The State of Western Australia v Shorter

[2015] WADC 68

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SHORTER [2015] WADC 68

CORAM:   MCCANN DCJ

HEARD:   2-4 JUNE 2015

DELIVERED          :   11 JUNE 2015

FILE NO/S:   IND 1353 of 2014

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

LEIGH ANTHONY SHORTER

Catchwords:

Sentencing - Aggravated burglary - Multiple offenders - Trial of issues - Index offender's role - Turns on own facts

Legislation:

Evidence Act 1906 s 11
Sentencing Act 1995 s 15
Criminal Code s 401(2)(c)

Result:

Findings made

Representation:

Counsel:

The State of Western Australia  :    Ms J B Williamson

Offender:    Mr I D Hope

Solicitors:

The State of Western Australia  :    State Director of Public Prosecutions

Offender:    Ian Hope Barrister & Solicitor

Case(s) referred to in judgment(s):

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Law v The State of Western Australia [2009] WASCA 193

Rimington v The State of Western Australia [2015] WASCA 102

MCCANN DCJ: 

Introduction

1. I have conducted a trial of issues in relation to the sentencing of Leigh Anthony Shorter. Mr Shorter pleaded guilty on 2 June 2015 to one count of aggravated burglary committed on 25 February 2014 at Nedlands, contrary to s 401(2)(a) of the Criminal Code.

2. In particular, Mr Shorter pleaded guilty to a charge that while in the place of the complainant without her consent he committed the offence of stealing and at the time he was in company with others, and that immediately before the commission of the offence he knew or ought to have known that there was another person in the place and, further, that the place was ordinarily used for human habitation.

3. Ms Williamson for the State read the following statement of material facts (ts 7 – 10; the intercalated numerals and emphasis are mine):

   At about 5.50 pm on Tuesday, 25 February 2014, the offender, in company with his son, Mr Steele McGhee‑Shorter, and his stepson, Mr Dale Marshall, attended the home of the [complainant] located at 24 Loch Street in Nedlands.  [She] resided there with her partner, Mr Clinton Bischopps, and their 18‑month old son …

   The offender had previously met Mr Bischopps and the complainant and had been to the same address approximately six weeks earlier in an attempt to recover an alleged debt that was owed to an associate of the offender [PI].  On that occasion the offender attended the house and spoke to Mr Bischopps, telling him that he would be back in 24 hours to collect the debt owed, and [i] warning him not to 'fuck him around'.

   The following day the offender [ii] sent a series of threatening text messages to Mr Bischopps and the [complainant], indicating that he was on his way and that if they did not have the money [iii] then there would be trouble.

   Mr Bischopps and the [complainant] denied that they owed the debt, and refused to pay any money, instead providing documentation in an attempt to prove that they had already paid that alleged debt to [PI].  [iv] The offender responded by threatening the [complainant] with violence.

   Following this incident Mr Bischopps and the [complainant] received some [v] further threatening text messages from [PI] and [vi] other unknown [telephone] numbers in relation to the alleged debt, indicating that [PI] did not accept the documentation that they had provided to the offender as proof of payment, and that if they did not pay the debt then [vii] [PI] would send someone to 'fix them'.

   On 25 February 2014, the offender attended the victim's home for the purpose of recovering the alleged debt on behalf of [PI].  He and one of his co‑offenders walked to the rear of the house and approached the rear French door.

   Mr Bischopps saw the offender and his co‑offender walking around from the side of the house and leaped over the couch to deadbolt the door and prevent the offender from coming inside.  Due to fears about their safety Mr Bischopps sent the [complainant] and their son to hide in the bathroom.

   The offender, who was outside, tried to open the back door but was unsuccessful, given that Mr Bischopps had locked it.  Upon observing Mr Bischopps inside [viii] the offender said to Mr Bischopps, 'There is a guy at your front door right now with a shotgun, and if you don't open the door and let me in he's going to come through and it's going to be bad for all of you'.  [ix] The [complainant] overheard this from the bathroom.

   Mr Bischopps felt threatened and expressly refused to let the offender inside, telling him that his partner and his son were inside the house, and telling him that he was not to come in because they did not owe anyone any money.  Mr Bischopps then called out to the [complainant] to call the police, and she came out of the bathroom to get Mr Bischopps' phone from him.

   [x] Mr Bischopps heard the offender say, 'Do it', and shortly thereafter the front door was forced open and a stained glass window in the door was smashed, allowing co‑offenders to enter the house.  [xi] At the same time the offender forced open the back patio door, causing damage to the top part, which had been secured with the locking bolt, and he entered the house without consent.

   [xii] After witnessing this the [complainant] fled into the toilet, which is a separate room next to the bathroom, with their son, and she called 000.  Mr Bischopps followed the [complainant] and their son shortly thereafter, and they all barricaded themselves in the toilet.

   After the offender entered the house he went into the toilet area where Mr Bischopps and the [complainant] were hiding with their son.  He yelled at them through the closed door words to the effect of, [xiii] 'What have you got that we can take? and, 'What do you have here that is worth any money?'

   Further, the offender repeatedly told Mr Bischopps and the [complainant] to come out of the toilet, [xiv] causing them to feel threatened.  The offender further told them that the police were coming as he had called them, and Mr Bischopps and the [complainant] responded by telling the offender to get out of their house.

   Whilst the offender was speaking to Mr Bischopps and the [complainant] the co‑offenders [xv] ransacked the [complainant's] house, placing numerous items belonging to Mr Bischopps and the [complainant] into duffel bags which they had brought with them to the house.

   The offender then placed further items belonging to Mr Bischopps and the [complainant] into a maroon backpack that he was carrying.  These items included the victim's wallet, four bottles of red wine, a Sony Handy camera, several power tools, an electric mirrored ball, costume jewellery, two vases, two jewellery boxes, two digital cameras, and some other household items.

   Police attended the address in response to a police radio communication in relation to the [complainant's] 000 call.  They located the offender in the front yard in possession of the maroon backpack containing property stolen from inside the house.  Three further duffel bags containing some items belonging to Mr Bischopps and the [complainant] were also located in various locations inside and outside the house.

   The offender was arrested and conveyed to the Perth Police Station, where he participated in a video record of interview with police.  The offender made some admissions to the offence, but told police that he and his sons had been at the house for the purpose of protecting Mr Bischopps, the [complainant], and their son from some 'nasty arse blokes' or 'bikers' that [PI] had sent to collect the debt.

   The other co‑offenders fled the house upon police arrival.  Police later apprehended one co‑offender, Mr Marshall, a short distance away.  The other co‑offender, Mr McGhee‑Shorter, was apprehended some months later.

   … Mr McGhee‑Shorter was arrested some months after the offence, and he has been at large since that time, so his matters haven't progressed any further at this stage.

   In relation to Mr Marshall, Mr Marshall pleaded guilty to the offence on a fast‑track basis. …

4. Mr Hope for Mr Shorter informed me (ts 12 – 15) of Mr Shorter's position as follows.  (Once again the emphasis and numerals are mine and follow on from those above).

5. Mr Shorter admitted that he had dealings with the complainant and Mr Bischopps prior to 25 February in relation to the payment of a debt that he believed Mr Bischopps owed to PI.  However, he contends that [xvi] he was always calm and collected and simply acting as an intermediary.  As such, he denied that he behaved in a threatening or standover way at any time.  He says [xvii] that if anyone behaved badly, it was the complainant on an occasion some weeks prior to 25 February.

6. Mr Shorter contended that he became involved and was only motivated to assist Mr Bischopps, because he had developed an infatuation with Mr Bischopps' sister who was worried about her brother's and the complainant's dealings with PI.  He felt that he could ingratiate himself with Ms Bischopps' if he mediated a resolution between PI and Mr Bischopps.

7. He admitted that he, his son (Steele) and step‑son (Dale) attended the complainant's house on 25 February 2014 because, he believed that [xviii] certain associates of PI were intending to call on Mr Bischopps that very afternoon with a view to extorting payment of the debt.  (I shall call these purported people 'PI's henchmen).  He saw himself as a kind of honest broker who might persuade Mr Bischopps to settle the debt without any trouble.  He took the co‑offenders with him as 'back‑up' [xix] in case there was any trouble with PI's henchmen.

8. Whilst he was standing outside the house at the back door trying to persuade Mr Bischopps to let him in, [xx] his son (Steele) smashed through the front door, ran through the house and [xxi] opened the rear door.  Mr Shorter [xxii] took that opportunity to enter (knowing he had no permission) and spent some time [xxiii] trying to persuade Mr Bischopps to do something about the drug debt.  Meanwhile [xxiv] Steele and the co‑offender searched the house and packed (ie, stole) goods into bags which they had brought with them.

9. [xxv] For some inexplicable reason, Mr Shorter took the opportunity to steal the items which were found in his maroon backpack.  He loaded them into the backpack and was leaving when he was apprehended and arrested by the police in the front garden.

10. [xxvi] Mr Shorter denied that he gave the co‑offenders any instruction to smash entry into the house or that there was any preconceived plan to that effect and [xxvii] he denied that he ever said anything about someone at the front being armed with a shotgun.

11. In summary, the State case is that Mr Shorter was a standover man who planned and coordinated the aggravated burglary as alleged, whereas Mr Shorter's position is that he started out as a misconceived honest broker and ultimately became unwisely embroiled in a spur of the moment burglary instigated by his co‑offenders.

12. Against this background the basic contested issues which arise for determination, and my findings, as to the events of 25 February are as follows.  (The issues loosely correspond to the emphasis and intercalated numerals above).

    (i)What was the accused's original intention or purpose in attending the complainant's house?  In other words, what was the criminal enterprise and when did it come into being?  Finding:  To extort money or goods from Mr Bischopps.

    (ii)Did Mr Shorter behave in a threatening manner at any material time, as alleged by the State?  Finding:  Yes.

    (iii)Did Mr Shorter make any reference to the presence of a weapon (including a shotgun) during the commission of the aggravated burglary?  Finding:  Yes, indirectly, but not to a shot‑gun.

    (iv)Did the accused direct the co‑offenders to break in through the front door?  Finding:  Not expressly, but they were encouraged to do so by him yanking on the rear door.

    (v)Did the accused himself make a forcible entry ie, break in through the rear door?  Finding:  Yes.

    (vi)What was the accused's intention in relation to the stolen goods, ie, were they stolen as temporary security or with intent to permanently deprive?  Finding:  To permanently deprive.

13. It is necessary to give an expedited decision because Mr Shorter is to be sentenced on 11 June 2015 pursuant to pre‑sentence order made by this court on 17 January 2014 for one count of possession of methylamphetamine (28 g) with intent to sell or supply committed on 19 March 2013.  The commission of the aggravated burglary breached that order.

The onus of proof and other evidentiary matters

1. The State bears the onus of proving beyond reasonable doubt all of the contentions which aggravate Mr Shorter's criminal culpability (ie, [i] ‑ [xv] above).  Mr Shorter bears the onus of proving on the balance of probabilities those contentions which he contends mitigate his culpability (ie, [xvi] ‑ [xxvii], except for [xxi] which is not in issue:  (Law v The State of Western Australia [2009] WASCA 193 [33] ‑ [34] Buss JA).

2. In so far as the State bears the onus of proof, I will find the facts to be as contended by Mr Shorter if I accept his evidence on those matters, or his evidence (or any evidence for that matter) raises a reasonable doubt about it. 

3. Pursuant to s 15 of the Sentencing Act 1995, I am entitled to inform myself by any means I see fit, subject to the rules of procedural fairness (Rimington v The State of Western Australia [2015] WASCA 102 [52], Beech J). If an offender challenges the truth of what is in the prosecution brief, then the ordinary rules of evidence apply if there is a trial about the issue (Rimington [61], Beech J). If a material fact contended for by either party is not proven, it should be put aside as non‑existent (Law [34], Buss JA).

4. I am not strictly limited to findings contended for by either party, again subject to the requirements of procedural fairness (Law [31], Buss JA; Rimington [53], Beech J).

5. There was an extensive hearing and care was taken by the parties to ensure that the evidence was formally adduced.  It comprised the entire State brief, save and except for the statements of the complainant and Mr Bischopps, who both gave oral evidence.  The investigating officer, Detective Senior Constable Paul Matthews, gave some oral evidence dealing with, or identifying, uncontentious matters which arose during the police investigation.

6. The brief included the video record of interview conducted by Detective Senior Constable Matthews with the accused in the early hours of 26 February 2014, discs containing recordings of a '000' call made by the complainant during the commission of the offence and a return call made by police communications, another disc containing closed circuit television footage taken from a camera at the front of the complainant's house during the commission of the offence, numerous scene photographs and schedules of material which was downloaded from the telephones of Mr Bischopps and Mr Shorter.

7. Mr Shorter also gave evidence.

Summary of the evidence of the complainant, Mr Bischopps and Mr Shorter

Mr Bischopps' evidence

1. Mr Bischopps testified that he first met Mr Shorter at a party in Fremantle approximately one year before 25 February.  They hit it off and enjoyed each other's company that night, but did not socialise again.

2. He did not recognise Mr Shorter when he first came to 24 Loch Street to discuss his alleged indebtedness to PI in early 2014.  This seems to have caused some consternation for Mr Shorter who eventually suggested that Mr Bischopps call him 'Bull' and the nickname stuck.  Henceforth, I shall refer to 'Bull' as Mr Shorter.

3. This meeting was amicable.  Mr Shorter said to him 'You owe my boss $8,000'.  He did not say who his 'boss' was, but Mr Bischopps inferred that he was referring to PI who was 'the only person that came to mind … because he'd been the only one we had actually ever owed money to [for drugs]' (ts 26).  Mr Bischopps said 'Do you mean … Phil?', to which Mr Shorter replied 'Who's Phil?  My boss'.

4. Mr Shorter told Mr Bischopps that he would 'be back in 24 hours and we had to have the money' or 'I'll hit you' (ts 26 – 27).  Mr Shorter then left.  At the time Mr Bischopps thought the threat was a bit of a joke and he did not take it seriously.

5. Later that day Mr Bischopps discussed the matter with the complainant.  They were certain that they had settled their drug debt with PI.  They contacted PI, but he basically said that he had passed debt off (ie, assigned it to others) and:  'Just pay these people because they're from you know, out of town and they're you know, bad – don't fuck with them.  Just give them what they want.  Do what they want' (ts 28).

6. Mr Bischopps and the complainant tried to explain to PI that they did not owe any money at all but he would not listen, gave them 'an earful and then hung up'.

7. Given that Mr Shorter said he would be coming back the next day, Mr Bischopps and the complainant collected a number of records such as notes, receipts and bank statements which they believed proved that they had fully discharged the debt to PI.  They placed all of this material in an envelope and put it in the letterbox for Mr Shorter to collect.

8. Mr Shorter came to the front door the following day, but the complainant told Mr Bischopps that she would deal with the matter.  He retreated to the rear of the house with their young son and armed himself with a spear-gun in case Mr Shorter 'came through' (ts 30).

9. Although he was not particularly clear about it, Mr Bischopps testified that he did so because he believed Mr Shorter was in company (Mr Shorter denied it and I can make no finding about it), because he had received messages from Mr Shorter advising that he was on his way over and because the complainant had received some very threatening messages on her telephone over the previous 24 hours.  These messages were to the effect that Mr Bischopps' legs could be broken and/or he could be visited by some thugs.

10. Mr Shorter and the complainant had a confrontation at the front of the house separated by the flyscreen door.  Mr Shorter 'basically went ballistic' because he had discovered there was no money in the envelope that had been left in the letterbox.  He said things like 'What – what am I going to tell my boss' (ts 29).

11. From Mr Bischopps' evidence it would seem that he believes that the complainant behaved with 'amazing calmness'.  He said that she 'politely' asked Mr Shorter 'to fuck off', whereupon he left (ts 29).

12. He and the complainant were very worried about what was happening, so they went to the police.  The police were 'not interested' in helping them, but did advise them not to submit to demands for money because then they would not stop.

13. Mr Bischopps testified that he was emotionally very unsettled at the time (as his baby son had just returned from a lengthy stint in hospital), and so he decided that the thing to do was to embark on a stealing spree and give PI (or the assignees of the alleged debt) what they wanted.  Over the ensuing weeks he committed a very large number of burglaries and thefts in the surrounding area and cached the stolen goods (which were many and varied) at 24 Loch Street.  He was unable to say exactly how many burglaries he committed, but he has been charged with and admitted 13.

14. These goods included a licensed Harley Davidson motorcycle in excellent condition which he parked behind a side gate along the northern side of the house.

15. Turning to the events of 25 February 2014, Mr Bischopps testified that he was lying on a lounge at the rear of 24 Loch Street playing with his baby son.  As he sat up he caught sight out of the corner of his eye of 'a couple of heads walking at the bottom of the patio'.  He did not realise who it was at the time, but he hurriedly pulled the back door shut and locked it top and bottom with the sliding bolts fitted for that purpose.

16. The two persons came up onto the patio.  He recognised Mr Shorter (who he still knew as 'Bull'), but not the other person who was wearing a hoodie and had his face covered up.  The two men were carrying backpacks or carry bags.

1. Mr Bischopps testified that he had not heard from Mr Shorter at all that day, but he was 'pretty sure' that after the burglary he noticed some missed calls from him on his telephone.

2. Mr Shorter came to the back door and Mr Bischopps approached with the baby in his arms.  He testified as to what happened next (ts 38 ‑ 39):

   And Bull come up to the window, like, close and said virtually, 'There's someone' or, 'There's some people at the front' or 'Someone', I'm not sure, 'with a shotgun.  Basically, sit down on the couch there and let us in.  Sit down over there and no‑one will get hurt'.  And I – at that point I passed my son to my partner and I told her to go into the bathroom.  And … I – turned around and told him you know, to fuck off, we don't owe you any money.  And then I said, 'look there's a – a Harley there, there's a motorbike there, take it.  All that stuff there, take it, and fuck off and leave us alone.

   …

   … he sort of asked which bike, I think, maybe.  And then I – I – you know, didn't obviously go out and show him, but 'that one there'.  And then he started – I'm not sure if he had a walkie talkie or something like that or a phone, to whoever was out the front and started pulling on the door at the same time the front door simultaneously started caving in.

3. Mr Bischopps said that he did not hear Mr Shorter actually say anything (ie, he expressly contradicted the statement of material facts at [x] on this point).  He continued as follows (ts 40 – 41):

   [After hearing something smash through the front door] I turned around and started walked towards the front door so I could join my partner and my son in the – in the bathroom.  And yeah, it was – came in, like lead lights aren't strong, but they're not weak either.  It's got bars that go across the – it was well and truly getting hammered.

   … [The last thing I saw Bull doing was] yanking on the back door.  As I walked across - …  As I walked past [the kitchen] … I glanced back and you know, basically seen and heard the door peel off.  … heard a cracking, the wood splitting and break in half, yeah.

4. He testified that the complainant and the baby had moved from the bathroom to the toilet at this point.  He joined them there.  Whilst they were inside the complainant telephoned the police and there was 'lots of commotion' outside.  There was 'heaps of random like abusive stuff … through the door', but he did not recognise any of the voices (ts 42).

5. Eventually everything went quiet and they could hear the sirens of police vehicles in the distance.  They then heard 'a scurry of footprints, so obviously someone running from the front of the house downstairs and … out the back' (ts 43).

6. Mr Bischopps testified that if he had 'known it was Leigh' (ie, recognised his friend from the Fremantle party), and there were no threats of violence or illegal entry, then he would have simply let him in (ts 49).  (I noticed that Mr Shorter became very emotional when he heard this evidence).

7. In cross‑examination (ts 83 – 84) Mr Bischopps confirmed that he told the police that he heard 'the sound of a loud motorcycle' shortly before the offenders arrived.  He agreed that this was lie which he had invented to give the police the impression that the offenders had arrived on the stolen Harley Davidson motorcycle and he (Mr Bischopps) would not get charged for it.  (He made it perfectly plain to the police at all material times after their arrival that much of the other property on the premises was stolen and that he was responsible for the neighbourhood burglary spree).  He also acknowledged that the import of the lie was to blame an innocent person (Mr Shorter) for the theft of the Harley Davidson.

8. Mr Bischopps also agreed in cross‑examination that he had told the police that he had received a telephone call from 'Bull' moments before he came to the back door which, of course, contradicted his evidence that there were only missed calls.  He agreed that he must have made the statement to the police, but he could not remember doing so and he maintained that he could not remember the phone call.  He also agreed that he had must have obfuscated to the police about the nature of the call anyway, in so far as he told them that he thought it was a cold call of the marketing variety.

9. Mr Bischopps also agreed in cross‑examination that he did not actually see Mr Shorter in the act of forcing the rear door open.  He said that he saw Mr Shorter 'tearing at it', but he turned around then because the front door was 'getting smashed in'.  That is when he made his way to the toilet (ts 97).  Whilst he was doing so he heard the back door being broken open (ts 97 – 98).

10. Mr Bischopps agreed (ts 94) that sometime after 25 February 2014 he received a telephone call from Mr Shorter who apologised for what had happened.  Although he was non‑committal about it, it seems to me that Mr Bischopps also agreed with the proposition that Mr Shorter asked him to sign some sort of document affirming Mr Shorter's version of what had occurred.  Mr Bischopps agreed at the time that he had 'thoughts' of signing it, but he denied that the same was motivated by an acknowledgement on his part of the truth of Mr Shorter's position.  Eventually he decided not to do so.

11. In re‑examination (ts 104 – 105) Mr Bischopps confirmed his evidence‑in‑chief about the arrival of the intruders and said that Mr Shorter said 'Let us in and no‑one will get hurt.  Someone at the front door had a shotgun' and he replied 'Piss off.  We don't owe anything' and that's when he suggested that the offenders 'take the motorbike at the side of the house' and 'everything else out the back … and just leave us alone'.

The complainant's evidence

1. The complainant's evidence differed in some respects.  For instance, she testified about certain events pertaining to the repayment of PI's debt which involved an intermediary (for PI) named 'Steve'.  After the last payment she told Steve that she would not be making any more payments and asked him to obtain PI's confirmation that the matter was closed.  Steve told her that 'he didn't think it was a very good idea if I stopped making payments at all' (ts 108).  He said that 'Up the line management or something would be extremely pissed off' and then, it seems, made thinly veiled threats about the safety of the complainant's house and child if she stopped.

2. Moving to the events of January/February 2014, she testified that Mr Bischopps informed her of his first meeting with Mr Shorter (which she was told had been cordial).  She confirmed his evidence about them assembling a dossier of evidence and placing it in an envelope for collection by Mr Shorter.

3. She testified about the confrontation with Mr Shorter at the front door the following day.  (I note that no explicit mention of this was made in the facts as read to the court).  The incident was preceded by a series of incoming text messages on Mr Bischopps' phone 'warning that there was going to be an incident at the house and that we'd better have things prepared or some shit was going on' (ts 108).  (She must have been referring to messages 180 – 191 and 200 ‑ 203 on exhibit N).  She 'took over the texting because I felt the only person to look after my house was me and I wanted to, perhaps in my naivety I don't know, just try and see if I can sort something out to explain to this person' (ts 108 – 109).

4. She testified about the text messages (ts 110 – 111):

   And then they started saying, 'We're half an hour away.  We're 15 minutes away.', and I just said , 'Don't'.  I texted back, 'Don't step into the gates.  I've locked – everything's locked'. …  And they said, 'Look, it's got nothing to fucking do with me.  It's not going to help the paperwork and we'll be there in five minutes', or something, and then, yes, they were there.

   … [I was worried] because I'd been told they were going to smash our faces in, that the child would be – you know, I should make sure I get the child – that's another thing.  I should make sure I get the child out of the house because what was going to happen was not going to be ‑ ‑ ‑

5. There was an exchange of text messages in which the sender said 'I'm coming in anyway' and she said 'Don't come in … I will call 000 as soon as I see you step'.

6. Eventually people arrived (and were seen doing so by the complainant and Mr Bischopps on their CCTV screen inside the house).

7. There was a communication (which she believed was a phone call) in which the visitor asked her to come outside because he just wanted to talk to her.  She agreed to speak to him because 'there was banging really loudly at the [front] door'.  So she opened it and saw a man she'd never seen before (Mr Shorter).  She testified as to what happened next (ts 113 ‑ 114; emphasis added).

   I can't recall exactly what the words were but it was – I just stood straight at the door and he was just the most angriest person I've ever seen or felt before in my life, screaming at me that it didn't matter what I said, 'I don't owe money.  I'm not going to give you any money.  I'm not – that's all there is to it'.  And he was screaming, 'You'd better fucking find something.  You know, I – what am I going to do?  I've got to go back to my boss with fucking nothing and you know, I've been sent here to do a job'.  And I said, 'I can't – I don't know what to do about that'.  But spitting – like, I could feel the spit in my face.  I was like, shaking so much, trying so hard to just be normal and I kind of really wanted this person to know that I didn't owe the money and I wasn't going to pay it but they said they had 24 hours, I think it was.  Finally, he said, 'Well, we'll fucking go.  You better fucking have something in 24 hours exactly at the same time that it was, and we'll be back to get it in the end.

8. As to the events of 25 February, she testified (ts 117) that she was sitting in the lounge at the rear of the house and 'heard a loud noise outside' when 'Clint's phone rang and I jumped up'.  Mr Bischopps answered the phone and just said 'Huh' and 'What?' and then he jumped over the back of the couch towards the back door, 'grabbed the bolt and slammed it into the thing and just yelled at me to get into the bathroom with' the baby (ts 118).  By 'bolt' she meant the bolt from the door lock which, as she recalled, had been lying outside because it had been removed by the baby.  At about that point in time she 'glanced some people just on the back patio … but … couldn't really see that much' because she was running off to the bathroom.  She thought there were about two or three people outside (ts 119).

9. Later (ts 132) when she was giving evidence about the damage to the back door she recalled that there had been some problem with one of the locks on the door.  It was my impression that she now thought (on reflection) that Mr Bischopps might have only have secured the upper bolt and not the lower one.

10. Once in the bathroom she could hear 'people running around and banging and yelling out things' such as 'If you don't open this door the ‑ someone else – there's a shotgun, someone out the front are going to smash their way in or shoot their way in' and 'what have you got?  Give us something or something like that'.  She heard Mr Bischopps say 'Just calm down mate' (ts 120).  She thinks that she also heard him say 'No we're not letting you in, no' (ts 120).

11. She testified that at one point during all of the noise and 'horrible voices' (ts 121) Mr Bischopps called to her to come out of the bathroom and get the mobile phone and call the police.  She was 'pretty sure' that Mr Bischopps did so because of 'smashing at the front door' (ts 124).

12. So she left the bathroom and found Mr Bischopps in the kitchen, where he passed her the phone.  She testified (ts 121):

    Just as I was grabbing that phone I looked over and there was someone pulling at the back door, … and then it finally ripped away and broke – lock broke off and they came through the door and that's when I … a guy came through the door.

13. She later testified (ts 133) that just before the door gave way she saw that it was 'bowing … as the person was trying to pull it' and the person was yelling 'Open the fucking door, open the door' (ts 133).

14. She could also hear someone at the front door and people 'running around the back yard, the sides'.  She didn't know where it was to be 'quite honest' (ts 122).

15. Once she received the telephone from Mr Bischopps she went into the toilet (which is separate from the bathroom) with the baby.  Once there she called the police on the 000 number (see [109] below), but she hung up because the police were having trouble working out her address (ts 128).  (Having listened to the call, and in the light of the timeline, this seems an unlikely explanation:  see [161] [xxi]).

16. Mr Bischopps came in at one stage and they sat with their feet up against the door bracing it shut.  Outside she could hear a man yelling out 'Clint it's Bull mate, it's Bull.  Get out here' in a loud and gruff voice (ts 128).  She also heard someone saying 'Clint, come out and talk to us' and she was yelling out 'I've called the police' and 'Get the fuck out of the house'.  Mr Bischopps was saying that he wasn't going to come out and that the intruders should leave.

17. She heard 'heaps of smashing and – like rummaging and yelling out, 'What have you got? … tell us what you've got' and all that stuff.  'What can we grab' (ts 128).  But she was not sure if this was the same person who had previously 'knocked on the door' (emphasis added) and said 'Get out Clint'.

18. At some point she telephoned 000 again (ts 129).  (She is mistaken about this because it is clear that the second call was a ring‑back initiated by police communications).  After a while everything went quiet and they heard the police sirens.  Shortly afterwards she heard noises consistent with a scuffle and the arrival of the police.  Mr Bischopps, she and the baby then left the toilet and saw the aftermath of the burglary.

19. The complainant was cross‑examined at length as to her police statements.

20. She was asked about the 'loud noise' that she said she had heard shortly before the arrival of the intruders on 25 February.  She agreed, based on her statement, that she had actually told the police that it was the 'loud noise of a motorcycle', in other words, her statement aligned with that of Mr Bischopps.  She maintained that it was true (ts 179), notwithstanding that it was put to her that Mr Bischopps had agreed in evidence that the like assertion in his statement was a complete fabrication.

21. It was further put to her that she and Mr Bischopps had colluded about this in their statements because they both knew that Mr Bischopps had stolen the Harley Davidson and they both needed to give a plausible explanation for its presence at the side of their house.  She emphatically denied this and denied knowing that the Harley Davidson was stolen (and even denied knowing that it did not belong to Mr Bischopps:  ts 174, 176), although she did accept (ts 176) that she had opened the gates the previous night to allow Mr Bischopps to bring it onto the premises.  In fact, she basically distanced herself as much as possible from any knowledge of Mr Bischopps' thieving.

22. The complainant accepted that she had no idea who had said anything about a shotgun (ts 203), but she believed (based on discussions with Mr Bischopps after their statements had been prepared) that something had been said on the telephone about it as well.

23. She agreed (ts 204) that Clint had used 'words about calming down and relaxing' during all the screaming.

24. She also agreed that when she told the man outside the laundry door that the police were being called he said something about them already being on the way because they (the intruders) had called the police (ts 207).

Mr Shorter's evidence

1. In his record of interview and evidence Mr Shorter said that he met Mr Bischopps and his sister at the Fremantle party.  He instantly developed 'a real big fancy' for the sister (ROI, page 7).

2. Sometime later he learnt that the sister was worried about the complainant and Mr Bischopps' drug‑related activities and in particular the complications of their relationship with PI.  He became aware that PI claimed that they were indebted to him.  So, he decided to try to mediate the matter in the hope that a successful resolution would enhance his prospects with Mr Bischopps' sister.

3. He said that he first met PI some years ago when they worked on the same mine shut‑down in the north‑west.  It was difficult to discern from his evidence as to how close his relationship was with PI.  In his ROI (pages 8 and 9) he made out that PI was his 'friend', but at other times he distanced himself from that notion and sought to convey the impression that he had little to do with PI.  He said (ROI page 16) that PI was 'not the favourite of my friends … and he's always in my face'.  In evidence he said he disliked PI (ts 250).  (I note that PI called him 'bro' and 'buddy':  see text messages 35, 41, 42 on exhibit H).

4. As to the first meeting with Mr Bischopps at 24 Loch Street, he testified that he politely knocked on the door.  He told Mr Bischopps 'that [PI] was going to send around dickheads or bad people to his house and that [he] was here to mediate to – so nothing bad would happen' (ts 241).

5. Mr Shorter initially testified (ts 241) that Mr Bischopps' reply was that he did not owe [PI] any money and that he would 'piece together' something (ie, to prove it), but then he promptly changed his evidence and said that Mr Bischopps 'said he was going to pay [PI] the money and put it in an envelope and it would be in the letterbox the next day'.  He said that the meeting was friendly.

6. He returned to 24 Loch Street the next day and removed an envelope from the letterbox.  He did not open it until he was on the way home when he noticed that there was no money inside, but rather 'a whole explanation' as to why PI was not owed any money.

7. PI's reaction when he was informed of this was that Mr Bischopps did owe the money and 'that he was still going to collect the money and that the ledgers were all bullshit' (ts 242).  Mr Shorter 'figured' that PI's collection methods would escalate into violence, so he told PI that he would mediate.

8. He therefore returned to 24 Loch Street to speak to Mr Bischopps.  PI took him there but parked some distance away (near the cemetery) because he was most anxious not to be seen to be behind in the recovery action.

9. Mr Shorter's intention on this occasion was to find out 'whether or not who was telling the lies, whether it was PI or Clint' as he was starting 'to think that somebody was telling lies' (ts 243).

10. Mr Shorter denied that he sent any of the prior text messages in exhibit N.  He said that these were all sent by PI pretending to be him and without his knowledge.  He said that it came about that PI had his phone at the time because he (Mr Shorter) had left it behind when he was last at PI's place (ie, in the last 24 hours). 

11. On arrival at 24 Loch Street he walked to the screen door which was locked.  The complainant answered the door 'in a very irate, very angry manner' (which with hindsight he can understand: ts 244).  He asked her if he could speak to Mr Bischopps 'and she just went off like a banshee.  Absolute crazy woman' and he 'got out of there'.  He did not yell at her at all, said nothing, and returned to where PI was parked and reported what had occurred (ts 244).

12. Moving to the events of 25 February, Mr Shorter testified that earlier that day he learnt from the friend who had organised the Fremantle party that PI was intending to send some people to 24 Loch Street during the afternoon to extort payment of the alleged debt.  Mr Shorter decided that he would get there first so he could persuade Mr Bischopps to settle with PI.  He decided that he would need some 'back-up' in case PI's henchmen were there, so he arranged for his son Steele and stepson Dale to go with him.  They took some bags with them because he 'knew that Clint had a whole … of range of goods that he may want to fix up to [PI about which he] … had inklings that it was stolen' (ts 253).  He put it this way in the record of interview (page 25; emphasis added):

    I took a bag with me with the intention of grabbing money, grabbing anything.  And if, if I was to defuse that prior to it happening, obviously I would have to accept whatever he was going to give me as debt.

1. He, Steele and Dale were taken to a side street near 24 Loch Street by Dale's mother (Mr Shorter's partner), but she was kept in ignorance of their purpose because Mr Shorter did not want her to know that he 'was about to go to a property without permission' (ts 253).

2. On arrival at 24 Loch Street Mr Shorter told Steele to wait 'out the front to make sure that no‑one came through the gates whilst I was intervening with Clint, talking to Clint' (ts 253).  Dale went with him to the back of house.

3. Earlier Mr Shorter had unsuccessfully tried to contact Mr Bischopps on the telephone.  He eventually got through and spoke to him (for 210 seconds according to exhibit H).  For much of that period he was at the back of the house where he and Mr Bischopps could see each other through the windows and door.  The occupants were 'running around the house obviously scared', but he tried to calm things down.  He testified that he tried to tell Mr Bischopps that it was him and said: (ts 254):

   Calm down, it's okay.  Let's get it sorted, mate, because I know that [PI's] sending people here today.

4. Mr Bischopps replied that it had nothing to do with him, that he had already fixed everything up and told Mr Shorter to leave and go away.

5. At some point he tried to open the rear door but it did not open.  (The transcript at page 256 says that he said it was 'unlocked', but I think he actually testified or intended to testify that it was 'locked'.  Compare the ROI, page 30).

6. Suddenly, his son Steele smashed the front door open and entered the house, followed by Dale.  At this point he did not, or could not, see the complainant or the baby.

7. Steele and Dale came through the house to the rear.  Dale tried to force the rear door open but could not do so.  He then unlocked and opened it.

8. Mr Shorter testified that whilst he had arrived at the premises with no intention of entering the house without permission, everything changed in the confusion of the forced entry.  He said 'What the fuck' to Steele and decided to go inside, even though he knew he did not have permission to do so.

9. After that he was not sure what Steele and Dale did, but there was a great deal of commotion.  He spent most of his time in the area of the bathroom and the toilet talking to Mr Bischopps in the toilet and trying to convince him to meet him outside to discuss things.  He tried to tell him that he was 'there for the right reasons not the wrong reasons and that I wasn't the people that [PI] had sent around' (ts 261).

10. He 'started being a dick' (ROI, page 35) and decided to 'grab' (ts 261) a few things from the back of the house with a view to persuading Mr Bischopps that these could be used to placate PI.  Hence the things which were later found in his backpack.

11. He heard the complainant calling the police and later heard the sirens of the police vehicles.  He agreed that he told the complainant that he had actually called the police (which he hadn't) as some form of attempted ironic slight.

12. He then decided to leave.  As he was walking towards the front gate he was confronted by the police and surrendered.

13. Mr Shorter was adamant in evidence about the following matters:

    (i)There was never any pre‑conceived plan that he and his co‑offenders would break into the complainant's house.  The plan was to mediate and the 'back‑up' of the young men was only required in case PI's henchmen arrived.  As such, the forced entry effected by Steele and Dale at the front door was unplanned and unexpected.  As far as he was concerned, it was not supposed to happen.  He never said 'do it' or gave any instruction whatsoever to anyone to break into the house that day.

    (ii)He never threatened Mr Bischopps or the complainant at any material time, including on 25 February.  At the most all he had done was warn Mr Bischopps and the complainant about PI's intentions.  He felt that this might have been misconstrued as threatening when such was not intended.

    (iii)He admitted to the burglary because he had entered the complainant's house without permission and he had removed goods without permission, but his intentions were always honourable and he was never associated with the level of criminality of his co‑offenders.

14. It is necessary to pause at this point to deal with Mr Shorter's explanation for the forced entry in his record of interview.

15. According to the statement of First Class Constable Caddy, Mr Shorter told her after he had been arrested (next to the police van) that they had met 'two bikie looking guys' at the house but he did not know their names.  He elaborated on this in the record of interview.  He, Dale and Steele first noticed the two men at an intersection just south of 24 Loch Street where they had been dropped off.  In other words, these were PI's henchmen.  He described them in some detail, but it suffices to say that he gave a caricature of what he evidently perceived to be the paradigm bikie, right down to the black pants and T‑shirts with rock band motifs on the front.

16. It was these men who had broken into the house through the front door.

17. Mr Shorter admitted in his evidence‑in‑chief that everything he had told the police about these two men was a complete lie which he had made up to cover for the fact that Dale and Steele had broken into 24 Loch Street.

18. Mr Shorter had little choice but to make this admission because the CCTV footage establishes that the only offenders were he, Dale and Steele and, second, because he also told First Class Constable Caddy that his co‑offenders included his son.

19. As to the presence (or threats) of weapons at the scene on 25 February, Mr Shorter acknowledged in his record of interview that the subject came up whilst he was speaking to Mr Bischopps, in that one of them 'hinted' at it (page 38) in the context of the 'bikies' at the front.

The telephone and SMS evidence

1. Following is the evidence derived from the telephones of Mr Bischopps and Mr Shorter as well as the '000' calls.  It is in chronological order.  (I assume that the times and dates are synchronised (with WST)).

2. The text messages mostly comprised a combination of shorthand and slang without grammar or punctuation.  For ease of reference what follows is my construction or translation of the messages (ie, findings).

3. Exhibit N comprised a summary of relevant text messages from Mr Bischopps' inbox.  The registered telephone numbers and/or contact name of the sender stored with each message corresponded to either PI or to Mr Shorter.  Each message has a unique number from 192 – 203 (not in chronological order).  The details are as follows (emphasis added):

   (i)At 3:17:39, 3:20:17 and 3:29:12 on 7 January 2014 PI sent messages to Mr Bischopps:

   •(No 203)  Ring whoever.  Those guys cut me off 2/3 months ago and I got lovely photos of you going into my garage.

   •(No 202)  Forget it.  Fix up your problem.  I'm not interested.

   •(Nos 200 – 201)  I know nothing of what you are facing.  I do know these guys are the real deal.  If you come anywhere near my house I will not hesitate to use same or similar mob to upset your world.  Instead of wasting my time concentrate on what you got to do.

   (ii)Between 5:21:31 pm and 6:18 pm on 8 January 2014 messages were sent from Mr Shorter's telephone to that of Mr Bischopps (emphasis added):

   •(No 191)  45 minutes.

   •(No 190)  I be yours in 30 5900 and I come in alone or we come in.  You tell me.

   •(No 189)  I'm 20 away.  Don't fuck this up.  It's not going to be pretty and this problem you have with this [PI] character is nothing to do with us. 

   •(No 188)  Golds good the boss says.

   •(No 187)  I be walking through your doors.

   •(No 186)  See you in 10.  Bull.

   •(No 185)  You are threatening the wrong people dickhead.

   •(No 184)  Almost there darling.

   •(No 183)  Tell somebody who cares.

   •(No 182)  No threats and do you and your family a favour.  Open the doors and keep cool.  All go well.  Promise.  Bull.

   •(No 181)  Do as I ask Bec.  I'm a good guy.  My boss don't need know your problem.  He nasty cunt.  Up to you.

   •(No 181)  Be there in 5.

   This series of texts is consistent with Mr Shorter's telephone being used by both he and PI whilst they were en route to 24 Loch Street to send replies to messages sent by Mr Bischopps and the complainant.  This is supported by the facts that they were obviously sent whilst Mr Shorter was in transit to 24 Loch Street and because of the use of 'we' and 'us' (nos 190 and 159).  Some are strongly redolent of being drafted by PI (nos 189, 185), some are consistent with having been drafted by Mr Shorter (nos 188, 184, 182 and 181), but there is a real possibility that they collaborated in sending them all.

4. At 6:32:41 PI sent the following message on his own telephone to Mr Bischopps (messages 192 – 199):

   •Man you really are frying.  As I told you YESTERDAY, I don't know anything about what you're talking about.  The guy who was owed the money stopped talking to me months ago.  I DID EVERYTHING I COULD FOR THE BOTH OF YOU.  I even got another person involved to try to sort this bill out with him BUT YOU WANTED TO THINK UP SOME CRAZY CREATIVE WAY to justify to yourselves WHY NOT TO PAY??  You should have WON A CREATIVE WRITING AWARD for that.  Now let's see.  The TV you swapped for Stuff, the phone YOU GAVE ME IN PLACE OF MY IPHONE.  The bike shit you swapped also and as for that bike.  You swapped for stuff as well and I said would swap back for the coin that, are let's see RIGHT.  YOU NEVER GAVE ME THE COIN FOR THAT DID YOU.  What you had too much to remember those points anyway.  Fact you dickhead.  It's your hole you dug.  Now you want to threaten me.  I DON'T know what is happening but as I said these people are hard core.  Please take one word of advice.  Do what they want you to.  They will get what they want and don't try to talk your way out with these guys.  Good luck.  Last word.  Come near my house AND I WILL TALK TO SOMEONE ABOUT FIXING YOU THAT IS A promise GOODBYE.  Sort your own shit out.

5. This text was sent a little over 14 minutes after text 180 was sent (when PI and Mr Shorter were five minutes away).  Allowing time for them to arrive and for Mr Shorter to have a conversation with the complainant and then report back to PI, and for PI to then draft the lengthy text, Mr Shorter must have reported to PI almost immediately after he left 24 Loch Street.  The abusive tone of message 192 – 199, read with messages 200 – 203, provides a sort of key to identifying PI's authorship of messages such as 189 and 185.

6. I move now to exhibit H which sets out a summary of relevant text messages and call charge records from Mr Shorter's telephone on 25 February 2014:

   •At 3:59 and 4:03 pm he sent PI the following messages:

   (79)  'Hey Bro.  Can you call me.  I'm headed to Claremont' and (80) 'It's all still go.  AYE THIS GOING TO HAPPEN IN ABOUT 40 MIN.

   •At 4.30 pm PI and Mr Shorter spoke on the telephone for 81 seconds.

   •At 5.46, 5.47 and 5.49 pm Mr Shorter telephoned Mr Bischopps' telephone for 4, 5 and 30 seconds respectively.

   •At 5.51 Mr Shorter telephoned Mr Bischopps' telephone for 210 seconds. 

7. A few seconds past 5:54:30 the complainant said to the operator at police communications (ie, the '000 call) in a reasonably calm but quiet voice:

   •I've got someone who says they've got a gun at my front door.

   No, I don't [know who he is].  It's somebody who came … I don’t know the person.

   I'm in the toilet at the moment.

   Um, hold on a sec.

   [After the complainant went silent for a brief period and did not answer questions from the operator] … I'll call you, yeah, I just, sorry, I'm just trying to work out what's going on.

   But, yeah, hold on they might be going away now.

   At this point, a male voice can be heard in the background saying, 'You just calm down and youse …' whereupon the call was terminated.

8. At 5:56:23 the police operator telephoned Mr Bischopps' phone.  Immediately after it was answered (by the complainant I infer) a male voice can be heard saying something, including the words 'get the hell out'.  The complainant then said, 'Hello' followed by something indistinct.  The operator began to say 'It's the police' but the call was then terminated.

9. I pause to consider some implications of those two calls.

10. First, I am satisfied that the complainant was in the toilet.  Second, I would have expected her to tell the police in the first call if the offenders had already broken into the house but she didn't.  On the contrary, she referred to the threat of a possible gun at the front door and later she told the operator she was trying to work out what was going on.  Third, there is a strong inference that Mr Bischopps was not with her when either call took place.  The content is consistent with a timeline in which Mr Bischopps tried to calm things down between 5:54:30 and about 5:55:00 (ie, he said 'you just calm down and youse …'), the situation briefly died down, and then flared up again as the forced entry was made (ie, Mr Bischopps said 'Get the hell out').  The fact that the call was then abruptly terminated (by someone at 24 Loch Street I infer) was not adequately explained in the evidence and I cannot make a finding about it.

11. I return now to exhibit H and the following messages which were sent to Mr Shorter's telephone by PI between 1:13:13 am on 26 February (when Mr Shorter was in police custody) and 10:38:10 am on 27 February (emphasis added):

    •(No 38)  Okay so did you make contact again or just baffled with more bullshit.

    •(No 34)  Did you find your way there man.

    •(No 35)  ??  So where did ya go bro.

    •(No 36)  Call me man.

    •(No 37)  Call me man.

    •(No 40)  You home.

    •(No 41)  Buddy are you home.  I out front.

    •(No 42)  We need to talk asap bro.  Call me soon as.

    These messages indicate that PI spent over 24 hours trying to contact Mr Shorter and ascertain the outcome of his visit to 24 Loch Street.  Message No 38 has an important implication, namely PI did not regard Mr Shorter's mission as being particularly menacing because it countenances that Mr Bischopps would have another opportunity to talk his way out of paying the debt.

12. It is necessary to address the admissibility of some of the SMS and telephone evidence.

13. I am not satisfied that PI was a party to the index offence in the sense of a member of a joint criminal enterprise.  As such, any communications emanating from him are not admissible against Mr Shorter as proof of their contents pursuant to the co‑conspirators' rule.  However, they are admissible as evidence of the context in which the index offence occurred and, as such, are admissible as part of the circumstantial evidence on which I must determine the facts.

14. The statements of Mr Bischopps and the complainant as heard in the 000 calls are admissible pursuant to the res gestae rule which allows spontaneous extemporisations of the participants in an incident to be repeated in court as evidence of the facts as they unfolded.  The weight of the evidence is another matter, since the rule is founded on the notion that the speaker's spontaneous utterances will reflect what is occurring.  In this case, the complainant comes across as cool and in control of the situation.  So, rather than her utterances being evidence of what was actually occurring, they evidence that at the relevant time matters had not escalated to the ultimate conclusion.

15. However, so far as Mr Bischopps is heard, his utterances do provide evidence of what was actually occurring.  At one point he is heard trying to calm the situation and the '000' call is terminated.  Not long afterwards he is heard (on the second call) when the situation was obviously escalating saying 'Get the hell out' – ie, someone was now inside.

Observations of the CCTV footage

1. I turn now to make findings about the CCTV footage.  I have taken into account the statements of the attending police.

2. I cannot be sure whether the time imprint on the video recorder was synchronised to Western Standard Time so I shall not refer to it.  The vision commenced 7 minutes and 16 seconds before the offenders arrived.

3. The field of view of the camera comprised an area of approximately half the front yard commencing slightly to the north (right) of the pedestrian gate across to the southern boundary.  It did not show any part of the house itself or under the front bedroom windows and onto the front veranda.  The front path curved (concave to the north) from the pedestrian gate towards the house.

4. Mr Shorter, Steele and Dale arrived from the left (south) and walked out of shot to the right (north) along the public footpath in the direction of the driveway gates.  Shortly afterwards they returned to view and entered the property via the unlocked pedestrian gate.  Mr Shorter was on the telephone at the time.  He had a backpack on his back, another offender was carrying a red bag and the third had a shoulder bag over his right side.  They all went towards the right side of the house below the camera and disappeared from view.  There was no sign of any weapon, aggressive intent, panic, urgency or anything of that kind.  Approximately 60 seconds later someone rode a small scooter from right to left (north to south) on Loch Street.

5. About 5½ minutes later another scooter was ridden from south to north.

6. Twenty two seconds later a male pedestrian walked without breaking stride from north to south on the opposite (western) footpath on the western side of Loch Street.  An inference is open that he was not distracted by anything coming from 24 Loch Street, ie, there was no audible commotion occurring at the time.

7. About four minutes later Mr Shorter walked casually into view on the front path of 24 Loch Street. At one point he stepped around a dog which got in his way.  As he turned towards the gate, he looked up, placed his hands in the air and was confronted by an armed police officer (Constable Otten).  He immediately sat down on a nearby retaining wall under the fence and did something with his phone.  Immediately after that he lay prone on the path, the police entered, and he was handcuffed without incident (by First Class Constable Caddy).  Very shortly afterwards a number of other police arrived and moved about the premises.  Officers Otten and Caddy removed Mr Shorter to their van about a minute later and they all remained out of view.

8. The complainant (and the baby) and Mr Bischopps came into view (separately) soon afterwards (ie, they were moving freely about).  About two minutes later officers Otten and Caddy returned to stand outside the pedestrian gate.  Mr Bischopps opened the gate and the three of them spoke for a few minutes.  The complainant (and baby) were a few metres away for part of that time.

9. I note that at no stage after Mr Shorter was handcuffed did any of the police officers appear to be particularly concerned for their safety.  Constable Otten was the only one who drew a weapon (a pistol) and then only for the few seconds that it took for Mr Shorter to be arrested.  In other words, there did not appear to be any sense of apprehended danger, contrary to what one would expect if the officers had been forewarned of a shotgun‑toting suspect.

10. The footage ended after 30 minutes and 21 seconds.

Assessment of credibility

1. I turn now to make some findings in relation to the credibility of Mr Bischopps, the complainant and Mr Shorter.

2. The assessment of credibility is a multi-factorial task.  The appearance and demeanour of witnesses are relevant factors, but there is a danger in too readily drawing conclusions about truthfulness and reliability solely or mainly from such considerations.  Judges are encouraged to 'limit their reliance on the appearance of witnesses and reason to their conclusion, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30] – [31] (Gleeson CJ, Gummow, Kirby JJ)).

1. It is also useful to take into account the cooperativeness and frankness of witnesses and their willingness to make concessions.

2. I commence by observing that all three witnesses had some things in common.

3. First, they all had a problem with methylamphetamine use at the relevant time.  Mr Bischopps significantly downplayed his problem.  The complainant admitted it but was very vague and difficult to pin down as to the specifics.  (I am satisfied that they were both regularly using the drug at all material times).  Mr Shorter admitted that he had a significant problem with the drug at the time, had not slept for days before 25 February and was heavily under the influence of the drug that day.  (He said the same of Steele).  He has more or less spent the last 12 months in residential rehabilitation.  As I have already said, he has also been serving a pre‑sentence order for a drug dealing offence.

4. Mr Shorter's appearance in the record of interview confirms his evidence about this.  He seemed to have very little sense of the seriousness of his situation and basically carried on as if he had been involved in a silly prank gone wrong.  He variously appeared to be guileless, facetious and naïve.  To some extent this supports his contention that the offence started out according to plan but escalated through no fault of his own.  But, it definitely looked like he was under the influence of a substance (as he agreed in evidence was true).

5. Next, all three wilfully misled the police about this matter.  To their credit, Mr Bischopps (who lied about the loud motorcycle noise) and Mr Shorter (the bikie lie) were prepared to admit it in evidence.

6. There were other problems with Mr Bischopps' evidence, not least of which is the fact that he is a self‑confessed, serial thief, but that might be somewhat excused given his openness about it from the time the police arrived at 24 Loch Street on 25 February (save as to the Harley Davidson motorcycle).  The real problem is that his explanation for the stealing spree is just not believable, ie, that it was all related to gathering the means of settling up with PI.  As Mr Hope put to him, it is more credible that he was thieving to support his drug habit.  I accept Mr Hope's contention (in cross‑examination) that Mr Bischopps' stance about this is to some extent informed by his need to mitigate the criminal culpability of his burglary (for which he is awaiting sentence).

7. Like the complainant (as will be seen), he was capable of self‑serving tendentiousness.  To illustrate, he attempted to portray he and the complainant as peaceful people with no enemies, but that is not credible.  In the absence of evidence to the contrary, I infer that the CCTV system was not installed simply because of the present matter.  (There was no evidence as to when it was installed).  And then there is his belief that he needed to arm himself with a spear‑gun on the occasion of Mr Shorter's second visit.  Meek, self‑effacing people do not normally act in those ways, but people with dangerous associates do.  I recognise that he tried to involve police at one stage, but in my opinion his attempt to depict 24 Loch Street as a haven of peace and quiet was deliberately misleading.

8. He also tended to minimise his drug use and his assertion that he and the complainant only ever had one drug dealer is not believable.

9. To some extent shortcomings in Mr Bischopps' evidence might be accounted for by the stress of the situation he found himself in and to him having a poor memory.  His inability to recall the 210 second telephone call is an example.

10. I am satisfied that the complainant wilfully misled the police about the motorcycle noise and that she did so because of her consciousness of the possible guilt of herself and Mr Bischopps about the stolen Harley Davidson motorcycle that was parked at the side of the house. I stress that I make no finding of her guilt about that matter (the complainant sought and received a certificate pursuant to s 11 of the Evidence Act 1906), but it must have been in her mind when she spoke to the police.  The reason is obvious.  The facts are that she allowed 24 Loch Street to be used to cache the stolen motorbike (and assisted) under circumstances where any reasonable person would have had concerns about its provenance.  This is especially so given the large amount of other suspicious goods which had recently accumulated on the premises.

11. As Mr Hope pointed out, it is very hard to accept any hypothesis that the complainant innocently and coincidentally perpetrated the same untruth as Mr Bischopps simultaneously fabricated.  Whilst I accept that they were separated at some point by the investigating police, they had ample opportunities to collude.

12. Importantly, the objective evidence does not support the complainant's assertion that she heard a loud motorcycle before Mr Bischopps' telephone rang.  The plain fact is that there is nothing to support it on the CCTV footage and the offenders arrived on foot from the south (as Mr Shorter testified).

13. It is obviously entirely to the complainant's discredit as a witness that she wilfully participated in misleading the police about the Harley Davidson and then maintained that position in evidence.

14. I was unimpressed by the complainant's evidence in other respects as well.  While she presented as an intelligent and ostensibly sensible woman, she had an argumentative (and almost hubristic) attitude and, it seemed to me, saw herself in the role of an advocate as well as a witness.  She also had a habit of repeating questions before she answered them, which came across as either disrespectful or as playing for time, or both.  Her evidence about feeling Mr Shorter's spittle on her face during the front door incident is not believable.  Accepting for the sake of analysis that Mr Shorter was screaming and yelling, I cannot accept that any flying spittle would have permeated the fine mesh flyscreen which I am quite satisfied was closed.  I believe that the complainant's evidence that such did occur was a tendentious embellishment.

15. Whilst on that topic, her assertion that Mr Shorter came across on this occasion as 'the most angriest person' she'd ever seen in her life had a strongly hyperbolic tone to it.  Again accepting for the present that he was angry, I very much doubt that in the complainant's entire life's experience he represented the very apotheosis of enragement (for her) as she would have me believe.

16. Further, some of the terrifying, threatening text messages which she referred to in her evidence ([50] above) must have been those in exhibit N.  They were not nearly as threatening as she made them out to be:  another self‑serving embellishment.

17. It seems to me that the complainant has either wilfully or unconsciously conflated some of the texts with threatening behaviour that occurred at another time (including when 'Steve' was involved).

18. Lastly, in relation to Mr Bischopps and the complainant, it is apparent that their accounts of what happened on the evening of 25 February diverge significantly at important points, even noting that one must make allowances for the pressure of circumstances and the fallibility of their powers of observation and recall.

19. First, they differ as to the complainant's whereabouts when the back door was forced open.  Allowing for the fact that Mr Bischopps said that he only heard it, and did not see it, on his version the complainant had already gone to hide in the toilet at the time.  On the complainant's version she was with him taking his telephone.  They cannot both be right.  (I have found that the complainant is wrong and could not have witnessed Mr Shorter actually enter:  see [160](iv) and (v), [161](xx) – (xxiii).

20. Second, they gave diametrically opposed evidence about whether Mr Bischopps took Mr Shorter's 210 second phone call before the burglary.  (I accept the evidence of the complainant and Mr Shorter about this).

21. As for Mr Shorter, there were many other difficulties with his evidence besides the two 'bikies' lie.

22. First, his assertion that he only became involved as a mediator in order to curry favour with Mr Bischopps' sister sounds very far‑fetched.  He was actually in a relationship with Dale's mother at the time (he described Dale as his son‑in‑law in his record of interview (page 6) and both Steele and Dale as his 'sons' and 'children' in evidence ts 265 ‑ 269.  And, based on what I learnt of the sister from Mr Shorter's evidence, it is impossible to see how she could be enamoured of his efforts even if he succeeded, given that he had a massive drug problem himself and they had only met once a long time before at the Fremantle party.  He could not even get her name right in the record of interview (see ts 274).  Whilst accepting that Mr Shorter may have been once attracted to the sister, it is very likely that Mr Shorter came up with this scenario after his arrest in the same way that he invented the 'two bikies' story.  I find accordingly.

23. The evidence strongly points to a much more likely explanation, namely that Mr Shorter was obliged to PI in some way and/or was seeking to ingratiate himself in that area.  In the absence any other credible explanation, I find accordingly beyond reasonable doubt.

24. Next, Mr Shorter's explanation (which he maintained in cross‑examination) of what he was actually trying to do on 25 February is not credible.  Apart from his own evidence, there is nothing to suggest that PI was relying on anyone other than him to recover the debt.  This is apparent from PI's messages to him in exhibit H.  (Having said that, the messages are not consistent with PI anticipating that Mr Shorter would resort to any illegal activity either).  Given that there were no henchmen and no bikie thugs, and that Mr Shorter could never have believed that there would be any, the whole notion of him going to 24 Loch Street to mediate before they moved in must be completely rejected.

25. Next, Mr Shorter's claim that PI unilaterally sent all of the messages to Mr Bischopps on exhibit N on 8 January 2014 must be rejected.  Some of them are signed 'Bull' and there is no credible reason why PI or anyone else would resort to impersonating him.  Also, the timing of the messages synchronises well with the timeline of a journey from the eastern suburbs to 24 Loch Street and then, ultimately, Mr Shorter's arrival at the premises.  The notion that PI was doing all of this elsewhere at exactly the same time is fanciful.  I have found ([105] and [161](vi) that they were sending the texts whilst they were both en route to Nedlands.

26. Next, based on the premises which I accept that PI did not intend to send any henchmen and that Mr Shorter knew this, there was no need for Mr Shorter to take his own 'back‑up' in the form of Dale and Steele unless he was anticipating trouble created by his own presence.  On his own admission, he was expecting trouble because he was not prepared to tell Dale's mother their purpose because he knew it was unlawful.  In effect, I find that Mr Shorter had a consciousness of imminent guilt of some kind before he, Dale and Steele arrived at the premises.

27. In conclusion, I am not satisfied that Mr Bischopps, the complainant or Mr Shorter can be relied on in their own right, but I have arrived at the conclusion that Mr Bischopps' evidence was closest to the truth.  Counterintuitively, but consistently with my fact‑finding experience, the flaws in his evidence and his frank concessions at various times on important matters engender a modest sense of confidence that his account is not far from the truth.  At the very least, I would prefer his evidence to that of the complainant.

28. I shall make findings on disputed issues that are open to me to the required standard based on credible evidence such as common ground between the witnesses, admissions against interests or concessions, objective facts and inferences which can be drawn therefrom.  I am confident that this process has rendered a very logical and coherent account of what happened.

29. However, before doing so I wish to close my comments about credibility with some further remarks about Mr Shorter's character.  According to his record of interview (page 16) he was employed as a senior mechanical supervisor by Rio Tinto two years prior.  To put it mildly, he is now a shadow of the man he must have been, no doubt due in part to his illicit drug use.  I have already mentioned his demeanour during the record of interview on 26 February 2014 and his demeanour in court was often somewhat labile.  The manner and content of his speech was and still is redolent of a person who has had a lengthy, serious problem with drugs.  Based on all of the evidence and what I have seen of him, I am satisfied that Mr Shorter is fundamentally and usually a sensitive person and not the thug or standover man predicated by the State case.  To illustrate, he gave (or attempted to give) the complainant and Mr Bischopps reasonable notice of his second and third visits, there is common ground and res gestae evidence that he and Mr Bischopps both made attempts to calm things down on 25 February and he apologized to Mr Bischopps sometime afterwards.  Some of his texts that he sent on 8 January 2014 were actually polite in some ways.

Findings of fact

1. I propose to commence with some basic findings about the events of 25 February 2014 derived from the telephone and CCTV evidence which can be made with a high degree of confidence.  These findings set the scene for my overall findings.

2. Based on the CCTV footage and all telephone evidence, I find the following timeline (give or take a few seconds) of critical events :

   (i)The period which elapsed between the arrival of the offenders and Mr Shorter's departure (and arrest) was 12 minutes and 14 seconds.

   (ii)Given that Mr Shorter's fourth attempt to speak to Mr Bischopps on the phone succeeded at 5:51:00 and lasted for 3 minutes and 30 seconds, he must have terminated the call at 5:54:30.

   (iii)In strict analysis the complainant must have made the '000' call at precisely the same time ie, 5:54:30, but that cannot be correct because she used Mr Bischopps' phone.

   (iv)So, it is very likely that Mr Shorter terminated the phone call just before the complainant entered the kitchen and then he began yelling and pulling on the door.  This would be when the complainant saw Mr Shorter pulling on and 'bowing' the rear door.  That is consistent with Mr Bischopps being heard to say 'calm down' on the '000' call (ie, there had been no break‑in) and the complainant making no mention of a break‑in during the call.  (On the contrary, she was concerned about what was outside the house).  In other words, the break‑ins had not occurred, but the situation had escalated sufficiently to warrant the '000' call about a person with a gun at the door.  There was then a hiatus and the complainant hung up.

   (v)At 5:56:23 police communications phoned back.  Someone (ie, Mr Bischopps) is heard telling someone to get out, ie, the break‑ins had occurred  and/or were in progress.  The complainant was in the toilet.

   (vi)Approximately approximately 5 minutes 23 seconds had elapsed since the offenders entered 24 Loch Street and also two minutes since Mr Shorter terminated the phone call to Mr Bischopps.

   (vii)The burglary continued for approximately another 6 minutes and 51 seconds (ie, 12.14 less 5.23).

3. Against this background, I make the following findings.  They are not discrete from each other in the sense that many are informed by others (ie, all my findings should be read as a whole).

   (i)In the absence of any credible alternative motive, and based on the evidence, Mr Shorter became involved in recovering the alleged drug debt from Mr Bischopps at the request of PI, ie, PI was his 'boss' as (I find) he said to Mr Bischopps on the first visit and in text messages on 8 January.  The offender took part because he was obliged to PI in some way or just because he sought to ingratiate himself to PI, or both.

   (ii)PI played a duplicitous game with Mr Bischopps by pretending that he had assigned the debt to vicious third parties.  Hence his unwillingness to get personally involved in what Mr Shorter was doing.  Whilst he was content to leave it to Mr Shorter to decide how he went about recovering the debt, he was prepared to countenance some degree of intimidation for that purpose.

   (iii)Mr Shorter first visited Mr Bischopps at 24 Loch Street on 7 January 2014.  The meeting was civil and the discussion was as per [23] and [76] above.

   (iv)Mr Bischopps and the complainant contacted PI who gave them short shrift (see messages 200 – 203 in exhibit N).

   (v)The next day Mr Shorter returned to 24 Loch Street and retrieved the envelope that the complainant and Mr Bischopps had left in the letterbox.  Rightly or wrongly, he assumed that it contained money and was surprised and annoyed when he discovered the actual contents on his return journey.  He felt that he had been deceived by Mr Bischopps.  PI was equally unimpressed.

   (vi)On 8 January PI drove Mr Shorter to 24 Loch Street so that the latter could talk the matter over again with Mr Bischopps.  They collaborated (or alternated) in sending texts to Mr Bischopps and the complainant which created an intimidating or bellicose mood.

   (vii)On arrival at 24 Loch Street there were harsh words exchanged between the complainant and Mr Bischopps.  He felt let down, was irate and anxious about having something to take back to his 'boss' (PI) and the complainant was not all calmness and self‑control as she and Mr Bischopps contended in evidence.  She was admittedly not happy at all.  I am quite confident that she intended to give the man 'Bull' (who was causing such concern) a piece of her mind when she opened the door, and she did so, from the flyscreen.

   (viii)Almost immediately after Mr Shorter left 24 Loch Street, he reported to PI who prepared and sent the lengthy text (192 – 199) to Mr Bischopps, giving him a piece of his mind.  Its tone and contents suggest that he perceived that Mr Bischopps and/or the complainant were being high‑handed, aggressive and threatening (which corroborates my finding about the complainant at (vii) above).

   (ix)Sometime before 3.59 pm on 25 February, Mr Shorter and PI resolved that Mr Shorter would return to 24 Loch Street to effect recovery of the debt once and for all (see text nos 79 – 80 on exhibit H).  Mr Shorter's words 'this [is] going to happen' demonstrated that things were going to be brought to a head.

   (x)Mr Shorter decided to take Steele and Dale as 'back up' as he testified.  His plan is encapsulated in the passages in his record of interview.  At page 25 (emphasis added):

   I took a bag with me with the intentions of grabbing money, grabbing anything.  And if, if I was to defuse that prior to it happening, obviously I would have to accept whatever he was going to give me as debt.

   At page 27:

   On arrival at 24 Loch Street … we took off straight down the back.  Cause  I knew Clint wouldn't answer that front door.

   At page 29:

   I spoke to Clint.  I was trying to speak to him through the glass.  It was difficult to hear him, so I called him a couple of times, and we were speaking over the phone.  I said to him, mate, c'mon, open the door.  Fucking come here.  Talk to me.  Sort the fucking thing out, because those dickheads are at the front of your house.

   At page 31 he said that as far as he could remember, his exact words were:

   What are you doing?  Why haven't you dealt with this, man?  I fucking come to get you to deal with this yonks ago.  Um, ah, the, the dudes are at the front of your house.  I don't know what the fuck they're going to do.  They'll maybe kick your door in or something like that, I don't know, but they're coming through.  It's real, mate.  Don't think it's not real.  And just kept saying stuff like that to him to try and, I don't know, just tried to convince him.  'Cause I had a good 10 minutes prior to those twats coming through the fucking front door, you know what I mean.  I'm thinking, and all, all he had to do, I figured, he could tell me this is what we've done, and then I was going to relay it to them, the two twats.  But it didn't happen like that.

   Obviously, in the context of the interview, Mr Shorter was trying to convey that he was trying to talk some sense into Mr Bischopps before the two 'bikies' took matters into their own hands. That was not true, but in my assessment there is a consistent, underlying truth about what Mr Shorter was telling the police which is reflected in the emphasized passages. That is to say, his plan was to extort and/or steal money or goods from Mr Bischopps by cajoling him and threatening him. I do not accept that he took Steele and Dale as 'back up' in the sense of personal protection, but rather because they were 'extras' to give verisimilitude to his plan to intimidate his way into the house and get something out of Mr Bischopps. He wanted to scare the occupants (and he succeeded, as he said himself: [86]).

   (xi)Mr Shorter and Steele had been using methylamphetamine heavily in the days prior to 25 February, had not slept for days and were behaviourally unstable.

   (xii)Mr Shorter tried to speak to Mr Bischopps on the telephone on three occasions over a period of approximately five minutes before they arrived.  He received no answer or reply.

   (xiii)On arrival at 24 Loch Street, Mr Shorter, Steele and Dale all had bags with them, ie, a backpack and two large bags.  Mr Shorter directed Steele to remain at the front door.  Dale accompanied Mr Shorter to the rear of the house. 

   (xiv)He made telephone contact on the fourth attempt just as he reached the property and before Mr Bischopps could see him.  The call lasted 210 seconds and was the main means of he and Mr Bischopps communicating since they could see each other but not hear each other through the French windows and door.

   (xv)When Mr Bischopps answered the telephone and realised who was calling, he rushed to bolt the rear door.  He only slotted the top bolt because the bottom bolt was missing.  So, the upper bolt was all that kept the door shut as there was no latch.  (The outside handle existed only for pulling the door outwards when it was not bolted shut).

   (xvi)At Mr Bischopps' request, the complainant and their baby quickly went to the bathroom.

   (xvii)Mr Shorter attempted to parlay his way inside by a mixture of threats and persuasion over the telephone.  He demanded entry, money and goods to settle the alleged debt.  Mr Bischopps refused to comply with any of these requests and told Mr Shorter to leave.

   (xviii)Mr Shorter gave the occupants to believe that the house was surrounded by thugs (as was true).  At some point whilst he was still outside the house, there was some discussion between Mr Shorter and Mr Bischopps about the thugs having guns, or whether they had guns.  On the evidence I am unable to find who first mentioned it and what they were talking about, but something was said.  At any rate, Mr Shorter did nothing to disabuse the occupants about that and they both believed the thugs were, or could be, armed with a gun.

   (xix)About three and a half minutes after arriving Mr Shorter stopped trying to talk to Mr Bischopps.  Mr Shorter began to lose control and was told to 'calm down' by Mr Bischopps (about 5:54:30).  Mr Shorter began pulling and yanking on the rear door demanding that Mr Bischopps open it for almost two minutes or more.

   (xx)At some point whilst the phone call was occurring the complainant left the bathroom to get Mr Bischopps' telephone.  He was in the kitchen.  She had heard something said by either Mr Shorter or Mr Bischopps (or both) about a gun and people at the front door, as she said in the '000' call.  She saw Mr Shorter yanking on the rear door at this stage.  It was bowing as would have been possible if it was effectively only secured at the top and there was some freedom of movement at the bottom.

   (xxi)The complainant phoned the police via '000' as per [109] above.  It is noteworthy that she made no reference to a shotgun (or the front door being smashed).  Common sense tells one that in all likelihood she would have done so if she believed the intruders were armed with a shotgun or might be so armed because such would be a terrifyingly dangerous prospect and would have been very real (if it was true) given all the surrounding circumstances.  On the contrary, the complainant remained reasonably calm and collected throughout the '000' call and was even a little vague about whether there was a gun at all.  In the result, the merest confusion about the spelling of 'Loch Street' was enough for her to terminate the call at that time.  That was because she thought things had quietened down.  Whilst she was in the toilet, and before Mr Bischopps joined her, the complainant heard at least two of the intruders and Mr Bischopps speaking and even reasoning with each other, and Mr Bischopps was trying to calm things down at one point.

   (xxii)After the '000' call ended, Steele began to smash in the leadlight window in the front door. When it had been completely smashed out, he reached through the opening and unlocked the door from the outside. Mr Bischopps went to join the complainant in the toilet whilst this was happening. Steele and Dale then came inside and the situation escalated very quickly. Dale must have left Mr Bischopps alone at the rear some moments before and run to join Steele at the front. (This is the running outside which the complainant heard: [61]). To that point he would have witnessed Mr Shorter being bellicose and rattling and pulling violently on the rear door and demanding entry.

   (xxiii)Seeing this, Mr Shorter wrenched the rear door open.  Mr Bischopps heard but did not see it.  During the hearing and in my initial deliberations I had reservations about this finding, but I now accept that Mr Shorter did so beyond reasonable doubt for the following reasons.  First, as I have said, the door was only bolted at the top.  So the door acted as a lever and the bolt as the fulcrum.  It could be levered until something broke.  I accept that a combination of the escalating seriousness of the situation, methylamphetamine intoxication and the vulnerability of the door itself enabled Mr Shorter to pull it open.  Next, neither the complainant (who would not have directly witnessed it) or Mr Bischopps (who would have) said anything in their evidence about an intruder opening the back door from the inside.  Notwithstanding the inconsistencies in their own evidence about this aspect, they both said that both doors were forced open more or less at the same time and neither of them had any reason to say so if events actually unfolded as Mr Shorter claimed they did.  Obviously, this finding predicates my earlier findings that the complainant was in the toilet and it connotes that she has embellished her evidence about actually seeing Mr Shorter enter the house, but that is consistent with the general tenor of her evidence.  I suspect that her evidence is based on an inference (correct as it happens) based on what she heard at the time and has reconstructed after the event.

   (xxiv)Mr Shorter only broke into the house through the rear door because he saw Steele and Dale break in through the front.  This was not part of the original plan, but he changed tactics once the erratic 'twats' (as he described them) broke in.

   (xxv)Steele and Dale systematically and noisily searched the already very untidy front part of the house for things to steal and loaded up their bags.  But they did not ransack the house.  There was a lot of bellicose and insulting language from all three offenders.  To this end demands were made (through the toilet door) about what was worth taking.

   (xxvi)Mr Shorter was not precisely aware of what Steele and Dale were doing, but he set about taking the things that were found in his backpack when he could no longer persuade Mr Bischopps to deal with him.

   (xxvii)The sirens of oncoming police cars were heard and all three offenders decamped.  Steele and Dale left bags full of stolen goods behind (one of which contained Mr Shorter's passport).

1. As can be seen, I am not satisfied that anyone mentioned a shotgun at any time during the incident and it is problematic as to how it came up in the first place.  Constable Otten said that the VKI communication that he and Senior Constable Caddy responded to 'stated that one male had been seen at the front door of the address with a shotgun' (brief, page 34).  But it is unlikely that police communications said anything of the kind (the VKI broadcast is not in evidence) since the complainant said nothing about a shotgun in the '000' call.  Constable Otten did not make his statement until 18 June 2014, but he did say something about the possibility of a shotgun being present at the scene on 25 February because Senior Constable Caddy overheard him ask Mr Shorter shortly after the arrest 'where is the shotgun?'  Mr Shorter replied 'there isn't a shotgun' (brief, page 41).  No other police besides Constable Otten mentioned hearing anything about a shotgun on VKI and their demeanour at the scene is not consistent with having been told so.  Constable Robertson (brief 51) and Officer O'Keefe (brief 60) stated that VKI referred to a 'handgun' and Senior Constable Morgan stated (brief 55) that VKI said 'gun'.  No other officers mentioned hearing of a weapon.  I therefore exclude the possibility that police communications made a mistake, so Constable Caddy may have misheard the VKI call and suggested it to Mr Bischopps (and thus the complainant).  I should point out that another error made its way into Constable Otten's statement in so far as he stated (brief 34) that 'on arrival at 24 Loch Street [he] could see a male [Mr Shorter] running through the front yard'.  The CCTV footage shows that that did not happen.  Alternatively he may have overheard something that was said at the scene by Mr Bischopps and questioned him about it.  At any rate, the complainant and Mr Bischopps mentioned a shotgun in the handwritten statements which they provided on the night.  This is a conundrum that cannot be resolved. 

2. Overall, I find that Mr Shorter and his co‑offenders originally planned to attend 24 Loch Street without permission and intimidate and/or threaten the complainant and Mr Bischopps into complying with a demand to offer money or goods to settle the disputed debt with PI.  They had no clear notion of how this would be achieved or even whether they would be allowed to enter the house itself, or would even force their way in.  This plan belonged more in the realms of extortion than burglary and that is how matters unfolded for some minutes before anyone broke into the house. 

3. Eventually Steele and Dale took matters into their own hands.  I infer that just prior to doing so, Dale reported to Steele that Mr Shorter was not getting anywhere talking to the occupant at the rear of the house and, based on what he had seen, he believed that he had resorted to pulling the rear door open.

4. Instead of retreating from the rear of the house and/or doing something to defuse the situation (eg, by going to the front door and admonishing Steele and Dale to leave), Mr Shorter broke into the house himself through the rear door, only to resume his attempts to 'reason' with Mr Bischopps.  At that point he was a party to Steele and Dale's burglary because he had joined in it and he intended to steal or extort property.  He completed the aggravated burglary as charged when he began asporting goods himself. 

5. For all these reasons, I am not satisfied beyond reasonable doubt of the existence of the facts referred to in [3] above and numbered [i] – [iv], [viii] ‑ [x], [xii] or [xv].  I am satisfied of the truth of facts [xi] [xiii] and [xiv].  I cannot make findings in relation to facts [v] – [vii] which turn on the unreliable, uncorroborated evidence of Mr Bischopps and the complainant.

6. Further, I am not satisfied on the balance of probabilities of the facts referred to at [xvi] ‑ [xix], [xxi] and [xxv].  I am satisfied of the truth of facts [xx], [xxii] – [xxiv], [xxvi] and [xxvii].

7. My findings on the ultimate issues are at [12](i) – (vi).