R v Spokes - [2010] SADC 16

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SPOKES
[2010] SADC 16
Reasons for the Verdict of Her Honour Judge McIntyre
3 February 2010
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with one count of aggravated serious criminal trespass in a place of residence - one count of causing grievous bodily harm with intent and one count of theft - Trial by Judge Alone - Verdict guilty on counts 1 and 2 - Not guilty of count 3 Theft
Criminal Law Consolidation Act 1935 s170; Criminal Law Consolidation Act 1935 s21, s134, referred to.

R v SPOKES
[2010] SADC 16
Introduction

The accused was charged on Information dated 15 June 2009 with the offences of aggravated serious criminal trespass in a place of residence (first count), causing grievous bodily harm with intent to do grievous bodily harm (second count) and theft (third count). He entered pleas of not guilty to all three counts and elected to be tried by a Judge without a jury.
The Information
The charges are particularised on the information as follows:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170 (2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert William Spokes on the 26^th day of March 2005 at Athol Park, entered the place of residence of Raymond Peter Spokes as a trespasser, with the intention of committing an offence therein, namely an offence against the person, when other persons were lawfully present in the said place and knowing of their presence in the said place of residence.
Second Count
Statement of Offence
Causing Grievous Bodily Harm with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert William Spokes on the 26^th day of March 2005 at Athol Park, unlawfully and maliciously caused grievous bodily harm to Raymond Peter Spokes, with intent to do him grievous bodily harm.
Third Count
Statement of Offence
Theft. (Section 134 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert William Spokes on the 26^th day of March 2005 at Athol Park, dishonestly dealt with property, namely two mobile phones, without the consent of Raymond Peter Spokes, the owner of that property, intending to permanently deprive him of that property or to make a serious encroachment on his proprietary rights.
Legal Considerations & General Directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
1An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
2The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it.
3By way of amplification, it is not sufficient for the prosecution to show suspicion        of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
4There are three separate charges. They are tried together as a matter of convenience. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
5In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
6I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave      evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
7I specifically note that in this case the accused elected to give evidence in this court. I remind myself of the following matters:
·He was not bound to give evidence.
·He has gone into the witness box and he has taken the oath like any other witness.
·He has exposed himself to the test of cross-examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case.
·I should assess his evidence and the weight to be attached to it in the manner in which I assess the evidence of all of the other witnesses.
·I further note that by entering the witness box the accused does not assume any onus of proof. The onus remains with the prosecution.
8I remind myself that it is not a question of preferring one version over the other. The sole task before me is to determine whether or not the prosecution has      proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge then necessarily it means that the prosecution has failed.
Elements of the Offences
I now turn to the basic elements of the offences charged as they were at the time they were allegedly committed. The prosecution must prove each element beyond reasonable doubt.
Aggravated Serious Criminal Trespass in a Place of Residence
The elements of this offence are:That the accused entered the premises.
1That the place entered was a place of residence.
2That the accused entered the place as a trespasser.
3That the accused at the time of entering the premises did so with the intention of committing an offence, namely an offence against the person.
There is one feature of aggravation alleged that must be proven beyond reasonable doubt for the aggravated offence to be made out, that is that the accused knew that another person was lawfully present or was reckless about the presence of another person.
I further note the submissions of counsel as to the alternative offence of Criminal Trespass in a place of residence under s170A of the Act as it then was.
Grievous Bodily Harm
The elements of causing grievous bodily harm with intent to do grievous bodily harm are as follows:
1That the victim suffered grievous bodily harm.
2That the accused caused the victim’s grievous bodily harm.
3That the accused intended to cause the victim grievous bodily harm.
4That the accused acted without lawful justification or excuse.
Theft
The elements of the offence of theft are:
1That the accused dealt with the property.
2That the accused dishonestly dealt with the property.
3That the accused dealt with the property without the owner’s consent.
4That the accused dishonestly dealt with the property with the intention of permanently depriving the owner of that property or to make a serious encroachment on the owner’s proprietary rights.
Background
There is no dispute on the evidence that the accused is the son of the alleged victim Raymond Peter Spokes (“Mr Spokes”). It is common ground that Mr Spokes’ home was broken into in the early hours of 26 March 2005 by the front door of the premises being forced. It is further common ground that three men entered Mr Spokes’ house and that these men did so without Mr Spokes’ permission. The accused has admitted being one of those three men. The other two are, he says, relations of his girlfriend and both are named Travis Agius - Travis Agius Senior and his nephew Travis Agius Junior.
It is further uncontentious that prior to that evening Mr Spokes was uninjured and that his bedroom was not in a state of disarray. Photographs were taken at Mr Spokes’ house by the police as part of their investigation following Mr Spokes’ admission to hospital.[1] These photographs showed Mr Spokes’ bedroom in considerable disorder. A fan had been knocked over, articles were strewn across the floor and cupboard doors were open. Further the photographs showed blood on the walls near the television and the bed together with blood on the bed itself. It is not in dispute that this state of disorder occurred during the time the three men were in the house.
[1] Exhibit P1
It is agreed that Mr Spokes suffered injuries which are shown in photographs 16 – 20 of exhibit P1 and particularised in the report of Dr Catterwell dated 2 November 2005 tendered by consent as exhibit P11. In short, Mr Spokes suffered the loss of two teeth, fractures of the tenth and eleventh ribs, a right pneumo-thorax, bruising and lacerations, two of which were on his face and required suturing.
Much of the forensic evidence is not in dispute. Evidence was given by a forensic scientist Dr Julieanne Henry whose reports were tendered as exhibits P9 and P10. Various items of clothing were taken from the accused and tendered as exhibit P6. These items of clothing are shown in photographs tendered as exhibit D2 and were the subject of analysis at the state Forensic Science Centre. Dr Henry’s evidence about the results of that analysis was as follows:
·the white shoes shown in photograph 1 of exhibit D2 (item 2 in Dr Henry’s report) had blood detected on them which is likely to be that of Mr Raymond Spokes.
·the red shorts in photograph 2 of D2 (item 6 in Dr Henry’s report) showed blood like stains on the front left side of the shorts which is likely to be Mr Raymond Spokes blood.
·the jumper in photograph 4 of exhibit D2 (item 5 in Dr Henry’s report) had three pale blood stains in the upper chest area that is likely to be the accused’s blood.
·the gray Nike singlet in photograph 13 of exhibit D2 (item 7 in Dr Henry’s report) had blood detected on the front and rear which is likely to be that of Mr Raymond Spokes.
Those are the key matters of evidence that are common ground between the parties. I now turn to the counts on the Information.
Count 1 - Aggravated Serious Criminal Trespass
In view of the matters that are not in dispute I am satisfied beyond reasonable doubt that:
·The accused entered the premises
·That the premises were a place of residence
·The accused entered as a trespasser.
I am further satisfied that the circumstance of aggravation is established by the evidence. In particular I note the accused’s evidence that he expected his father would be at home, that someone would be at home.[2]
[2] Transcript p240
The key issue in dispute is the intention of the accused at the time he either entered or remained on the premises. Did he enter with the intention of committing an offence against the person?
The prosecution’s primary contention is that the accused’s intention in either entering and/or remaining on the premises was to confront his father and to do so with violence. In the alternative it is said that the accused at least contemplated violent confrontation with his father as a possible incident of a joint enterprise to break into the house.
The defence says that the evidence does not enable me to find beyond reasonable doubt that the accused intended to confront his father in a violent manner. Further the defence submits that it is a long bow to draw in the circumstances of this case to assume that it was contemplated by the accused that there would be an assault upon his father. It is said that there is no evidence of an agreement to break into the house or to assault Mr Spokes and no basis upon which I could be satisfied beyond a reasonable doubt that there was a common understanding or arrangement. There is no evidence of joint enterprise. It is said that the three people that entered the premises were going their separate ways. There was no inference available on the evidence of three people acting in concert.
Count 2 – Causing Grievous Bodily Harm
Having considered the evidence and the submissions I find that:
·The injuries sustained by Mr Spokes amount to grievous bodily harm.
·The broken ribs and the punctured lung occurred as a consequence of an assault to which he was subjected at his home in the early hours of 26 March 2005.
·Whoever assaulted Mr Spokes must have intended to do Mr Spokes really serious bodily injuries. The consequences of the assault such as the disarray in the room, the blood on the walls and the bed and the nature and extent of the various injuries to Mr Spokes indicate a sustained and violent attack. This carries with it the obvious intention that the harm that resulted was intended.
·Whoever assaulted Mr Spokes acted without lawful justification or excuse. It is common ground that Mr Spokes was at home, asleep in bed when the attack occurred. There is no suggestion that the assault was justified.
The accused admits that he was present at the house when the assault occurred. The key issues are whether he participated in the assault either directly or as part of a joint enterprise and whether he intended to cause Mr Spokes’ injuries.
The prosecution contends that if Mr Raymond Spokes’ account of how his injuries were sustained is accepted, namely, that he was set upon by Mr Travis Agius Senior and the accused and that they, together, bashed him then the requisite intention is established. Alternatively the prosecution contends that there was a joint enterprise between the men who entered the house to engage in a physical confrontation with Mr Spokes.
The defence points to the numerous inconsistencies between the evidence Mr Raymond Spokes gave in court and his statements to the police. It is said that it is impossible to reconcile what Mr Spokes said in court with the previous statements that he has given and that this reflects adversely upon his credit. Given this it is said I cannot accept beyond a reasonable doubt Mr Raymond Spokes’ account of who assaulted him. If I cannot be satisfied of that then it is argued that I cannot be satisfied that the accused’s version of events is not reasonably possible.
The defence further says that there is no evidence of joint enterprise. The mere presence by the accused on the premises irrespective of his attitude to what he might have seen occurring without more does not make him guilty based on the principles of joint enterprise.
Further Directions
I note the submissions by counsel for the accused concerning the fact that some of the statements the victim, Mr Raymond Spokes, made to the police were inconsistent with aspects of his evidence in court. In considering the evidence of prior inconsistent statements I bear in mind the standard directions on that topic including the basic principle that a case must be decided upon the evidence given in court but that if a witness confirms in the witness box something that he or she said to the police it thereby becomes evidence in this court. Alternatively if a witness says something outside the court that is inconsistent with their evidence in court that inconsistency can be taken into account when deciding whether to accept the evidence given by that person. Moreover the manner in which the witness deals with the out of court statements may be a factor in assessing the honesty and reliability of that witness and then deciding whether to accept their evidence on that topic and perhaps generally.
I also note that the submissions of counsel raise the issue of joint enterprise. I remind myself of the direction commonly given in relation to joint enterprise namely, that if two or more persons act together in pursuance of a common unlawful purpose, every act done in furtherance that purpose, whether by any one of them or several of them together is, in law, an act done by them all. To put it another way the combined actions of two or more persons with a common criminal intent which is previously agreed upon by them will make them all guilty of the resulting crime.
Proceedings
The prosecution called 6 witnesses. These were:
·The victim Mr Spokes;
·Mr Lovegrove a friend of the victim who gave limited evidence about the aftermath of the assault;
·Three police officers who were involved in the investigation; and
·Dr Julianne Henry a forensic scientist with the state forensic science centre.
The defence called one witness, the accused. In addition a number of exhibits were tendered by both parties.
Much of the evidence was uncontentious and the witnesses uncontroversial. Both the victim and the accused were to some extent unsatisfactory witnesses for reasons I shall expand upon. However whilst I found Mr Spokes, the victim, to be unreliable in a number of respects I accept that he was attempting to tell the truth as best he could in the circumstances. Whilst he may have been mistaken about some matters of detail, I was satisfied about the general thrust of his evidence. On the other hand, my impression of the accused was that he was not a truthful or reliable witness.
Evidence of Mr Spokes
The key witness for the prosecution was the victim, Mr Spokes. He gave evidence that, in March 2005, he generally lived alone but had access to his youngest children two daughters, then aged nine and ten and his then two year old son. The night the three men entered his home all three children were staying with him. Everyone had gone to bed. His daughters were asleep in the rear bedroom. His son was asleep in bed with him.
In the early hours of Saturday 26 March 2005, Mr Spokes was awoken from his sleep by two men screaming his name. He said he recognised both of them, one was his son Robert and the other was Travis Agius senior. He said they were telling him to get out of bed and that before he knew it, he started getting punches to the face. He said in evidence that Travis was the person who was screaming at him and punching him. He said after a couple of punches to the face he asked his son what it was all about. His son, the accused, said “you know what it’s about. It’s about the rego to my vehicle. I want my money.”[3]
[3] Transcript p106
Mr Spokes said he moved to the end of the bed whilst he was being punched by Travis. He said when he got to the end of the bed he went to get up “and that’s when Robert stepped in and threw a couple of knees into my ribs and my side and basically helped Travis hold me down.”[4]He said he pushed them both away, pushing Robert into the wardrobe and Travis the other part of the wardrobe. When he got up “they were both out the door and gone”.[5]
[4] Transcript p106.
[5] Transcript p106
Mr Spokes said that the accused, his son, had been living with him in late 2004. He had given his son the use of a motor vehicle on certain conditions including that the vehicle was only to be used for him to attend work and that he pay the registration. The accused and his girlfriend had paid the registration for a period that went for about a month and a half into the New Year.[6]
[6] Transcript p157
Mr Spokes had gone to a friend’s house to celebrate New Years Eve. The accused and his girlfriend attended the same party as did Mr Spoke’s eldest daughter, the accused’s sister, Zoe. Mr Spokes gave evidence that the accused and his girlfriend had an argument and Zoe went to break it up. In the process he says that the accused head butted Zoe and broke her nose. Mr Spokes says that he then went to calm things down but the accused “fired up” and they became involved in an argument about the car. Mr Spokes says that he told his son that he could not take the car because he had broken the ground rules. His son responded that he would take the car because he had paid the registration on it. Mr Spokes says that he went to lock the car but his son kicked him in the back pushing him through one of the cars windows which broke. He said he got glass fragments in his hair but that they did not cut his face.[7] He further denied scratches or cuts to the head describing himself as “100% positive that he did not”.[8] After this he said that he and his son wrestled on the ground next to the car until things had calmed down.
[7] Transcript p115-6
[8] Transcript p116; p119

In cross-examination the accused’s counsel put to Mr Spokes that the account of the assault that he had given in evidence was very different from that which he gave to the police officers investigating the incident. He told the police that he tried to get out of bed and was sitting on the edge of the bed when Travis and Robert jumped on him and started to beat him up. He said that his son threw a few swing punches at him - hitting him in the face cutting his face. In court he gave evidence that his son did not punch him in the face. He also told police that his son assisted Travis in an attempt to pin him on the floor. In evidence he denied lying on the floor of the bedroom at any stage.
He was further cross examined about the events on New Years Eve 2004 and the difference between his statement to police and the evidence he gave on that topic. Specifically he told police that he received a few scratches to the head as a result of going through the car window.
In other cross examination on the topic of New Years Eve Mr Spokes said that he was not bleeding at the time he wrestled with his son and further that as far as he was aware neither of them was bleeding at the time they were on the ground.[9] He could not remember what his son was wearing on New Years Eve but he was certain he was wearing trousers rather than shorts.[10]
[9] Transcript p123
[10] Transcript p126
Mr Spokes emphatically denied the proposition put in cross examination that Travis Agius senior hit him and that his son came and pulled Agius away. He maintained that his son was present throughout and actively involved in the assault upon him.
Assessment of Mr Spoke’s evidence
The differences between what Mr Spokes said to the police and what he said in court as to who did what in the assault are quite substantial. The only significant difference in his account of the altercation on New Year’s Eve was the question of whether he suffered an injury to the head. Mr Spokes did not offer any real explanation for the differences in his account of the assault and the discrepancy between his evidence about the fact he had suffered no injury on New Years Eve and his statement to police that he had scratches to his head. I have reminded myself that his prior inconsistent statements should make me cautious of accepting Mr Spokes’ evidence.
I have carefully considered Mr Spokes’ evidence. The events in question happened nearly five years ago. Moreover, in relation to the assault, Mr Spokes was awoken from sleep and severely assaulted requiring admission to the high dependency unit of the Queen Elizabeth Hospital. Whilst, Mr Spokes did not advance any of these matters as reasons for the discrepancies between his evidence and his statement to the police he stuck me as a not particularly intelligent or sophisticated man who was attempting to recount what happened to the best of his abilities. He often made adamant statements about matters which he clearly could not be definite about. It is in my view not surprising that Mr Spokes was unable to give a completely reliable account of what occurred during the assault given the circumstances of the assault. Overall I considered that his evidence was truthful if not entirely reliable.
Whilst he was in many ways an unsatisfactory witness particularly about what occurred during the assault, the basic thrust of his evidence has remained unchanged. He has maintained throughout that the topic of the car registration was a point of contention on New Year’s Eve and was raised by his son on the evening of the assault. He has consistently maintained that his son took an active part in the assault. This is not a matter about which he is likely to have been mistaken. There is no obvious reason why he would lie about his son’s involvement nor did it appear to me that he was lying. I accept Mr Spokes’ evidence that one of the men who assaulted him was his son Robert.
The blood on the accused’s clothes
There is support for Mr Spokes’ evidence. There was blood that was likely to be Mr Spokes’ blood on two articles of clothing and the shoes the accused wore on the evening of the assault.
There was blood at the scene of the assault. This was not tested by police but there seems little doubt that it was Mr Spokes’ blood. He had injuries that would have caused him to bleed. When the accused was arrested he was asked by police to identify the clothing he was wearing the previous evening. He told the police, and confirmed in his evidence, that he was wearing the red hat, the red shorts, the white shoes and the grey singlet which appear in Exhibit D2. These were tested by Dr Henry and the results were as I have outlined above. The accused said he was wearing the same items of clothing, with the addition of an Hawaiian shirt, on New Years Eve 2004 when he had the altercation with his father. The jumper in photograph 4 of Exhibit D2 with three pale blood stains likely to be the accused’s blood seems, on the evidence, unconnected with either the events on New Years Eve 2004 or those of 26 March 2005.
The defence submits that Mr Raymond Spokes could not eliminate as a possibility that the accused was wearing the clothes he had given evidence he was wearing both on New Years Eve 2004 and in March 2005. Further it is said that there are two findings open, first, that the blood that matches Mr Raymond Spokes DNA profile detected on the clothes is there in consequence of the contact between the two that is admitted on December 2004 and the second is that it is there in consequence of contact on the night of the assault.
In relation to the first possible finding it is said that Mr Raymond Spokes’ evidence about the circumstances of the incident in December 2004 was significantly at odds with his evidence in court. Given this it is submitted that I cannot reject as a reasonable possibility that there was some bleeding by Mr Raymond Spokes at the time he had his altercation with his son on New Years Eve 2004. I do not accept this submission and I reject as a reasonable possibility that the blood on the shoes, shorts and singlet was deposited there in some way at the New Years Eve altercation rather than at the time of the assault.
First, there is scant evidence for the presence of blood on New Years Eve. Whilst Mr Spokes certainly did make prior inconsistent statements to the police about cuts to his head there was no mention of any blood in his police statement let alone in the quantities that were found on the clothing. This should be contrasted with the obvious presence of blood in the bedroom on 26 March 2005. Further, the accused himself said that he was “not quite sure” if any of his father’s blood got on his clothing on New years Eve 2004 nor did he recall seeing any blood on his clothes following that occasion.[11] Whilst I note that when he was arrested the accused told the police that his father’s blood might be on the clothing because of an altercation they had on New Years Eve, the accused’s description in court of the altercation on New Years Eve did not suggest significant injury to his father causing blood nor did he mention the presence of blood in his evidence. He described wrestling and said that punches were thrown[12] but denied his father’s evidence that he had put him through the car window.[13]
[11] Transcript p230
[12] Transcript p223
[13] Transcript p241
Further, for this proposition to be correct it would be necessary to accept that any blood remained on those articles of clothing for three months up to the night of the assault. The accused gave evidence that he thought his clothes would have been washed after New Years Eve and that he had not seen blood on the clothing on New Years Eve or at any time between New Years Eve and going to his father’s house. The evidence given by Dr Henry was that it was not possible to ascertain the age of blood stains. However she said that if blood like stains had been deposited on items of clothing on New Years Eve 2004 there was a possibility that the stains could still remain despite washing the clothes but they would possibly have an appearance that would indicate that the garments had been washed. In her view, these clothes showed no indication of the stains having been through a washing process. They were quite dark in colour and gave a strong reaction to tests for blood.
Finally, to accept the scenario that the blood was deposited on New Years Eve would mean accepting that coincidentally the accused was wearing precisely those items of clothing when again he was involved in a physical altercation with his father.
Even if the first scenario is rejected the defence contends that there is an explanation for the blood on the accused’s clothes consistent with innocence and that is the version that the accused has given concerning trying to prevent Mr Travis Agius Senior bashing his father. This requires careful consideration of the accused’s evidence.
The accused’s evidence
I did not consider the accused to be a reliable or truthful witness. In addition to his admitted lies to the police I found his evidence to be improbable and unconvincing in a number of respects.
The accused gave evidence that he had not seen his father since New Years Eve 2004. They had a physical altercation on that occasion. He ceased to live at his father’s house following that incident. There had been absolutely no contact between them other than his girlfriend going to collect his belongings from his father’s house in January 2005. The accused claimed that there were still some items of his clothing remaining at those premises. Mr Spokes denied that this was the case. There was no suggestion that any attempt had been made to contact Mr Spokes Senior about these items prior to the 26^th March 2005.
The argument on New Year’s Eve was, in part, over the accused’s use of his father’s motor vehicle. It is common ground that Mr Spokes took the vehicle off his son that night notwithstanding his son and girlfriend had paid for three months registration in November 2004.[14] He denied any concern over this. Indeed on his evidence the topic was not raised by him at all. I found his evidence on that topic unconvincing and do not accept it. I prefer his father’s evidence on that topic.
[14] Transcript p238
The accused says that he was at a party close to his father’s house on the 25^th March 2005 and that he had some alcohol and drugs. He said he was “a little bit more than tipsy. I wasn’t incapable of – you know like, knowing what I was doing.”[15] This gave him courage he said to attend at his father’s home in order to collect his remaining clothes from those premises. He had a key. He did not give any explanation as to why he took two companions with him other than to say they just came for a walk with him.[16] He couldn’t recall any other details about their discussion on the walk to his father’s house but denied any agreement to either break into his father’s house or to assault his father. He said that Travis Agius Junior knew about the fight he had with his father on New Year’s Eve but when asked if Travis Agius senior knew he said “Not that I know of”.[17]
[15] Transcript p209
[16] Transcript p237
[17] Transcript p238
He said that when they attended the house he knocked on the door and there was no response. He was intending to use the key that he had in his possession when, apparently without warning, Travis Agius Senior broke the door. He said that he followed Travis Agius senior through the door. He proceeded towards the kitchen looking for his father. He said he was in the kitchen only a couple of seconds when he heard “some ruckus” in the front bedroom. He went to the front bedroom. He could not remember whether there was a light on or not. He saw Travis Senior punch his father, following which they got into a wrestle. He only saw one punch. The accused says that he then grabbed Travis Senior to stop him. He and Travis wrestled or struggled. Travis was also struggling with his father. He ended up getting his arms between them to try and pry them apart, Travis and his father both ran out of breath. He and Travis Agius senior ended up leaving. He denied any active involvement in the altercation between Travis Agius senior and his father and in particular he denied hitting his father in any way. He said he could not remember if his father was bleeding or if there was any blood visible in the room. He denies any mention of the topic of the car registration and indeed any conversation at all whilst they were in the bedroom.
The accused admitted lying to the police when they arrested him. He told the police that he did not know what they were talking about when they asked him about the allegation that people had broken into his father’s house and assaulted him. The reason that he gave for lying to the police was that he was feeling scared as it was the first time he had been arrested and in a police interview room. Further, he had been feeling unwell that day.
I found the accused’s evidence on this topic unconvincing. It was a more elaborate lie than simply denying knowledge of the events at his father’s house. He told the police about the possibility that his father’s blood might be on his clothing following their altercation on New Year’s Eve. This seems incongruous for two reasons. First he gave evidence in court that he had not seen any blood on his clothing on New Year’s Eve or from that date until the day of the assault on his father. As I have found there is scant evidence for the presence of blood on that occasion. Second he gave evidence that he had not seen any blood on his father or in the bedroom at the time of the assault nor did he see any blood on his clothes after the assault. If he was, as his evidence suggests, completely ignorant of the presence of blood from the scene of the assault why would he tell the police about the possibility of blood from another incident; an incident, moreover, where he did not apparently notice any blood?
I do not accept the accused’s evidence about the blood on his clothing. There was a lot of blood at the scene of the assault. There was visible blood on the victim. There was also visible blood on the accused’s clothing. I consider that he was aware of the blood and sought to provide the police with an innocent explanation for its presence by raising the issue of the altercation on New Year’s Eve.
Why did the accused enter his father’s premises?
The accused’s actions must be viewed in the light of the last contact between him and his father on New Years Eve 2004. It is uncontentious that the pair of them came to blows. I accept Mr Spokes’ evidence that part of the reason they came to blows was the issue of the car registration. This remained unresolved.
There is no evidence other than from the accused as to the circumstances that led him and his companions to attend at his father’s house. There is no direct evidence of a prior agreement to break into the house or to assault Mr Spokes. The concept of a common purpose implies that the people concerned are acting as a team to achieve a specific mutually agreed result. It is not necessary that the agreement between them be anything in the nature of a formal express or express agreement. It may merely be a tacit understanding without even a word being spoken. It may be an understanding arrived at on the spur of the moment. What is essential is that the parties to it are acting in concert or collaboration in pursuance of the unlawful purpose. In my view the existence of a joint enterprise to enter Mr Spokes’ house and to assault him can be inferred from the surrounding circumstances.
The accused says that he attended his father’s house in the middle of the night to collect some of his belongings. Even if this is accepted, it does not explain why he felt it necessary to take two companions with him. He says they knew he was going to pick up his things. On his evidence, they tagged along with no particular reason or purpose and there was no discussion about what would happen when they got to his father’s house. On his version of events Travis Agius senior knew nothing of the events of New Year’s Eve. All he knew was that the accused was going to his father’s house to collect some of his belongings. If this is correct Travis Aguis senior’s actions, as described by the accused, seem quite astonishing.
On arrival at the house the accused says he knocked at the door. There was no answer and he went to get out the keys. Without his agreement or contemplation, Travis Agius Senior on a frolic of his own broke down the door. His evidence further indicates that he did not remonstrate with Travis Aguis about this or ask him to explain what he had done. Nor did he ask what he intended doing in the house. Rather he followed him into his father’s house with no discussion.
Turning to what happened after their entry into the house in effect the accused says that all three men went into the house for their own purposes. He went to the kitchen having presumably seen Travis Agius senior going into the front bedroom. Within seconds of entering the house, Travis Agius for reasons of his own, proceeded to vigorously assault Mr Spokes. Clearly there were a number of blows struck to various parts of Mr Spoke’s body in order to cause the range and severity of injuries that he undoubtedly suffered. The accused says he saw only one punch inferring that most of the damage must have been done to his entry into the bedroom. On his version however this could only have been a matter of seconds if that. He said he got to the door of the kitchen and heard the ruckus which caused him to enter the bedroom. The house was small and the rooms were very close.
No reason has been advanced to account for Mr Agius’s apparently unprovoked attack on Mr Spokes within moments of entering the house. On any view of the evidence the two men were barely acquainted. The accused said that Mr Aguis had been drinking and using drugs but said that he was “a happy drunk”. He further said that he had never known him to be violent.[18] The accused was asked if Travis Aguis senior knew of the fight on New Years Eve and he replied “not that I know of”.[19]
[18] Transcript p234
[19] Transcript p238
I do not accept the accused’s evidence. I do not accept as a reasonable possibility that the accused went to his father’s house to collect clothes or that his intention was to knock on the door, or if he got no response to use a key, and that Travis Aguis broke into the house on a frolic of his own without the accused’s agreement or at least without his contemplation. I further do not accept as a reasonable possibility that the accused then entered the house without enquiry or discussion and without the intention to physically confront his father. Rather, I find on the whole of the evidence that this was the accused’s purpose in going there. It was his enterprise. He enlisted the support of the other two men because he apprehended that there would be physical confrontation particularly given the events of his last meeting with his father.
Counts 1 and 2
As I have previously indicated I accept the evidence of Mr Raymond Spokes concerning the active participation by the accused in the assault upon him, notwithstanding the inconsistencies between his evidence in court and his statements to the police. Accordingly I am satisfied beyond reasonable doubt that the accused was an active participant in the assault on his father and I find the accused guilty of count two - the offence of causing grievous bodily harm with intent to cause grievous bodily harm.
I am further satisfied beyond reasonable doubt that the accused entered his father’s premises with the intention of committing an offence against the person. On any version of the evidence the assault occurred shortly after the three men entered the premises. There was no prior discussion with Mr Spokes. I have rejected as a reasonable possibility the accused’s explanation for his entry into the house. I have accepted Mr Spoke’s evidence that his son was an active participant in the assault. Accordingly I find the accused guilty of count one - the offence of aggravated serious criminal trespass in a place of residence.
Count 3 – Theft

Mr Spokes said that he owned two mobile telephones prior to the three men breaking into his house. One mobile telephone was located by the side of his bed in his bedroom. This was his work telephone. The other mobile phone was a personal mobile telephone located in a cupboard in his kitchen. He said that both were missing after the three men entered his home. He became aware that they were missing when he went to use his telephones to summon help. He was required to use his daughter’s phone. This is confirmed to a limited extent by Mr Lovegrove who recalled being contacted by Mr Spokes’ daughter following the incident although, of course, he could not know which phone she was using.
Mr Spokes’ initial complaint to police whilst he was in hospital referred to only one mobile telephone. He later amended this to two telephones when he gave a statement to police. What was described in the statement he provided to police concerning the telephones is somewhat different to his evidence in court. He told police that one phone was a Nokia 6610 and the other was a Nokia 6035. In court he said that the missing phones were a Nokia 6100 and a Nokia 5230.
Mr Spokes did not see either the accused or his companions pick up the phone he said was in the bedroom nor was there any apparent disturbance in the kitchen or the cupboard where the second phone was said to be.
There is no evidence that the accused or either of the other two men were seen with a mobile telephone at Mr Spokes’ house. No mobile phone was located when the police attended and searched the accused’s premises.
In view of these matters I am not able to be satisfied beyond reasonable doubt that the elements of the offence of theft are proven and accordingly I acquit the accused on the third count on the information.