sustaining any serious injury.
b.The unlikelihood that Miller would be able to take up the machete, dropped by the unknown intruder, in the circumstances as he described.
c.The failure of Miller to mention his attack on Simpson with the machete when he was first spoken to on the night.
d.Edwards’ initial statement to the police that Miller used his own machete to attack Simpson with, even stating that it was kept on the display cabinet in the hallway, only to recant that account in her evidence.
e.The implausibility that the defendants would leave behind their weapons.
f.The implausibility that having entered the house that the defendants would tell Miller that they would return at a later time to get him, when they were already inside attacking him.
g.The absence of any DNA evidence on the weapons to support Miller’s and Edwards’ claims that they were being carried by the defendants. Miller specifically identified the knife, Exhibit P3, as being carried by Warrior, yet his DNA was not found on it. Likewise, Edwards identified the knife, Exhibit P3, as being carried by Simpson and yet his DNA was not on it either. Edwards also claimed that the knife, Exhibit P4, looked similar to the knife Warrior was carrying, yet his DNA was not on it.
h.Miller’s DNA on the knives, Exhibits P3 and P4, directly contradicts his evidence that the weapons did not belong to him or that he was not armed with them. Aligned with this is the lack of an explanation for the knife, Exhibit P3, being located on the cabinet in the hallway, other than it was left there by one of the intruders, which I have already found implausible.
i.The unlikelihood that Edwards would have been in a position to observe the attack and accurately recall what was happening when her primary concern was the immediate safety of her young children by retreating into the back bedroom.
j.The absence of any evidence of broken ornaments on the floor does not support the claim made by both Miller and Edwards that the defendants were throwing ornaments from the mantelpiece at them. If the defendants were as heavily armed as Miller and Edwards said they were, then it is unlikely they would resort to throwing small glass and china ornaments at Miller.
k.The unlikelihood that the defendants would abuse and threaten Miller and Edwards in the presence of the police if they had just committed serious crimes against them. The evidence of the police officers did not support this claim.
The truth probably lies somewhere between what Simpson said happened and what Miller and Edwards have stated. I am satisfied that a home invasion occurred, simply not the one the prosecution has alleged. It was probably initiated by Simpson’s invitation to Miller to fight him and moved from there to the point where revenge was indeed sought by Simpson and the others for what was a pre-emptive strike by Miller to defend himself. However, a criminal trial proceeds on the requirement that there exist proof beyond reasonable doubt, not what might possibly or probably can be established. The totality of the evidence in this case has failed to satisfy me of the guilt of the defendants beyond reasonable doubt on the factual basis upon which the prosecution case was presented.
Verdicts
I find each defendant not guilty of Count 1 and Count 2.