R v Williams
[2020] SADC 53
•14 May 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLIAMS
[2020] SADC 53
Reasons for the Verdicts of Her Honour Judge Davison
14 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
The accused is charged with one count of aggravated serious criminal trespass in a place of residence and three counts of aggravated causing harm with intent to cause harm.
The accused in company with another entered into the premises to remove a child.
During the course of the events that followed, a taser was discharged on numerous occasions and the occupants struck with a metal pole.
The accused claims he acted in self-defence or defence of another.
Verdict:
Count 1: Guilty.
Count 2: Guilty.
Count 3: Guilty.
Count 4: Guilty.
Juries Act 1929 (SA) s 7; Evidence Act 1929 (SA) ss 13A, 13BA; Criminal Law Consolidation Act 1935 (SA) ss 15, 24, 170; Morgan v Colman (1981) 27 SASR 334; Ratten v The Queen [1972] AC 378; R v Anderson (2017) 128 SASR 550; Vocisano v Vocisano (1974) 130 CLR 267, referred to.
R v WILLIAMS
[2020] SADC 53
In April 2018, Joseph Leslie Williams (‘the accused’) was in a relationship with Melissa Gates. She had three children with her former partner, Joshua Tapper. At about 8.00 p.m. on 22 April, Joseph Williams and Melissa Gates went to collect at least one child from Mr Tapper. Before they attended, Ms Gates had been told she would not be allowed to take any of the children.
When Mr Williams and Ms Gates arrived at the house, they went to the front door. Ms Gates was calling out for her children. Mr Tapper told her she was not getting them.
The front door was kicked in. Mr Williams and Ms Gates entered the house. Ms Gates was armed with a taser. Mr Tapper and his brother, Matthew White tried to barricade themselves in the kitchen. Ms Gates put a taser around the kitchen door and fired it.
It is alleged by the prosecution that Mr Williams then rushed at Mr Tapper and engaged in a struggle with him. Ms Gates used the taser on the occupants of the kitchen. It is alleged Mr Williams struck Mr Tapper a number of times with a metal pole on the top of his head, and then to the bridge of his nose. Mr Williams is also alleged to have struck Mr White on his head with the same pole.
The entire incident was captured on an audiotape activated when Mr White called 000 before Mr Williams and Ms Gates entered the home.
Mr Williams claims he acted in self‑defence or defence of another.
Mr Williams elected for trial by judge alone.[1] Ms Gates pleaded guilty to offences of aggravated serious criminal trespass in a place of residence, two counts of aggravated causing harm with intent to cause harm, and one count of aggravated assault.
[1] Juries Act 1927 (SA) s 7(1)(a).
She was sentenced on 14 August 2019 by another judge.
Charges
The accused, Joseph Leslie Williams is charged with:
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph Leslie Williams on the 22nd day of April 2018 at Flinders Park, entered or remained in the place of residence of Joshua Tapper as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
It is further alleged that another person was unlawfully present in the place of residence when the offence was committed and Joseph Leslie Williams knew of the other’s presence or was reckless about whether anyone was in the said place.
It is further alleged that Joseph Leslie Williams committed the offence in company with another person.
Second Count
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph Leslie Williams on the 22nd day of April 2018 at Flinders Park, caused harm to Joshua Tapper, intending to cause him harm.
It is further alleged that Joseph Leslie Williams committed the offence in company with another person.
It is further alleged that Joseph Leslie Williams used an offensive weapon, namely a pole, to commit or when committing the offence.
Third Count
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm. (Ibid)
Particulars of Offence
Joseph Leslie Williams on the 22nd day of April 2018 at Flinders Park, caused harm to Matthew White, intending to cause him harm.
It is further alleged that Joseph Leslie Williams committed the offence in company with another person.
It is further alleged that Joseph Leslie Williams used an offensive weapon, namely a pole, to commit or when committing the offence.
Fourth Count
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm. (Ibid)
Particulars of Offence
Joseph Leslie Williams on the 22nd day of April 2018 at Flinders Park, caused harm to Joshua Tapper, intending to cause him harm.
It is further alleged that Joseph Leslie Williams committed the offence in company with another person.
It is further alleged that Joseph Leslie Williams used an offensive weapon, namely a pole, to commit or when committing the offence.
Pre‑trial Matters
Oral applications were made by the prosecution for special arrangements pursuant to s 13A of the Evidence Act 1929 (SA). In relation to the evidence of Joshua Tapper, the arrangement was that he give evidence outside the courtroom via closed‑circuit television. In relation to Michael White, the arrangement was that a one‑way protective screen be in place during the evidence. In relation to the children TT and RT, arrangements were made for their evidence to be delivered via closed‑circuit television, in the presence of a court companion, and that their evidence be recorded. I made an order in relation to each of these witnesses.
Accordingly, I warn myself that I must not draw any adverse inference against the accused, nor should I allow the fact that these arrangements were in place to influence the weight I give to the witnesses’ evidence.
The prosecution made an application pursuant to s 13BA of the Evidence Act 1929 (SA) for interviews with TT and RT to be admitted as their evidence‑in‑chief. This course was not opposed. In relation to TT, the prosecutor sought to supplement this with oral evidence‑in‑chief.
Defence counsel made an application to cross‑examine TT and RT. I admitted the interviews and allowed both evidence‑in‑chief and cross‑examination in relation to TT and cross‑examination in relation to RT.
General Directions
I set out here some of the fundamental directions that apply in a criminal trial.
The accused comes before this court with a presumption of innocence in his favour. The law regards him as innocent unless, and until his guilt has been proven by the prosecution beyond reasonable doubt.
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 is charged with four separate counts. Each of these counts must be considered separately, and only in relation to the evidence that is admissible in respect of each.
The accused gave evidence. He was not obliged to give evidence but chose to do so. His evidence must be considered along with the other evidence in the case. He has not assumed any burden of proof by giving evidence and presenting a case, that burden always remains with the prosecution.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear, and not influenced by public opinion in relation to this matter.
Self‑defence
The accused claims that he acted to defend himself and/or Ms Gates during the time he was in the house, and that was his reason for entering and remaining in the house.
Section 15 of the Criminal Law Consolidation Act 1935 (SA) states:
15—Self‑defence
(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 for a defensive purpose; and
(b)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.
(2)It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)in self‑defence or in defence of another; or
(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)However, if a person—
(a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
[footnotes omitted]
As with all matters there is a need to apply the particular facts of a case to the law. It is, however, worth reminding myself at this stage of the general principles that arise in relation to self‑defence. As Wells J articulated in Morgan v Colman these include;
a) Defence means defence; a person who claims to have been acting in justifiable self‑defence must have acted, and believed himself to have been acting, in defence. To engage willingly in combat is not acting in self‑defence.
b) Self‑defence can never be made a cover for aggression; if a person provokes, or deliberately leads, another to attack him, and he then uses that attack as an excuse or pretext for attacking the other person, he cannot cry defence.
c) Self‑defence can never be called in aid to justify retaliation or revenge if the danger is over, and the occasion for self-defence is at an end.
d) A person who, according to the circumstances as he understands them, genuinely believes that he is threatened with attack, is not obliged to wait until the attack begins. A person so threatened may use reasonable measures to make the situation safe, and he does not act unlawfully merely because he forestalls or tries to forestall the attack before it has begun.
e) In all cases, for the purpose of determining whether the person claiming to act in self‑defence did no more than was reasonably necessary, the possibility of doing something less than using force himself must always be borne in mind, having regard to the circumstances. Thus the possibility, for example, of parley, of retreat, of evasion, of summoning aid, must always be considered, though the failure to have recourse to any one or more of those alternatives is not, ipso facto, decisive.
f) The force used must not be disproportionate to the necessities of the occasion. If a man is threatened with a slap on the face or a kick on the shins, he is plainly not entitled to shoot his tormentor or plunge a knife into him.
g) In determining what were the circumstances that a person believed to exist, and whether he believed that it was necessary to act in self‑defence, regard may be had to the grounds of that person’s belief and to whether they were reasonable. The reasonableness or the reverse of such grounds is not, of itself, decisive of the existence or non‑existence of the belief.[2]
[2] Morgan v Colman (1981) 27 SASR 334, 336-7.
I will return to this topic when I have made findings of fact in relation to this case.
Elements of Charged Offences
Aggravated Serious Criminal Trespass in a Place of Residence
The offence of aggravated serious criminal trespass in a place of residence consists of four ingredients. The prosecution must prove each ingredient beyond reasonable doubt.
The first ingredient that must be proven is that the accused entered or remained in a place of residence. A place of residence means any building or part of a building of a place of residence. There was no dispute that this element had been made out.
The second ingredient that must be proven is that the accused entered or remained in the premises intentionally as a trespasser, that is, he entered and remained in the premises without the consent of the occupier, and that he knew he did not have the consent of the occupier, and entered or remained notwithstanding.
The third ingredient that must be proven is that the accused when he entered or remained, intended to commit an offence against the person. Causing harm with intent is such an offence.
In order to prove the circumstance of aggravation, the prosecution must prove beyond reasonable doubt one or both of the following allegations – a) that another person was lawfully present in the place of residence, and the accused knew or was reckless about whether anyone was in the place; and/or b) that the accused committed the offence in company with one or more persons.
Aggravated Causing Harm with Intent to Cause Harm
In order for the prosecution to prove the charge of aggravated causing harm with intent to cause harm, the prosecution must prove beyond reasonable doubt the six ingredients that form this charge.
Firstly, the prosecution must prove that the accused caused harm to the complainants. That is, that the accused performed an act that was the cause of harm. In this case, it is alleged that he hit the complainants with a pole.
Secondly, that it was this act that caused the harm to the complainants. Harm includes physical or mental harm whether temporary or permanent.
Thirdly, the accused acted deliberately, and fourthly the accused acted unlawfully. In this case, the accused has given evidence that any harm that was caused to the complainants was due to acts performed in self‑defence or defence of another.
The fifth ingredient is that the accused intended to cause harm to the victim.
For the offence to be aggravated, the prosecution must prove beyond reasonable doubt that a) the accused committed the offence in company with one or more persons; and/or b) the accused used or threatened to use an offensive weapon. In this case, it was alleged the accused used a pole.
Evidence
Joshua Tapper gave evidence that he and Melissa Gates had been in a relationship for 16 years. They have three children, TT 16 years old, RT 13 years old, and BT 5 years old. They separated in August 2016.
After the separation, Ms Gates had primary care of the children and Mr Tapper looked after them every second weekend. Ms Gates re‑partnered with the accused.
Mr Tapper said TT did not want to return to Ms Gates’ care after a visit that occurred on about Australia Day 2018. She continued to reside with her father. RT and BT were brought to their father’s house after Easter 2018, and were still living with him on 22 April 2018. At that time, Ms Gates had some trouble with the law and had warrants for her arrest. Mr Tapper gave evidence that on 22 April 2018, Ms Gates rang him and said ‘I’m coming to get the kids’.[3] There were also messages sent on Facebook Messenger between Ms Gates and Mr Tapper.[4]
[3] T21.
[4] Exhibit P2.
Facebook Messenger 22 April 2018 at 5.55 p.m.
MG wtf is [T] dribbling that there’s still an avo with Joe I had that all dropped out of court Il be there soon as I can get fuel to get the boys
don’t know what her issue is but if she don’t wanna see me that’s her choice but I will be coming for the boys soon as I can get fuel they are still living with me so I want them with me legal aide still gonna take about a week and I can’t not see them for this long I’m going crazy without them
JT Sorry why your on the run you can not have them at all sort ya situation out first I will never stop them from seeing you I would even bring them in to see you I doing this for them I can’t let them be around you
MG Fuck u I will be there to get them don’t even play
I ain’t in the mood for bullshit
I wouldn’t stop u from taking them no matter your situation
I’m ringing in 5 mins to talk to my boys
shows who called the cops on me last week to then hey
JT Don’t try to get them please they have been threw enough poor [B] don’t realize the situation he has been in don’t take advantage of the fact that he is to young to make his own decisions I will always let u see them when your clean from drugs and criminal activity
MG u fucked up Il be there for [B] u can keep [R] if he gonna be a dick head too
can’t get fuel be there tomorrow morning to get [B]
I’m going to court for 2 driving offences and a dope plant and you act like I’ve murdered someone they have wanted u for more and I helped your ass
JT It won’t happen the way you want legal action has been taken I have been advised in no way am I to return our son to such a cruel situation or I could loose the rights to him as you have he will always be fed and safe and in a happy home with no drugs as I don’t even smoke weed and can be tested to prove it and no domestic violence sorry you done this to your self I can’t text any more I wish you the best on getting clean and away from you domestic situation I will no longer be communicating with you threw Text mediation will decide when and how often you get to see any of the kids.
MG u think.[5]
[5] 'Verbatim Record', Facebook Messenger 22 April 2018 at 5.55 p.m.; Exhibit P2 [5]-[9].
Evidence was given by Mr Tapper that Ms Gates had agreed to an arrangement with Centrelink that he would receive the parenting allowance for the children. However, Ms Gates denied this and no documentation was produced to this effect.
As a result of the messages received from Ms Gates, Mr Tapper telephoned South Australia Police (SAPOL) to report the threat made by her that she was coming to the premises. Mr Tapper gave evidence that he also put six TEK screws in the screen door frame and ‘double fastened every screw to the actual door so that the door could actually never be opened’.[6]
[6] T29.
He then said that he settled his children in the normal manner and started to make a cup of coffee for himself. As he was doing that, his son RT told him that the screen door had been ripped off and he could hear the door being kicked open. In response to hearing the noises coming from the front door, he told the children to hide in the rear of the house.[7] He and his brother, Matthew White, started to try to call the police, and he then saw the accused enter through the front door that was kicked in. He told him to get out of the house. The accused responded with ‘Where’s the kids?’. Mr Tapper tried to shut the door, from the kitchen into the hallway and hold the door closed with his body. As he did so, the door opened to an approximately a 6‑inch gap, and he saw both male and female hands come around the door through the gap. One of them was holding a taser and activated it. As a result, he was forced away from the door, and he remembers his body flying through the air as a result and he landed near the fridge.[8] As he fell near the fridge, the accused and Ms Gates entered the kitchen with the accused lunging towards him. As he did so, Mr Tapper picked up a trolley jack bar from near the fridge, and went to strike whoever had the taser in their hands. He missed and hit the wall causing him to drop the bar. He said he was then punched to the head by the accused causing him to lose his footing. As he went to the ground, he grabbed the accused by his pants or his shirt and punched out at Mr Williams. While they were struggling on the ground, he was tasered by Ms Gates and blacked‑out.
[7] T30.
[8] T33.
His next memory is seeing the accused and Mr White wrestling near the kitchen door. He got to his feet as his son came out of the bedroom and handed him a bottle. He then hit the accused to the side of the head with the bottle but it had no effect on the accused. After the bottle fell to the ground, he struck the accused again with his fist, and at that point the accused gained access to the bar, and Mr Tapper was struck across the nose with the bar and blacked‑out again. When he came to, the accused and his brother were struggling for the taser and the bar, one had the taser in one hand and the other had the trolley jack bar. They were playing a two‑way tug‑of‑war with the two weapons. At that time, Ms Gates grabbed him by the throat. In return, Mr Tapper grabbed her by the throat and lifted her off the ground. She said, ‘You’ve told me that you still loved me at some point’ and he was then struck over the head with an iron bar by the accused causing him to black‑out. His next memory was his brother yelling ‘They’ve gone’ and him bleeding.
He said the police arrived about 15 minutes after the whole altercation finished. He was concussed, and taken away in an ambulance to the Royal Adelaide Hospital where he received nine staples to the injury to the top of his head and stitches to the injury on his nose.[9]
[9] T48.
The recording of his 000 call to the police was played to him and he identified himself in that call.
The recording that his daughter TT made to 000 was also played to him and he identified her voice.
In cross‑examination, he was asked about placing the screws in the screen door and described them in significant detail. He said, ‘The door was closed, the screws went into the wood, they would have protruded about ½ inch over the lap of the door, and the wire was wrapped around the screw, around the actual panelling of the door itself, and then back to the screw again, and twined and interlocked’.[10] He agreed that it was very hard to see this in the photographs that had been taken by the police. When it was suggested to him that the screws had all disappeared, he said, that he had no idea how long they were trying to break and manipulate the screws out. It was suggested to him that the screws were never in the door in the first place. He denied that saying he put them there.[11]
[10] T56.
[11] T59.
He denied having any conversation with Ms Gates whilst she was at the front door before she came into the house.
He disagreed with the suggestion that Ms Gates came through the door first and that he was armed with a metal pole in the lounge room at that time. He also disagreed with the suggestion that only Ms Gates had a taser.
It was put to him that when he gave a statement to the police about a week or nine days after the incident occurred he said;
I couldn’t hold the door shut. Melissa and Joseph pushed or kicked the door in. While they were pushing the door I saw a blue taser and a pink taser. The blue one was above the pink one, I could tell a female was holding the pink one. I heard Melissa say, ‘You’re so fucked’. To avoid being tasered I moved my arms and the door came flying towards me, I backed up and grabbed a rusty blue trolley jack bar with a black rubber handle which was leaning up against the wall near the fridge.[12]
He was then asked whether he agreed that moving himself away from the door to avoid being tasered is quite different from being pushed and flung across the room. He said,
I never broke contact with the door with my hip, my knee or my foot, I had them still hard against the door, I could just no longer keep my hands on the door for pressure as the taser was bending around the handle trying to get my arm, so I just took my arms off the door, my whole top is still making contact with it but that wasn't enough to hold back the weight that did overpower me and sent me flying.[13]
[12] T71.
[13] T73.
He eventually said that the actions that he was describing were the same although worded differently.
In addition to the evidence given by Mr Tapper, I also admitted into evidence a call made to SAPOL 000.[14] During that call, Mr Tapper identifies himself and says that there is somebody at his house with a taser. He identifies that person as the accused, and further says that they were kicking the door in as he was speaking to the operator. He then says that they are in the house. On the audio tape, the sound of people coming through the door is clearly audible.
[14] Exhibit P7; MFI P8.
Matthew White gave evidence. He is the brother of Joshua Tapper. He gave evidence that he returned to the home that he was sharing with his brother, at about 7‑7.30 p.m. on the night of the incident. He said he tried to enter through the front of the house, but it was securely fastened, so he had to climb the side fence and enter through the back door. He said he had messaged his brother asking him about the door and his brother told him to come around the back.[15] Once inside the house, he had a general conversation with his brother in which his brother told him he had received messages from Ms Gates saying she was coming to pick up the child, BT. His brother told him he had secured the front door, locked the side gates and notified the police.
[15] T118.
At about 8.00 p.m., he and his brother were in the kitchen pouring a coffee when he heard thuds at the door.[16] He said he and his brother rang for police assistance on separate phones, trying to quote the number that had been given earlier for immediate assistance. He made this phone call whilst he was standing in the kitchen near the doorway, leading out the back, and he could see his brother sitting on the bed in a bedroom adjacent to the kitchen. He saw the children run from the lounge, through the kitchen, and he told them to go into the back room. Mr White said that he could hear but not see the front door being opened, and that his brother came back into the kitchen, and together they pushed against the kitchen door to hold it closed.
[16] T118.
While they were doing this, he said there was a ‘spark or sparking sound’ around the side of the door but once the door was forced open, he could clearly see that the intruders were holding a taser. He said that in his attempt to avoid the taser, he and his brother released their grip on the door. He was pushed back a bit and then crawled along the ground while being tasered. He then saw the accused rush across the room and begin beating his brother. He tried to crawl along the floor to avoid being hit by the taser but received several hits that slightly immobilised him. Whilst this was happening, the accused and his brother were struggling; punching each other, kicking, grappling and breaking plates over each other. He said it was mostly the accused doing the punching and kicking. The struggle between his brother and the accused began near the sink area and started with them both standing up, but once his brother was ‘rushed at’, they both went to the ground, he said.
He explained that Ms Gates went to the back room where the children were and picked up the youngest child. She was making her way outside with the child and the taser, until she tripped and fell on a step at the back of the house. He then picked up the taser. He pointed it at Ms Gates and tried to activate it telling them to back off and get out of the house, but they did not comply. He went on to say, that when Ms Gates had gone to the back room to look for the children, he tried to assist his brother, and ended up in a scuffle with the accused. The accused was trying to get the taser off him and they started struggling on the ground. He recalled trying to use the taser on both the accused and Ms Gates. He eventually lost the taser in the scuffle, and recalls the accused trying to bite his ear. He then regained control of the taser and at the same time, the accused picked up a metal bar. He said the accused swung the bar a couple of times, and he grabbed hold of one end of it, while the accused had the other. He and the accused had a hand on the taser as well, so they both had an end of each. They remained like that for some time before the accused shouted out to Ms Gates, ‘This is not happening, come on let’s go’. Mr White then ran outside and yelled, ‘Police, Police’, hoping that police would be nearby within earshot. He said he still had the taser at that time but cannot remember what happened with the metal bar.
Mr White recalls being hit on more than once but was not sure whether it was with a fist or an item. He said he was hit to the head, and the back and front of his torso. He said that after he left the building, the accused and Ms Gates left the building driving off in a silver Mitsubishi FTO that had been parked across the road.
After the incident, he could feel blood coming down the side of his head and he had a large gash. He went back inside and checked on his brother who was in a ‘pretty bad way’, and bleeding profusely. When Mr White was asked how he got the gash on his head, he said, ‘Once Joe had said to me “Let go of the pole so I can hit you again” tells me straight away that I was hit by a pole’. He was then asked, ‘Did Joe hit with the pole on your head?’ He answered, ‘Yes’. Do you remember that? He said, ‘I remember being hit but I can’t recall what it was with’.[17] He said that during the altercation, he received not only the cut to his head but also some cuts under his armpits and some bruising from the taser.
[17] T131.
Some of the content of the 000 call was played to Mr White. He became very upset during the playing of it, and it became apparent that this was the first time that he had heard the audio recording. He went on to give evidence that the phone had been dropped or knocked from his hands during the incident. He eventually found it under the kitchen table. However, the phone call was still active, and had recorded the entire incident.
He was cross‑examined. The cross‑examination commenced with some questions in relation to his common practice in relation to entering the house and why he had not adopted that on this occasion. He gave evidence that when he was inside the house and talking to the police, he could hear the screen door being flung open, and hitting against the wall. He said he did not see whether that screen door had been locked or fastened to prevent a person getting in. When he gave a statement to the police that was signed on 8 June 2018, he did not tell the police that he was barricading the door with his brother. He agreed that it was not in his statement and that he had not told the police at that time. However, he disagreed that he did not in fact barricade the door as he said in evidence.
He said that he had not heard his brother yelling to the people who were outside the house, and did not see his brother go to one of the windows and have an exchange with the people outside. Nor did he hear a female voice from outside asking to see her children. He said the first time he saw the accused, he did not see anything in his hands. It was Ms Gates who had the taser. He said he had not seen his brother hit the accused over the head with the pole a couple of times at the start of the incident, nor did he see the accused remove the pole from his brother’s hands, and throw it into another area of the home. He described punches being thrown by his brother and the accused but did not see any objects being used. He denied having hit the accused with the pole himself. He had no recollection of his nephew handing his brother a champagne bottle or his brother hitting the accused with the champagne bottle. He did not see his brother grab Ms Gates by the throat and lift her off the ground. He said during the course of the incident, tensions were high and everyone was yelling. He agreed, he saw his brother punch the accused to the head a couple of times while they were on the ground, and that he struck the accused with his foot once or twice. He said he did not see the accused hit his brother with the pole after he and the accused had been struggling with it.
Matthew White called 000. The audio tape was received as Exhibit P16. The transcript was MFI P17. He told the police they needed attendance ‘ASAP’ and said, ‘They are out the front now. Pushing [bashing] the front door trying to get it in. They already.. they already forced the screen door and we have one more layer of protection before they come through’. He goes on to say, ‘I don’t know how many people there are, they’re coming through the front door now’. With that, chaos can be heard on the audio tape with lots of inaudible screaming, swearing and shouting. About one and a half minutes after the phone call begins, it is evident that the intruders are in the house, and when the operator asks if they have any weapons, Mr White screams ‘They’ve got tasers’. For the next four minutes, the altercation continues in the house with screaming, yelling and swearing. The female voice, in all likelihood, Ms Gates continues to ask for her children whilst being told to get out of the house. The entire scenario appears to be terrifying, frightening and chaotic.
On 1 May 2018, Brevet Sergeant Simon Ball conducted an interview with TT. She was 15 years old at the time of this interview. She described the incident as having commenced at about 6.00 p.m., when her mother messaged her and said she wanted to come pick up the boys in the morning. TT said she did not want to go with them. TT then turned off her phone, and at about 8.00 p.m. that night she said she heard tasers at the door when she was in the kitchen. She grabbed her two brothers, ran to her dad’s bedroom, and hid the boys under the bed. She heard a massive bang and her mum say, ‘I’m going to kill your dad, where’s [BT]?’ and then continued saying, ‘[BT] where are you? [BT] where are you?’. Eventually BT said, ‘Mum, I am in here’. Ms Gates came to the room, pushed the door down on top of TT and took BT from her arms. She said her mum then went out into the kitchen and fell over with the taser whilst holding BT. TT grabbed BT by the arm, ran out of the house with him and hid under someone’s car whilst she called the police. She said she knew the sound of a taser because the accused use to make tasers in the house, and used the tasers, so she was familiar with the sound that they make. She estimated that they were hiding for about 5‑6 minutes before her mother found them in the room. She said that her mother held the taser up to her and said, ‘Alright, give me your brother now’.
TT said that when she followed her mother to the kitchen, the accused was on top of her dad wrestling in the corner and her uncle, Mr White, was standing in the doorway trying to get his balance. She did not know where her brother, RT was at that stage, and the last time that she saw him, he was at the back door. She said she felt absolutely petrified throughout the ordeal.
As I said earlier, I granted leave for TT to be examined and cross‑examined. In examination‑in‑chief, she said that she made a phone call to the police when she was in the kitchen in the middle of grabbing her brothers and taking them somewhere safe. At that point, she took them to the farthest room and went into her father’s room. She thought she might have hung up and then called them again once she was out of the house after she got her brother away from her mother. She confirmed Exhibit P9 was the call she made when she was under the car with her little brother after she had left the house.
In cross‑examination, she confirmed that she did not see her mother or the accused physically come into the house. She said she saw hands come around the kitchen door, but she could not be sure who’s hands they were. The first time she saw the accused in the house was when he was in the kitchen wrestling with her dad, and her uncle was trying to stop her mum trying to find the children. She came back into the kitchen after her mother had taken BT and had tripped over the chair, and that is was when she saw the accused smashing plates over her dad’s head.[18] She agreed that when she told the police in the interview that the accused punched the door, she did not actually see that but heard the noise and assumed it was ‘Joe punching the door’.
[18] T104.
When it was put to her that her father had gone into the lounge room before this incident commenced and spoken to her mother or the accused through the lounge room window, she denied this. She said she could not hear her dad yelling at whoever was on the other side of door.
RT was interviewed by Brevet Sergeant Simon Ball on 1 May 2018.[19] At that stage, he was 11 years old. He said on the night in question,
We were sitting down watching a movie in the lounge room and then we heard knock‑knock and then the taser and then we all went into the kitchen and then they started booting the door and then they entered and our dad was holding the door up as hard as he could and they busted the door in and started tackling.[20]
[19] Exhibit P13.
[20] Exhibit P14 Line 7-23.
He said that the accused went straight to his dad and his mum went to ‘Uncle Matt’. He went on to say he was in a room and his mum knocked down the door, it hit his foot, and she put the taser up against TT’s neck saying, ‘Give me [BT]’ and, BT was snatched out of TT’s hands, then his mother fell over. TT then grabbed BT and ran as fast as she could out the front and down the road. RT said when he came out of the room, he saw his dad with blood all over his face and the accused ‘running at him’, so he gave his dad a bottle. He said he then ran to a police officer’s house down the road, then ran back home and had to jump the fence to get to the house.
RT said his uncle, Mr White had ‘shown up’ during the night before the incident and because all the doors were locked, and the front door was locked to the frame, they had to give him a chair to jump over the fence. He said his dad had tied up the front door so that they were safe, but the intruders ended up ripping the screen door open and ‘booting’[21] in the wooden door. He said the first thing he heard at the front door were two knocks and then the taser went off. They ran to the kitchen and his dad shut the kitchen door and was holding it up. He said the accused ‘Joe booted the door’ and came into the kitchen and pushed the door a couple of times, ‘he hipped and shouldered it, and there was a hole in the door’. He confirmed he knew the sound of a taser because he had heard it once before. He said he only saw one taser. He said his father was pushed to the ground by the kitchen door when it opened, and he went into the other room to be safe with his little brother and sister. He said the taser that he saw was blue with two buttons, one for a safe mode and the other for ‘zapping’. After TT had left the room and his mother had fallen over the chair, he saw the accused in the kitchen with his dad on top of him and the accused was trying to get him. He then gave his dad a champagne bottle. He also saw a struggle for the taser between the accused, his mother and his uncle.
[21] Although, MFI P14 records 'beating', it is my view the word the witness said is 'booting'.
RT was cross‑examined by Ms Demertzis. He said he first saw his mother when she came into the room that he was hiding in. He denied that his father was yelling at his mother through the lounge room window. He confirmed that he did not see how his mother or the accused got into the house, but did see a blue taser in his mother’s hand when he was in the bedroom. He said that after his sister TT had left the house with BT, he emerged from the bedroom, went into the kitchen and at that stage, he saw his mother tackling his father. The accused and his uncle were wrestling at that stage and he said that is when he handed his father the bottle. He did not stay to see what his father did with the bottle because the accused chased him (although conceded that he might be wrong about the accused chasing him rather the accused might have moved in his direction to do something else). He confirmed that at that stage, the accused was not holding a taser or a pole.
He went on to say that before his mother and accused came to the house, his father was putting ‘screws or something’ to make sure they could not get in through the front door. He said he did not really pay attention to what was going on, but saw his father at the door with his tools about 15 minutes before his mother arrived.[22]
[22] T111.
Detective Brevet Sergeant Simon Ball was called to give evidence. He said that he attended the premises at 8.35 p.m. with a number of other police officers. When he arrived, Joshua Tapper was on a stretcher being attended by an ambulance officer and his brother, Matthew White, was sitting on a fence. He spoke briefly to Mr Tapper and observed a head injury. Detective Brevet Sergeant Ball said he did not make any observations of the front door of the premises but located a taser in the kitchen, and saw numerous other items that could be weapons or used as weapons such as plates, a broom handle, a spanner and chair legs from broken chairs.
The taser located in the kitchen was tendered through him.[23] He confirmed that he interviewed TT and RT, and also provided a list of the 000 calls.[24]
[23] Exhibit P18.
[24] Exhibit P19.
He gave evidence that the accused and Ms Gates were arrested on 23 April 2018 in the Riverland, and that items were seized from them including mobile phones. A mobile phone from Ms Gates was interrogated and a number of photographs taken of the contents.
In cross‑examination, Detective Brevet Sergeant Ball was asked about the telephone calls to 000.
He was asked whether he checked the front door for any signs that there had been a forced entry. He said he recalled looking at the front door and seeing no overt signs of damage to the front door. He did not look for any screws in relation to the front door, but when looking for the damage, he would normally look at the centre of the door itself, the lock and the handle. He said he expected that if there had been damage it would be photographed by the police.
Agreed Facts
There were a series of agreed facts tendered.[25]
[25] Exhibit P3.
R v Joseph Williams
DCCRM-19-357
FACTS AGREED BETWEEN THE PROSECUTION AND DEFENCE
1On 22 April 2018 at around 8 pm the accused, Joseph Williams, attended 27 Frobisher Avenue, Flinders Park.
2Joshua Tapper suffered a 2 inch full thickness laceration over his scalp which required staples and a 1cm horizontal laceration to the bridge of his nose which required sutures.
3Matthew White suffered a 1.5 inch full thickness horizontal laceration to his scalp which required staples.
4On 24 April 2018 police photographed injuries suffered by Joshua Tapper and Matthew White.
5Police seized a blue item suspected of being a Taser from the premises. A Radio Technician from the Radio and Technology Support Unit of South Australia Police examined the same item. The item is a home-made Taser capable of producing high voltage sparks built into plastic cordless screwdriver housing.
6On 23 April 2018 at around 4.40 pm police arrested the accused Joseph Williams and Melissa Gates on the Sturt Highway in Monash in a silver Mitsubishi with South Australian registration WGD648.
7Police seized a white Samsung mobile phone and a black Samsung mobile phone from the accused Joseph Williams and Melissa Gates during their arrest on 23 April 2018.
8Police took photographs of the accused's injuries at the Berri Police Station on 23 April 2018.
9On 14 August 2019 Melissa Gates was sentenced in the District Court after pleading guilty to Aggravated Serious Criminal Trespass in a Place of Residence, two counts of Aggravated Causing Harm with Intent to Cause Harm and a single count of Aggravated Assault arising from this matter.
10The accused Joseph Williams was served with an Interim Intervention Order on 9 January 2018 protecting Melissa Gates, [GW], [TT], [RT] and [BT]. A condition of the Interim Intervention Order prohibited the accused from damaging or interfering with premises where the protected persons were residing. The Interim Intervention Order was revoked on 28 May 2018 at the Elizabeth Magistrates Court.
That completed the prosecution case.
Defence Case
The accused was called. He gave evidence that he is 39 years old and had lived with Melissa Gates for about four years before being remanded in custody. Although he has four children, they do not live with him. In relation to the custody of Ms Gates’ children, he said TT had gone to live with her father, and BT and RT lived with him and Ms Gates. The arrangements were informal, where Mr Tapper would have them on weekends and half the school holidays, but at the date of this incident, RT and BT were still living with him and Ms Gates, but visiting their father.
He agreed he attended at the residence on 22 April 2018 with Ms Gates who said that they were going to there to ‘pick up the kids’. He said he had been to the premises several times before but had never been inside. He was unaware of Ms Gates having the taser before they arrived. He did not see her carrying anything. They walked up to the front door and he said there were some words said through the door, and the next thing he knew Ms Gates was kicking the door. He said Ms Gates and Mr Tapper exchanged words. He heard Mr Tapper say, ‘Fuck off’ but he was not sure what Ms Gates said. He said that at that point he was thinking, ‘This is a bit weird’[26] because they normally go and pick up the children and it was not out of the ordinary. He said Ms Gates opened the screen door in the usual way and it was not secured. She then kicked on the wooden door. He thought that that was ‘A bit crazy’.[27] He did not try and stop her because it happened ‘pretty quick’, and then she darted inside. He could not stop her doing that because she was ‘Like a jack rabbit’[28]. He followed her inside. He said he did that because Mr Tapper was standing there with an iron bar, and he thought Mr Tapper was going to hit her with the pole because Mr Tapper moved towards her when she entered. He explained that he caught up with Ms Gates when they were standing in the doorway with Mr Tapper right behind the door. The door then flung open and he saw Mr Tapper. The accused advanced on him because Mr Tapper had an iron bar. He did that because Ms Gates was already in the kitchen so he was following her.
[26] T183.
[27] T184.
[28] Ibid.
The accused described Ms Gates behaviour as being ‘pretty erratic, pretty riled’.[29] At that stage, Ms Gates had a taser that he recognised as one that belonged to both of them. Prior to seeing it in her hands in the house, he had last seen it in the car because they had swapped it for drugs. He said that it had been in the console of the car for about a week‑and‑a‑half but he did not see Ms Gates remove it. He said he did not try to take the taser from her because he was more worried about the iron bar.
[29] T185.
After he saw Mr Tapper with the iron bar, he rushed towards him and Mr Tapper swung the bar, hitting him in the head, and they both wrestled. The accused then grabbed the bar and threw it behind him so that Mr Tapper could not get possession of it. He was unsure where it went, but after that punches were thrown between he and Mr Tapper. Mr Tapper grabbed a plate and hit him in the head with it. The accused said he was a little dazed from the iron bar so he is not really sure whether that happened.
The accused said he was wrestling on the ground when he was again struck with the bar by Matthew White. He then said to Mr White, ‘Please stop fucking hitting me with it’.[30] Mr White said, ‘Why?’. While this was happening, Mr Tapper was on the ground, and Mr White hit him approximately four times with the iron bar. He then saw Ms Gates re‑enter the room and fall over. As she did this, Mr White went to grab the taser from her and he then got up off the floor. He said that Mr White had the iron bar as well, so he got up to follow the iron bar, and then realised Mr White had the taser too. He was not as worried about the taser as the iron bar, he said. He then grabbed Mr White on one arm and grabbed the iron bar in the other, and they were wrestling for it. He said Mr White tried to taser him and eventually, Mr White let go of the bar, and the accused got a hold of it.
[30] T189.
While the accused was holding the bar and the taser, he was hit on the side of the head with a champagne bottle by Mr Tapper. The accused received a cut on his right cheek. He said after that Mr White ‘took off’ out of the room. Mr Tapper and Ms Gates started yelling and screaming at each other. The accused went to grab Ms Gates but Mr Tapper lunged at her so the accused struck Mr Tapper with the bar to prevent Ms Gates from being hit. He then physically grabbed hold of Ms Gates around her waist, and guided her out of the house. When he got outside, he saw Mr White standing on the lawn, there was no further interaction with him at all.
Whilst he was at the house, he saw RT briefly standing beside his father at one stage, and saw BT in Ms Gates’ arms as she came into the kitchen on the occasion when she slipped over, and lost the taser. He said he noticed RT just before he was hit with the bottle.[31]
[31] T196.
The accused gave evidence that he took the bar from the premises, went to the beach, washed the blood off it, and then left it at his cousin’s house.[32]
[32] T197.
Mr Williams looked at the photographs that were taken of his injuries by the police, Exhibit P20, and explained that some of the injuries were from a previous push‑bike accident but that the cut to his right cheek was from being hit by the champagne bottle, and the injury to the top of his head was caused as a result of being struck by the iron bar.
He was cross‑examined. He agreed that this was the first time he had been inside the home of Mr Tapper, but disagreed with the proposition that he knew Ms Gates was not entitled to pick up the children, and that is why a taser had been brought to the door. He disagreed that he had seen Ms Gates approach the door with the taser, or that the taser had been activated at the front door.
He denied kicking the front door himself but said Ms Gates kicked the door a couple of times. When asked why he did not say ‘What are you doing?’ or ‘Let’s leave’, he said, ‘I can’t tell you. I don’t know really’.[33] He said that he did not really know what was going on at that stage. He denied having yelled out ‘Where are the kids?’ when he entered the house but agreed that Ms Gates was yelling.
[33] T202.
He was cross‑examined about Mr Tapper having made a phone call, and having a phone in his hand when he first saw him. The accused denied that he had seen Mr Tapper holding a phone at any stage. He maintained that the first time he saw Mr Tapper, he was holding the bar in the lounge room. He denied that he had caused the damage to the kitchen door but admitted that he saw the taser while they were in the kitchen in Ms Gates’ hand when the door was ajar. At that stage, she had her hand through the gap in the door with the taser pointing into the kitchen. He said the door was already opening, and it was his intention to get the iron bar. He said he did not leave at that point because Ms Gates was moving further into the house.
When asked whether he understood that Ms Gates did not have permission to pick up the children, he said he did not know what was going on. He said he was not sure if he had permission or not to be at the address, and he was just focused on the iron bar. He said he was trying to ensure that Ms Gates did not get hit with the bar. He said that as soon as the door opened, he saw Mr Tapper with the iron bar. He went straight to him and tackled Mr Tapper, and they both went to the ground. He denied that it was when he was first on the floor with Mr Tapper, that Mr Tapper tried to swing the bar at him but missed, and then dropped the bar.
The accused disagreed that he hit Mr Tapper on the top of the head, and later hit him across the face with the bar. He said when he did hit Mr Tapper with the bar, it was his intention to stop him swinging at Ms Gates. He had no intention of hurting Mr Tapper but was merely was trying to prevent an injury to Ms Gates. He denied that he was aware that Ms Gates intended to take BT by force when they attended at the premises.
Melissa Gates gave evidence. She is 37 years old and has three children with Joshua Tapper. She said after she and Mr Tapper separated, they had an informal arrangement in relation to the children. She said that Mr Tapper had the children during the school holidays, and when she was due to pick them up he would not return them.[34] She called him in relation to collecting the children and sent messages on Facebook. When he told her that she could not get the children, she was got angry, and said that she was going to come and pick them up. During the course of the day, she spoke to her son RT. She said he was not sure that he wanted to go with her because of his sister’s situation so she intended to pick up BT. At that time BT was three years old. She said that when she went to collect the children, the accused would often come and help her carry their belongings. She had never been inside the premises at 27 Frobisher Avenue before, and neither had the accused.
[34] T218.
Ms Gates gave evidence that she drove to the premises intending to pick up BT and return home. When she got to the premises, she parked on the other side of the road, got out of the car, and grabbed her taser from underneath her seat and placed it in her pocket. She did that because she had a violent relationship with Mr Tapper and was scared of him. She said that the taser had been put there the day before, and it belonged to one of her mates.
She said when she picked up the taser, the accused had already stepped away from the car, and would have been walking across the front of the bonnet. She placed it in her shorts further covered by a long shirt over the top.
When she got inside the gate, she knocked on the door as usual and heard Mr Tapper say to the children ‘It’s your mum, go hide’.[35] That made her furious. She ripped the screen door open, kicked the door once or twice, and then hip and shouldered her way in. At that stage, the accused was standing behind her. She did not say anything to him, nor did he say anything to her. She said it took about 5‑10 seconds to get into the house, and once the front door was open, she saw Mr Tapper standing there saying ‘Get out’ so she walked towards him, and he ran into the kitchen and pushed the door shut. Holding the taser, she then put her arm through a gap around the door so that he would move away from the door and she could get in. She then went on to say that when she first walked into the lounge room she saw Mr Tapper and his brother both standing there saying ‘Get out’. Ms Gates said, ‘Where are the kids?’ on more than one occasion because she was looking for her son BT. Someone said, ‘I don’t know where he is’. This happened whilst she was in the kitchen, she said.
[35] T222.
She said as soon as she was in the house, she started to walk towards Mr Tapper and his brother, and they went into the kitchen, and pushed the door shut. She was not sure where Mr Williams was at this point. She said she had time just before the door closed completely to get her arm in, so that she could try and scare them with the taser. When at the door, she activated the taser multiple times. The door then opened and she walked in. She then saw that both of them had a pole in their hands. Mr Tapper was on the right, and his brother was on the left near the other hallway. She described both poles as ‘shiny’. She walked past Mr White and thought he was going to ‘come at her’ so she tasered him and he dropped to the ground. She then walked up the hallway to the sunroom to the children. When asked,
QWhat if anything did Matthew respond to your question ‘Where is he?’
AHe did not say nothing once I tasered him.[36]
[36] T231.
She said that after she tasered Mr White, she could not see where the accused was but she could hear lots of screaming and yelling. It was her intention at that point to get BT, and get out of the house.
She next saw the accused when she came running out with BT, and slipped on something, and fell with BT. That was when she saw the accused trying to fight off Mr White and Mr Tapper who were trying to attack him, and he was defending himself. She thought it was about a couple of minutes between her tasering Mr White and coming back into the room because she had to search around for the children. She said when she fell, she fell backwards and BT landed on top of her, her daughter then came running out, grabbed BT, and went out the front door. She said they then got out of the house straight away as there was no point waiting when BT was not there. She said that she saw the accused fighting off Mr Tapper and Mr White, who was swinging at him with a metal pole, and he was blocking the swings and punches.
Ms Gates gave evidence that when she fell to the ground, she still had the taser with her. She said after that, she dropped the taser, and was trying to get the accused so that they could get out, but Mr White picked up the taser and was threatening her with it. He was coming up to her so that she would back‑off.[37] She was not sure what the accused was doing at that time because she was too worried about the taser. She said she never got the taser back after she slipped over.
[37] T234.
She gave evidence that the last thing to occur in the house was Mr Tapper hitting her with the pole, and the accused grabbing the pole. She did not see the accused hit Mr Tapper with the pole.
Ms Gates was cross‑examined. She denied that she had agreed to allow Mr Tapper to have full‑time care of RT or BT. She said he had them for the school holidays, and when the holidays finished, she went to pick them up.[38] She agreed that when she was speaking with Mr Tapper earlier in the day, she was very upset about him not allowing her to take BT, and started yelling at him but did not recall making any threats against him. She denied that Mr Tapper had full‑time responsibility of the children at that time. She said that Mr Tapper had had them for the holidays and that his time was up, and it was her time to have the children back.[39] She denied telling the accused about the telephone conversations with her children or the text messages with Mr Tapper, and that the accused was aware that she was upset. She gave evidence that she did not tell the accused what was going on.
[38] T238.
[39] T243.
QAnd Joe was at that house, at your sister's house.
AYep.
QAnd you told Joe what had happened, didn't you.
ANo. I just said 'Are you coming to get the boys? It's time to pick them up'. I didn't used to tell him when I had had an argument because it's between me and my ex, I didn't involve him in that.
QYou asked Joe 'Are you coming with me to pick up the boys?', with you.
AYes.
QAre you sure about that.
AI said 'Are you coming to get [BT] '. I said '[RT] is going to stay there because he is being an idiot', - I actually said 'dickhead'. But yep, I said we were going to pick [BT] up.[40]
[40] T245.
She denied ever discussing the argument with the accused or that she had brought the accused along because she thought that there might be trouble. She said the accused always came with her to pick up the children because she did not have a licence. She denied threatening Mr Tapper in the text message where she said, ‘You fucked up’. She admitted that by the time she got to the house, she was furious but denied having made any threat towards Mr Tapper. She said that when she got to the house, she was expecting an argument but not a physical fight, and had brought the taser with her because she was scared, and thought that she might need to use it in self‑defence.[41]
[41] T248.
She denied that she showed the taser to the accused, and said what happened that night was not planned. She denied showing the accused any of the messages that passed between herself and Mr Tapper. She denied she pulled out the taser whilst they were at the front door, and said that she pulled it out once she was in the lounge room, and that is why Mr Tapper and Mr White ran into the kitchen. She said that her children would not have known that she had a taser at that time. They were aware that she previously had a pink taser but that had been a couple of months prior.[42] Similarly, she said that Mr Tapper or Mr White would have not known she had a taser until they saw it. She agreed that when she got to the kitchen door, she was using the taser through the opening, and using her other arm to force the door open as she activated the taser.
[42] T251.
That completed the defence case.
Prosecution Address
Mr Macura addressed on behalf of the prosecution. He submitted that the messages in Exhibit P2 clearly disclose an intention on the part of Ms Gates to pick up the children, and acknowledge that Mr Tapper was denying her access to them. He submitted that it ‘beggars belief’ that Ms Gates did not tell the accused with whom she had resided, and been in a relationship for over three years that there may be a confrontation when they arrived at Mr Tapper’s home. Further, he submitted, it is implausible that she would not tell or show the accused the taser that she had in her possession, and that he was none the wiser about the taser when they attended at the front door.
He pointed to the evidence from Mr Tapper, his son RT and Mr White of the attempts to secure the front door to prevent the accused and Ms Gates entering. He submitted that there was a clear inference to be drawn from this that Ms Gates and the accused did not have permission to enter the home, and both would have been aware of that upon attendance at the home if not before.
He submitted that given the evidence of the accused and Ms Gates, there can be no doubt that the front door was kicked in to effect entry and in the circumstances, that could not amount to a belief on the part of the accused that he had permission or a lawful purpose to enter the premises.
Mr Macura submitted that on the evidence of Mr Tapper, he saw the door fly open and the accused enter. Mr Tapper was able to see this from his vantage point in bedroom 4. His evidence in relation to being in that room was supported by his brother, Mr White who gave evidence that Mr Tapper was sitting on the bed talking to the police on the phone at that time. The evidence that he was talking to the police at the time is supported by the content of the 000 call made at 8.05 p.m. by Mr Tapper, Exhibit P7.
He submitted that the suggestion by the accused that Mr Tapper was standing in the lounge room holding a metal pole should be rejected. This evidence was not supported by Ms Gates who did not see a pole in his hand and her evidence was that immediately after she entered, both Mr Tapper and Mr White ran into the kitchen, and she ran after them.
Mr Macura submitted that the accused’s evidence was inconsistent in relation to what he had seen in the lounge room and that would thereby justify anything that he did thereafter.
He submitted that the evidence of Mr Tapper and Mr White should be accepted as to them holding the door of the kitchen closed, and that it was only when the taser was put through the gap in the door and activated, that they let go of the door thereby permitting the entry of the accused and Ms Gates into the kitchen.
In respect of the accounts given by Mr Tapper and Mr White, it was submitted that they are supported by the phone calls to 000, Exhibits P7 and P16, in that it is clear that the occupants of the house were not the aggressors, that the front door was kicked in, and that Ms Gates and the accused entered the home as trespassers with at least one of them being armed with a taser.
Further, he submitted that if the evidence of TT and RT was accepted in respect of what they told the police, the taser had been activated outside the front door, and the inference to be drawn from this, and from the content of the 000 calls is that the taser was produced and activated at the front door prior to entry into the premises. If this is so, this is inconsistent with the versions given by both the accused and Ms Gates.
Mr Macura submitted that the suggestion that Mr Tapper advanced with a pole immediately upon the accused entering is inconsistent with the content of the call because Mr Tapper would have still been on the phone to the police at that time.
Further, he submitted that the call by Mr Tapper to the police after the trespassers left, infer that he was not the aggressor, and believed he had acted lawfully to defend himself and others at his home as he was permitted to do so.[43]
[43] I reject the submission that an inference can be properly drawn from the fact that Mr Tapper called the police after the trespassers left for this purpose.
Mr Macura submitted that Mr Tapper gave evidence of the accused striking him with the metal pole to his head, the subject of count 2 and also, to his face and the bridge of his nose being the subject of count 4.
Mr Macura submitted that the evidence of Mr White should be accepted as there is no reason to think that he exaggerated or embellished his evidence at all. An example of that is what he said about the front door; where he had simply been unable to access the house but did not and could not say why that was so, as he had not inspected the door. His evidence is also consistent with the content of the call made by him to police[44] and although it is not clear from the audio tape, it is evident that Ms Gates and the accused were the aggressors rather than Mr White and his brother, Mr Tapper.
[44] Exhibit P16.
Mr Macura submitted that Mr White gave clear evidence that he struggled to get the taser from Ms Gates, and that he struggled with the accused over the taser and the pole, and that that evidence is consistent with the evidence given by the accused in relation to such a struggle.
In relation to the accused’s evidence, he submitted that his explanations in relation to what happened at the front door are merely poor attempts to explain his true state of mind which is that he knew that both he and Ms Gates had no right to be there, and it was not an ordinary trip to pick up the children. He said that it was implausible that Ms Gates did not tell the accused in circumstances where she had pending criminal charges, the accused had an intervention order protecting the children, and that she had a taser should difficulties arise.
He submitted that on the prosecution case the accused only attended because he expected there to be resistance, and a potential physical confrontation as neither of them had previously set foot inside the premises. The accused did not do or say anything to stop Ms Gates entering, once he saw her kicking the door, and thereafter, there is a protracted altercation that is recorded on the 000 call.
Mr Macura submitted that the evidence of the accused in respect of his intent when entering the premises cannot withstand scrutiny. He said the accused gave evidence that he followed Ms Gates inside the premises because he thought Mr Tapper might hit her with the pole. However, the evidence is that Ms Gates and the accused ended up in the hallway outside the kitchen door immediately after they entered. Mr Tapper, he said, could not have approached or threatened Ms Gates with the pole because, on his evidence, he did not follow her through the lounge room, and in fact, Ms Gates gave evidence that Mr Tapper ran off and she followed him. There was no mention that she was confronted or threatened by Mr Tapper at any point.
Mr Macura submitted that the accused, even if he was lawfully on the premises, could not have thought there was a threat from Mr Tapper when he was in the hallway, as at that stage Mr Tapper was barricaded in the kitchen. The only reason Mr Macura submitted that the accused did not stop Ms Gates and exit the premises was that he was not acting in her defence but rather prepared to physically confront Mr Tapper to facilitate the removal of BT by assaulting him in the kitchen. He submitted that it was Mr Tapper and Mr White who were assaulted not the accused, and there is no reason to think that he was.
Mr Macura submitted there could be no lawful reason for the accused to strike Mr Tapper once he had willingly joined Ms Gates in committing the trespass in the home. He submitted there could be no question of both the unlawfulness of the accused’s actions as a willing combatant and that he was not acting for a defensive purpose of himself or another.
Ms Demertzis addressed on behalf of the accused. She submitted that the accused is entitled to defend Ms Gates if he genuinely believed that there was a threat to her regardless of her status as a trespasser or the perpetrator of an offence. She said, he genuinely believed that whoever was about to hit, assault or attack her in some way was acting unlawfully. She said the right for Mr Tapper and/or Mr White to defend their property, does not detract from the accused being able to defend himself or Ms Gates, even if they were both acting unlawfully by being on the premises, and had voluntarily put themselves there. She submitted that if the accused believed Ms Gates was going to be attacked and in need of defence, his actions are not unlawful on entering the premises to prevent that occurring. That is, because, he believed that he needed to stop the attack from occurring by defending her. He, therefore, satisfies the first limb of s 15 of the Criminal Law Consolidation Act 1935 (SA) of needing to act for defensive purpose.
She submitted that whether I find his actions were reasonable in all of the circumstances may be the real issue. She submitted that it is indeed reasonably possible that the accused genuinely believed Ms Gates was about to be the victim of an attack, notwithstanding her clear lack of right to be there, and although he conceded he was not really sure why she was kicking the door in, he saw a man armed who he believed was going to attack Ms Gates. She submitted that the accused genuinely believed Ms Gates was under threat and he was therefore entitled to intervene to stop that occurring.
Ms Demertzis submitted that the versions given by the accused and Ms Gates are at odds with the prosecution case. She said that I may find that it is reasonably possible that the accused had no knowledge of why Ms Gates was at the premises, that he had not been a part of the telephone calls or messages that occurred earlier, and Ms Gates had not included him in those conversations quite deliberately. It may also be reasonably possible that Ms Gates made her decision in the spur of the moment to kick the door in, and consistent with Ms Gates’ evidence it happened quite instantaneously. It was also open for me to find that it was Ms Gates who was armed with the only taser at the premises. In respect of the evidence given by the children that they saw a pink taser, it was possible they were mistaken in relation to this as there was only one taser located, being the blue taser, and it may well have been something else. She submitted that there is clear evidence of only one taser at the premises, and that taser was initially in the hands of Ms Gates. She submitted that there is no suggestion that the accused used or threatened to use the taser other than the initial allegation that were two tasers. Ms Demertzis submitted there is no reason for me to reject the evidence given by Ms Gates that she was the only one in possession of the taser, and indeed, her evidence is supported in some respects by Mr Tapper’s and Mr White’s evidence. If this is so, this provides further support for the accused’s genuine belief as to the need to defend Ms Gates, as he had not gone there expecting to fight, was not prepared for a fight, and was not therefore a willing combatant.
Secondly, Ms Demertzis submitted that there is support for the evidence of the accused that Mr Tapper was armed with a pole, as on Mr Tapper’s evidence it was he who picked up the pole to use it. She said that whilst on Mr Tapper’s evidence it is at a later point, it remains reasonably open that it may have been earlier, and at the point when the accused and Ms Gates were entering the premises. She submitted that I may not be clear as to when Mr Tapper initially armed himself with the pole, as he was inconsistent in relation to this evidence. He initially said that he fell backwards, was on the ground, and as he was getting up, noticed the pole and picked it up. When he was cross‑examined, he conceded he told the police something slightly different.
Thirdly, Ms Demertzis submitted that it was reasonably open for me to find as a reasonable possibility that the accused’s first physical interaction with Mr Tapper was whilst he was unarmed or either wrestling or tackling as is described by both the accused and Mr White. When Mr White first saw the accused tackle Mr Tapper, he did not see anything in his hands and he was not armed at that stage. This would suggest that he was not intending to inflict injuries or assault him, but merely trying to prevent Mr Tapper from advancing on Ms Gates with the pole.[45] This tackling manoeuvre is consistent with the clear intent to prevent the assault on Ms Gates rather than intending to inflict harm. Ms Demertzis submitted that Ms Gates’ evidence does not shed a lot of light on this aspect but that is not surprising as she had a fixed focus from the time she entered the house, and that was to take the child, BT.
[45] T291.
Ms Demertzis submitted that the fact the accused was struck by a bottle suggests that this was a protracted incident in which the accused continued to defend both himself and Ms Gates, and the inference to be drawn from him being struck by the bottle is that he needed to defend himself. She submitted that if the accused’s intention was to attack these men, as suggested by the prosecution case, it is relevant that after the three men had wrestled together over the taser and the metal pole, and that the accused ended up with the metal pole, he had not used the pole to perpetrate any further assault on Mr White or Mr Tapper which he may well have done had his sole intent been to attack one or both of them.
She submitted that there was some discrepancy about what may or may not have gone on between Ms Gates and Mr Tapper at the time the accused used the pole, but on Mr Tapper’s version he had Ms Gates by the throat and was lifting her off the ground when he was struck by the pole. However, the evidence in relation to this incident is not clear she said, as there was only a very short time between that incident, and when they left the premises, but it reinforced the accused’s state of mind that he was not a willing combatant rather doing only what was necessary. However, she suggested that at that stage what is clear is that Mr Tapper was not assaulted on numerous occasions or continually hit by the pole even though he was there on his own as his brother had left the premises.
She submitted that self‑defence had clearly been raised and not disproved by the prosecution in that it was Mr Williams’ state of mind to do what was necessary for a defensive purpose, primarily to stop Ms Gates from being struck by the pole, and objectively the tackling and wrestling with Mr Tapper is reasonably proportionate to the threat, and one blow to Mr Tapper as he leaves is again reasonably proportionate to the threat.
Discussion
Res Gestae
Before continuing to discuss the evidence in relation to this case and make findings of fact, there is a matter of admissibility that needs to be resolved.
The prosecution tendered the recordings of three phone calls made to police on the night of 22 April 2018; a call made by Joshua Tapper at 8.05 p.m.,[46] a call made by Matthew White at approximately the same time,[47] and a call by TT at 8.11 p.m.[48] In his opening address, the prosecutor submitted that the recording of the phone calls to police form part of the res gestae and were tendered on that basis.[49]
[46] Exhibit P7; MFI P8.
[47] Exhibit P16; MFI P17.
[48] Exhibit P9; MFI P10.
[49] T9; T10.
Ms Demertzis did not object to any of the recordings being played in court during the trial.[50] However, in closing addresses, she submitted that the call made to police by TT was too remote, and contained no information that could form part of the res gestae.[51] Further, she submitted that majority of the contents of the call was evidence available from other sources, and that it was not inconsistent with the factual scenario put by defence.
[50] T50-1.
[51] T294.
In relation to the recording of the call made by TT to the police, the prosecutor conceded that TT was not observing the violence whilst she was on the phone to the police.[52] To this matter, TT gave evidence that she called the police when she was under the car with her little brother having escaped from the property.[53] However, the prosecutor submitted that this was not a bar to admissibility. The prosecutor relied on the authority of Ratten v The Queen[54] and submitted that the relevant principles had been made out, namely, contemporaneity of the call and the overwhelming pressure of the events on TT.[55] It was conceded that there was a degree of exaggeration in the assertions made during the telephone call but it was said that that was a result of the distressed state of TT. Ultimately, the prosecutor submitted that these factors negated the statements from being characterised as a historical account, therefore forming part of the res gestae and can be relied on for the truth of the assertion.[56]
[52] T277.
[53] T102.
[54] [1972] AC 378.
[55] T277.
[56] T278.
Earlier during the trial, the prosecutor referred me to the authorities of R v Anderson[57] and Vocisano v Vocisano[58]. Taking each authority in turn, in R v Anderson, the victim made three phone calls to the police during a high‑speed car chase involving himself and the appellant. The contents of the ‘000 calls described an unfolding car chase between the appellant and [the victim]’ and made a number of references to being shot at whilst speaking on the phone.[59] The third and final phone call to police was made, on one view of the evidence, after the conclusion of the shooting.[60] It was argued by the appellant’s counsel that the recording of the third 000 call should not have been admitted as part of the res gestae. Justice Kelly (with whom Kourakis CJ and Doyle J agreed), found that when each of the calls were made the highly charged pursuit was continuing, and that was sufficient in determining the recordings of 000 phone calls admissible.[61]
[57] (2017) 128 SASR 550.
[58] (1974) 130 CLR 267.
[59] (2017) 128 SASR 550, 553.
[60] Ibid 569.
[61] Ibid 569.
In Vocasino, a husband and wife who had attended the scene of a motor accident gave evidence, in a civil trial for damages, that the respondent told them the appellant had been driving the car when it overturned.[62] The High Court reasoned that despite the statements by the respondent being proximate to the time of the accident, they were in the nature of a historical account, and therefore, not admissible as part of the res gestae.[63]
[62] Vocisano v Vocisano (1974) 130 CLR 267, 270.
[63] Ibid 273.
In the present case, whilst the struggle inside the property was ongoing, TT gave evidence that she had removed herself and her brother from the property, and was hiding in the driveway of a neighbouring property around the corner of Frobisher Avenue when she made the call.[64] Her account largely describes the events which unfolded in the property, although somewhat inconsistently with the evidence before the Court. Leaving aside the inconsistencies, to my mind, while the phone call was made proximate in time and place to the incident, TT’s account is of a historical nature rather than a spontaneous narrative ‘part and parcel of the occurrence’. I, therefore, decline to admit the evidence as part of the res gestae.
[64] VDP9; MFI P10.
I turn now to the other two phone calls, that being the recordings of the phone calls made by Mr Tapper and Mr White. The prosecutor submitted and defence counsel agreed that the statements were ‘clearly a part of the res gestae’.[65] The prosecutor submitted that the assertions in the phone calls tended to reveal a number of important features, namely:
1that the accused, not Mr Tapper, was the aggressor;
2that the accused must have known Ms Gates had a taser whilst at the front door;
3that the call is inconsistent with the suggestion Mr Tapper advanced on Ms Gates with the pole; and
4Mr Tapper believed he was lawfully defending himself and others at his home once the intruders forcibly gained entry.
[65] T277.
In relation to the phone call made by Mr Tapper to police at 8.05 p.m., Mr Tapper gave evidence that he recalled making the phone call to police whilst in the kitchen with his brother.[66] In cross‑examination, he said that he made the call after his son, RT had come into the kitchen and told him that the accused was holding a taser trying to kick in the door.[67] In the recording of the phone call, the following conversation takes place:
Operator: Is someone there now with a taser?
Caller: Yep
Operator:Who’s there now?
Caller: uh Joe.
Operator: …. Who’s Joe?
Caller: Fuckin Joseph Williams.
[66] T31.
[67] T63; T73-4.
The prosecution seeks to rely on the statements made in the recorded phone conversation for the truth of the assertions. However, the witness gave evidence that he first saw the accused after the accused entered the property, and that he first observed the taser when it came around the kitchen door which he was barricading.[68] He gave evidence that it was his son who told him that the accused and Ms Gates were outside trying to kick in the front door, and the accused was holding a taser.[69] As this exchange occurred prior to Mr Tapper’s own observations, and was based on the statement of RT, it is inadmissible. The assertions recorded in the call, and the fact and timing of the call can, however, be used for a non-hearsay purpose to draw other inferences in this case.
[68] T31; T33.
[69] T63.
Similarly, Matthew White gave evidence that he called the police whilst he was in the kitchen about to pour a coffee and could hear thumping at the front door.[70] The following conversation can be heard between Mr White and the call operator.
Caller:… Ummm we have children here and someone is trying to break into the house with umm tasers and stuff and other possible firearms.
Operator: All right.
…
Operator: So they’re out the front currently?
Caller: They’re out the front now. Pushing on the door trying to kick it in. They’ve already..
[70] T118; T120.
Mr White gave evidence that he heard but did not see the front door being kicked open,[71] and that the first time he saw the accused and the taser was when the kitchen door had been forced open.[72] Mr White said it was one of Mr Tapper’s children who told him that the accused and Ms Gates were at the front door.[73] Again, I find that the assertions made by Mr White repeating what the child had told him prior to his own observations of the accused and the taser inadmissible.
[71] T121; T141.
[72] T122; T144.
[73] T142.
Towards the end of the recording of the call with police, Mr White re‑engages in conversation with the operator. He tells the operator, ‘I’ve been hit by the taser a couple of times and then hit in the head’.[74] Defence counsel did not object to the tendering of the phone call[75] nor object to the content of the phone call being admissible as part of the res gestae. I accept that Mr White was hit on the head. However, the use is limited as Mr White did not identify how or who perpetrated the blow to his head.
[74] Exhibit P16; MFI P17.
[75] T135.
Findings
I found the evidence of each of the prosecution witnesses in this case to be credible, cogent and compelling. There were some aspects of the evidence in particular that of Mr Tapper and Mr White that was confusing in relation to the chronology of events, and the exact nature of the unfolding events. However, on each of the major issues in the trial, I accept them as witnesses of truth and reliable.
I accept the evidence of Mr Tapper that as at 22 April 2018, Mr Tapper had the three children in his care. The exact nature of the arrangement for the children’s care is not really relevant to my consideration. I accept that there was no formal arrangement in place between them. However, even without a formal arrangement, there was no right on the part of Ms Gates to force her way into the house to remove any or all of the children.
What is important is that Ms Gates had put Mr Tapper on notice that she intended to come to get the children, and this resulted in Mr Tapper being so afraid of the consequences that he had telephoned the police to advise them.
I also accept Mr Tapper’s evidence that he had put the TEK screws in the screen door and double fastened the door to stop her from entering the premises. I accept this despite the fact that the photographs do not clearly show the area in question nor was there any damage recorded in relation to the door. The evidence that Mr Tapper tried to secure his screen door is supported by his brother, Mr White, not being able to access the front door, and the observations of his son who saw him with his tools at the front door shortly before the incident.
I also accept the evidence given by Mr Tapper that as soon as he heard the noises at the front door, he tried to call the police, and that at that stage, he was in bedroom 4 of the house with a view of the front door through some curtains. The evidence that Mr Tapper was in this room is supported by his brother who saw him on the phone to the police at that time. By the time Mr Tapper called the police, he was aware that somebody was at the front door, and he thought they had a taser. By that stage in the conversation to the police, at least one minute has elapsed from the time he commenced making the call to the police. In respect of the issue of how many tasers were at the premises, I am not satisfied that there were two. The evidence in relation to the pink taser is very limited. I have proceeded on the basis that the only taser was the blue one.
I do not accept even as a reasonable possibility the evidence given by the accused that when he and Ms Gates entered the premises, Mr Tapper was armed with an iron bar and in the lounge room. Nor do I accept that Mr White was in the lounge room at that stage. The configuration of this house is such that the only door that permits easy access from the lounge room to the kitchen is through the hallway adjacent to bedroom 2. I find that Mr Tapper and Mr White were at all relevant times in the kitchen or bedroom 4, when entry was effected by the accused and Ms Gates shortly after the accused and Ms Gates had gained entry. I am satisfied beyond reasonable doubt Mr Tapper and Mr White tried to barricade themselves in the kitchen by holding the kitchen door closed.
Further, I am satisfied beyond reasonable doubt, both the accused and Ms Gates tried to enter the kitchen by forcing the kitchen door, causing damage to it, and when they had been able to force the kitchen door open slightly, Ms Gates put the taser through the gap and discharged it, causing Mr Tapper and Mr White to move away from the door. In so doing, Mr Tapper fell to the ground and the accused lunged towards him. At that stage, I find that Ms Gates is screaming ‘Where is he?’ with Mr Tapper or Mr White shouting, ‘I don’t know’, she continues to scream ‘Give me my kids’ whilst being told to get out of the premises.
I find that as Mr Tapper fell to the ground near the fridge, he found the trolley pole, picked it up and tried to defend himself with it but that this was taken from him after he struck out at the accused, missing him but hitting the wall causing him to drop the bar. He was then punched and assaulted. Mr White was tasered whilst he was on the ground by Ms Gates, and that Ms Gates and the accused had the upper hand at that stage. During the melee, I find that the accused struck Mr Tapper with the pole across his head and across his nose, and that both of these strikes were deliberate acts intending to harm Mr Tapper, in the course of the accused keeping the coast clear to enable Ms Gates to retrieve her youngest son from his hiding place in the house. During the course of the melee, I am also satisfied beyond reasonable doubt that the accused deliberately hit Mr White over the head with the pole intentionally causing him harm. I draw this inference from the evidence of Mr White.
Both Mr Williams and Ms Gates were unsatisfactory witnesses. Their evidence in relation to crucial matters cannot be accepted. Their evidence does not cause me to have a reasonable doubt as to the proof as the elements of the charged offences. The evidence of Ms Gates was clearly directed towards trying to exculpate the accused. I find she did this as she believes it was ‘her fight’ and she has taken responsibility so the accused should be exonerated. In particular, their evidence as to the lack of knowledge on the part of the accused that Ms Gates approached and stood at the front door with the taser, and denials that it was discharged at the front door, cannot be accepted as a reasonable possibility.
It is clear from the evidence of the occupants of the premises, that they were aware that there was a taser in the possession of one of the intruders prior to them entering the premises. This is clearly documented in the 000 calls and the evidence of TT and RT, which I accept. I find that both the accused and Ms Gates entered the home as aggressors intending to retrieve the child, BT. I do not accept the evidence of Ms Gates that she had attempted to hide the taser from Mr Williams. I find that it had been discharged at least once at the front door before entry was effected. I do not accept the evidence of the accused and Ms Gates that the accused did not assist in breaking into the house. The force required to open the screen door and the wooden front door required both to do this. I accept that Ms Gates was riled up at the front door but also do not accept that she had not conveyed her anger to the accused before she began shouting at the front door and smashing it. It would have been plainly obvious to the accused that she had no consent to enter and neither did he. I find they both entered as trespassers.
It is clear from the 000 calls, Exhibit P6 and P15, that both Mr Tapper and Mr White are terrified. They are seeking the assistance of the police, they clearly have not given consent to anyone to enter the premises. The process of entry has taken some time as both the screen door and the front door were secure, and the sounds of chaos in the house can clearly be heard on Exhibit P15 for close to six minutes.
I do not accept that when the accused entered the house, he did not know that Ms Gates was armed, and did not know that she intended to take the child by force, if necessary. I am satisfied beyond reasonable doubt that Mr Williams did not act lawfully to defend either himself or Ms Gates at any stage during the altercation that occurred. His entry, and that of Ms Gates into the premises was unlawful and remained so at all times. I am satisfied beyond reasonable doubt that the accused was aware that he and Ms Gates were in the premises without lawful excuse, that she was armed with a taser and was using the taser on the occupants. The accused made no efforts to stop her entering the premises, and at least by the time they were at the kitchen door, he was actively assisting her to force it open. I am satisfied that once in the kitchen he was the aggressor. He had taken on the role of a willing combatant, and has sought in this court to use the lawful use of force by the occupants as a cover to inflict harm upon them. I do not accept, even as a reasonable possibility, that the accused had a genuine belief that he needed to protect Ms Gates against an unlawful attack by Mr Tapper, Mr White or anybody else. It is not reasonably possible that the accused believed that his conduct was necessary for a defensive purpose either in relation to himself or Ms Gates. I do not accept that the accused genuinely believed on reasonable grounds that Mr Tapper or Mr White were acting unlawfully.
I am satisfied that the prosecution have disproved the defence of self‑defence or defence of another beyond reasonable doubt.
I am satisfied beyond reasonable doubt that the accused entered or remained in the premises as a trespasser with the intention of committing an offence against the person. Further I am satisfied beyond reasonable doubt that other people were lawfully present in the house and that the accused knew of their presence and that the accused committed this offence in company with Ms Gates. I, therefore, find him guilty of count 1.
I am satisfied beyond reasonable doubt that the accused deliberately and unlawfully used a pole to intentionally cause harm to Mr Tapper by striking him to the head and across the bridge of his nose. I am satisfied beyond reasonable doubt that the accused committed the offence in company with Ms Gates and that the pole was being used as an offensive weapon. I, therefore, find him guilty of counts 2 and 4.
I am satisfied beyond reasonable doubt that the accused deliberately and unlawfully used a pole to intentionally cause harm to Mr White by striking him on the head. I am satisfied beyond reasonable doubt that the accused committed the offence in company with Ms Gates and that he used the pole as an offensive weapon. I, therefore, find the accused guilty of count 3.
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