R v Tropeano - [2016] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TROPEANO
Criminal Trial by Judge Alone
[2016] SADC 152
Reasons for the Verdict of Her Honour Judge Davison
12 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Accused charged with aiding and abetting two others to commit the offence of causing harm with intent to cause harm - no case to answer on the charged offence - Prosecution fail to discharge onus of proof on alternative charge;
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 s 24, 15A; Juries Act 1927 (SA) s 7, referred to.
R v Tropeano [2015] SASCFC 29; R v Trimboli (1979) 21 SASR 577; Questions of Law (No 2 of 1993) [1993] 61 SASR 1; R v Brougham (1986) 43 SASR 187; R v Aljaroudi [2012] SASCFC 111; R v Lowery [1972] VR 560; Giorgianni v The Queen (1985) 156 CLR 473; R v Jones (2006) 161 A Crim R 511; R v Coney (1882) 8 QBD 534, considered.

R v TROPEANO
[2016] SADC 152
Table of Contents
Introduction  2
Charge  2
Preliminary Applications  3
                  Proofing Notes  3
                  Decision not to recuse myself  3
                  Admissibility of Mr Tropeano’s evidence from the first trial        3
Directions of Law  3
Prosecution case outline  4
Defence outline issues in contention  6
Prosecution evidence  6
                  Detective Brevet Sergeant Longbottom  6
                  Kieran Pett  9
                  Daniel Luke Polec  13
                  Christopher Scherwitzel  19
                  Michael Hardy  23
                  Professor Spring  24
                  Professor White  27
Antony Tropeano – the Accused  28
Agreed facts  40
Witness statements  42
No case to answer  43
Defence case  43
Prosecution address  45
Defence address  68
General unreliability of witnesses  70
Case to answer  70
Section 15A(1) of the Criminal Law Consolidation Act 1935 73
Findings of fact  74
Verdict  78
Introduction

In the early hours of Sunday 18 December 2011, Daniel Polec was evicted from Red Square, a nightclub, in Hindley Street, Adelaide. At that time the Accused was the General Manager of Red Square. It is alleged that the Accused deliberately shielded from public view an assault that took place upon Mr Polec in the laneway outside the doors of the nightclub from which he had been evicted.
In a previous trial the Accused and his co-Accused, at that time, were each convicted of the offence of aggravated causing harm with intent to cause harm.[1] The Accused appealed. His appeal was allowed, the conviction was set aside and a retrial was ordered.[2]
[1] s 24(1) of the Criminal Law Consolidation Act 1935.
[2] R v Tropeano [2015] SASCFC 29.
On the retrial the Accused applied for trial by judge alone. The application was granted and the trial proceeded before me without a jury.[3]
[3] Juries Act 1927 (SA) s 7.
Charge
The original Information in this matter was dated 29 July 2014 on which the Accused was jointly charged with the two others. After argument the Prosecution substituted a fresh Information dated 30 November 2015 upon which the Accused is charged with aiding and abetting aggravated causing harm with intent in the form below. It was this charge that proceeded before me.
Statement of Offence
Aggravated Causing Harm with Intent. (Section 24(1) and Section 267 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Antony Tropeano on the 18^th day of December 2011 at Adelaide, aided and abetted Jack Apostolidis and Wayne Patrick Ngaia to cause harm to Daniel Polec, intending to cause him harm.
It is alleged that Antony Tropeano was present and knowing that Jack Apostolidis and Wayne Patrick Ngaia were intentionally causing harm to Daniel Polec, intentionally assisted Jack Apostolidis and Wayne Patrick Ngaia by:
a)    shielding the offence from the view of cameras and onlookers,
b)    waving onlookers on and preventing the intervention of others,
c)    physically assisting in bringing Daniel Polec to ground by tripping and grabbing him, which permitted the continuation of the offence; and
d)    standing and keeping watch for police and informing Jack Apostolidis of the arrival of police.
It is alleged that by the above actions Antony Tropeano intentionally encouraged the commission of the offence.
It is further alleged that Jack Apostolidis and Wayne Patrick Ngaia were in company with each other whilst committing the offence.
Preliminary applications
Proofing notes
At the commencement of the trial, I considered notes made of the proofings with Mr Scherwitzel in 2012 ought to be disclosed to the defence. Included in the notes is a matter that was not the subject of any statement that was raised in those notes but was the subject of some cross-examination at the previous trial.[4] I ordered that those proofing notes be disclosed to defence counsel.[5] In relation to Mr Polec there was nothing which I could see that would give rise to a waiver of legal professional privilege, nor a need for disclosure of those notes.[6]
[4] T 24, 35.
[5] T 25, 1.
[6] T 25, 6.
Decision not to recuse myself
At the outset of the trial, defence counsel raised that the Accused would tender character references as part of his case. One of those references was written by a Mr O’Doherty. I ruled that I would not recuse myself despite my acquaintance with Mr O’Doherty.[7]
[7] T 23, 16.
Admissibility of Mr Tropeano’s evidence from the first trial
I determined that the evidence of the Accused from the previous trial was admissible with some redactions. I handed down a written schedule of my rulings on specific redactions of the transcript.[8]
[8] T 334, 10.
Directions of Law
The Prosecution bears the onus of proving the guilt of the Accused at all times. The Accused does not have to prove that he did not commit the offence charged. He is presumed to be innocent unless and until his guilt is proven. 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 words proved, established, or satisfied then I have meant in each case to an extent that excludes reasonable doubt.
If I am satisfied that there may be an explanation consistent with the innocence of the Accused or I am unsure where the truth lies then I must find that the charge has not been proven to the standard required by the law and I must find the Accused not guilty. If I cannot exclude the Accused’s evidence as a reasonable possibility, then he is entitled to a verdict of not guilty.
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’ evidence.
The Accused did not speak to the police about the incident in an interview. He exercised his right to silence. I must not draw any adverse inference against him of the case he presents for exercising this right.
The Accused has not given evidence in this trial. He was not obliged to give evidence. I must not draw any inference adverse to the Accused or the case he puts forward as a result.
The Accused has led evidence of good character. This has not been challenged. I remind myself that I should bear in mind his good character when I am considering whether I am prepared to draw from the evidence a conclusion of guilt. I should also consider his good character when assessing the credibility of the explanations that were given by him in the previous trial (this evidence having been tendered by consent in this trial) and his credibility as a witness. In addition to this it is a factor that may affect the likelihood of his having committed the offence with which he is charged.[9]
[9] R v Trimboli (1979) 21 SASR 577, 578.
Many of the civilian witnesses were affected by alcohol at the time of the alleged offence. I remind myself that this factor may affect their reliability as witnesses.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice, or fear and not be influenced by public opinion in relation to this matter.
Prosecution Case Outline
The Prosecution case is that in the early hours of Sunday 18 December 2011, Daniel Polec was in the Red Square nightclub. At that time the Accused was the manager of the nightclub. Mr Polec was evicted from the club by Mr Apostolidis, an older man, who was identifiable as wearing a maroon shirt. During the course of the eviction Mr Apostolidis was injured on his face and was bleeding. Once outside Mr Apostolidis and others blamed Mr Polec for this injury. Mr Apostolidis was angry and had a motive to retaliate and others who were loyal to Mr Apostolidis had a motive to assist.
On the Prosecution case Mr Apostolidis retaliated and other staff of the nightclub including the Accused formed a wall shielding Mr Polec from the view of others and he was then repeatedly punched by Mr Apostolidis and by Mr Ngaia. As Mr Polec was being beaten he got up and tried to run away but was tripped by the Accused. The Accused and others then brought Mr Polec to ground. The Accused and others then had hold of him on his neck/head region, by his legs and other parts of his body. It was alleged that the Accused lifted his leg but it was uncertain whether he had then made contact with Mr Polec with his leg or foot. It was alleged that Mr Apostolidis stomped on Mr Polec.
In order to prove this case the Prosecution relies upon security vision from the Police Services Security Branch camera located in Hindley Street and from eyewitness accounts. The Prosecution case against the Accused was that he aided and abetted the assault that was committed upon Mr Polec by Mr Apostolidis and Mr Ngaia in that he was present when they committed the crime of causing harm with intent to cause harm and that the Accused knew the essential facts and circumstances of that offence. It was suggested that he as the manager could have intervened or have instructed Mr Apostolidis and Mr Ngaia to act differently but instead he participated by ensuring that the view of the cameras and the public was obstructed by waving onlookers on and thereby preventing the intervention of other patrons and that he specifically participated in taking down or causing Mr Polec to physically remain at the scene by tripping him thereby committing the continuation of the assault. It was further suggested that the Accused kept watch and when the police arrived, notified the assailants so that they could cease their offending and remain undetected.
The elements of the offence that must be proven for the offence of aiding and abetting an offence of aggravated causing harm with intent to cause harm are as follows:
1That harm was caused by the principal offenders Mr Apostilidis and Mr Ngaia. (Causation)
2That Mr Apostolidis and Mr Ngaia while acting in concert, caused that harm;
3The acts that caused that harm were deliberate acts, as opposed to accidentally;
4That Mr Apostolidis and Mr Ngaia intended to cause harm either individually or as a consequence of acting in concert;
5That the acts were unlawful;
6That the offence was aggravated by Mr Apostolidis and Mr Ngaia acting in company;
7That the Accused aided and abetted the commission of the offence. The elements of aid and abet are:
a)Proof that the principals committed the offence;
b)That the Accused was present at the commission of the offence;
c)That the Accused knew all the essential facts and circumstances of the offending;
That with that knowledge he intentionally assisted or encouraged the principal offenders to commit the offence.
Defence outline issues in contention
Mrs Shaw QC for the Accused outlined the issues in contention at the end of the Prosecution opening. She said that one of the issues will be whether or not the Prosecution have excluded that the conduct of the principals was unlawful in accordance with s 15A of the Criminal Law Consolidation Act 1935. Secondly, in terms of the aid and abet, the Accused’s knowledge of the essential facts and circumstances of the alleged offending, and thirdly whether the Accused performed any act that occurred coincidentally with that knowledge and with the intention to assist the principals. Fourthly, the defence contends that there is on the evidence a different interpretation open on the facts of this matter from the security vision.
Prosecution evidence
Detective Brevet Sergeant Longbottom
The first witness called by the Prosecution was Dwayne Peter Longbottom who is the investigating officer. He gave evidence as to the layout of Red Square and the surrounding areas including Rosina Street where the alleged incident was said to have occurred. He also gave evidence of the CCTV camera that is controlled by police and points down Rosina Street. Footage of the alleged incident was captured on the night and placed on a disc. This disc was tendered.[10]
[10] Exhibit P4.
Detective Longbottom gave evidence that he was familiar with the Accused having met him in April 2012. He had dealings with him since that time. Likewise he was familiar with the appearance of Mr Ngaia and Mr Apostolidis, both of whom he met in July 2012. Detective Longbottom was confident that he could recognise each of these men on the CCTV footage.
Detective Longbottom then gave evidence about photographic identification procedures conducted with some of the witnesses. In July 2012 Mr Polec was shown two photo packs. The first consisted of 12 photographs and included a photograph of Mr Tropeano. Mr Polec made no selection from this pack. The second also consisted of 12 photographs, including Mr Ngaia at position 10. Mr Polec selected photo 10 as a person allegedly involved in the incident. Mr Polec also participated in a photographic identification procedure in February 2013. A photograph of Mr Apostolidis was at position 2. Mr Polec selected someone other than Mr Apostolidis.
Detective Longbottom also conducted photo identification procedures with Mr Scherwitzel. Mr Scherwitzel was shown two photo packs in July 2012. The first included a photo of Mr Tropeano. Mr Scherwitzel made no selection in this pack. The second pack included a photo of Mr Ngaia, again, no selection was made. Mr Scherwitzel was shown a third photo pack in February 2013 which included a photo of Mr Apostolidis. He selected the photograph of Mr Apostolidis.
No photo identification procedures were conducted with Mr Pett.
Detective Longbottom was then cross-examined. He confirmed that at the photographic identification procedure in February 2013 concerning the pack that included Mr Apostolidis’ photo, Mr Polec made a selection of a photo other than that of Mr Apostolidis. He also agreed that if a witness makes an incorrect selection, the practise is that they are not to be told.
Detective Longbottom confirmed that Mr Scherwitzel and Mr Polec came in on the same day for their photographic identifications. Mr Polec went first. At the time Mr Polec was making his selection in the interview room, Mr Scherwitzel was sitting in the foyer of the police station. Mr Polec’s procedure was conducted at 5:07pm. Detective Longbottom walked him out of the interview room after he had signed the photo. They went back to the foyer and Detective Longbottom walked Mr Scherwitzel in to ensure that they could not talk between the two procedures. He said that they did not say anything relevant to each other. He was unsure how long the two men were together in the foyer, however it would have been a short period of time. After Mr Scherwitzel was taken into the interview room he was shown a different photo pack with the photos in different positions to that of Mr Polec’s pack. He confirmed that Mr Scherwitzel chose a photo from that pack.
Detective Longbottom was asked about the exhibit P3. This exhibit is a plan of the Red Square precinct with the fire exits marked and an indication of the precinct’s position relative to Rosina Street. Detective Longbottom did not know the origins of this exhibit but confirmed that he knew how patrons would enter and exit the precinct in the early hours of the morning. He confirmed that patrons would enter the club via the doors in the bottom right corner of the plan. The general exit route was via a stairway and through a gaming area and an area known as Pour 24.
In cross-examination Detective Longbottom agreed that as the officer in charge of the investigation, his role was to collect relevant documents for the investigation that could be used in Court. He collected the CAD log and identified the time that calls were received at the communication centre of SAPOL. He confirmed that the log related to calls on 18 December 2011 in the early hours of the morning. He said that there was a record on the log which read ‘4.35:25 security have asked comp to ring for police. She is not sure what for. Will go and find out.’ He said that in his experience ‘comp’ stands for ‘complainant’.
Detective Longbottom said that the CCTV footage of the incident was not shown on ‘Crimestoppers’. He said that consent had been given for it to be shown but that it never eventuated.
Detective Longbottom said that he never made an inquiry as to the number of officers who attended Rosina Street between 4:30-5:30am on 18 December 2011 and that he had only been able to give an accurate number of police in attendance by watching the CCTV footage.
Detective Longbottom confirmed that Mr Scherwitzel was arrested on that morning and possibly handcuffed. He confirmed that there were no police notes in relation to the arrest of Mr Scherwitzel. Detective Longbottom was unable to recall if there is a slight gradient on Rosina Street.
Detective Longbottom said he first watched the CCTV footage after 7 February 2012. He has no record of how many times he watched the footage before June 2012.
Detective Longbottom was then taken to various portions of the footage and asked questions about specific people depicted in that footage. At the time of 4:36:22:14 he was pointed to a girl who was apparently standing very close to the man in the maroon shirt. He confirmed that he did not make any inquiries to identify who she might be.
At the time of 4:35:40:03 he could see a man with a tie to the left who was leaning against a wall. This man, he said, was identified by Senior Constable George as Zachary Leahy. At that time, Mr Leahy was blocking the view of Mr Polec. He said that Senior Constable Haifawi had made inquiries in relation to the identification of Red Square employees in the footage. There was no information to suggest that Mr Leahy was a Red Square employee.
Detective Longbottom was unable to identify the man wearing a white shirt with a hand in his pocket.
At the time of 4:36:23:82 he was directed to a man in a white shirt with a hand going forward. He said that he understood that man to be Mr Mattner who was a patron of Red Square.
He said that he spoke to Matthew Ey about trying to identify people. He said he also spoke to Mr Scherwitzel and a person called Callan.
Detective Longbottom said that he spoke with Callan on 9 May 2012. Callan’s details were provided by Mr Scherwitzel. Callan was at Red Square on the night of the incident but said he left 20 minutes before the incident occurred and as such Detective Longbottom did not take a statement from him or meet with him.
Detective Longbottom spoke with Jesse O’Neill who was arrested on the night. Mr O’Neill provided information to the effect that he did not see anything beyond Mr Polec on the ground bleeding when police were there.

Detective Longbottom also spoke with Luke Rochester who observed the incident inside Red Square which started the whole thing. He also spoke with Brian Leahy who said he went outside and saw Mr Polec in handcuffs.
Detective Longbottom said that he could not remember seeing a man wearing a grey suit in the footage. He could not recall speaking with a Mr Ramirez. He could not recall if he heard the name Michael Spagnuolo.
He confirmed that the only people who were willing to provide a statement were Mr Scherwitzel, Mr Polec and Mr Pett.
Detective Longbottom asked Mr Pett if he had any of the Facebook messages between him and Mr Polec around 18 December 2011 or following the incident. Mr Pett said that he did not. Detective Longbottom was given this information on 9 November 2015.
Detective Longbottom was then re-examined. Detective Longbottom said that he interviewed Mr Apostolidis, Mr Ngaia and Mr Tropeano once they were arrested and that they each exercised their right to silence. He said that he unsuccessfully attempted to obtain CCTV footage from within Red Square. He also said that no member of staff from Red Square provided police with information about the incident that night.
Kieran Pett
The next witness for the Prosecution was Mr Kieran Pett. Mr Pett is 24 years old. He was born and grew up in South Australia. He now works as a plumber in Darwin where he runs his own business.
Mr Pett said on Saturday 17 December 2011 he went out with a few friends. They arrived at Red Square at some point before midnight. He said that he had been to Red Square many times before, possibly 10-20 times or more.
Mr Pett said that he knew some of the staff personally, in particular a few of the DJ’s. He said that he knew Mr Tropeano by affiliation and that he had been introduced to him by one of the DJ’s. He did not have much to do with Mr Tropeano and understood him to be the owner of Red Square.
Mr Pett’s evidence was that he drank alcohol that night. He was unsure if he had been drinking before he arrived at Red Square. He said that in the early hours of the following morning, 18 December 2011, there was an altercation between a few people or a group of people. He said that he did not know anyone involved in the altercation at that stage, but he now knows Mr Polec.
He said that the altercation broke out on the outskirts of the dance floor near the DJ booth. Mr Pett was then shown exhibit P3, a plan of Red Square. He said looking at that plan, the incident happened on the dance floor more or less in the middle of the plan. Mr Pett said he was standing directly to the right of the ‘E’ on the plan. Mr Pett said it was pretty busy inside the night club when the fight broke out. He said he did not see the fight start, just when it was broken up.
Mr Pett said he was 2-3 metres away from Mr Polec when he first saw him. He said he saw people being broken up and there was pushing and shoving. A security guard tried to restrain Mr Polec but lost his grip and tripped over the stairs and landed on his bum. He said that the guard was a man over 18 and that he was dressed in a black suit. Mr Pett said that the guard was restraining Mr Polec from behind and over the shoulder, he said it was like a bear hug on the top of his body.
Mr Pett said when the guard grabbed Mr Polec, he shrugged him off. The guard then stumbled backwards and got up. Mr Pett said Mr Polec was shocked and he did not realise it was a security guard.
Mr Pett said Mr Polec was taken out and stood near the exit on the far left in the middle where he was in the street. He said that this exit is shown on exhibit P3 as the one in the middle next to the toilets where the arrow is. He said that he could not remember who had taken Mr Polec there. After that he saw Mr Polec go through the door.
Mr Pett said he then exited through the front doors that lead out from the bar. He thinks he exited straight away because he had a gut feeling about the situation. He said he went onto Hindley Street and then turned right onto Rosina Street.
Mr Pett’s evidence was that he had been drinking over a number of hours. He had 6-8 drinks of Pulse and vodka. He said that he had arrived at Red Square before midnight and possibly left about 4:30am. Mr Pett said when he left he was slightly affected by alcohol. It did not affect his ability to walk at all or his ability to communicate.
Mr Pett’s evidence was that as he walked up Rosina Street he saw another altercation. He said Mr Tropeano, Mr Ngaia and Mr Apostolidis were involved in the altercation with Mr Polec. He said he saw someone being swung around and being hit. It was Mr Polec who was swung around and who was being hit. While Mr Polec was being hit he was slumped over and had gone to his right side. He was more or less lying with his legs out. Mr Polec received 2-3 uppercut hits. The forearm of the person hitting him was at right angles to the bicep and the arm swung at the shoulder. Mr Pett said that Mr Apostolidis was hitting Mr Polec. Mr Apostolidis was in arms reach of Mr Polec as he was hitting him. Mr Pett cannot remember if he heard anything while watching the hitting.
While he was being hit, Mr Polec was leaning up against the wall which was opposite the nightclub. Mr Pett confirmed it was the wall on the left shown in photograph 5 of P2. Mr Pett could not remember if Mr Apostolidis was the only man who appeared to strike Mr Polec. He said he could not remember seeing Mr Ngaia doing anything to Mr Polec. His evidence was that he thinks Mr Polec was swung around before the punch. He said Mr Polec was swung around from the left stone wall into the middle of the road and then forcefully driven into the ground. Mr Pett could not remember who was swinging him around. He remembered seeing Mr Polec brought to ground by his T-shirt and limbs and that a couple of people were involved in bringing him to the ground.
He said Mr Polec was motionless when being hit by Mr Apostolidis and other people were watching. Mr Tropeano was just standing there. He was standing in front of the whole situation where it was happening. He was within half a metre of the situation.
Mr Pett said he was standing close to the nightclub while he saw what was going on. He identified himself as standing near the fifth bollard up on the right not including the one on Hindley Street in Photo 5 of P2. He said he was standing closer to the wall than to the street. Mr Pett’s evidence was that the activity was opposite the doors on the right, about the fifth bollard along. It was happening in the middle of the street.
Mr Pett was shown portions of the CCTV footage[11] and asked questions. At 4.35:56 he recognised himself as the man in the black hooded top at the bottom of the screen. He said that he is wearing a black singlet with a low slung neck. At 4.35:56:76 he recognised himself waving in the general direction of the camera, he said that he does not know to whom he was waving. He said that he goes off the screen at 4.36:06:24 and then comes back onto the screen at 4.36:08:28. At 4:36:29:98 he identified himself on the right hand side of the screen. At 4:35:50:12 Mr Pett comes onto the screen in the bottom right hand corner. Mr Pett identified the upper cut-style punch at 4:36:03:96 and the swinging around at 4:36:18:05.
[11] Exhibit P4.
At 4:39:56:88 Mr Pett identified himself as being at about the ‘E’ on the police sign, the very top right person. He could not recall if he was having a conversation at that time. He said that the person standing directly in front of him at this point is Mr Tropeano. He does not know any of the other men standing around.
Mr Pett saw the police arrive. He was unaware they had been called until they arrived. He said he spoke to Mr Polec on the street. He said that he tried to give Mr Polec his name but Mr Polec was unresponsive. When Mr Pett tried to speak with him, Mr Polec was on the corner of Rosina Street and the laneway which leads off of it. Mr Pett was pretty sure that he tried to talk to Mr Polec after the police arrived as he thinks that Mr Polec was in handcuffs at the time. Mr Pett said that Mr Polec’s face was injured and that there was swelling and blood.
At 4:49:44:50 Mr Pett identifies himself standing in the middle of the police at the top of the screen. He cannot remember speaking to them.
Mr Pett said he spoke with a female. Mr Pett left after he had identified himself walking off the screen at 4.50:22:06. He cannot remember coming back to Rosina Street at all.
Mr Pett was then cross-examined. He confirmed that he could not remember where he went after he left Rosina Street and could not remember where he had been before Red Square. He said that he did not know at what time he started drinking and could not remember what time he got to Red Square or who he went there with. He confirmed that he did not know who he was with at any time before he went to Red Square but that he was with someone on that occasion. He said that he would normally go out in a group.
His evidence was that while he was on the dance floor he does not know if he was with one of his friends from the group. He is also unsure if he met up with anyone in the group after the incident.
Mr Pett said that he could not remember if he was shown the CCTV footage before the last trial by Mr Longbottom. He could not remember being shown the footage in July for two and a half hours. Mr Pett was read a portion of the transcript of the previous trial on this topic. He still could not remember going through the footage before the trial but could remember being asked questions about the footage in court. Mr Pett agreed that it was difficult to distinguish between what has triggered his memory or what had become part of his memory from watching the CCTV footage. He said that he could remember some things but not everything.
Mr Pett agreed that at the last trial he volunteered the length of two and a half hours for the time spent watching the footage at the police station. He then said he thought he remembered going to the police station to watch the footage before giving evidence at the last trial. He said he made several statements to police.
Mr Pett confirmed he said that Mr Polec was sitting against the wall in a slouched position leaning on an elbow. He was sitting on his backside. When Mr Polec was in handcuffs he was away from the wall.
Mr Pett confirmed that he could not remember how much he had to drink. He said he was drinking Pulse and does not know how intoxicated, if at all, he was. He agreed that at the last trial he said that he had 10 vodkas but now has no idea how much he had to drink.
Mr Pett said he could not remember how many people were involved in the fight inside the nightclub and cannot remember if there were punches thrown. He said he saw a security guard end up on the ground. He also said he did not see whether or not anyone other than Mr Polec was evicted from the venue.
He said he did not see anyone other than Mr Polec being restrained outside. Mr Pett does not know why he looked back towards the camera when he first comes onto the screen. He cannot remember what he was looking at at 4.45:35:50 on exhibit P4.
Regarding the sequence of the swing around and the punching, Mr Pett agreed that he had been uncertain in his evidence in this trial.
Mr Pett was not re-examined.
Daniel Luke Polec
Mr Polec was 23 years old at the time of this trial. He was born and raised in Adelaide and works as a plumber.
Mr Polec gave evidence that on 17 December 2011 he met some friends who had pre drinks at Luke Rochester’s house before going to the Highway - the group of friends were Luke Rochester, Brian Leahy, Callan Annett and Christopher Scherwitzel.
Mr Polec gave evidence that Mr Scherwitzel is his cousin and they are close. Mr Polec said they went to Mr Rochester’s house at 6pm and that he drank there but cannot remember how much or what he drank. After that, he said, they went to the Highway around 8pm and stayed there for 2-3 hours. He said he also drank there but cannot remember what or how much.
Mr Polec gave evidence that the group then went to Red Square at about midnight. It took them a couple of hours to get in so they waited in line and sobered up. They got into Red Square about 1 or 1:30am. Once inside Red Square he bought a drink and started dancing. Mr Polec said he was not sure what he drank but he thought a vodka lemonade or something similar. He did not remember seeing anyone else that he knew beyond his group.
In December 2011 he said that he weighed 94kg and was 6’1” in height. He was playing for an SANFL team.
Mr Polec said he was with his cousin at the time of the altercation. At that time he was not intoxicated. He rated himself as being 6-7/10 in terms of level of intoxication.
Mr Polec gave evidence that at the time of the altercation he was on the dance floor, that he identified being the smaller one in the middle of the plan P3. He was dancing and hooking up with a “bird” and noticed his cousin Mr Scherwitzel in a ‘push and shove’ with another man. Mr Polec said he went to grab his cousin and he was grabbed from behind and put into a headlock. Mr Polec said he then ducked down and pushed the man to the floor before realising that it was a security guard.
Mr Polec then gave evidence that he apologised to the security guard. The guard told him that he had to leave through the back.[12] He then said he does not remember much after getting hit.
[12] T 159.
Mr Polec gave evidence that he does not know what led to the altercation. He went to grab his cousin but was then put into a headlock straightaway. Someone had their arm across his chest and the other arm was in front pointing upwards. Mr Polec said he shrugged them off. He said he did not know that the man was a security guard before he had turned around. Mr Polec said he was made to exit by the disabled toilets.[13] He said there were a number of security guards around at the time but he only spoke to the one that he pushed. That guard was wearing black and looked about 24 years old and looked like he had ‘surfy’ blonde hair.
[13] T 160.
Mr Polec said he did not have any dealings with anyone wearing a coloured shirt. When he was taken to the exit, he remembers the doors being pushed open and being escorted out. He went out onto Rosina Street. Mr Polec said he was hit in the back of the head and the next thing he remembers is waking up with a man on his back holding him down.[14] He said the left side of his face was on the ground and every time he tried to pick himself up he had got ‘put back to sleep’.[15] He was punched with a clenched fist to his right side and cheek when he tried to get up. He was punched 3-4 times while laying down with his hands to the side and the left side of his face to the floor. He said he could not see who was hitting him, there were about three men around him who were all in black security clothes.
[14] T 162.
[15] T 162.
Mr Polec said when he woke up he saw his cousin in handcuffs against the wall. He remembers waking up and seeing a massive pool of blood around his head and then seeing a police car come around the corner. Mr Polec was relieved at seeing the police car. He said he looked to his left and saw his cousin crying. His cousin was against the wall in handcuffs.
Mr Polec said the police pulled up in front of him, two police officers alighted. He was placed in handcuffs. He said he did not know that police were on their way.
Mr Polec took part in a photographic identification procedure. He said he chose photo 10 from exhibit P6 as one of the men involved. He gave evidence that he also chose photo 12 from exhibit D9, as a person who might have been around at the time.[16]
[16] T 166.
Mr Polec gave evidence that he remembers a man in a maroon shirt who escorted him out with the security guard. He was not sure what other involvement, if any, the man had after that.
Mr Polec said when police arrived, he was handcuffed and moved to lean up against the stobie pole which was about 10 metres away. He said at that time he was badly injured and in a lot of pain. He was taken to hospital in an ambulance. His injuries were: a broken jaw, two fractures in the nose, a chipped tooth and swelling to his face and the back of his head. Mr Polec identified photos of himself taken while he was at the hospital before his surgery.[17] As they were taken a few days after the incident, the swelling had gone down.
[17] Exhibit P10.
Mr Polec gave evidence that on the night of the incident he was wearing a grey top and light blue jeans.
Mr Polec identified himself on the floor at 4:38:42 of the CCTV footage.[18]
[18] Exhibit P4.
Mr Polec said he could not remember being swung around at any time. He also said he did not punch anyone that night.
Mr Polec was cross-examined. The first topic was his identification of photograph 10 in exhibit P6. Mr Polec said he could not remember when he saw the face in the photograph but confirmed that he saw them at some point that night.[19]
[19] T 172.
Mr Polec disagreed with the suggestion he had been drinking a ‘fair few drinks’ before he got to Red Square. He denied saying that he had had 20 vodka Pulses. He said he had 5 cans of Pulse over the whole night and one whilst he was inside Red Square. He said that prior to arriving at Red Square he might have been drinking a vodka Coke Zero. He later said in cross-examination that he was unsure of how many drinks he had had prior to being at Red Square. He agreed that he said he might have had 20 drinks in the first trial.[20]
[20] T 174.
Mr Polec said he was sobering up prior to getting into Red Square because he was in line for 2 hours and had spent time in the taxi. He was unsure if he remembered that specifically or if he was reconstructing. When it was put to him that he did not mention waiting for 2 hours in the line at the first trial and when it was suggested that he had reconstructed this, Mr Polec agreed he did not have an actual memory of this.
Mr Polec agreed that it was unusual for him to have 20 or 25 drinks between 6pm and the end of the night. He said he was drinking Pulse at Red Square because everyone else was and they were the ‘new thing’. Mr Polec agreed he said at the last trial that he had 25 drinks starting at 8:30pm that night, rather than 6pm and ending at 4:30am. Mr Polec said he definitely would not have been drinking Pulse cans at the pre-drinks as they were too expensive to buy from the liquor shop.[21]
[21] T 180.
Mr Polec agreed he was he was ‘hooking up’ with random girls prior to being evicted. He said this was ‘pashing and tongue kissing’. He agreed that he was competing with his friends to see how many girls he could kiss and was trying to hook up with as many girls as possible. He said, ‘a beautiful guy like me cannot keep them away’.[22] He cannot remember how many girls he kissed before ‘something went wrong’. Mr Polec denied there was any difficulty with boyfriends of girls he was kissing. He explained that his practice was to make eye contact and wink at a girl and if she responded positively to him he would assume that she did not have a boyfriend.
[22] T 181.
Mr Polec repeatedly denied that there was a fight on the dance floor in which his cousin was punched. Mr Polec said a security guard put him in a head restraint. He then ducked out of the restraint and pushed the security guard to the floor. He agreed he was hooking up with a girl just prior to being put into the headlock. Mr Polec disagreed with the notion that he was causing any trouble. He also denied that his cousin came to his defence and thereafter was embroiled in a fight.
Mr Polec denied that the alcohol might be affecting his memory of events in the night club. He agreed he was shown the CCTV footage by Mr Longbottom frame by frame before the last trial. He also agreed that he went through the CCTV footage during the last trial.[23]
[23] T 184.
Mr Polec agreed he was asked to identify a man in a white t-shirt and was told to look at the footage and see if a man came and punched him. Mr Polec agreed that he did not have an independent memory of that punch.

Mr Polec denied the white shirted man was the boyfriend of one of the girls he had hooked up with. He also denied telling Longbottom who that person was.
Mr Polec said he could not remember if he was shown a person in a blue tracksuit or whether this person punched him. He said he just remembered the security guard he pushed to the floor and the person in the maroon shirt.[24]
[24] T 186.
Mr Polec said he cannot remember a person in a white shirt in the night club dance floor area. Mr Polec said he told Mr Longbottom that he spotted a man with a white shirt and a cross on his back but denied he said:
Mrs Shaw: If you have any difficulty reading it, I can ask the associate to read it out. I don’t want to embarrass you. The associate can read it to you so you can be sure I’m not tricking you.
Her Honour: Yes.
Mrs Shaw: Can the witness be shown the statement of 30 July and the second to last paragraph on p.2?
Associate:‘This male appears to approach me at one stage during the footage. This male looks like a boyfriend of a girl I kissed inside the nightclub which started this incident.’
XXN
QYour signature is at the bottom of this page.
AYeah, but after hearing that, that’s not how I would have said it. It must have been just written wrong and obviously, because I can’t read properly, I mustn’t have read it at the time. Just by looking at the footage, when I was looking at it, it just appeared to me that he might have been the boyfriend of the girl from inside, Obviously because he’s come and hit me and he had a bit of a discussion with a girl, pointing at me outside of the nightclub.
QI want to be clear about this, do you say you did not say that to Mr Longbottom, what the associate just read out to you in your statement with your signature at the bottom.
ALet me just read it again to myself. I wouldn’t use ‘This male looks like the boyfriend of the girl who I kissed inside the nightclub’. Like, I’d just say ‘It appeared to me from watching the footage’, that that’s what it appeared to me who he was, if that makes sense.
QI simply ask you, do you deny you said what’s recorded there to the police officer.
ANo, not at all, but you know, like, I don’t know, maybe it’s got written not the way I said it, like, you know.
Mr Polec said he has trouble reading and said he might have just signed the statement even if it was incorrect. Mr Polec contended that what he told Mr Longbottom was that the male ‘appeared’ to be the boyfriend of one of the girls he had kissed based on the CCTV footage. He said that this male came after Mr Polec fell down to ‘get his 2 cents in’.
Mr Polec said he remembers getting hit, falling to the floor, waking up and being constantly hit and then the cops saving him. Mr Polec can recall a man being on his back and one to his right. When it was put to him that he did not have this memory during the last trial he said he has now remembered this detail, Mr Polec agreed that he could not be sure how many people were around him. He agreed he could not say what role those two people had.
Mr Polec agreed he was only king hit once and that he was knocked out. He agreed he said during the last trial that he had no memory between being hit and waking up in a pool of blood, but denied that he had reconstructed the extra details about waking up during further attacks.
Mr Polec agreed with the notion that he has increased his muscle density since the attack. He also agreed he was a boxer at the time of the attack which involved training 5 days a week for about 3 to 4 years. He denied ever punching a bouncer on that night. He also denied seeing a bouncer bleeding on that night.
Mr Polec said he cannot remember if someone said to him that he was hooking up with ‘his missus’ although he agreed he said at the last trial that the white shirted man said to him ‘why are you hooking up with my missus?’
Mr Polec denied that he punched the man in the maroon shirt as he exited the club. He could not say whether a man in a blue tracksuit punched him in the face.
Mr Polec said he could not remember if he said to police that he had contact with the bouncers and does not remember telling police he had contact with bouncers ‘just because I asked to leave with my cousin’.
Mr Polec initially did not remember if he was told that he was being reported for an assault on a security guard. He did not remember if police told him that Mr Apostolidis did not want to press charges. Mr Polec then agreed that Mr Apostolidis did not want to press charges and said he believed this was because there was no reason for charges to be pressed.
Mr Polec agreed he was on his stomach following being king hit and that he saw his cousin in hand cuffs when he first saw him after being hit.
Mr Polec said he saw Anthony Peve, with whom he was at school. He said that he saw Daniel Altintus being detained by security officers. Mr Polec saw him when he woke up.
Mr Polec was then re-examined and agreed that during the last trial, the evidence of the number of drinks he had had were estimates rather than specific numbers.
Christopher Scherwitzel
Mr Scherwitzel was the next witness called by the Prosecution. He is a cousin of Mr Polec, is 25 years of age and works as a plumber in South Australia.
He said on 18 December 2011 he had pre-drinks at his friend Luke Rochester’s house. There were about 5-10 people including Callen Annett, Brian Leahy, Daniel Polec and Luke Rochester. They drank for a few hours after arriving at 8pm. He drank a few beers and vodka, but was unsure how many drinks he had.
Mr Scherwitzel gave evidence that after the pre-drinks they went straight to Red Square. They arrived about 11pm. He said he had been to Red Square 4-5 times before and that his group arrived together. He could not remember if the group went straight into the club or were waiting outside.
Mr Scherwitzel said he drank vodka lemonade. He was unsure how many drinks he had had up to 4:30am. He might have had 8 drinks. He rated himself as being 7/10 in terms of intoxication - he knew what was going on, was able to walk and his speech was not affected.
Mr Scherwitzel said he and Mr Polec got involved in a ‘push and shove’[25] on the dance floor which resulted in the two of them being evicted. He said he could not remember if anyone was hit in the push and shove. His evidence was that he and Mr Polec were kicked out at the same time from a side door. He said they were kicked out of the middle exit of Rosina Street which he identified as the exit by the disabled toilets.[26] He said he did not know who opened the door or who exited first. He remembered that bouncers removed them but he could not describe who kicked them out beyond that they were wearing black suits.
[25] T 212.
[26] Exhibit P3.
He said they went outside, he was punched in the face and held down, then Mr Polec was beaten up. Mr Scherwitzel said he was punched on the right cheek but did not lose consciousness. He was hit and that caused him to fall to the ground on Rosina Street.
Mr Scherwitzel said he saw Mr Polec wrestling a man in a maroon shirt. That man stomped on Daniel’s head a couple of times. He was about 10-15 metres away. Mr Scherwitzel was shown P2 photograph 5 and identified himself on the gutter of the right hand side of Rosina Street in the middle of the photo. He was put up against the wall while Mr Polec was held on the corner near another road. He said he saw 4-5 bouncers near Mr Polec, a couple were holding him down. The man in the maroon top stomped on his head a couple of times while he was being held by other bouncers. He cannot describe them other than they were wearing black suits.
Mr Scherwitzel gave evidence that while Mr Polec was being stomped on he was being held down with his stomach on the bitumen. He could not remember seeing Mr Polec being hit in any other way. He said he did not see anyone get punched outside.
Mr Scherwitzel’s evidence was that once the police arrived the bouncers ‘acted like nothing had happened’.[27] Mr Polec’s face was ‘messed up bad’.[28] Mr Scherwitzel was arrested and locked up for the night. He said once the police had arrived at the scene Mr Polec was not struck in any other way. He said he did not see Mr Polec being handled in any other way beyond being held down.
[27] T 216.
[28] T 216.
After the incident Mr Scherwitzel visited Mr Polec in hospital. Mr Scherwitzel had photographs taken of him which show a little swelling to his right cheek.[29]
[29] Exhibit P11.
Mr Scherwitzel was shown P7, which was the photo pack folder from which he selected someone. He confirmed it was his signature and date alongside the photograph of the man in the maroon top. He said that was the man stomping on Mr Polec’s head.
The CCTV footage was then played. Mr Scherwitzel was asked to identify the point at which he could see the stomping if it was visible on the screen. He indicated at 4.36:36:30. Mr Scherwitzel said it was hard to say if his view of Mr Polec was obstructed. He kept Mr Polec in view ‘on and off’, his head was turning but he could see what was going on. He said he was held down on his stomach and then put up against the wall. He thought the stomping happened when he was sitting up against the wall but he is not sure.
Mr Scherwitzel was cross-examined. He agreed he could not remember going anywhere between Rochester’s and Red Square and that he knows the Highway Inn and has been there. He then remembered going to the Highway Inn after pre-drinks and before going to Red Square. He said he would have drunk vodka and lemonade. He said he had trouble remembering what he drank two weeks ago let alone four years ago. He then said he always drinks a couple of beers and then a few vodkas.
Mr Scherwitzel gave evidence that he knows Jesse O’Neill although he is not his friend, likewise he knows Mr Altintus but is not his friend. He said he has never seen Mr Altintus with Mr Polec and is unsure if they are friends.
He said Luke, Brian, Daniel and Callan went with him to Red Square that night. He described himself and Mr Polec as ‘happy drunks’. He said when he got into Red Square he was drinking and dancing. There may have been girls in the group but he cannot remember. He cannot remember if any of his mates would ‘hook up’ with any girls but he said they may have. Mr Scherwitzel denied being punched inside the club and said it was just a ‘little push’. The ‘push and shove’ was with random people and he said he had no idea why it started.[30] The random people were not Jesse O’Neill or Altintus. There were more than two people involved who he did not know, he estimated about 3-4 people. He said it was just he and Mr Polec against the other people. He described the ‘push and shove’ as being very quick and then he and Mr Polec were thrown out. He again denied being punched inside.
[30] T 226.
Mrs Shaw then read from the transcript of the previous trial. She read out a portion in which Mr Scherwitzel said he had been punched inside during the push and shove. Mr Scherwitzel said he cannot remember saying it but accepts that it is what he said if it is in the transcript. Mr Scherwitzel said Mr Leahy was there as well as Luke and Callan. He said neither Luke nor Callan had anything to do with the pushing and shoving. Mr Scherwitzel was read another portion of transcript from the previous trial in which he agreed that Rochester had been pushed and the person who pushed Rochester had four mates with him. Mr Scherwitzel said he sort of remembers giving that evidence. He agreed that he said it but could not remember it happening at the club. He also agreed that on the last occasion he said he had been punched. He agreed he had told the truth on the last occasion saying he ‘had no reason to lie’.[31]
[31] T 229.
Mr Scherwitzel said he remembers being pushed outside through the doors and was hit straightaway. He agreed that he would have been angry and fired up as he was taken outside. He said he would have protested verbally saying that he had not done anything wrong but said he did not hear Mr Polec say anything. Mr Scherwitzel agreed that at the last trial he had said that Mr Polec had been pulled out after him.
Mr Scherwitzel gave evidence he was put on the ground before he saw Mr Polec. Mr Scherwitzel was already on the ground when Mr Polec was being wrestled. He said he was sitting when he observed Mr Polec on his stomach being stomped on. He agreed that if he had been on his stomach, his view would have been restricted. He said when he was on his stomach he was near the gutter but when he was sitting up he was near the wall. He agreed that on the last occasion he told the Prosecutor that he was on his stomach when he saw the stomping. He said in relation to the gutter, when he was on his stomach he cannot remember his exact position. He agreed at the last trial he said that he was half in the road and half on the footpath.
Mr Scherwitzel gave evidence that Mr Polec was lying face down until the police arrived and after that he was sat up and handcuffed. Mr Scherwitzel said he cannot remember who sat him up. Mr Scherwitzel agreed at the last trial he had thought he could see his leg on the footage at 4:37:04:06. However he realised that it was not his leg as the same leg can be seen at 4:37:13:51 and there is footage of him standing up soon after. Mr Scherwitzel identified himself sitting up against the wall at 4:37:09:98. Mr Scherwitzel again said he cannot remember if he was sitting up or on the ground when he saw Daniel being stomped on. He also could not remember which way he was pointing or on what side of his face he was leaning when he was on the ground. Mr Scherwitzel said there were a lot of people around at the time and he saw quick glimpses of what was happening to Mr Polec. He agreed it was difficult to work out how many people were around Mr Polec because there was a lot of movement.
Mr Scherwitzel gave evidence that he saw the stomping happen rather than assume it had happened after seeing the injuries. He could not remember if he saw Mr Polec punched when he came out of the club. He could not remember if he was asked about a man with a white shirt with a cross on the back. He agreed he gave evidence at the last trial that the punch to Mr Polec by the man in the white shirt at 4:36:25:74 could have caused real damage.
Mr Scherwitzel agreed he did boxing for fitness with Mr Polec. He agreed he went back to the club after the incident after the barring order was lifted. He said he did not really talk to Mr Polec about what had happened but agreed that at the last trial he gave evidence that they spoke about it when Mr Polec was in hospital.
Mr Scherwitzel said that he could not remember seeing blood on a bouncer or seeing a bouncer who was bleeding. He does not remember if Mr Polec punched the man in the maroon shirt.
At the time of the incident, in 2011, Mr Scherwitzel was 83 kilograms and just under 6 foot. He cannot remember if Daniel was kissing girls on that night. He said he does not remember being shown the CCTV footage before the last trial. He said he saw Mr Apostolidis stomping on Mr Polec, not just moving around.
Mr Scherwitzel was re-examined about the punch to Mr Polec by the man in the white shirt. He said he has no memory of seeing that occur on the night.
Mr Scherwitzel was later recalled for cross-examination. He said he cannot remember being shown the CCTV footage by Mr Longbottom or the Prosecutor. He remembered there is a portion of the footage where it zooms in. He cannot remember if he said the incident had happened before or after the zoom on the last occasion. He cannot now remember if the incident happened before or after the zoom.
Michael Hardy
Constable Hardy was called by the Prosecution. He was stationed on Hindley Street in 2011. He would sometimes on night shift attend as a uniformed officer at the nightclubs and bars in the Hindley Street area. He was on night shift on 17-18 December 2011 and attended Red Square.
By reference to his notes, Constable Hardy gave evidence that he attended Red Square at 4:40am on 18 December 2011, with Senior Constable Paul Carman, due to an alleged fight where a man had been ejected from the club. He said he and his partner were the first on the scene.
Constable Hardy gave evidence there were people everywhere and that a few people were being held by security on both sides of the street. He said Daniel Luke Polec was being held on the eastern side of Rosina Street while Daniel Altintus and another man were being held on the Red Square side. He said he arrested Mr Altintus who yelled at him a lot. He also put Mr Polec in handcuffs to prevent a breach of the peace but did not arrest him.
Constable Hardy spoke with Red Square staff and noted Jack Apostolidis had a laceration on his cheek. He also noted Mr Polec had substantial facial injuries and called an ambulance for him. At the time Constable Hardy was at the scene, Mr Apostolidis was treated as a victim and Mr Polec as the suspect.
Constable Hardy gave evidence he could not speak to Mr Polec as his facial injuries were substantial. Ambulance officers dealt with Mr Polec and took him away.
Constable Hardy spoke with Mr Polec on 29 December 2011 at Hindley Street Police Station to advise him that he had been reported for an assault. Constable Hardy made notes at the time he was speaking to Mr Polec. At 6:35pm he issued him with a police caution for the assault on Mr Apostolidis. Constable Hardy asked Mr Polec what he could tell him about 18 December 2011 and Mr Polec said ‘It was going well, having a lot of fun with mates and having a few drinks.’ He said he did not have any contact with the bouncers. At the end of the interview he was reported for assault and signed the notes. After a few days Constable Hardy spoke with Mr Apostolidis who said he did not want to press charges against Mr Polec.
Constable Hardy was shown the CCTV footage and identified his police car as being on the screen at 4:37:00:06. He got out of the driver’s side door of the car at 4:37:08:86. At 4:37:29:50 he was dealing with Daniel Altintus on the ground. At 4:38:54:22 he came back into the shot and retrieved handcuffs from another officer. He cannot now remember doing that but saw it on the screen. At 4:39:22:84 he put handcuffs on Mr Polec. He remembers putting them on him at some point.
Constable Hardy was cross-examined. He said he handcuffed Mr Polec for his safety and not to arrest him. He agreed it was a very volatile scene; Mr Altintus had been arrested for disorderly behaviour and there were several police officers there. He wanted Mr Polec separated from other people as everyone was angry.
Constable Hardy was shown two photos of Mr Apostolidis and recognised his injuries, however said he did not recall them being as bad as shown in the photo. He proceeded on the basis that it was Mr Polec who had assaulted Mr Apostolidis, but he did not arrest him for assault. There was no record that he put handcuffs on Mr Polec. He recorded the details of Mr Apostolidis, Mr Polec and Mr Altintus in his notebook. He made a note by Mr Polec’s name reading ‘reported for assault’, made in the presence of Mr Polec.
Constable Hardy cannot recall how many police attended the scene at Red Square. He agreed there were further incidents in that vicinity while he was there but does not know who else was arrested. He said there were a lot of people in a confined area who were intoxicated and some were aggressive. He said the name Jesse O’Neill does not mean anything to him.
Constable Hardy said he stayed with Mr Polec until the ambulance arrived. He then removed the handcuffs.
Constable Hardy was not re-examined.
Professor Spring
As part of the Prosecution case several sections of the transcript of the previous trial were tendered as evidence of particular witnesses. The first to be tendered was that of Professor Spring. On the last occasion Professor Spring was a defence witness.

In his evidence in chief Professor Spring gave evidence that he is an expert in photography and video footage and had viewed the CCTV footage in this case.
Professor Spring explained there are general problems with all CCTV footage. Some of the problems include the cameras not being placed in the best position, the conditions are generally poorly lit and the resolution or quality of the image is never very high. The cameras are usually placed at a distance further away or at a hard, acute angle to where you are looking which can give a different perspective making the distance between objects appear different to what it actually is.
In this case, he said the camera is 3.6m above the street level looking down Rosina Street. The distance between the camera and the first set of doors that open out on the side of Rosina Street is just shy of 40 metres. He gave evidence that because the camera is 40 metres away, it is impossible to say how far away things are from each other. He said this problem is identical for the naked eye as for a camera.
Professor Spring explained that the footage in this case was filmed at 12 frames per second and compared this to movies that are filmed at 24-30 frames per second. He said there is no way to improve the footage once it has been filmed and that because there are only 12 frames per second movement can make the objects look blurry. He explained the way to calculate the amount of time that has elapsed in the footage is to look at the time stamp on the footage.
Professor Spring gave evidence that if you zoom in on the footage too much you can have ‘artifact’ generated by the computer that changes the image. He said that it is best to analyse the footage at the smallest size.
Professor Spring said you can see figures fall down, no doubt you can see arms and legs but you cannot identify people. At the time of 4:32:40:77 somebody is tripping and falling and you can see a hand coming up. He said there is certainly more than one person around the area.
He was then taken to 4:35:54:76. He said that the distance from the sixth bollard into Rosina Street to the end of Rosina Street is 40 metres or so. He said the two men on the right hand side (the man in the white shirt with pocket tabs and the person in the black jacket with a black singlet and black hair) look like they are very close together but he would suggest that they are probably not. They are probably a couple of metres apart.
Professor Spring was asked to identify where Mr Tropeano takes hold of Mr Polec after he had attempted his breakaway and he indicated 4:36:21:10. He explained he could see Mr Tropeano reach out but that he cannot tell if he has actually touched him. Professor Spring identified Mr Polec being up in the air and carried at 4:36:28:30. He said it takes one and a half seconds to lower him to the ground and although he cannot be seen on the ground he assumes he is at 4:36:29:66. Mr Polec is down, he hits leg-first, his head is in a grey obscured area to the left of the screen. His head is down and Mr Tropeano is moving to his left.
The trial then entered a voir dire in which Professor Spring was asked a series of questions.
The evidence Professor Spring gave on the voir dire was that when Mr Tropeano moved from one point in respect of Mr Polec’s body to another part of the footpath in respect of his body, he moved in a single fluid motion which is consistent with a step over. He said that he did not interpret that movement of Mr Tropeano’s as stomping, it looked like he hopped over. He said he cannot tell at what point Mr Tropeano’s foot came into contact with the ground and he cannot tell if Mr Tropeano made contact with Mr Polec’s head, if he did it was not enough to disrupt the fluid motion.
The voir dire then closed and the trial resumed. Professor Spring gave evidence that at the time of the escape, Mr Apostolidis had Mr Polec by the shirt and Mr Tropeano was leading him back. He said this is happening so fast that the camera does not capture it all and there is a blur.
He said Mr Tropeano had his arm around Mr Polec’s head; Mr Polec was behind Mr Tropeano and someone picked up Mr Polec’s legs. Mr Tropeano jumped on the other side and continued back, he turned and looked to the right, looked back and he looked away from where Mr Polec was.
At 4:36:50:30 Mr Tropeano stood up almost instantly, he was then on the right hand side of Mr Polec when he is on the ground, he then hopped to the left hand side immediately a couple of steps to the right about a metre away. Professor Spring could not see any interruption of Mr Tropeano’s movement consistent with the possibility of his knee coming into contact with Mr Polec’s body.
Professor Spring was then cross-examined. At 4:34:35:31:07 - 4:36:18:93 he saw Mr Polec in a white shirt and Mr Apostolidis in the maroon shirt. He said the footage does not reliably detail an application of force that can be distinguished between a push or a punch. There is activity visible but it is primarily obscured. He does not know whether it was a push, punch or whether he actually touched him or not. He said it is possible to see movement but it cannot be said what it is.
At 4:36:29:04 he said Mr Mattner is visible on the footage with a white t‑shirt with a black cross at the nape of the neck. At 4:36:27:58 Mr Mattner moved towards Mr Polec. Professor Spring said his conclusion was that as he moved quickly, there was some thought process about coming in to do something and getting out. His purposeful approach starts when he is actually in fairly fast motion walking towards him. As soon as he gets close Professor Spring can see an elbow. He said that it is his right arm, it is away from the camera and his elbow comes back. He said that it is quite fast with the arm being extended into this area where Mr Polec is being held at that point. He proffered that the movement was consistent with a punch. He said it is too blurry to see a closed fist. There is also not enough detail to say that the fist made contact.
At 4:36:27:58-4:36:46:06 he said he can see movement on the part of Mr Apostolidis, in particular the raising of his knees and leg. He said there is not enough detail in the shadowed area to tell where Mr Apostolidis’ foot comes down or what it is close to. Professor Spring said he had possibly lost balance and touched the wall. He said he does not exclude the possibility that he is moving his feet to get away from flailing arms.
Professor Spring also said it is not possible to exclude the notion that there was contact between Mr Tropeano’s foot and Mr Polec’s head and it is not possible to tell if there is a punch or a push of Mr Polec by Mr Apostolidis.
Professor Spring was then re-examined. He said when Mr Mattner’s arm was extended it is unclear if it is straight or bent. He said his arm comes to an abrupt halt. There is grey material that is likely to be the left side of Mr Polec’s face which means Mr Mattner probably punched him.
Professor White
The evidence of Professor White from the previous trial was also tendered by the Prosecution.[32] He too had been a defence witness.
[32] Exhibit P19.
Professor White is an expert in alcohol and drug problems as well as the effects of drug and alcohol on the brain and behaviour. He has been an expert witness in a number of courts.
The factual basis for his opinion was that Mr Polec was involved in an alleged assault that occurred at 4:30am on 18 December 2011 and prior to that he had been consuming alcohol, 20 drinks, between 8:30pm and midnight.
He assumed they were standard drinks containing 10 grams of alcohol. Between midnight and 4:30am on 18 December 2011 Mr Polec had consumed five Pulse vodka drinks. Each of those contains 15 grams of alcohol or one-and-a-half standard drinks. At the time of the incident Mr Polec weighed approximately 93 kilograms and was 5’ 11” tall.
Professor White explained that the drink Pulse contains guarana and caffeine. Guarana is another source of caffeine, so the drink contains a significant amount of caffeine as well as alcohol.
Professor White explained how he calculated Mr Polec’s blood alcohol concentration which he estimated to be .281 per cent at 4:30am. His evidence was that the effect on Mr Polec’s system would be affected by his tolerance for alcohol. He said for a person to get to the level of .281 per cent they would need to have a significant tolerance or they simply would have fallen asleep.
Professor White said people tend to underestimate their degree of intoxication.
The other effects of intoxication are impairment of balance and co-ordination. He said an intoxicated person can still act purposively and describe what they are doing quite clearly. Their movements would be a bit clumsy but they could still strike a blow with significant force. He said their reaction time would be slower than normal and they focus on the here and now without thinking through the long term consequences.
Professor White said alcohol does not automatically lead people to become aggressive, rather there has to be some reason for the aggression in the first place. Although someone heavily under the influence of alcohol may be provoked in a way they would not be if sober.
He said an intoxicated person’s ability to recall detail is affected and they can have blackouts that last for hours.
Professor White was then cross-examined. He said a blackout is a period of amnesia. He said if a person has a history of being aggressive or violent when drunk it increases the possibility that a person will become aggressive when drunk. He said emotional states are more extreme in an intoxicated person.
He gave evidence that the consumption of alcohol does not greatly affect someone’s capacity to experience pain and if a person was tired and intoxicated, it could affect their memory more than if they were just affected by alcohol.
He was asked his opinion about Mr Polec’s memory. It was put to him that Mr Polec has a recollection and is able to describe activities he was engaged in and events leading up to a time when he was hit forcefully to the head and then had a recollection of events happening around him four minutes after. He also remembered police officers arriving and things that happened in the next 30 minutes but then does not remember anything until waking up in the Royal Adelaide Hospital. Professor White gave his opinion that the four minute block of sporadic memory is not characteristic of an alcohol blackout. He said another explanation could be the effect of the blows to the head. He said the higher the concentration of alcohol, the more pronounced its effects. He said someone at the concentration of .281 per cent would be vulnerable to an attack.
Professor White was then re-examined. He said a binge drinker might not recognise the signs of intoxication themselves.
He said a fragmentary blackout means a person cannot recall the same level of detail but can sometimes be prompted to recall it. He said if they are told something they will either have enough memory to be able to incorporate it into their memory, intentionally or unintentionally.
Antony Tropeano – the Accused
The final witness’ evidence which was tendered as transcript from the previous trial was that of the Accused, Mr Tropeano.
Mr Tropeano was born in 1980 and attended Mercedes College for years 11 and 12. He completed one year of a Bachelor of Commerce at Flinders University in 1997 and then started and completed a Bachelor of Laws at Bond University in 1998. He moved back to Adelaide and was admitted. He worked in his father’s law firm as a lawyer until 2003. He still maintains his practising certificate.
He said since 2004 he became primarily interested in the family’s various hospitality industry work. One of the locations owned and run by his family is Red Square. He became the director of the company in 2003, he was trained by the then general manager Darcy Constantine. He was the night time duty manager until he took over fully in 2007 when he assumed the role of general manager. He oversees all the venues in the company and liaises with the managers of each venue. At the time of the incident there were two managers besides him. One was the duty manager, Stephen Culgan. Another was the duty manager of the Palace, Effren Ramiraz Jr.
Mr Tropeano’s evidence was that up until the end of 2012 he was involved with D’Artagnan restaurant, The Curious Squire and Red Square. He said on a normal Saturday night, when those three venues were operating, his normal practice was to start at North Adelaide at the D’Artagnan around 5.30-6.00pm to assist and ensure that the venue was ready for peak dinner service. Once that service was finished he went to Hindley Street about 10.00pm - midnight and supervised the Hindley Street operation.
Mr Tropeano explained there are three separate areas in the Hindley Street precinct: The Palace, which is a gentleman’s club upstairs on the first floor, Red Square, a night club and Pour 24, a gaming area, and the outdoor area on the footpath. His evidence was that Red Square is licensed for a ground floor capacity of 900 people which includes the Red Square area and the internal area of Pour 24. He said there are two queues into Red Square, one for members and those on the guest list and one for general entry. He said there are typically two or three security guards on the actual doors because there are three actual doors to enter the club and then two security guards running the door lists and then further staff to take admission fees. Both lines into the venue have ID standards on them, every person who enters will stand on the spot, issue their ID, the ID will be scanned and at the same time it is scanned a photo is taken of the person to match the person and their clothes on the night to the ID that they have produced to gain entry. Mr Tropeano said there are cameras to monitor the area. He said he was aware of the police camera that looked down Rosina Street.
Mr Tropeano said when he was at Red Square, he would be moving around but mainly be stationed at the entrance. He was generally on a two-way radio to contact security and the managers and bars. He would be contacted by managers if they had an issue they could not resolve themselves. Security would contact him in the event something happened inside and physical eviction was going to take place. He is generally contacted in the event of evictions.
The side exit doors on Rosina Street are used for the majority of evictions. People would be asked to leave if they were too intoxicated or falling asleep. They would also be evicted depending on how volatile or physical they were getting with security. Physical altercation between patrons would also be cause for eviction. When there is a group to be evicted they would evict the worst person first then come back for the rest. Upon receiving information that there would be an eviction, his general practice would be to look at the monitors at the entry point and monitor how it was going, or he would go to Rosina Street to watch the eviction and make sure that after the patrons had been evicted the doors were closed and business inside was business as usual and that things outside were kept calm. There could be between 0-15 evictees on an average Friday or Saturday night. There are also a lot of people who congregate in Rosina Street from midnight onwards.
Mr Tropeano said if a fight breaks out within the building itself or there is a violent altercation the policy is to call the police and restrain those involved. The restraint is to keep other patrons safe and to keep them there until police arrive.
There would have been 12-15 security guards on duty on 18 December 2011. Mr Apostolidis and Mr Ngaia were both fire wardens. Their role was to ensure that the fire exits were clear from other people or objects. In case of an actual emergency they would take control and move people from within the building outside.
Mr Tropeano remembers on that date coming into Rosina Street after about 4:30am in respect of certain evictions. He saw Mr Apostolidis and Mr Ngaia in Rosina Street. This did not surprise him as they were fire wardens and had to monitor that the exits were clear. He could not remember if he had the two-way radio on. At 4:30am he learned there was an altercation between two groups of males. At the time he received that information he was at the front of Red Square and does not recall giving any directions.
A call was made from Red Square to police at 4.35:25 asking for their assistance. Mr Tropeano and Dominic went around the front of the venue towards Rosina Street. He remembers seeing the middle set of the Rosina Street exit doors open. After the doors opened, he saw a man come out. He cannot remember if he was on his own or not but he was extremely loud and vocal. As soon as he was evicted the doors were closed. There did not seem to be anything occurring or about to occur so he and Dominic started walking back to Hindley Street. He recalls going back towards the double doors but does not remember why he did so. When he turned back he saw 2-3 people come out of the doors. There were security guards who came out too but he cannot recall who.
There were 10-12 security guards on Rosina Street before the police arrived, not counting himself, Dominic, Mr Apostolidis or Mr Ngaia. There were people being loud and vocal. Mr Apostolidis was talking with someone; the next thing he saw was Mr Polec hit Mr Apostolidis. When he saw Mr Apostolidis talking to somebody, he was standing towards the western side of the road but on the road. He saw Mr Polec hit Mr Apostolidis from the left side, Mr Polec was not in front of Apostolidis. The first thing he saw was the blow. Both men were standing, he cannot remember which arm Mr Polec used. Mr Polec was hit by a man in a blue tracksuit. There was nothing he could have done to have stopped the blow to Mr Apostolidis or Mr Polec. He was within 1-2m of Mr Apostolidis when Mr Polec struck the blow. He was within 3 metres of the man in the blue tracksuit when he hit Mr Polec. These two events occurred very quickly in respect of each other.
Mr Tropeano was taken to the CCTV footage and asked to identify different things in the footage. At 4:31:3.35 he identified himself at the beginning of Rosina Street with Dominic on his right, towards the left of the screen. At 4:31:18:31 the first door opened and he and Dominic are seen closer to the doors and somewhere about the middle of the street. At 4:31:49:18 Mr Tropeano was side by side with Dominic coming back to Hindley Street. A man in a white shirt is between them and the camera. He identified the point of 4:31:59:57 as when he had been informed of or noticed something and turned around. He saw three men come out to the victim (Mr Apostolidis) at 4:32:7:01. He is still on the left hand side of the screen with Dominic at 4:32:39:09, Mr Apostolidis is in his pink shirt. He also saw someone carried over to the eastern side of the street. At 4:32:40:85 he saw someone falling to the western side but has no recollection of that happening on the night. At 4:32:43:09 his thinks that Mr Polec falls to the ground. He remembers that happening.
Mr Tropeano said what he was describing from the footage would have happened in an area approximately 3 metres x 2 metres or 3 metres x 3 metres. In that area there would have been about 4 or 5 other non-employee men. He said everyone was moving around and from the time Mr Polec went to ground, he moved towards Mr Apostolidis and saw Mr Apostolidis had blood coming from his face. He said he later took two photos of Mr Apostolidis’ face on his iPhone which are exhibit D12.
Mr Tropeano said after seeing the injuries he scanned the street and noticed there was a scuffle in the direction of where Mr Polec had gone to ground. Mr Polec had gone to ground on the eastern side of Rosina Street towards Currie Street. He did not see who was involved in the scuffle. There were two or three staff near Mr Polec and another two or three non staff. He could not see if Mr Polec was being touched or in what position Mr Polec was. He then moved in that direction. He tried to move the non-staff members away so the staff members could restrain Mr Polec. He wanted to have Mr Polec restrained because of the assault on Mr Apostolidis. He was intending to have him restrained until the police arrived. Two security guards restrained him against the wall. He moved to within two metres of Mr Polec and the security guards. Mr Polec tried to evade restraint. He was restrained for a short period. He cannot recall speaking with Mr Polec but his normal practice in detaining someone is to tell them they have been detained until police arrive. He cannot recall anyone else telling Mr Polec he was being restrained. Mr Tropeano said he looked around checking on the other people who had been restrained on the western side of Rosina Street and ensuring anybody else who was on the street did not break into another fight. He did not approach those being restrained. He then noticed Mr Polec free of the restraint, heading into the centre of Rosina Street. He was not sure at what time Mr Apostolidis was involved in restraining Mr Polec but shortly before Mr Polec broke free Mr Apostolidis was assisting in the restraint. He was aware of the break-away but was not looking at it. He was looking at the other people on the other side of Rosina Street and the general crowd. He saw Mr Polec attempting to break out of the restraint. Up until that time, he had not seen anyone beyond the man in the blue tracksuit punch Mr Polec. He had not seen anyone stomp on Mr Polec. He had not punched Mr Polec. He had not stomped on Mr Polec.

Mr Williams was critical of the evidence that had been given by Mr Tropeano in the previous trial. In particular, he pointed to two areas that he said affected the credibility of Mr Tropeano. The first area is that Mr Tropeano, whilst accepting that he was looking at the restraint by the security officers of the complainant, was not able to describe the manner of the restraint. It was suggested that the obvious reason for that is because the restraint involved the complainant being physically held by punching and stomping. The second area was in relation to the man in the blue tracksuit who it was suggested that the manner in which Mr Tropeano dealt with the man in the blue tracksuit demonstrated that the complainant was being dealt with by the security officers not for the fact that he had assaulted someone but for the fact he had assaulted a security officer and that this colours the genuine belief of Mr Tropeano.
Mr Williams suggested that the evidence of the civilian witnesses was by and large consistent and credible, and that I can rely upon their evidence in this case. In respect of the suggestion that had been made that their evidence was a reconstruction because of the amount of times they had viewed the exhibit P4, it was submitted that if that was in fact what was occurring one would have expected to see a lot more consistency between the evidence given by the witnesses and the events as depicted on exhibit P4. It was submitted that in this case there is no evidence of any reconstruction of their evidence such as to render their evidence inadmissible or unreliable.
In relation to the evidence that was tendered by the prosecution from the last trial of Professor Spring and Professor White, Mr Williams submitted that the evidence of Professor Spring amounts to this. Care needs to be taken with CCTV footage. In particular, in relation to filling in the blanks. There is a need to be aware of artefacts and reading too much into blurriness and pixilation. There needs to be care taken in dealing with the proximity of individuals to events and allowances made for the frailties of CCTV. It was not submitted that I should reject the observations that were made by Professor Spring nor should I reject any of the limitations that he referred to in respect of the CCTV footage.
In relation to Professor White’s evidence the submission was made that whilst accepting the evidence of Professor White his evidence is based upon the estimates of alcohol consumption that have been given by the witnesses and in this regard the complainant may be overestimating the amount of drinks that he had.
Defence Address
Mrs Shaw addressed on behalf of the Accused. Her first submission to me of substance was that unless I could be satisfied that the harm was caused as part of the joint enterprise between Mr Apostolidis and Mr Ngaia, then Mr Tropeano must be acquitted. Similarly, if no act can be demonstrated by the prosecution that was an act intended to assist in the joint enterprise by Mr Ngaia and Mr Apostolidis then they will have failed to prove their case.
She reminded me there are two hypotheses open. Then the Prosecution will need to disprove the one favourable to Mr Tropeano such that it can be said that there is no rational hypothesis consistent with innocence. Unless this is done then the guilt of Mr Tropeano has not been proven. In this regard she relies upon Knight v The Queen.[36]
[36] (1992) 175 CLR 495 at 503.
Mrs Shaw dealt with the criticisms that the Prosecution made of Mr Tropeano’s evidence and said that the argument in relation to the man in the blue tracksuit is circular. There is no evidence that Mr Tropeano knew him and any reliance upon the statement that he did not know him in light of the fact that there was a handshake is a lie would lead to error.
Contrary to the Prosecution submission, Mrs Shaw said that the reason that Mr Polec was restrained until the police arrived was the fact that he had assaulted one of the staff members, being Mr Apostolidis, and that there is no inconsistency in the behaviour of Mr Tropeano in respect of this aspect.
Mrs Shaw relied upon various aspects of Mr Tropeano’s evidence in the previous trial, in particular the chronology of events that unfolded, and suggested and that there was nothing unreasonable in relation to that.
Further, Mrs Shaw submitted that the micro-analysis contended for by the Prosecution is potentially inappropriate when the evidence of Professor Spring is taken into account. It was submitted that the entire situation in Rosina Street was highly volatile as evidenced by the other arrests on that night and the evidence of Constable Hardy in relation to his observations. It was submitted that Mr Tropeano’s evidence cannot be rejected as not being a reasonable possibility and that the criticisms made of it by the Prosecution cannot be sustained.
It was suggested that the evidence of the civilian witnesses is unreliable in a number of aspects. Mrs Shaw went through and outlined these criticisms in relation to each of the civilian witnesses. It was suggested that the evidence of each of them had been contaminated by their previous viewing of exhibit P4 and that their evidence was now influenced by a degree of reconstruction that had occurred over time based upon this viewing. In addition to this, each of the civilian witnesses had had a considerable amount of alcohol and their evidence needed to be assessed bearing in mind Professor White’s evidence. Mrs Shaw pointed to particular inconsistencies in the evidence of each of the civilian witnesses.
To illustrate her point, Mrs Shaw pointed to the assault by the man in the white t-shirt that appears to have been unobserved by each of the civilian witnesses. She went on to say that this demonstrates the danger of relying on evidence of what can be seen plainly on exhibit P4 and contrasting this to what it said people should have been able to see. What people could see and did see on this particular night, it was submitted, necessarily depends on where they were, what they were concentrating on and what they were looking at at any particular point in time.
General unreliability of witnesses
It was suggested by the defence that the evidence of Mr Polec, Mr Scherwitzel and Mr Pett was contaminated by viewing of exhibit P4 both prior to the previous trial, during the previous trial and perhaps prior to this trial. It was suggested that any evidence they gave now was necessarily a reconstruction. This submission was based on the fact that their evidence had changed and included certain details that had not been given at the previous trial or had been modified from the previous trial. It was suggested that it was impossible to now assert that their evidence is a reliable account of their own memory of the event uninfluenced by extraneous material.
I reject this argument. There is nothing improper in a witness having an opportunity to view CCTV footage of an alleged offence for which they were present. This footage may in fact refresh their memory in relation to various events that occurred for which they were present and it may render their evidence more reliable in the circumstances.
The evidence of the CCTV footage was real evidence that depicted the events that formed the basis of the charge.
I therefore find the evidence of Mr Polec, Mr Scherwitzel and Mr Pett admissible in these proceedings. In relation to the evidence of each I am satisfied that each of them was truthful and trying to do their bes, however the passage of time and the relative degrees of intoxication has affected the reliability of each of them.
Case to Answer
There was a submission made at the end of the Prosecution case that there was no case to answer. Mrs Shaw outlined the argument[37] in these terms. She suggested:
There is no evidence that there was a joint enterprise between Mr Apostolidis and Mr Ngaia to cause harm to Mr Polec and no evidence that Mr Tropeano knew of that joint enterprise and in knowing of that joint enterprise aided and abetted Mr Ngaia and Mr Apostolidis to cause harm to Mr Polec.
[37] T 335.
She submitted that the evidence at its highest in relation to Mr Ngaia’s involvement is Mr Polec saying he recalled seeing his face there that night and similarly with Mr Scherwitzel saying that he identified him but only as being someone there on that night.
In final submissions before the court, Mr Williams submitted that the joint enterprise had been proven by the Prosecution, but even if that was not fatal to the Prosecution case as it was open to me to convict Mr Tropeano on the basis that he aided and abetted Mr Apostolidis who caused harm to Mr Polec.
The principles in relation to a case to answer were summarised by King CJ in Questions of Law (No 2 of 1993)[38] as follows:
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
[38] [1993] 61 SASR 1 at 5.
On the evidence before the court it is clear that Mr Apostolidis caused harm by stomping on and hitting Mr Polec whilst he was on the ground. There is also evidence that Mr Ngaia caused harm by punching Mr Polec. However, it is not clear on the Prosecution case that they engaged in a joint enterprise to cause this harm.
In this matter the Prosecution presented what might be said to be an unnecessarily complex Information in relation to the charge. It presented an Information in which it was alleged that Mr Apostolidis and Mr Ngaia had acted jointly to cause harm to Mr Polec and had done so as a consequence of an agreement between them. In the event, there was no evidence at all that there was an agreement between Mr Apostolidis and Mr Ngaia to cause harm to the complainant. There was no evidence presented from any civilian witness from which an inference of an agreement could be drawn. There is no material upon exhibit P4 from which such an inference can reasonably be drawn.
The very essence of a joint enterprise requires that there be an agreement or an understanding between the participants as to the commission of the offence.
During the course of the final address Mr Williams for the Prosecution conceded that there was no direct evidence that Mr Ngaia punched the complainant but rather relied upon an inference to be drawn from the fact that he was one of the people who could be seen behind the group whilst the events were unfolding and he was one of the people holding down the complainant. Mr Williams submitted that if there was some activity of Mr Ngaia and others pursuant to an understanding or agreement, ‘a wink or a nod’ with Mr Apostolidis then the offence would have been committed with Mr Apostolidis as the principal in company with others. Whilst Mr Williams did not resile from the fact that the case was presented as a joint enterprise between Mr Apostolidis and Mr Ngaia, he did not point to any specific area in which he said there was an agreement or from which an inference of an agreement could be drawn other than the fact that each of them acted in a way that did cause harm to the complainant. It was put to me that if I was left in doubt as to whether Mr Apostolidis acted pursuant to a joint enterprise then I could consider the basic offence of causing harm with intent.
Mrs Shaw argues that in the event the Prosecution cannot prove that Mr Apostolidis and Mr Ngaia acted pursuant to a joint enterprise to cause harm to the complainant then Mr Tropeano is entitled to be acquitted as the Prosecution will have failed to make out the charge.
In this case I am not satisfied that Mr Apostolidis and Mr Ngaia acted pursuant to a joint enterprise to cause harm to the complainant. There is simply no evidence from which it is possible to prove that there was an agreement or an understanding between the two of them in relation to this. I am satisfied that both of them caused harm in the relevant sense to Mr Polec but not necessarily pursuant to a joint enterprise.
I consider that there is evidence that is capable of proving that Mr Tropeano aided and abetted, either or both of the principals who intentionally caused harm to Mr Polec.
I am satisfied that there is evidence capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypothesis as unreasonable in relation to the offence of causing harm with intent to cause harm. I am satisfied there is a case to answer in relation to Mr Tropeano aiding and abetting Mr Apostolidis and Mr Ngaia to cause harm with intent to Mr Polec.
In this case Mr Tropeano is charged with the offence of aiding and abetting aggravated causing harm with intent. The circumstance of aggravation is that Mr Ngaia and Mr Apostolidis acted in company to cause harm.
In R v Brougham[39] King CJ defined the element of being in company in these terms:
A person commits a robbery, or an assault with intent to rob, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the Accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent to rob, and of physically participating if required.
[39] (1986) 43 SASR 187.
This passage was cited with approval by Kourakis CJ in R v Aljaroudi.[40] Unless there is complicity between Mr Ngaia and Mr Apostolidis as to the commission of the offence, then the circumstance of aggravation cannot be proven beyond reasonable doubt. In the circumstances of this case, there is no evidence capable of proving complicity between these two men. I therefore find no case to answer on aiding and abetting the commission of the offence of aggravated causing harm with intent to cause harm. I am satisfied that there is a case to answer on the basic offence.
Section 15A(1) of the Criminal Law Consolidation Act 1935
[40] [2012] SASCFC 111 at [50].
Section 15A(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act) relevantly provides:
15A—Defence of property etc
(1)     It is a defence to a charge of an offence if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)     if the conduct resulted in death—the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and
(c)     the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.[41]
[41] See, however, section 15C. If the Accused establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
This section provides the subjective test for the threshold requirement of belief that the conduct of the Accused is necessary and reasonable. The further requirement in s 15A(1)(c) is an objective test in that the conduct must be reasonably proportionate to the purpose for which it is used. The circumstances relevant to this limb must be those which the Accused genuinely believed to exist. The Prosecution must disprove a claim to lawfulness based on these provisions. In this case there is evidence that the complainant assaulted Mr Apostolidis by punching him to the face. Mr Tropeano claimed that what happened thereafter was a lawful restraint of Mr Polec awaiting the arrival of police. The conduct alleged by the Prosecution to amount to the offence in this case is not what might be said to have been the lawful restraint of Mr Polec but rather use of force that was excessive to any form of lawful restraint in the circumstances. If I accept that Mr Apostolidis stomped and punched Mr Polec as he lay on the ground unconscious then clearly this conduct could not be said to be reasonably proportionate to the threat that Mr Apostolidis could have genuinely have believed to exist. If I find that the force used by Mr Apostolidis was not used in order to detain the complainant but to exact revenge for his assault upon Mr Apostolidis this section has no application. Much depends on the findings of fact in relation to the application of this section.
Findings of fact
I am satisfied that Mr Apostolidis felt he had been wronged by the complainant. In all likelihood Mr Polec had indeed assaulted Mr Apostolidis shortly after he was evicted from the nightclub.
Exhibit P4 appears to show Mr Apostolidis remonstrating probably with Mr Leahy near the wall on the left hand side of Rosina Street whilst Mr Polec, the complainant, is on the ground. Shortly after this Mr Apostolidis goes past Mr Leahy and appears to assault the complainant as he lies on the ground.
I find that this action by Mr Apostolidis is a deliberate act to cause harm to the complainant in retaliation for the earlier assault upon him. During the course of the assault by Mr Apostolidis I am satisfied beyond reasonable doubt that harm was caused. The definition of harm relevant to this offence has a very broad definition including pain and any injury of a physical nature. I am satisfied that these actions did have that effect. I am satisfied beyond reasonable doubt that Mr Apostilidis did not have a genuine belief that his conduct was necessary and reasonable to lawfully restrain Mr Polec at this stage. His conduct was a savage assault of Mr Polec. Further I am satisfied beyond reasonable doubt that the actions of Mr Ngaia were not committed in an attempt to make or assist in the lawful arrest of Mr Polec but rather were gratuitous acts of violence.
Thereafter, Mt Polec appears to break free. He is stopped in his tracks and brought back to ground. There are a number of people involved doing this. This could be a lawful restraint. The police are called at 4:35:25 by a member of staff from Red Square. Mr Polec was in fact detained until the police arrived. Any action during that time by Mr Apostolidis or any other person involved in the restraint could be said to be lawful in the circumstances.
Shortly after Mr Polec was put back on the ground at that stage there is an action by Mr Tropeano that in the first trial was alleged to be a stomp. In this trial the Prosecution did not rely upon that action as a stomp. The Prosecution has not relied upon any actions by Mr Tropeano as constituting an actual assault upon Mr Polec. He is not charged in relation to any individual action.
Thereafter I am satisfied that Mr Apostolidis does stomp on the complainant whilst he is on the ground. This is visible on exhibit P4 and supported by the evidence of Mr Scherwitzel. None of these actions are or could amount to a lawful acts.

The case against Mr Tropeano is that he aided and abetted Mr Apostoledis and Mr Ngaia when they intentionally caused harm to Mr Polec. The principles of aiding and abetting were explained by Smith J in R v Lowery[42] in the following terms:
Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another - another whom the law calls the principal in the first degree … aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree …
[42] [1972] VR 560.
This explanation for aid and abet has been adopted on many occasions since that time.
The two primary criteria for liability as an aider and abetter are actual knowledge of all the essential facts of the conduct and state of mind of the principal necessary to prove the foundational offence and intentional encouragement and/or assistance in the principal’s activities.
The intentional encouragement or assistance must be directed to the facilitation of the foundational offence although it need not be causative of the offence.
A principal in the second degree cannot be found guilty of the offence unless it is proven that he had actual knowledge of all the essential facts that comprised the offence committed by the principal in the first degree. Negligence, recklessness, suspicion of wrong doing or even knowledge of the probability of wrong doing by the principal in the first degree will not suffice to prove this aspect. It must be demonstrated that the aider and abetter has actual knowledge of the principal’s impugned conduct and state of mind:[43]
Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of a criminal intent. Secondly, although it may be a proper inference from the fact that a person has deliberately abstained from making an inquiry about some matter that he knew of it and, perhaps, that he refrained from inquiry so that he could deny knowledge, it is nevertheless actual knowledge which must be proved and not knowledge which is imputed or presumed.
The third question raised by the passage which we have cited from Reg. v. Glennan is whether it is possible to aid, abet, counsel or procure the commission of an offence by acting recklessly. Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence. We have already referred to Johnson v. Youden [53] and the other cases in which this point is made clearly. The same point was expressed differently but with equal clarity by Lord Goddard C.J. in Thomas v. Lindop [54] , where he said:
“More than once this Court has pointed out that it is impossible to convict persons of aiding and abetting the commission of an offence unless they know the facts which must be proved to show that an offence has been committed … . It is, of course, not necessary to show that the person knew that it was an offence, because he cannot plead ignorance of the law, but where anyone is charged with aiding and abetting a person to commit an offence, it must, at least, be shown that he knew what that person was doing. A person who does not know of the acts which another person is doing cannot be charged with aiding and abetting him because he does not know that he is doing acts which amount to an offence.”
There are, of course, those cases which hold that the requisite knowledge need not extend to the precise crime which is in fact committed, although some crime must be in contemplation at the time secondary participation is alleged to occur, a general criminal purpose being insufficient: see R. v. Lomas [55] ; Reg. v. Bullock [56] ; Reg. v. Bainbridge [57] ; Reg. v. Maxwell [58] . The questions which these cases raise do not arise in this case and it is unnecessary to do more than refer to them.
In this case, the Crown contends that the appellant procured the commission of the offences of culpable driving by Renshaw by sending him on to the road in a vehicle with defective brakes. It contends that, even if the appellant had no knowledge of the state of the vehicle's brakes, it was sufficient that he acted recklessly in doing what he did. The precise nature of the recklessness relied upon is not entirely clear and it is understandable that it occasioned the learned trial judge some difficulty in attempting to explain it to the jury. It cannot have been inadvertent carelessness, however gross, for it can hardly be suggested that a person can accidentally become a secondary participant in the commission of a crime. The recklessness contemplated must have involved some foresight on the part of the appellant that the driving of the vehicle on the road would probably (or possibly — it was not made clear which) be dangerous, because of the defective condition of the brakes. In effect, that would mean, if the Crown were correct, that it would have proved a sufficient intent on the part of the appellant in all the circumstances if it established that he knew that the brakes on the vehicle were probably (or possibly) defective.
For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime.
[43] Giorgianni v The Queen (1985) 156 CLR 473.
If knowledge is established then a person must be shown to have intentionally encouraged or assisted the commission of the foundational offence. This aspect requires proof of the act of encouragement or assistance which is accompanied by the relevant state of mine, namely, an intent to assist or encourage. Mere presence at the scene of a crime, even with the knowledge of the commission of the crime, is not enough to establish liability as an aider and abetter.[44] This principle was explained by Hawkins J in R v Coney.[45] There can be no doubt that mere presence or acquiescence in the commission of a crime is not sufficient to prove the crime. It must be proved that the person was, by words or conduct, doing something to bring about or rendering more likely through encouragement or assistance, the commission of the crime.
[44] R v Jones (2006) 161 A Crim R 511 at [220].
[45] (1882) 8 QBD 534 at 557-558.
The Prosecution rely principally upon the presence of Mr Tropeano and a viewing of the exhibit P4 from which to draw the inference that he was not only present but intentionally assisting or encouraging the commission of the offence. They rely upon these actions to prove that he knew all the essential facts and circumstances necessary to show that the crime was committed by the principal offender.
I have considered the contents of exhibit P4 carefully. Exhibit P4 does not sustain the submission made by the Prosecution that Mr Tropeano is at that stage aware of what is occurring between Mr Apostolidis and Mr Polec and has participated in forming a wall to shield these events from the security camera and from any onlookers. There is material that indicates that a barrier was formed but whether this was an intentional actions by some present is not possible to say. Mr Tropeano was aware of the restraint of Mr Polec but not necessarily the manner of it nor the unlawful assaults that took place. At that stage there are a number of bystanders who are around the area. It is reasonably possible as Mr Tropeano has said in evidence, that he is trying or attempting to keep the area clear, that he is not aware of Mr Apostolidis behaving in the way that he was and that he has not deliberately sought to shield Mr Apostolidis or anyone else from the view of the onlookers, nor intentionally assisted in the commission of the offence by Mr Apostolidis or anyone else. In making these findings I have taken into account the evidence of Professor Spring in relation to the care required when assessing exhibit P4. I have also taken into account the evidence of the good character that is before me.
It is reasonably clear from exhibit P4 that Mr Tropeano appears to trip Mr Polec as he breaks free. However I cannot conclude beyond reasonable doubt that he does this with aid and abet the commission of the offence as opposed to maintaining the restraint. Nor can I be satisfied beyond reasonable doubt that by standing where the accused can be seen in exhibit P4 he was keeping watch for the police as opposed to waiting for the police or that at the time he spoke to Mr Apostilidis as he appears to have done he was at that stage aiding and abetting the commission of the offence.
Verdict
I am not satisfied that it has been proven beyond reasonable doubt that Mr Tropeano committed the offence as charged or the alternative offence. I therefore find him not guilty of the offence aggravated causing harm with intent to cause harm and not guilty of causing harm with intent to cause harm.