R v Southwell
[2022] SADC 72
•9 June 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SOUTHWELL
Criminal Trial by Judge Alone
[2022] SADC 72
Reasons for the Verdicts of his Honour Judge Allen
9 June 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND - GENERALLY
The accused is charged with one count of aggravated serious criminal trespass in a place of residence and one count of aggravated causing harm with intent to cause harm. On 13 June 2020, the accused attended at the complainant’s house. The complainant was pushed into a wall, punched to the face, hit with an extendable baton and also kicked and stomped whilst on the ground. The complainant suffered injuries including a fractured right forearm and a fracture of her right maxilla.
At the close of the prosecution case, defence requested that the accused be re-arraigned on count 2. The accused pleaded not guilty to aggravated causing harm with intent to cause harm, but guilty to causing harm with intent to cause harm. This plea was not accepted by the Director. The questions then became whether the accused was a trespasser at law in relation to count 1 and whether the circumstance of aggravation was proved beyond reasonable doubt on count 2.
Verdict: Guilty on both counts
Criminal Procedure Act 1921 s 136(1); Evidence Act 1929 s 13; Summary Offences Act 1953 Pt 17 Div 3; Criminal Law Consolidation Act 1935 ss 20(3), 24, 168(3)(c), 170; Crimes Act 1958 (Vic) s 76, referred to.
South Australia Police v Hill [2022] SACA 22; Roy v O’Neill (2020) 95 ALJR 64; Barker v The Queen (1983) 153 CLR 338, considered.
R v SOUTHWELL
[2022] SADC 72Introduction
The accused, James Donald Southwell, is charged with the following offences.
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(l) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
James Donald Southwell on the 13th day of June 2020 at Smithfield, entered or remained in the place of residence of Amanda Patricia Norris as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and James Donald Southwell knew of the other’s presence or was reckless about whether anyone was in the said place.
Second count
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm. (Section 24(l) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
James Donald Southwell on the 13th day of June 2020 at Smithfield, caused harm to Amanda Patricia Norris, intending to cause her harm.
It is further alleged that James Donald Southwell used or threatened to use an offensive weapon, namely a pole or baton, to commit or when committing the offence.
The charges arise from an attendance by a male at the home address of Amanda Norris at Smithfield at about 8:00 pm on Saturday 13 June 2020. Ms Norris was at home with her two children when a person attended unannounced at the front door. The man’s knock on the front door was answered by one of Ms Norris’ sons. The door was unlatched by Ms Norris with the male entering the house, pushing Ms Norris into a wall, punching her to the face, pushing her into a wall and onto the ground. On the prosecution case, the man then removed an extendable baton from a pocket, striking the alleged victim with that implement to the head a number of times. She was also kicked and stomped whilst on the ground.
On the prosecution case, the male then appeared to take a photo of Ms Norris using a mobile phone, before running out of the house.
As a consequence of the assault, Ms Norris suffered a number of injuries including a fractured right forearm and a fracture to her right maxilla.
Procedural History
At this point, it is convenient to summarise the procedural history of this trial.
The trial commenced with the accused entering not guilty pleas to both counts on the Information.
At the conclusion of the prosecution opening, defence counsel addressed the Court to outline the issues in contention between the prosecution and defence.[1]
[1] s 136(1) Criminal Procedure Act 1921 (SA).
It was put on behalf of the accused that the principal issue ‘is the identity of who was present at the alleged victim’s home’.[2]
[2] T11.22-23.
Unsurprisingly, the evidence led on the Crown case tended to focus on proof of attempting to establish beyond reasonable doubt that it was the accused who attended at the home of the alleged victim on the night in question, trespassed and attacked her inside her own home.
At the close of the prosecution case, a request was made by defence to re‑arraign the accused. Defence counsel, in making this request, stated the following:
It is going to be a change of plea in relation to the assault charge. The serious criminal trespass charge, however, remains contested.
I appreciate that has a peculiarity to it because it will put the defendant at the scene.[3]
[3] T233.6-11.
The accused was re-arraigned on count 2. A plea of not guilty was entered to aggravated causing harm with intent to cause harm. A plea of guilty was entered to causing harm with intent to cause harm. That plea was not accepted by the Director in satisfaction of that count.
Given the abandonment of any argument about the identity of the offender, there were two primary issues that fell to be resolved at trial. Firstly, whether the Crown had produced evidence that was capable of proving each element of count 1 beyond reasonable doubt. Secondly, as to count 2, whether the circumstance of aggravation, that the accused used or threatened to use an offensive weapon, namely a pole or baton to commit or when committing the offence, was proved beyond reasonable doubt.
In essence, there was no longer any dispute that the accused attended at the alleged victim’s house at about 8:00 pm on Saturday 13 June 2020 and caused harm with intent to cause harm by attacking Ms Norris inside her house. On the revised forensic contest, given the concession made by defence through the guilty plea to causing harm with intent to cause harm, it became a question of whether the accused was a trespasser at law in relation to count 1 and whether he produced and used a baton on count 2.
The Elements of the Offences
Count 1 – Aggravated Serious Criminal Trespass in a Place of Residence
The offence alleged against the accused contains six elements, each of which the prosecution must prove beyond reasonable doubt before the accused can be found guilty.
First, the prosecution must prove that the accused entered or remained in a building. That was not disputed. Having regard to all of the evidence, I find that element proved beyond reasonable doubt. The second element of the offence is that the building in question is a place of residence. That was not disputed. Having regard to all of the evidence, I find that element proved beyond reasonable doubt. The third element is that the accused entered or remained in the place of residence as a trespasser. The prosecution must prove that the accused entered or remained in the complainant’s house without her authority or permission. This element is disputed.
The fourth element is that the accused knew that he was a trespasser or was recklessly indifferent as to that fact. In other words, he must be shown to have known that he did not have authority or permission from the complainant to enter or remain on the premises in the circumstances. In the alternative, he must have been recklessly indifferent as to that fact, that is, that he realised it was unlikely that he had authority or permission to enter or remain on the premises but entered or remained on the premises anyway. This element is disputed.
The fifth element is that at the time of the trespass the accused intended to commit an offence against the person, and here it is alleged that the accused intended to assault the complainant. This element is disputed.
As to the sixth element, of aggravation, the prosecution must prove that at the time of entering the premises or whilst remaining on the premises, the accused knew that another person was lawfully in the place of residence or was reckless about whether anyone was there. An accused person is reckless in this context if he thinks that someone might be in the place of residence but enters or remains on the premises anyway. This element is disputed.
Count 2 – Aggravated Causing Harm with Intent to Cause Harm
Given the plea of guilty to the non-aggravated species of this offence, the only issue that falls to determined is whether the prosecution has proved beyond reasonable doubt the circumstance of aggravation: that the accused used an offensive weapon to commit or when committing the offence.
General Legal Directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the word proved, established, or satisfied when referring to a matter upon which the prosecution has the onus of proof then I have meant in each case to an extent beyond reasonable doubt.
The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that every element of the offence has been proven beyond reasonable doubt.
There are two charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration. Guilt as to one count does not mean he is therefore guilty of the other count.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
Vulnerable Witness Provisions
The witness Riley Norris gave evidence via CCTV to the courtroom. Permission for this special arrangement was granted pursuant to s 13 of the Evidence Act 1929. I direct myself that I may not draw any inference adverse to the accused from the making of that arrangement, and I must not permit it to influence the weight to be given to the evidence given by Riley Norris.
Accused gives evidence
The accused gave evidence in his defence. He was not obliged to give evidence. He had the right to remain silent in answer to this charge. I have assessed his evidence and the weight to be given to it in the same way as with any other witness, subject to one important caveat. By giving evidence, the accused took on no onus of proof. He was not required to prove what he said. It was for the prosecution to disprove it. If I were to accept the evidence of the accused as a reasonable possibility, I am obliged as a matter of law to acquit. Even if I was to reject his evidence, it would not follow that he is therefore guilty of the offence. I must carefully consider the prosecution evidence and determine whether, despite the evidence of the accused, the prosecution has proved the offence beyond reasonable doubt.
The Evidence
Having regard to the narrowed focus of what dispute at trial, this summary will be of evidence relevant to matters in dispute. For the sake of clarity, I make it plain this is a summary only. For the purpose of determining whether each charge has been proved beyond reasonable doubt, I have regard to all relevant and admissible evidence and exhibits tendered.
Summary of relevant evidence
Amanda Patricia Norris
Ms Norris gave evidence that she and her two sons Riley, aged 11 and Jackson, aged 7 lived at number 2 Dylan Court, Smithfield. That property is part of a gated community known as Playford Grove.[4] By a gated community, the witness explained that there is a gate governing access to her property and other properties inside the estate. Access to her house and the other houses in the estate required a code to be entered into a pin pad, which then opened a gate to provide access.[5] On 13 June 2020, at about 8 or 8:30 pm, Ms Norris was at home with her children watching a movie.[6] She got up and went to the toilet. There was a knock at the door. Her sons called out ‘there’s someone at the door’. Ms Norris yelled out ‘who is it’.[7] She thought her son Riley asked the same question, before opening the wooden door, before saying that it was James. They said ‘it’s James mum’.[8]
[4] T16.37-38.
[5] T17.13-21.
[6] T21.2-21.
[7] T21.30-22.4.
[8] T22.10-13.
The witness described then hearing a male voice from outside saying that it was James at the door. Ms Norris recognised the voice was that of the accused.[9] At the time, the wooden door was open but the screen door was locked.[10] Ms Norris had observed her son Riley open the wooden door when she was two metres from the front door. Ms Norris was able to see through the screen door and recognised that it was James.[11] She had known the accused for about four years and met him through her drug dealers at the time at Elizabeth.[12] The dealers were Matthew Hulls and Shaan Casey (also known as ‘Ness’).
[9] T22.26-29.
[10] T22.31-32.
[11] T23.5-8.
[12] T23.12-18.
When James was at the screen door he asked for somebody’s number. He said he was asking for Ness’ new number as he did not have it and the witness said ‘Sure’ and went to get it.[13] The witness said ‘hang on a sec’, unlatched the door and turned to get her phone which was on the kitchen table. When the witness turned around, she heard a creaking noise which she took to be the handle on the screen door being pulled down and heard the screen door being opened.[14] The witness described partially turning around, observing that James was inside her house. She described immediately being pushed into the wall and, as a consequence of which, struck her head on the wall.[15] It was the top of her head that hit the wall and when she put her hands to her head, there was blood there. She described it as being a big push. After being pushed the witness turned around and was punched in the vicinity of her right eye.[16] At this stage, the accused put his left hand behind his back before then pulling out an extendable baton, which was about two feet long.[17]
[13] T27.23-37.
[14] T28.16-21.
[15] T28.26-29.4.
[16] T29.13-15.
[17] T29.15-25.
The witness described having a headache and her head hurting, saying to her attacker ‘what are you doing?’.
This occurred in the presence of her two children. During the next phase of the incident, the witness described being beaten with the baton. She said she was hit over the head and fell to the floor. She described being hit ‘pretty hard’.[18]
[18] T30.26.
It was a punch that caused her to fall to the ground before being hit to the head with the extendable baton. The witness described being in a foetal position trying to protect herself. This took place about two metres inside the front door.[19] The witness described shielding her face with her arm up and across the face. Her right arm was extended across her forehead.[20] Ms Norris then described being kicked very vigorously to her right side, together with stomping. The witness stated that she could not say how many times she was struck with the baton, but recalled that she was kicked in excess of 10 times.[21] She described being stomped on her midriff two or three times.
[19] T31.4-8.
[20] T31.10-13.
[21] T32.1-9.
The children were present in the loungeroom and were told by the witness to get her phone. They were saying to the accused ‘what are you doing James? Stop’.[22] The younger child, Jackson, was saying ‘don’t hurt my mum’. The children ran to the kitchen and then ran out the front door. Ms Norris told them to go next door. As they were leaving, the witness describes still being beaten with the baton and being kicked. The assault stopped and the next thing the witness recalls is that her neighbour, Lorraine, attended and stated that she had called an ambulance.[23] Prior to that, the witness recalled the accused pulling a phone from his pocket and appeared to take a photograph of her face before decamping.[24]
[22] T33.21-23.
[23] T33.22-25.
[24] T35.11-13.
Ms Norris gave evidence of being taken via ambulance to the Lyell McEwin Hospital. After the assault she was in a lot of pain and there was blood everywhere. Exhibit P3 (and in particular photograph 5), depict blood staining on the tiles adjacent to the lounge area of Ms Norris’ residence.
The witness described waking up in hospital and being treated for a fractured eye socket, two lacerations to her head and a fractured wrist/forearm.
The witness confirmed the fractured wrist/forearm was that used to shield her face and head.
Under cross-examination from defence counsel, the witness confirmed the sequence of events prior to the commencement of the assault. When questioned about whether the porch light was turned on when the accused was standing there, the complainant stated that things were ‘a bit hazy from that night’.[25]
[25] T49.23.
The witness was then cross-examined at some length about her relationship with James and Ness in the context of her knowledge of the accused. Much of this evidence was rendered largely irrelevant due to the ultimate plea of guilty and concession made by the accused of being Ms Norris’ assailant.
However, of relevance was a challenge to an inconsistency on the evidence of Ms Norris. During the course of the trial, Ms Norris gave evidence that her recollection was that the accused had attended and asked whether or not she could provide the accused with the new mobile telephone number of Ness. In a previous statement given to police on 15 June 2020, the witness stated that the accused had attended at her house and asked whether she could sell him some cannabis.
Under cross-examination, from her memory it was both; James asking for Ness’s phone number and to buy weed.[26] In re-examination, the witness confirmed her statement dated 7 July 2020 that said ‘When I went to the door James said “I’m looking for some weed. I can’t get in contact with Matt and Ness, do you have their new number?” I told him to wait there while I went to get my phone and make a call. He was still outside at that point behind the screen door’. Ms Norris agreed that she told police this.[27]
Lorraine O’Loughlin
[26] T57.7-14.
[27] T78.31-38.
The next witness to be called by the prosecution was Lorraine O’Loughlin, the neighbour of Ms Norris.
Ms O’Loughlin confirmed that access to the relevant properties was governed by a gate which required a pin code to enter.[28] Ms O’Loughlin’s evidence thereafter was largely confined to the immediate aftermath of the incident giving rise to the charges. Ms Norris stated that she was at home on the night of 13 June 2020.[29] She was watching television. She became aware of the presence of the two Norris children when they were banging on her front door. The children were banging and screaming that their mother was getting beaten up. She described the children as being very upset, anxious and distressed.[30] The witness grabbed her mobile phone and went to 2 Dylan Court. When she got there, she observed Ms Norris on her floor near her loungeroom with blood on the tiles and walls.[31] Ms Norris was screaming in pain and couldn’t move.
[28] T94.26-31.
[29] T96.27.
[30] T96.37-97.5.
[31] T98.37-38.
Ms O’Loughlin did not observe anyone else inside, nor did she observe anyone else when she was making her way from her property to the neighbouring property.[32]
[32] T99.14-18.
The witness immediately rang 000 for police and ambulance, who subsequently arrived.
Riley Norris
The next witness was Riley Norris.
At the time of giving evidence, Riley Norris was 12 years of age.
An application was made, pursuant to s 13BA of the Evidence Act, for the admission into evidence of an audio-visual record of interview conducted between police and Riley Norris on 16 June 2020.
Section 13BA of the Evidence Act relevantly states:
13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings
…
(3) An audio visual record of the evidence of a witness may be admitted under this section if the recording—
(a) has been made in a pre-trial special hearing conducted in accordance with section 12AB; or
(b)has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 and—
(i) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(ii) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(iii) the witness is available, if required, for further examination, cross‑examination or re-examination during the course of the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing.
(4) The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a) rule as inadmissible the whole or any part of the recording; or
(b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5) Despite subsection (3)(b)(iii), the witness cannot be further examined, cross‑examined or re-examined on the evidence admitted under this section without the permission of the court which may only be given, on application by a party to the proceedings—
(a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b) if the witness gives evidence in the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing, apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross-examined or re-examined; or
(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re‑examined.
…
During the course of proceedings, I formed the view that the audio-visual recording fell to be admitted under s 13BA(3)(b). I found that the interview had been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953. I was satisfied as to the capacity of the witness to give sworn or unsworn evidence at the time the recording was made, that the accused had been given a reasonable opportunity to view the recording (in particular through his counsel) and that the witness was available if required for further examination, cross-examination or re‑examination during the course of the trial.
As part of the s 13BA process, both prosecution and defence sought permission to ask further questions of the witness. In this regard, lists of proposed questions were provided to the Court and, after submissions were made, I made an order, pursuant to s 13BA(5)(c), that it was in the interests of justice to permit the witness to be further examined, cross-examined and re-examined. I then received the audio-visual record of interview between police and Riley Norris on 16 June 2020 as Exhibit P4.
Insofar as it may be necessary, I direct myself in terms of s 13BA(6) of the Evidence Act.
Exhibit P4 revealed the following relevant matters pertaining to the narrowed issues in dispute at this trial.
Riley told police, in response to an open question, the following:
So, one night we were at home with mum and then a guy came and pushed her over and started kicking her and hitting her with a metal pole and hit her into the doorframe. So then we ran to our neighbour and we told her to call the police, so she did. And then he ran away. But, like, before he left he took her picture and ran away. [my emphasis]
Separately, the interviewing officer asked the witness to ‘tell me everything that happened and start from the beginning again’, to which Riley responded:
Ok. So we’re at home watching a movie, and then he knocked and came in. And then he said ‘hi it’s James’ and then he just pushed her over, kicked her and hit her with a metal pole, and then he pushed her head into the doorframe. And then we were yelling at him saying ‘stop’ to him. So we ran to our neighbour and then she called the police and. So then we ran back and then he was gone and mum was bleeding and there was blood on the floor … [my emphasis]
Later in the audio-visual record of interview, the following exchange took place:
QYep. And what then happened after that.
AAnd then he punched her and got – he had like a metal pole and he’s like, in his back pocket, and he pulled it out and extended, and he started hitting her with it in the head.
QYep. And how long did he extend it.
AIt was like ‘that long (witness indicates).
QYep. How many times did he hit her.
AWell we saw it like eight times and then we ran to the neighbour, so. He might have hit her more after we ran to the neighbour. [my emphasis]
The witness also described his mother being kicked five times.
Much of the cross-examination of Riley Norris related to the identity of his mother’s assailant. As previously stated, this body of evidence was largely irrelevant to the real contest.
Brevet Sergeant Benyk
Adam Mykola Benyk, a Brevet Sergeant attached to the Forensic Services Branch as a crime scene investigator also gave evidence. His evidence was unchallenged.
Exhibit P5, a bundle of photographs taken of Ms Norris on 15 June 2020, was tendered through this witness. Those photographs depict various injuries suffered by Ms Norris, including post-operative photographs of her right arm, an injury to her right eye, injuries to the top of her head, injuries in the form of bruising to her lower back and rear right shoulder and bruising to Ms Norris’ midriff area. There is also bruising to the outer right thigh.
Brevet Sergeant Schonfeldt
The investigating officer was Edward Schonfeldt, a Brevet Sergeant of police who has been a police officer for approximately 16 years.
The Detective confirmed that he had conducted photographic identification procedures with Ms Norris and her son, Riley. The accused was identified as being the offender from those photo packs. The importance of this evidence has fallen away given the concession of the accused to being the assailant.
As part of his investigation, the Detective obtained a copy of CCTV footage that captures the gate and entrance to the community in which Ms Norris lived.[33] That CCTV footage of Playford Grove was tendered as Exhibit P10 and a bundle of still extracts taken from that footage was tendered as Exhibit P11.
[33] T134.24-25.
Relevantly, file commencing CH02 and ending in 539 depicts the accused running back towards the entrance of Playford Grove. This is after the incident giving rise to the charges. The accused’s face is visible due to the fact that his hood has been taken off and the face mask removed.[34] The accused can be seen holding a long black object in his right hand. The object can be seen extending from above and below the hand and appears to be approximately 30 centimetres long. If that particular CCTV footage is stopped at six seconds or, according to the timestamp at 19:55:42, the object is clearly visible.
[34] In his evidence, the accused admitted that he was the person depicted in the footage.
I will return to this evidence later in these reasons.
Dr Jennifer Templeton
Evidence regarding DNA was called from Dr Templeton, a forensic scientist employed at Forensic Science SA. This evidence predominantly related to attempts to extract a DNA profile from a blood-like stain on a pair of shoes seized from the residence of the accused. Ultimately, no profile was obtained. Again, given the admission made by the accused to being the perpetrator of an assault against Ms Norris, this evidence was of little value determining issues in dispute.
Dr Matthew Sorell
The final witness called on the prosecution case was Dr Matthew Sorell.
As with the DNA evidence, the evidence by Dr Sorell was of less significance given the admissions of the accused. Dr Sorell’s evidence revolved around interpretation of mobile telephone data relating to a handset used by the accused. This evidence was led to place the accused in the vicinity of the residence of Ms Norris at the time of the assault. Given the plea of guilty to a non-aggravated species of count 2, the presence of the accused was no longer in dispute.
The Accused
The accused gave evidence that on 13 June 2020 he decided that he wanted to purchase amphetamines and travelled to the home of Ms Norris for the purpose of acquiring the same.[35] The accused knew Ms Norris and knew where she lived. He described knocking on the door and the door being opened by Ms Norris’ son.
[35] T238.6-14.
The accused then described Ms Norris coming to the door and the exchange between the two of them was very friendly and very chatty. He said he asked her for a couple of grams of amphetamine, to which she said that was fine and that she could help him out.[36] The door was opened for him and Ms Norris invited him to come down to the kitchen.[37] When he got inside, he stated that he ended up thinking ‘know what, fuck paying for it, I’m taking it’ and it was at that time that he stated that he decided ‘to attempt to rob Ms Norris of the drugs’.[38]
[36] T238.32-36.
[37] T238.36-37.
[38] T239.3-4.
The accused’s evidence on this topic is as follows:[39]
… I grabbed her, pushed her into the wall, I wanted to let her know that I wasn't messing around, I wanted her to hand them [the drugs] over. Pushed her into the wall, she hit her head. I guess that's where she split her head. It was a fairly forceful push. Then I struck her and I've said to her 'Know what, fuck it, give me the drugs, hand them over, I want them now. I'm not fucking around, I'm not playing games. This is how it is, hand it over'. She told me 'Go get fucked, it's not happening'. So I then struck her a few more times and kicked her and said again 'I want the drugs', she's like 'No', so I'm hitting her. As I did, her children have ran out the door and at that point I'm like 'Oh no, I'm screwed', so pretty much as the kids ran out the door I panicked thinking 'I'm going to get caught, they are going to tell someone', I turned around and I ran straight back out the door and left the area. It was a silly thing to do.
[39] T239.4-22.
The accused described having taken cannabis and amphetamines earlier in the day and accepted that he would have ‘definitely’ been under the influence at the time of this incident.[40]
[40] T239.29-35.
He said that he fled empty handed when he saw ‘the kids run out the door’.
Under cross-examination by the prosecutor, the accused accepted that the male in the CCTV footage (Exhibit P10) was him.
It was suggested to the accused that he had attempted to disguise his identity by wearing a hooded jumper with a face mask. The accused’s response to that was that it was cold and that he wore a mask due to COVID.[41] Ultimately, it is not necessary to resolve this issue given the common ground between the accused, Ms Norris and Riley Norris, that everyone knew each other and that there were no attempts at subterfuge in relation to identity.
[41] T244.9-17.
The accused confirmed the phone number ending in 207 was his number at the time.[42] This was the number of the telephone data subject to the evidence of Dr Sorrel. The accused denied possessing a silver flip mobile phone, stating that he owned a black smart phone.[43]
[42] T251.17-18.
[43] T251.31-37.
Under cross-examination, the accused stated that he was inside when he pushed Ms Norris to the back, forcing her to hit her head on the wall. He confirmed that he then punched Ms Norris to the face with his right hand but denied hitting Ms Norris with an extendable baton. The accused agreed that while Ms Norris was on the floor he ‘punched and kicked and stomped her’.[44]
[44] T255.7.
When pressed for detail, the accused stated that he could not be exactly sure how many times he punched Ms Norris. The accused said it was ‘a few times’.[45] He continued ‘I had assaulted her over a space of maybe a couple of minutes at the most but it was pretty frenzied’.[46] The accused agreed that he punched Ms Norris on a number of occasions, kicked Ms Norris on a number of occasions and could not say how many times he’d stomped Ms Norris. The accused stated it could be possible, but he wasn’t sure that he kicked her over 10 times.[47]
[45] T255.24.
[46] T255.24-26.
[47] T256.8-10.
The accused was shown a file labelled CH2 ending in 539 from Exhibit P10, the CCTV which captured the gate at the entrance/exit of the community. When the footage was paused at the six second mark, it was suggested to the accused that he was holding something in his right hand. I set out the evidence as follows:
VIDEO SHOWN
VIDEO PAUSED AT SIX SECOND MARK
XXN
QI suggest you're holding something in your right hand.
AI'm not sure, can't see clearly.
QDo you deny holding something in your right hand.
AI don't know. May be. It could be. I'm not sure.
QDo you remember holding anything in your right hand.
AI don't remember. It was quite some time ago.
QI suggest that that that is an extendable baton.
AI never had an extendable baton.
QYou deny that you were holding an extendable baton there.
AYes, I do.
VIDEO PLAYED
VIDEO PAUSED AT 13 SECOND MARK
QI suggest that you are there putting the extendable baton in your pants.
ANo.
QYou deny that.
AYes.
QAre you able to explain what you are doing in the footage there.
AProbably putting my phone in my pocket or reaching for my phone or something along those lines.
QYou weren't holding the phone in your hand, were you.
AI don't really recall.
QWhat you were holding, wasn't it, was the extendable baton, wasn't it.
ANo, it wasn't.
QWhat is your explanation for what you were holding there.
AI really don't remember.
The answers given by the accused on this topic were wholly unsatisfactory. It was plain from the footage that there was an object in his right hand that was about 30 centimetres long. It certainly looked nothing like a telephone.
Agreed Facts
There are a number of Agreed Facts that were received as Exhibit P22. Most relevantly, those Agreed Facts stated the following:
Injuries
14. Amanda Norris was assessed at the Lyell McEwin Hospital on 13 June 2020. She was treated by Dr Javaid. The following injuries were identified:
a.A four centimetre laceration over the right scalp;
b.A six centimetre laceration over the centre scalp;
c.A fracture of her maxillary sinus;
d.Tenderness in her right flank;
e.Tenderness, swelling and bruising over her right forearm which was shown to be due to a forearm fracture and dislocation;
f.Tenderness to the left hand with no bony injury;
g.Swelling over the right thigh with no bone injury;
h.Tenderness over her spine from the 10th thoracic vertebra to the 2nd lumbar vertebra.
Submissions
I received helpful written submissions from the parties focussed on the main issues that fell to be determined.
Issues Arising
As stated previously, at the conclusion of the evidence, the main issues that fall to be determined in logical sequence are, firstly, whether the Crown has proved the circumstance of aggravation for count 2, namely that the accused used a baton during the course of his attack against Ms Norris beyond reasonable doubt; and secondly, whether the accused was a trespasser inside Ms Norris’ home.
Count 2: Aggravating Feature
In South Australia Police v Hill,[48] the Court of Appeal considered the question of whether s 20(3) of the Criminal Law Consolidation Act 1935 created a single offence with four different maximum penalties or four separate offences. The majority (Lovell and Livesey JJA Blue AJA) concluded:[49]
In conclusion, subsection 20(3) creates a single offence of assault. The maximum penalty for that offence varies according to the existence or absence of a circumstance of aggravation specified in paragraph (b), (c) or (d). Such a circumstance is not an element of the offence. The same construction applies to other provisions in the Act that create an offence with different maximum penalties according to the existence or absence of a circumstance of aggravation or of another defined circumstance.
[48] [2022] SACA 22.
[49] Ibid at [143].
It was common ground between the prosecution and defence that the reasoning of the majority in Hill applies equally to s 24 of the Criminal Law Consolidation Act. I agree.
Count 2: Has the prosecution proved aggravating feature beyond reasonable doubt?
The relevant evidence-in-chief of Ms Norris on this topic was as follows:
QPrior to being pushed did anything happen.
AAfter being pushed, prior to that I turned around and then I was punched in the face under my right eye and as he did that he had his hand behind his back, his left hand, and he pulled out this baton that extended out, so extended out, punched in the face first and pushed me to the ground.
…
QSo after you were punched and the baton was pulled out, what happened next.
AI was beaten with it. I was hit over the head with the baton and I fell to the floor.
QHow was it that you fell to the floor.
AI was hit pretty hard. I was hit when he punched me in the face, I kind of toppled unsteadily on the ground.
QSo was it the punch that caused you to fall to the ground.
AYes.
Q You described being hit on the head.
A Yes.
Q What were you hit with.
A The baton, extendible baton.
Q Where were you when you got hit.
A I was half on the ground, half in - I was in a foetal position, sort of thing, and trying to protect myself.
QDid you come to be fully on the ground.
AYes, I did.
QWhere were you on the ground relative to the entrance to your house.
AYou walk in my entrance and probably take about three steps, so probably about a metre, 2 m, from the front door, like where the lounge and rug is, more than halfway in the lounge room, more towards the hallway, yeah.
QHow were you positioned on the floor.
AIn a foetal position, kind of on my side and my arm over my face.
WITNESS SHIELDING FACE WITH RIGHT FOREARM. RIGHT FOREARM
EXTENDED ACROSS FOREHEAD
…
XN
QWhat sort of your body were you lying on.
AI was lying on my left side.
QWhat happened when were you on the floor.
AI could feel some abrupt kicks to my side and on my arm some hits with a baton and stomping.
QWhen you say 'kicks to the side', which side of your body was kicked.
AMy right side.
QAnd can you describe the manner in which you were kicked.
AVery rigorously.
Q You've described being struck.
A Yes, with a baton.
Q Where were you struck.
A On my head and my arm along here, my wrist and on my side, my back. Pretty much my body, wherever he could hit, he did (INDICATES).
Q When you were struck to the arm, was your arm over your head as you have demonstrated a moment ago.
A.Yes, because I was trying to protect my face and he was kicking me and hitting me.[50] [my emphasis]
[50] T261.4-36.
The only material challenge to the evidence of Ms Norris on this topic is as follows:
QDo you recall your evidence was that you were pushed into a wall.
AAt some stage, yes, I was.
QThe next event you put your hands on your head and discovered you were bleeding, is that right.
AYes.
QAnd then you say you were punched to the face, isn't that right.
AYes, I had a fractured eye socket.
QThen you saw James with his left hand behind his back, pulling out the bat that was about 2' long, is that right.
AA baton, yes.
QWhereas previously your evidence was that you were struck on the back of the head, on your head. Yes, back of your head, do you remember that.
ATop part, back of the head, yes.
QThen you saw he had a pole or a baton, isn't that right.
AAt the time, yes, that's right, from memory.
QAnd then you took your hands down and saw they were covered in blood.
AYes.
QSo you accept those sequence of events are different, don't you.
AI understand that all happened but I can't recall exactly what order they were in.
HIS HONOUR
QThat wasn't the question. The question was do you accept that the two sequences are different.
AYes, yes.[51]
[51] T69.7-36.
The topic was not taken any further.
In assessing this aspect of the evidence, I note that Ms Norris was not directly challenged as to the existence of the baton. Ultimately, this does not impact upon my assessment of the evidence. Whilst there may be an inconsistency in the sequence of events, the evidence of Ms Norris was compelling as to the presence and deployment of the baton.
Riley Norris
The evidence of Riley Norris on the topic of his mother’s assailant was consistent and compelling. His description of this aspect of the matter was unprompted in the recorded interview (Exhibit P4) and sat well with the CCTV footage of the accused holding an implement in his hand as he fled the scene (Exhibit P10). The footage of Exhibit P4 at 13:03:32 reveals the witness demonstrating an object of equivalent length to that held by the accused in Exhibit P10, and consistent with the account of his mother.
CCTV
As stated earlier in these reasons, the CCTV footage capturing the flight of the accused from the scene of the attack upon Ms Norris, displays the accused holding an object consistent with that described by Ms Norris and Riley Norris as an extendable baton.
Conclusion: Aggravating Circumstance of Count 2
I accept the evidence of Amanda Norris and Riley Norris beyond reasonable doubt on this topic. Notwithstanding the intense pressure Ms Norris must have been under at the time of the incident, her evidence as to what occurred was clear and remained thoroughly intact when she departed the witness box.
Notwithstanding his age, Riley Norris gave consistent, articulate evidence. He was an impressive witness, similarly unshaken under cross-examination.
The accounts of mother and son were mutually consistent and corroborative. Further, their accounts in relation to the use of a baton were supported by the CCTV, Exhibit P10.
This is to be contrasted with the unsatisfactory evidence of the accused. His evidence under cross-examination on the CCTV footage was entirely evasive. One would be entitled to think that this was because a truthful answer would prove the aggravating feature of count 2.
I reject the evidence of the accused that he did not use an extendable baton.
I remind myself that rejection of the evidence of the accused does not bolster, nor strengthen the prosecution case. At all times, it is for the prosecution to prove each element of any charged offence beyond reasonable doubt.
I accept the evidence of Amanda Norris and Riley Norris beyond reasonable doubt on this topic.
It follows that I find the feature of aggravation on count 2 proved beyond reasonable doubt.
Count 1: Was the accused a trespasser?
Section 170 of the Criminal Law Consolidation Act states:
170—Serious criminal trespass—places of residence
(1) A person who commits a serious criminal trespass in a place of residence is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for life.
(2) A person who commits a serious criminal trespass in a place of residence is guilty of an aggravated offence if—
(a) any of the factors that generally give rise to aggravation of an offence are applicable;1 or
(b) another person is lawfully present in the place of residence when the offence is committed and the offender knows of the other's presence or is reckless about whether anyone is in the place.
(3) In this section—
place of residence means a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence.
In Roy v O’Neill,[52] Kiefel CJ considered the limits of the licence to enter which the law will imply. Her Honour remarked:[53]
Although a purpose of speaking with the occupier or another person present at the premises is the most common lawful purpose in entering residential premises, it is not the only category of purpose that will qualify for the law to imply a licence. In Halliday v Nevill it was explained more generally that the path or driveway of premises is held out by the occupier “as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property” (emphasis added). These factors may be understood to provide the limits of the licence to enter which the law will imply. They are consonant with the law of trespass, to which the implied licence effects a qualification. An approach which requires that the purpose both be legitimate and involve no interference with possession or injury to those present is comprehensible and workable. It requires no fine distinctions to be drawn, unguided, as to what are permissible or impermissible purposes; rather one looks to the effects of the purpose carried out upon the occupier's rights and its impact on those present.
[52] [2020] HCA 45; (2020) 95 ALJR 64.
[53] Ibid at [12] (Kiefel CJ).
Similarly, Keane and Edelman JJ observed:[54]
The circumstances in which a licence to enter land will be implied in law are not limited to the common instances of lawful communications with, or deliveries to, the occupants of a premises. As the joint judgment in Halliday explained, the path or driveway is “held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property”. Other examples of a licence implied in law include entry upon a driveway for the purposes of recovering an item of property or an errant child. In Halliday it was also held that a member of the police force, acting in the ordinary course of his duties, had an implied licence to enter an open driveway for the purpose of questioning or arresting a person who was not the occupier of the property but whom the officer had observed committing an offence on a public street in the immediate vicinity of that driveway.
[54] Ibid at [70] (Keane and Edelman JJ).
Keane and Edelman JJ considered two questions relevant to determining whether the accused was a trespasser. The first question concerned when a trespass occurs despite an implied licence. The second concerned when an implied licensee later becomes a trespasser. Their Honours stated:[55]
[55] Ibid at [71]-[76] (Keane and Edelman JJ).
When trespass occurs despite an implied licence
If an implied licence to enter is limited to a particular purpose and if the sole purpose of entry is entirely outside that particular purpose, then the entrant will be a trespasser. Thus, in Barker v The Queen,[56] although Mr Barker had an express licence to enter the property to look after it while the owner was away, it was open to the jury to conclude that he entered as a trespasser if his sole purpose was to commit theft so that his entry "was quite unrelated to the invitation or licence which he had". In TCN Channel Nine Pty Ltd v Anning,[57] an employee of the appellant who had an implied licence to enter the curtilage of the property to ask the occupier for permission to film was a trespasser because her purpose of entry was not to communicate. It was solely to make a film recording, irrespective of any communication with the occupier.
On the other hand, a person who enters for one or more of the purposes within an implied licence will not usually be a trespasser even if they have some other purpose that falls outside the scope of the licence: a person's entry to a premises for an authorised purpose "is not made unlawful because he enters with another and alien purpose in mind".[58] For this reason, in Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd,[59] Barwick CJ and Menzies J held that an entry onto land was not a trespass even though it involved both a lawful and licensed purpose of removing display plan goods and an unlawful and unlicensed purpose of removing the plaintiff's own goods. And in Barker v The Queen,[60] Mason J gave an example of a person who enters a shop for the purpose of stealing, saying that the person is not a trespasser at the moment of entry if the entry is accompanied by another purpose within the ambit of the shopkeeper's implied invitation. This implication in law of a licence in instances of mixed purposes reflects the realities and incidents of social life. The realities and incidents of social life do not require the drawing of imperceptible, jurisprudential distinctions based upon whether a purpose within a licence is or is not accompanied by other subjective motivations or purposes that might lie outside the licence, especially where the other subjective motivations or purposes might be conditional, subservient, or uncertain, or might never be acted upon. If such distinctions were drawn the operation of an implied licence would be practically unworkable. Of course, as will be seen below, once the invitee acts upon any such motivation in a manner inconsistent with the licence the invitee will become a trespasser.
The only, rare, exception to this principle concerning mixed purposes is where the occupier, expressly or impliedly, makes clear that the licence is for an exclusive purpose and does not extend to entry for a mixed purpose. In those unusual circumstances, described by Brennan and Deane JJ in Barker v The Queen as circumstances permitting entry only where it is "exclusively for the particular purpose",[61] a person who enters also with an alien purpose will be a trespasser. For instance, no implied licence will arise for entry for the purpose of communication with the occupier, even when that purpose is accompanied by the purpose of delivering a parcel, if a sign is hung on a front gate saying "Entry is permitted only for the delivery of parcels. Parcels must be left on the doorstep without knocking on the door."
When an implied licensee later becomes a trespasser
At any point in time a person is either a trespasser or is not a trespasser in relation to the same land.[62] If a person's licence to be present on land concludes, is exceeded, or is revoked then the person will be a trespasser unless the person has some independent legal authority to be present on the land. Therefore, a person who is not a trespasser upon entry to land can become a trespasser if the purpose of their licence is exhausted, if the licence is revoked, or if the person performs acts that are beyond the scope of their licence.[63]
The most common instance where a right to enter or remain on land by implied licence will cease, making the entrant a trespasser from that point in time, is where the implied licence is revoked. An example is Davis v Lisle.[64] In that case, police officers entered a garage to make an enquiry of the occupier about the presence of a motor lorry that had been responsible for an earlier obstruction. The occupier of the garage told the officers to leave but they did not do so. Even if the officers had an implied licence to enter the garage the licence would have terminated when they were told to leave. As Lord Hewart CJ said:[65]
"It is one thing to say that the officers were at liberty to enter this garage to make an inquiry, but quite a different thing to say that they were entitled to remain when, not without emphasis, the appellant had said: 'Get outside. You cannot come here without a search warrant.' From that moment on ... the officers ... were trespassers".
An example where a person becomes a trespasser by performing acts beyond the scope of the licence was colourfully given by Scrutton LJ, who said that when "you invite a person into your house to use the staircase, you do not invite him to slide down the banisters"; at the point of sliding down the banisters the invitee becomes a trespasser.[66] Thus, in Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd,[67] Kitto J held that the defendant's servants became trespassers when they took physical steps for the unauthorised purpose of taking goods that were not subject to display plan agreements.
[56] Barker v The Queen (1983) 153 CLR 338 at 348 (Mason J).
[57] TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [69], [75], [78] (Spigelman CJ).
[58] Barker v The Queen (1983) 153 CLR 338 at 347.
[59] [1968] HCA 60; (1968) 121 CLR 584 at 598-599 (Barwick CJ and Menzies J), approving the approach of Sugerman J in Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd (1967) 69 SR (NSW) 311 at 330-331. See also Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 at 365 (Brennan and Deane JJ),
[60] [1983] HCA 18; (1983) 153 CLR 338 at 348 (Mason J). See also at 361-362 (Brennan and Deane JJ).
[61] [1983] HCA 18; (1983) 153 CLR 338 at 365 (Brennan and Deane JJ).
[62] Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd [1968] HCA 60; (1968) 121 CLR 584 at 598-599 (Barwick CJ and Menzies J) and 606 (Kitto J).
[63] Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 at 357 (Brennan and Deane JJ). See also at 345 (Mason J).
[64] [1936] 2 KB 434.
[65] Davis v Lisle [1936] 2 KB 434 at 437-438.
[66] The Carlgarth; The Otarama [1927] P 93 at 110, quoted with approval on this point in Hillen and Pettigrew v ICI (Alkali) Ltd [1936] AC 65 at 69.
[67] [1968] HCA 60; (1968) 121 CLR 584 at 606 (Kitto J).
In Barker v The Queen,[68] the High Court considered whether a person who is given limited authority to enter premises, but enters those premises with intent to steal, enters as a trespasser within the meaning of s 76 of the Crimes Act 1958 (Vic). Brennan and Deane JJ considered the consequences of a person exceeding their licence to be present on land, having previously entered the same land pursuant to a licence. Their Honours remarked:[69]
While the old common law forms of action prevailed, the action for trespass to land was restricted to trespassory entry: if the actual entry was and remained lawful, subsequent presence or action on the land would not found an action in trespass. Under the modern law of tort however, a person who has lawfully entered and been upon land which remains in the possession of another is liable in trespass if his justification for being upon the land ceases or if he performs acts upon the land which take him outside the scope of his justification for being thereon. When the permission or authority (“leave and licence”) of the person entitled to possession is relied upon to justify what would otherwise constitute a trespass, a person enters land as a trespasser at common law if his entry is beyond the scope of the permission. If the entry is within the scope of the permission, he will become a trespasser at common law only when the permission to be upon the land is revoked or exhausted or when his conduct upon the land is such that his presence thereon is outside the scope of the permission. (emphasis added).
Analysis
[68] [1983] HCA 18; (1983) 153 CLR 338.
[69] Ibid at 357 (Brennan and Deane JJ).
As a result of the conversation she had with the accused, Ms Norris unlocked the screen door and went to get her mobile phone. Importantly, the accused’s conduct immediately upon entry was not in furtherance of either request suggested on the evidence; that is, he made no attempt to obtain a mobile number, nor to purchase drugs. Rather, he immediately, or almost immediately, attacked Ms Norris. Consequently, the prosecution submits that the Court ought to find that the conversation with Ms Norris was a device by the accused by which he intentionally deceived her to secure his entry into 2 Dylan Court. If this finding is made, s 168(3)(c) of the Criminal Law Consolidation Act is engaged and the accused will be taken to be a trespasser.
The defence submits that the prosecution has not proved beyond reasonable doubt that the accused was, at the relevant time, a trespasser. Defence submits firstly, that the intention of the accused at the time of entry was to purchase drugs, thus entry was lawful. The second proposition advanced by defence is that once the intention of the accused changed to assault Ms Norris, because he did not remain as a trespasser, the offence has not been proved beyond reasonable doubt.
As I understand the second defence argument, it is contended that the admitted actions of the accused in assaulting Ms Norris occupied such a short period of time that it could not be said that he ‘remained’ on the premises as a trespasser. In essence, the submission advanced is that the assault was over too quickly to permit a finding that the accused remained on the premises to commit the assault.
A consideration of the evidence gives rise to the overwhelming inference that the accused attended 2 Dylan Court for the purpose of assaulting Ms Norris. This purpose lies entirely outside the scope of the licence to enter granted by Ms Norris.
The facts that permit the safe drawing of this inference beyond reasonable doubt, to the exclusion of others as a reasonable possibility, are:
1. The preparatory action on the part of the accused by going armed with the baton to the property. This is evidence from which it can be comfortably concluded on all of the evidence that the accused was determined to engage in combat;
2. The almost simultaneous commencement of the attack upon Ms Norris upon entry being granted to the residence;
3. The sustained and severe nature of the attack speaks of a planned expedition to assault Ms Norris; and
4. The evidence of the accused taking a photograph of Ms Norris in a beaten and bloodied state is completely incongruous with a spontaneous loss of self-control. In relation to this aspect of the evidence, I accept the evidence of Ms Norris and Riley Norris as to the production of a mobile phone by the accused to take a post-assault image of his victim. I reject the evidence of the accused on this topic.
This factual milieu therefore attracts the reasons of Keane and Edelman JJ in Roy: ‘[i]f an implied licence to enter is limited to a particular purpose and if the sole purpose of entry is entirely outside that particular purpose, then the entrant will be a trespasser’.[70] The application of this principle is helpfully illustrated by the reasons of Mason J in Barker:[71]
The jury found, as it was entitled to do, that the applicant entered the building with the intention of stealing, a purpose alien to the authority given to him. His entry was quite unrelated to the invitation or licence which he had with the result that he entered without any right or authority.
Has the prosecution proved Count 1 beyond reasonable doubt?
[70] Roy v O’Neill at [71] (Keane and Edelman JJ).
[71] [1983] HCA 18; (1983) 153 CLR 338. Mason J’s reasons at 348 were cited by Keane and Edelman J in Roy as authority for the principle set out at [71] of Roy.
Having regard to the foregoing, the sole contentious element of count 2 is whether the accused entered or remained as a trespasser at the residence of Ms Norris with the intention of committing an offence against the person.
I find, beyond reasonable doubt, that the accused entered the residence as a trespasser with the intention of committing an offence against the person. The evidence of pre-planning in the form of arming himself with an extendable baton, the immediacy of his attack upon Ms Norris upon entry, the sustained nature of the attack and the taking of an image of his victim in the aftermath of the attack, support this conclusion.
For the sake of argument, if I am wrong in drawing this conclusion, and the accused lawfully entered the property, the argument that the accused did not remain as a trespasser must be rejected. The submissions advanced that the assault upon Ms Norris was too brief to permit a finding beyond reasonable doubt that the accused remained as a trespasser are contrary to the evidence.
Ms Norris and Riley Norris both gave evidence of a multi-facetted attack involving multiple blows. This was admitted by the accused in his evidence. Putting the blows inflicted with the baton to one side for a moment, it was common ground that there were multiple blows, in the form of punches, kicks and stomps.
The multiple injuries to multiple areas of Ms Norris’ body are consistent with this conclusion.
In the alternative hypothesis, insofar as it may be necessary, I find beyond reasonable doubt that this was a sustained assault and could only have been performed by the accused remaining as a trespasser with the intention of committing an offence against the person or Ms Norris.
There can be no doubt as to proof beyond reasonable doubt as to the circumstance of aggravation. The presence of Ms Norris, let alone the presence of her screaming children, comfortably prove this aspect of the matter.
Verdicts
I find the accused guilty of count 1.
I find the aggravating circumstance of count 2 proved beyond reasonable doubt.
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