SAHLSTORFER v THE KING [2026] SASCA 52

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE STEIN) SCCRM-22-40 Appellant: TOBIAS STEFAN SAHLSTORFER Counsel: MS J ABBEY KC WITH MR B ARMSTRONG - Solicitor: MANGAN EY & ASSOCIATES Respondent: THE KING Counsel: MR M HINTON KC WITH MS N SLATER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/09/2025 File No/s: SCCRM-24-044080 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SAHLSTORFER v THE KING [2026] SASCA 52 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Auxiliary Justice Lovell and the Honourable Auxiliary Justice Mullins) 14 May 2026 CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS Appeal against conviction. The appellant was tried by judge alone and convicted of one count of murder. The prosecution alleged that the appellant and two other men were liable, in accordance with the principles of joint criminal enterprise, by reason that all three men were present and participated in a violent and frenzied attack upon the deceased. The prosecution relied upon a statement provided by a witness, Mr Perkins, who gave evidence in support of some aspects of the prosecution case identifying the appellant as the driver of a vehicle that arrived in the vicinity shortly before the attack, and as a person who then participated in the attack. As Mr Perkins died before the matter came to trial, his statement was admitted under s 34KA of the Evidence Act 1929 (SA). -- 1 of 43 -- On appeal, the appellant complained that: 1. the judge failed to exclude Mr Perkins’ statement under s 34KD as either more prejudicial than probative, or pursuant to the Court’s unfairness discretion; 2. there was a miscarriage on account of the judge’s failure to bring to account the forensic disadvantage occasioned to the appellant by reason of his inability to cross-examine Mr Perkins; 3. the verdict was unreasonable; and 4. the judge’s reasons and reasoning were inadequate. Held (per the Court) granting permission to appeal, but dismissing the appeal: 1. The judge did not err in declining to exclude the statement of Mr Perkins under s 34KD of the Evidence Act. 2. The judge properly brought to account the forensic disadvantage to the appellant by reason of his inability to cross-examine Mr Perkins. 3. The verdict of guilty was reasonable. 4. There was no inadequacy in the judge’s reasons or reasoning. Evidence Act 1929 (SA) ss 34KA, 34KB, 34KC, 34KD; Evidence Act 2008 (Vic) s 137; Joint Criminal Rules 2022 (SA) s 39, referred to. Bowen (a pseudonym) v The King [2025] SASCA 36; Bunning v Cross (1978) 141 CLR 54; Collins, Harris & Simpson (pseudonyms) v The King [2026] SASCA 46; Dansie v The Queen (2022) 274 CLR 651; Haddara v The Queen (2014) 43 VR 53; M v The Queen (1994) 181 CLR 487; Moore (a pseudonym) v The King (2024) 282 CLR 460; Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274; Police v Dunstall (2015) 256 CLR 403; Police (SA) v Hall (2006) 95 SASR 482; R v Duke (1979) 22 SASR 46; R v Haines [2016] SASC 96; R v Lindsay (2016) 126 SASR 362; R v Lobban (2000) 77 SASR 24; R v Perks (1986) 41 SASR 335; R v Sahlstorfer [2024] SASC 55; R v Sahlstorfer (No 2) [2024] SASC 58; Rozenes v Beljajev [1995] 1 VR 533; Shepherd v The Queen (1990) 170 CLR 573; The Queen v Bauer (2018) 266 CLR 56, considered. -- 2 of 43 -- SAHLSTORFER v THE KING [2026] SASCA 52 Court of Appeal – Criminal: S Doyle JA, Lovell and Mullins AJJA 1 THE COURT: The appellant was tried by judge alone and convicted of one count of murder that was particularised that on 30 January 2017, at Elizabeth South, he murdered Mr Boyce: R v Sahlstorfer (No 2) [2024] SASC 58 (the reasons). 2 The prosecution case against the appellant was circumstantial. It was alleged that he was one of three men (the group) who attended Hill Street on 30 January 2017 and assaulted Mr Boyce who lived at 11B Hill Street and who died of his injuries nine days later. The other two men were Mr Grant and Mr E. It was alleged that those three men knew each other through a mutual association with the Hells Angels (HA) outlaw motorcycle club, carried out the assault in accordance with an agreement between them to murder Mr Boyce and that agreement was a joint enterprise or extended joint enterprise to cause grievous bodily harm. The group arrived in two cars, being a Toyota RAV4 and a smaller car (the small car). On the prosecution case, the appellant was the driver of the small car. No relationship between Mr Boyce and the group was alleged and the prosecution case was that the attack was redirected at Mr Boyce after the group was unable to locate one Mr Samuel Perkins. 3 There were two issues at the appellant’s trial. The first issue was whether the prosecution had proved that the man driving the small car was the appellant and therefore the third offender with Mr Grant and Mr E. The second issue was whether, if the appellant’s involvement had been proved, the reasonable possibility of a joint enterprise to commit manslaughter had been excluded beyond a reasonable doubt in favour of murder. 4 The trial was preceded by a voir dire in which the trial judge ruled that the testimony of Mr Perkins set out in the transcript of his evidence at the trial of Mr Grant was admissible pursuant to s 34KA of the Evidence Act 1929 (SA) (Act) and refused the appellant’s application under r 39 of the Joint Criminal Rules 2022 (SA) for an order that the Crown be prohibited from leading that evidence of Mr Perkins: R v Sahlstorfer [2024] SASC 55 (the voir dire reasons). Grounds of appeal 5 Grounds 1, 2, 3, 5 and 6 in the notice of appeal are pursued on the appeal. These grounds are: 1. The trial judge erred in admitting the evidence of Mr Perkins into the trial pursuant to s 34KA of the Act as: -- 3 of 43 -- [2026] SASCA 52 The Court 2 1.1 The evidence ought to have been excluded in the exercise of the Christie discretion, in that the evidence was more prejudicial than probative. 1.2 The evidence ought to have been excluded in the unfairness discretion, in that the evidence was productive of a forensic unfairness of a kind relevant to the exercise of this discretion. 2. A miscarriage of justice was occasioned by the trial judge failing to bring to account the forensic disadvantage warning as to Mr Perkins’ evidence, in that: 2.1 The trial judge failed to bring to account the significant forensic disadvantage of the appellant being unable to cross examine Mr Perkins as to: 2.1.1 The circumstances in which he came to make observations of people and vehicles from the roof of 11B Hill Street; 2.1.2 The happenings inside of 11B Hill Street; 2.1.3 The circumstances the interaction between himself and Officer Trent West in the cells of the Elizabeth Police Station; 2.1.4 The circumstances of, and matters surrounding, his association or interactions with ‘Serge’. 3. The verdict was unreasonable and cannot be supported having regard to the evidence as to the identity of the offender in company with Mr E and Mr Grant. 5. The trial judge erred in engaging in inadequate reasoning in that: 5.1 The evidence did not exclude manslaughter as a reasonable possibility; 5.2 The evidence did not exclude the reasonable possibility that the appellant was not present on Hill Street at the time of the offence. 6. In the alternative to ground 5, the trial judge erred in delivering reasons which failed to expose, or properly expose, the basis upon which manslaughter was excluded as a reasonable possibility. Relevant legislation 6 Section 34KA of the Act provides for admissibility of evidence of out of court statements by unavailable witnesses. The definition of ‘prescribed proceedings’ in s 34KA(8) includes proceedings for a criminal offence. The condition specified in s 34KA(2)(a) is ‘that the relevant person is dead’. Section 34KA(1) provides: -- 4 of 43 -- [2026] SASCA 52 The Court 3 Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and (b) the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and (c) any 1 of the conditions specified in subsection (2) is satisfied. 7 Sections 34KB(1) and (2) of the Act provide: (1) This section applies if in prescribed proceedings— (a) a statement not made in oral evidence in the proceedings (an out of court statement) is admitted as evidence of a matter stated; and (b) the maker of the out of court statement does not give oral evidence in connection with the subject matter of the statement. (2) In a case to which this section applies— (a) any evidence which (if the person who made the out of court statement had given such evidence) would have been admissible as relevant to the reliability of the statement and the person’s credibility as a witness is so admissible in the proceedings; and (b) evidence may, with the court’s leave, be given of any matter which (if the person who made the out of court statement had given such evidence) could have been put to the person in cross-examination as relevant to the reliability of the statement and the person’s credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and (c) evidence tending to prove that the person who made the out of court statement made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that the person contradicted himself or herself. 8 Section 34KD(2) of the Act preserves the common law discretions (relevantly the Christie discretion and the general unfairness discretion), despite the operation of s 34KA. Summary of the relevant evidence at the trial Mr Perkins 9 Mr Perkins had died by the time of the appellant’s trial. Mr Grant had been tried at a separate trial in 2019 at which Mr Perkins had given evidence. Mr Perkins’ evidence (at pp 428-476 and pp 494-506 of the transcript of Mr Grant’s trial) was exhibit P55 in the appellant’s trial. The context in which Mr Perkins gave evidence at Mr Grant’s trial was noted at [11] of the voir dire reasons. It was that Mr Grant admitted to being one of the three men who assaulted -- 5 of 43 -- [2026] SASCA 52 The Court 4 Mr Boyce and it was an agreed fact in that trial that the identity of the other two assailants were Mr E and the appellant (who was named). Mr Perkins was therefore not asked questions at the Grant trial about the identity of the driver of the small car as it was not in contention at the Grant trial. The purpose of the prosecution in seeking to adduce in the appellant’s trial Mr Perkins’ evidence in the Grant trial was set out at [34] of the voir dire reasons. It was ‘to establish that the small car seen on CCTV was blue, had a faded roof, a sports exhaust, was being driven by a man with an accent and that the driver repeated “Where the fuck is Sam?” three times’. It is apparent from the voir dire reasons that Mr Perkins had signed statements to the police about the identification of the third offender. The trial judge recorded (at [13] of the voir dire reasons) that the prosecution did not seek to tender Mr Perkins’ previous signed statements. The trial judge noted (at [41] of the voir dire reasons) the prosecution’s submission that, when Mr Perkins named ‘Serge the Russian’, he was making assumptions about the third offender on the basis that he was the target of the group and on facts he knew. The trial judge also noted (at [41]) that: The prosecution indicated they would not seek to lead the parts of Mr Perkins’ evidence dealing with the identity of the accused as any subsequent evidence about the accused was a process of reconstruction and not an identification as such. 10 The trial judge set out (at [56]-[71] of the reasons) Mr Perkins’ evidence taken from the transcript of his evidence at the Grant trial (exhibit P55). The following is a summary of that evidence. 11 Mr Perkins had known Mr Boyce since Mr Perkins was 14 years old. In January 2017, Mr Perkins was ‘on the run’ as he had breached parole and was aware that a warrant had been issued for his arrest. In addition to avoiding the police, he was also avoiding other people, as he had behaved in a way that had resulted in him making enemies. (There was no suggestion at the appellant’s trial that the appellant and the other members of the group were those enemies.) Mr Thaller who lived at 20 Hill Street had told Mr Perkins that he was welcome to stay at his place. During the month before the incident, Mr Perkins would spend some of his time at Mr Thaller’s house in the garage. Mr Perkins knew Mr Grant from his physical appearance and had seen him at Mr Thaller’s house on one occasion before 30 January 2017. On that occasion, Mr Perkins saw Mr Grant arrive in a little blue car and Mr Thaller went out to meet him. Mr Grant was only there for a couple of minutes. In January 2017, Mr Perkins knew the appellant as Toby Deegan. Mr Perkins had seen the appellant at Mr Thaller’s house at 20 Hill Street about a fortnight before Mr Boyce’s death. On that occasion, the appellant arrived at the house as a passenger in a Range Rover and Mr Thaller went out and had a conversation with the appellant. Mr Thaller got into the car with the appellant and the driver and was away for about 20 minutes. 12 It was still daylight on 30 January 2017 when Mr Perkins was dropped off at Mr Thaller’s house in the evening. He was waiting for two women to arrive to give him a lift to a different area. Those two women were pulled over by police near -- 6 of 43 -- [2026] SASCA 52 The Court 5 20 Hill Street (which was confirmed by agreed fact 27 in exhibit P84). Mr Perkins was concerned that the women might disclose his location and he decided to move on. Mr Thaller organised for Mr Wheatley to give Mr Perkins a lift to another location. Mr Perkins then made his way to 11B Hill Street without his backpack, as he anticipated that Mr Wheatley would collect the backpack from 20 Hill Street and then come to 11B to get him. It was dark when Mr Perkins arrived at 11B. Mr Boyce was at 11B with his three friends, all named Matt. 13 Mr Perkins became aware, either by message or by telephone conversation with Mr Thaller, that his lift was there. Mr Perkins went out the front of 11B and went to the car which was a VF Commodore to ask Mr Wheatley if Mr Boyce could come too. The car was facing the wrong way on the street for its direction of travel. Mr Perkins noticed four headlights along the street (travelling south from Fairfield Road) and could tell that the first car was ‘littler’ than the one behind and had a faded roof. The exhaust of the small car had a different sound which made him think it was a sports exhaust. It was a ‘bluey’ colour and the car behind was a larger car like a RAV4 and a ‘champagney’ colour. 14 Mr Perkins returned inside 11B and went out into the courtyard and used the ladder with Mr Boyce’s help to get up on the roof. Mr Perkins could see Mr Wheatley’s car and Mr Wheatley was still sitting inside. Mr Perkins saw Mr Boyce out the front on the passenger side of Mr Wheatley’s car on the roadside. Mr Perkins could see the two cars stopped. The small car had moved a bit past Mr Wheatley’s car and was in front and the larger one was about 10 metres behind. Mr Perkins saw two people get out of the small car and one get out of the larger car and heard the driver of the small car say three times ‘where the fuck’s Sam’. (It was not disputed by the appellant’s trial counsel in the submissions to the trial judge that these words were spoken at that time.) The voice had a bit of an accent. Mr Boyce responded that he had not seen him or he was not here or words to that effect. 15 Mr Boyce ran around the front of Mr Wheatley’s car and headed towards Mr Thaller’s house down the footpath. The passenger of the small car began chasing Mr Boyce. At the same time, the drivers of both cars got in and started driving down the road. Mr Perkins lost sight of Mr Boyce as he was being chased past the big bushes going into the neighbour’s hedge. As the two cars drove down quickly, the small car was in the front and the larger car was behind. When he was on the roof, Mr Perkins heard Mr Boyce, a noise two or three times and then car doors. 16 Mr Perkins was arrested on the Parole Board warrant later that night. 17 As recounted above, Mr Perkins said the small car was blue with a faded roof and he could see the roof from where he was. Mr Perkins described the man who got out of the driver’s side of the small car as about his height, perhaps a bit shorter than six foot, but maybe he would be just average height if he was looked at parallel to the road. He had a fit build and was wearing a hat and a t-shirt that he thought -- 7 of 43 -- [2026] SASCA 52 The Court 6 was lighter coloured with darker coloured shorts. Mr Perkins thought the man who got out the passenger side of the blue car was a bigger build, about the same height, and he was wearing a reddish t-shirt which was darker coloured and had glittery, shiny stuff on it. The man in the larger car did not get out completely, but Mr Perkins thought he was taller and skinnier and had shorter hair that was a bit longer on the top. Hill Street witnesses 18 Mr Thaller’s evidence at the trial included the following. Mr Thaller had been friends with Mr Wheatley for years. Mr Thaller had known Mr Grant for years and Mr Grant would occasionally visit Mr Thaller’s home. (Footage prepared by Detective Britton and included in exhibit P9 showed that Mr Grant visited Mr Thaller’s house on 24 and 27 January 2017 and twice on 30 January 2017.) Mr Thaller was introduced to Mr Perkins through a friend of Mr Thaller. Mr Thaller did not think that Mr Perkins stayed overnight at Mr Thaller’s house but Mr Perkins visited. Mr Perkins came to Mr Thaller’s house on 30 January 2017 and was looking for a lift. Mr Thaller organised a lift for him with Mr Wheatley. Mr Thaller was alerted to the assault of Mr Boyce when his then partner called out to him that the neighbours were all out at the front. Mr Thaller’s evidence is cross- examination included the following. Mr Perkins was in the habit of regularly using methamphetamine. Mr Thaller had used methamphetamine with Mr Perkins on 30 January 2017. Mr Perkins was paranoid all the time and a drug user. 19 By agreement, the statement of Mr Sicari (who was the housemate of Mr Thaller), dated 7 June 2017, was read into the transcript on the basis it represented the evidence he would have given if he were called and that it was a matter for the trial judge to determine the extent to which it was accepted. Mr Sicari was in the process of moving out of 20 Hill Street on 30 January 2017. He was driving there between 9:40 pm and 9:45 pm, travelling west on Fairfield Road and trying to turn left into Hill Street. There was a small dark car almost in the middle of the road on Hill Street facing north at the junction with Fairfield Road. There was another car parked on Hill Street facing south out from the kerb and close to Fairfield Road. The position of these cars did not allow him to get to 20 Hill Street. He sounded the horn on his car and the small dark car moved forward slightly and Mr Sicari was able to fit his car through to travel south on Hill Street. The small dark car had a loud exhaust when it moved forward. A four-wheel drive vehicle travelling towards him in the opposite direction north on Hill Street stopped to the right side of the small dark car. Mr Sicari turned around and parked outside 20 Hill Street facing back north towards the two cars which he had seen and which were still side by side. Mr Sicari’s housemate, Mr Thaller, was home when he entered 20 Hill Street. Mr Sicari had a shower and when he got out, he saw lights out the front of the house on the CCTV monitor. He went out the front and saw a male who appeared to be unconscious on the footpath. Mr Sicari described the small car that was blocking his entry into Hill Street ‘as a small dark coloured hatch, possibly green, with a detectably loud exhaust system’. It had tinted windows. It did not look like a bomb. He estimated it to be a year 2000 -- 8 of 43 -- [2026] SASCA 52 The Court 7 model. The four-wheel drive vehicle was a big, normal sounding vehicle, with bright headlights and it was possibly black. 20 The evidence of one of the Matts at 11B Hill Street, Mr Matthew Crampton, included the following. On the night of 30 January 2017, he went to 11B with his friend Matthew Marshall (Fat Matt) to pick up a trailer. The other, Mr Matt Rozenboom (known as Superman), and Mr Perkins arrived at 11B. Mr Perkins was organising a lift to go somewhere and asked Mr Boyce if he wanted to go with him. He did not see Mr Perkins go on to the roof but inferred Mr Perkins was on the roof from the amount of noise he made out in the little courtyard and the footsteps he heard on top of the roof. Mr Boyce went out the front and the Matts stayed in the family room area. A few minutes later Fat Matt got up, went out the front, and soon came back saying that Mr Boyce had been bashed. Mr Crampton went out of 11B and walked to the end of the street on the opposite side of where Mr Boyce was on the ground. Mr Crampton’s evidence in cross-examination included the following. He had only ever met Mr Perkins once or twice. Mr Perkins was a user of methamphetamine. Mr Crampton saw Mr Perkins when Mr Crampton had returned to the front of the house (at 11B) after the ambulance had arrived for Mr Boyce. Mr Crampton did not speak to Mr Perkins. Mr Perkins was upset and muttering to himself and said something about ‘Serge’. 21 Mr Matthew Rozenboom’s evidence included the following. Mr Rozenboom had travelled to 11B on the night of 30 January 2017 with Mr Marshall. Mr Crampton was there and then Mr Boyce and Mr Perkins arrived. It was the first time that Mr Rozenboom had met Mr Perkins. Mr Perkins was on the telephone trying to arrange a lift to go somewhere. Mr Boyce asked to go with him. Mr Perkins went out into the courtyard and climbed up on to the roof because Mr Rozenboom could hear noises up on the roof. Mr Boyce went out to the front of the house and Mr Rozenboom lost sight of him. Mr Rozenboom stayed in the family room area with the other two Matts. Fat Matt left the family room area to walk out. Fat Matt was in distress on the phone and Mr Rozenboom went out the front of the house and looked to his left to where Mr Boyce was and saw the ambulance arrive. Mr Rozenboom’s cross-examination included the following. Mr Perkins came out through the front door of 11B. He was in a distressed state. Mr Rozenboom spoke to him. Mr Perkins said something about ‘Serge’ and that it was ‘meant to be him’. Mr Rozenboom did not see Mr Perkins use any drugs that night. 22 The trial judge received witness statements tendered on behalf of the appellant as representing the evidence the witnesses Ms Blake and Ms Taylor would have given, if called. The statement provided on 18 February 2017 by Ms Blake (exhibit D85) was summarised at [228] of the reasons. It included the following. Ms Blake said that, at about 9:00 pm or 10:00 pm on 30 January 2017, she was in the front of 5 Virgo Street, Elizabeth South. When she first came out about half an hour earlier she saw a black hatch parked on Thompson Street with three young girls and police speaking to them. She went back inside and about 30 minutes later the girls had left and it looked like a silver LandCruiser and -- 9 of 43 -- [2026] SASCA 52 The Court 8 a small red hatchback were on the corner of Virgo Street and Thompson Street. She saw about four people who appeared to be males with light coloured skin standing in between the two cars in the middle of the road for about 20 minutes. The red car stopped on the intersection of Thompson Street and Hill Street. The silver car caught up to the back of the red car. The silver and red cars drove very quickly down to the middle of Hill Street and stopped suddenly. They stayed in that spot with their lights on for about 15 minutes and then suddenly took off very quickly north on Hill Street. Ms Blake went back inside and did not see anything more until she saw the ambulance lights a short time later. 23 The trial judge summarised (at [229] of the reasons) Ms Taylor’s statement to police given on 2 February 2017 (exhibit D86). It included the following. At about 10:00 pm she was home on Virgo Street when she heard two cars coming from Thompson Street. She saw a red car with a body similar to a hatchback which came into the street without its lights on. She saw a silver four wheel drive in front of the red car. They did a U-turn and went up Hill Street. In April 2017, Ms Taylor provided a further statement (exhibit D87) which was summarised (at [230]). She stated she saw a silver four-wheel drive enter Virgo Street from Thompson Street followed by a little red hatchback, similar to a Kia, with a little fin up the top of the rear window. The hatchback had its headlights off as it entered the street. Both vehicles conducted a U-turn before heading up Hill Street. CCTV footage 24 On 31 January 2017 Detective Horley seized a Digital Video Recorder (DVR) from inside 20 Hill Street which appeared to be connected to a monitor and camera system at the house (agreed fact 1 in exhibit P84). Detective Britton reviewed the CCTV footage seized from Hill Street and prepared a compilation of footage spanning a number of days of images recorded by the CCTV footage (including the assault of Mr Boyce) which was exhibit P9 (at [127] of the reasons). 25 Dr Sorell, who is the principal consultant and director of Digital Forensic Sciences Australia and has been a consultant in digital evidence matters, was retained by the South Australian police to assess and process the CCTV footage. His expertise was not challenged (at [129]). The trial judge summarised (at [131]- [147]) the steps taken by Dr Sorell to process the footage and his explanations of the limitations that applied to the compilations that he prepared (which were tendered as exhibit P5). (At the hearing of the appeal the appellant’s counsel suggested that the Court view one of the videos within exhibit P5 which was named ‘C5 Assault’ that was about one minute and 20 seconds in duration to demonstrate what it did and did not show of the assault. The relevant video was played during the hearing of the appeal.) 26 The trial judge viewed the CCTV footage in exhibit P9 repeatedly and then the processed CCTV footage prepared by Dr Sorell (exhibit P5) repeatedly and summarised what the CCTV footage showed (at [150]-[186] of the reasons) which -- 10 of 43 -- [2026] SASCA 52 The Court 9 included the following. (There is no challenge on the appeal to the trial judge’s observations of what was shown on the CCTV footage.) 27 At 10:29 pm on 30 January 2017, a car drove down Hill Street from Fairfield Road in a southerly direction. The driver was Mr Wheatley. He pulled into the driveway of 20 Hill Street and got out and let himself into the house. At about 10:33 pm, a small dark car turned into Hill Street from Thompson Street and drove up the road in a northerly direction (first drive by). About 15 seconds later, a second larger car turned into Hill Street from Thompson Street travelling in a northerly direction. The brake lights of the larger vehicle showed briefly when the vehicle was approximately adjacent to 11B. A matter of seconds after the larger vehicle drove down Hill Street, a vehicle travelled south along Hill Street from Fairfield Road and then manoeuvred to park at 20 Hill Street (and the driver of this vehicle was identified as Mr Sicari). 28 At 10:34 pm, Mr Wheatley walked out of 20 Hill Street carrying a backpack, got into his vehicle and drove to 11B. As Mr Wheatley commenced to drive to 11B, Mr Sicari was still parking his car at 20 Hill Street and was manoeuvring with his lights on. Mr Wheatley’s vehicle stopped on the eastern side of Hill Street in front of 11B, facing in a northerly direction with the lights on. (That was when Mr Perkins gave evidence that he moved to Mr Wheatley’s car but almost immediately went back into the house at 11B.) The headlights of an approaching vehicle paused briefly in the vicinity of Mr Wheatley’s car before continuing down Hill Street in a southerly direction (second drive by). 29 The first vehicle which was small and dark was followed by a second vehicle which was larger and light coloured. Both vehicles disappeared from view at about 10:36 pm. Mr Sicari had got out of his vehicle and walked down the driveway of 20 Hill Street as the two vehicles passed. Mr Sicari turned to look at the passing vehicles and entered the house at 10:37 pm. 30 At 10:38 pm, headlights illuminated the metal fence alongside 20 Hill Street as a car turned into Hill Street from Thompson Street. The small car appeared, followed by the larger, light-coloured car (third drive by). The brake lights of the larger vehicle showed briefly as it passed 11B. Both vehicles continued (north) to Fairfield Road. At 10:38 pm, Mr Thaller walked out the door straight across to the fence and looked up Hill Street. His mobile phone was visible in his hand and he held the phone up to his ear. (At 10:39 pm, a telephone subscribed in the appellant’s name called Mr Wheatley’s phone and the call lasted 43 seconds.) 31 At 10:41 pm, Mr Boyce walked from the front of 11B towards Mr Wheatley’s car at the end of the driveway. At 10:42 pm, the two cars returned to Hill Street travelling south (fourth drive by) and pulled up adjacent to Mr Wheatley’s car. Mr Boyce ran away from Mr Wheatley’s car towards 18 Hill Street. Mr Boyce was chased, caught and taken to ground. (It was accepted at the trial on behalf of the appellant during the final submissions to the trial judge that it was Mr Grant who chased Mr Boyce down and took hold of him.) -- 11 of 43 -- [2026] SASCA 52 The Court 10 32 The two cars travelled down to where Mr Boyce was being restrained (by Mr Grant). Both vehicles stopped. By the time the second vehicle stopped, the driver of the small car was already out of his vehicle and moving quickly to Mr Boyce. The general shape of the driver of the small car, as he got out of the car and attacked Mr Boyce, was shown on the CCTV footage, even though the quality was poor. He was wearing a pale coloured t-shirt and his upper body was visible. He did not pause and started attacking Mr Boyce at approximately 10:43 pm. He moved straight into a series of punches and kicks which, from the rapidity of the moves, indicated they were delivered with force. The trial judge was able to discern from exhibit P5 (at [186] of the reasons) that within several seconds there were at least six and possibly more blows by the driver of the small car. The driver of the second larger vehicle joined in and all three figures were delivering blows. In the last part of the attack, the figures appeared to be looking down and their lower body movements indicated they were delivering kicks near the ground. At least three bodily movements consistent with kicking were observable on the CCTV footage (at [186]). At 10:43 pm, the three figures moved away from Mr Boyce and ran back to their vehicles. (From the timings on the CCTV footage, there was about 15 seconds between the commencement of the attack on Mr Boyce by the driver of the small car at the location in Hill Street where Mr Boyce was being restrained by Mr Grant and when the three men moved away from Mr Boyce. If the timings on the CCTV footage are taken from when Mr Boyce was caught and held by Mr Grant until the three men moved away, the incident took 30 seconds.) 33 A white cast on the right arm of the passenger of the small car could be seen in the headlights. (There were agreed facts 3 to 7 in exhibit P84 at the appellant’s trial that Mr Grant had received treatment for a fracture of the base of his right little finger on 27 January 2017 when a backslab plaster was applied to his right hand. The plaster covered the right back and outside of his forearm up to the elbow. Mr Grant attended the hospital on 3 February 2017 where the injury was reassessed and a new backslab plaster was applied.) The larger vehicle started moving at about 10:43 pm and drove off down Hill Street followed immediately by the small car. 34 At 10:46 pm, Mr Wheatley’s car performed a three-point turn and drove down Hill Street and pulled into the driveway of 20. Identification of the model of the small car 35 Officer Chewter reviewed the CCTV footage for the purpose of identifying the make and model of the cars. Relevantly, in respect of the small car, Officer Chewter contacted Mr Tannock of Toyota Motor Corporation who nominated the regional fleet manager, Mr Greer, as the best person to assist with the inquiries. Commencing on 18 May 2017, Officer Chewter had email exchanges with Mr Tannock and Mr Greer and sent them images extracted from the CCTV footage. On 19 May 2017, Mr Greer’s email response embedded five images which included a diagram of a Toyota Echo, a Toyota Yaris and a Holden Barina. Officer Chewter asked Mr Greer to give an opinion as to the comparison between the CCTV footage and the Toyota Echo and the email embedded a diagram of a Toyota -- 12 of 43 -- [2026] SASCA 52 The Court 11 Echo alongside the CCTV image. On the same day, Mr Greer sent an email response which included ‘Close could be an Echo’. Mr Tannock sent an email to Officer Chewter on 22 May 2017 that was copied to Mr Greer in which Mr Tannock said he had viewed the images and, although they could assume it could be a Toyota hatchback such as an old Toyota Echo, the images were not clear enough to be confident in their evaluation. 36 By 29 June 2017, Officer Chewter had a working copy of the CCTV footage provided by Dr Sorell. Officer Chewter asked Mr Greer to look at sets of the CCTV footage. Mr Greer gave evidence there were features that enabled him to form an opinion that the small car was a Toyota Echo three-door hatch. The trial judge set out (at [205] of the reasons) the features of a Toyota Echo that Mr Greer used to identify the small car in the CCTV footage as ‘definitely a Toyota Echo’. Mr Greer accepted in cross-examination (noted at [219]) that he knew the Toyota Echo was the vehicle Officer Chewter was interested in and was concentrating on in May 2017 but after seeing the CCTV footage, Mr Greer’s opinion was that the small car was a Toyota Echo. Toyota Echo WSL 073 37 In late 2015, Mr A purchased a blue Toyota Echo, registration WSL 073. The paint was faded on the roof and the headlights had started to fade and go yellow. He replaced the rear muffler with a ‘hotdog’ muffler that made the car sound louder. He sold the car in August 2016 to a male person who gave the name Toby. He was Caucasian and of stocky build. Mr A observed a couple of tattoos on the man’s face but otherwise he was wearing a long-sleeved jumper. He had a German or European accent. There was a HA logo on the man’s clothing. Mr A attended to the transfer of the registration of the vehicle. 38 The records of the Department of Infrastructure and Transport (Department) showed that the Toyota Echo was registered in the appellant’s name from 1 January 2017 to 31 March 2017. If it had travelled on the roads after 31 March 2017, it would have been unregistered. Registration papers in the appellant’s name and referable to the Toyota Echo were located during a search of the appellant’s home on 26 October 2017. 39 Agreed facts 36 to 39 in exhibit P84 included the following. On 2 March 2017 the South Australian police published a media release regarding the investigation into the death of Mr Boyce. They released CCTV footage that showed the bashing of Mr Boyce and the two cars used by the perpetrators. The footage was aired on free-to-air television. The media release referred to the vehicles as a late model light-coloured SUV and a dark coloured small hatchback. 40 Evidence was adduced from an officer of the Department of the Safe-T-Cam records of sightings of the Toyota Echo WSL 073 between 1 January 2016 and 22 May 2019. The officer also said that the system of recognising number plates was not foolproof. The last entry was of a sighting on 26 February 2017 at Crafers West with the vehicle travelling in a westerly direction. The officer was able to -- 13 of 43 -- [2026] SASCA 52 The Court 12 state that if a person drove through the camera system in an unregistered vehicle, the information was captured and presented to staff in the Department for follow up. Another witness from the Department who was responsible for providing technical support for the camera systems and had oversight of the cameras during 2016 and 2017 stated that the accuracy of the cameras at that time was 90 to 95 per cent. 41 Detective Ganley was involved in a search of a property at Ponde that was about 15 hectares owned and frequented by HA members. Using a backhoe, a damaged chassis of a car and engine and other parts were located under about four metres of dirt in a dump area on the property. The engine number stamped onto the engine block corresponded with the engine number for the Toyota Echo WSL 073. 42 Evidence was given by a forensic officer that the remnants of the car showed obvious signs of being damaged by fire. All the plastic components had perished. The car had been cut into two main portions. The forensic officer could not be sure whether it was set on fire before or after it was cut. An employee of the Toyota Motor Corporation was able to say that the engine number that he observed in the photographs of the engine block that was located was consistent with the manufacturing stamps and he did not consider the number had been altered. He could identify that the photographs of the damaged chassis and parts were of a 2000 Toyota Echo. According to the search of Toyota’s records, the engine number attached to a Toyota Echo three-door hatch with a colour description of ‘dark blue mica’. The witness observed that the compliance plate had been removed. He observed that the colour of the vehicle in the photograph appeared to be blue and was consistent with the description on the vehicle record. The intake manifold had been removed and the witness did not consider it possible for that part to have been consumed by fire. The top camshafts of the engine had been removed. The exhaust manifold had been cut. The witness noted cuts in the top plenum area and across the front of the vehicle which would have allowed the front chassis to be removed. He could not see any reason to do that level of removal for the vehicle to be put back together at a later time. Some kind of angle grinder or a petrol powered cutoff saw could be used to make such cuts. The witness observed from the photographs that there was a modified exhaust called a ‘hotdog’ or ‘glasspack muffler’ which typically makes the engine noise louder. Mr Zaporoshenko 43 Mr Serge Zaporoshenko gave evidence that included the following. He had never been to Hill Street and was not involved in an assault with other men in a suburban street in Elizabeth South. He did know Mr Perkins and had an altercation with Mr Perkins four or five years before police spoke to him about Mr Boyce or eight to ten years ago. He had never owned a Toyota Echo or silver Toyota RAV4. He was Russian and had been in Australia since 1994. He had a few workshops and one at Para Hills West for the storage of cars. In 2017, about six cars would be stored at those premises. There was never a Holden Barina stored at -- 14 of 43 -- [2026] SASCA 52 The Court 13 the workshop. There was not a Ford Laser inside his workshop. The outside area of the workshop was shared premises with about 20 workshops and there could have been any car in the car park. 44 It was agreed fact 1 in exhibit D90 that at about 2:30 pm on 31 January 2017, a police officer attended a workshop premises at Para Hills West and outside those premises there was a blue Ford Laser motor vehicle with a faded roof. Other evidence 45 Detective Britton had included in exhibit P9 the CCTV footage of the motorcycle crash involving Mr Boyce that occurred in Hill Street on 27 January 2017. Detective Britton took photographs from the roof of 11B Hill Street to show what could be seen in the direction of 20 Hill Street and what could be seen on the road below 11B (exhibit P67). 46 Detective Britton obtained photographs of the appellant, Mr Grant and Mr E (exhibits P68, P69 and P70) to gain a sense of the height, weight and build of each man. Based on the photographs and police indices, Detective Britton assessed Mr Grant as approximately 180 cms tall, 95 kgs and solid build; the appellant as 175 cms tall, 90 kgs and a solid, muscular build; and Mr E as 191 cms tall, 85 kgs and a lean, muscular build. Photographs in evidence of the appellant on 26 October and 26 December 2016 (exhibits D78 and D79) and a further set of photographs taken of the appellant after his arrest (exhibit P77) show his significant facial tattoos and tattoos on his arms, legs and torso but particularly the right side of his body. 47 Detective Britton became familiar with the appellant’s voice from listening to telephone intercepts of calls to which he was a party. Detective Britton was able to say that the appellant had a mild accent when he was yelling and the accent was consistent with a foreign language. 48 Agreed facts 43, 45 and 47 in exhibit P84 were that, as of 30 January 2017, both the appellant and Mr E were full members of the Adelaide Chapter of HA and Mr Grant was ‘a hang around’ for the Adelaide Chapter of the HA. When Mr Grant was arrested on 26 October 2017, police searches were conducted simultaneously at the respective addresses linked to the appellant and Mr E. Mobile phones were seized from Mr Grant and Mr E. Extraction of the data from their phones yielded photographs which showed the members of the group in various combinations with one another. 49 Detective Maidment of the Crime Gangs Taskforce to which she had been attached for 12 years gave evidence on the basis of her training about, and investigations into, the way motorcycle groups operate. The trial judge noted (at [311] of the reasons) the limited purposes for which the appellant had submitted Detective Maidment’s evidence could be used which was for pointing to an association between Mr E, Mr Grant and the appellant, an association between the appellant and Ponde, and in relation to the telephone number attributed to the -- 15 of 43 -- [2026] SASCA 52 The Court 14 appellant which had a connection with an old clubhouse of the HA. The trial judge accepted (at [312]) that the evidence was more generally relevant in relation to the location of the HA clubhouse at a particular time, evidence concerning the premises at Ponde and evidence about ‘hang arounds’ and prospective members. The trial judge summarised Detective Maidment’s evidence (at [313]-[320]). This included that the property at Ponde was open to members of the public from time to time and Detective Maidment had attended Ponde three times in the previous 10 years for ‘burnout events’. Apart from events that were open to members of the public, the property was exclusively used by HA members who could take guests to an event or concert. The burnout events involved larger motorcycles conducting sand drags on a designated track. Burnouts involved both motor vehicles and motorcycles. 50 There was extensive telecommunications evidence at the trial with employees from Telstra, Vodafone and Optus producing relevant call records and explaining the factors that affect the tower to which a mobile phone will connect. The trial judge set out in a table (at [374] of the reasons) the relevant telephone numbers linked to each of the group, Mr Thaller, Mr Perkins, Mr Wheatley and Mr Grant’s girlfriend (Ms H). Mr E’s phone had the appellant’s phone number assigned to a contact ‘Tobi Lobi’. A mobile phone seized from the appellant on 4 November 2017 had Mr E’s given name and his phone number listed in the contacts. 51 There is no challenge to the trial judge’s conclusion about the phone number each relevant person was using on 30 January 2017. The trial judge found (at [510] of the reasons) that Mr Perkins was using the phone subscribed in the name of Ms C. The trial judge found beyond reasonable doubt (at [512]) that the appellant was using the phone number for a phone subscribed to in his name and there was a connection between him and the address used for the subscription of Albert Street, Clarence Gardens which was the street address of the former clubhouse of the Adelaide Chapter of the HA from at least 3 August 2008 until 2015 (and which was the subject of agreed fact 48 in exhibit P84). The trial judge found from an analysis of phone records in conjunction with the CCTV footage that it was likely that Mr Thaller was using the number in the name of one Mr Walker that was listed in the table (at [374]). 52 The trial judge set out in another table (at [527] of the reasons) the summary of the calls from the phone charge records on 30 January 2017 between Mr E, the appellant, Mr Grant, Mr Wheatley and the number belonging to Ms H. 53 There is no challenge to the trial judge’s conclusion (at [535] of the reasons) that, while it is not necessarily the case that the phone will connect to the nearest base station, the call charge records for the number subscribed to by the appellant are consistent with that phone moving between Valley View (near the appellant’s then residence) at 9:51 pm to Pooraka at 10:14 pm and Elizabeth Vale at 10:39 pm. There is also no challenge to the trial judge’s conclusion (at [536]) that the location data and the phone call charge records for the phone using the number subscribed -- 16 of 43 -- [2026] SASCA 52 The Court 15 to the appellant was circumstantial evidence in the prosecution case, even though the trial judge accepted that it could not be established beyond reasonable doubt, that the appellant was in Hill Street at 10:39 pm. The analysis that preceded these conclusions (at [529]-[534]) is not challenged which included that: (a) the phone number subscribed to by the appellant was used on 30 January 2017 to make calls at 9:51 pm and at 9:52 pm which were received by the Valley View base station which was a short distance from the appellant’s then residence (at [529]); (b) at 10:14 pm, the appellant’s number made a call to Mr E’s number received by the base station at Pooraka (at [530]); and (c) at 10:39 pm, the appellant’s phone number made a 43 second call to Mr Wheatley’s number received by the base station that was 360 metres from Hill Street (at [531]). 54 Mr E’s father was registered as the owner of a 2013 Toyota RAV4 between June 2013 and 17 December 2017. A police officer had seen the Toyota RAV4 parked in front of Mr E’s house on 1 and 2 November 2016. The last entry in the Safe-T-Cam records recording the number plate of the Toyota RAV4 registered in the name of Mr E’s father was on 14 March 2017. 55 Agreed facts 28 to 30 in exhibit P84 dealt with DNA samples and analysis including the following. DNA samples had been obtained from Mr Boyce, Mr Grant and the appellant during the investigation. DNA analysis and comparison was undertaken in respect of a pair of black shorts removed from Mr Boyce on his admission to hospital, a blood swab taken from the scene at scene marker 1 and a black t-shirt bearing a design with the words ‘The Doctor 46 Valentino Rossi’ seized from a fence at the front of 18 Hill Street. The t-shirt belonged to Mr Boyce. Tape lifts were taken from different parts of the t-shirt. The reporting officer from Forensic Science South Australia reported that there was extremely strong support for Mr Boyce being a contributor to the DNA profile for some of the tests (at [305] of the reasons). There was also extremely strong support for the proposition that Mr Grant contributed DNA for the tests from two of the tape lifts. The witness agreed that the DNA analysis of the t-shirt either excluded the appellant or statistically pointed away from his being a contributor (at [309]). Mr Boyce’s injuries 56 Agreed facts 10 to 26 in exhibit P84 dealt with the arrival of the ambulances, Mr Boyce’s injuries and hospitalisations as follows. Mr Boyce was unconscious and unresponsive when the first ambulance arrived in Hill Street on 30 January 2017 at 10:54 pm. His t-shirt was cut off him and placed on the fence at 18 Hill Street to enable medical treatment to be provided. He was taken to Lyell McEwin Hospital in a poor condition. He was noted to have bruising and swelling to both ears, around his left eye and the left side of his cheek and there were abrasions to his face. There was blood in his mouth that required suctioning. Abrasions and -- 17 of 43 -- [2026] SASCA 52 The Court 16 deformities to both knees were noted. At 1:00 am on 31 January 2017, he was transferred to the Royal Adelaide Hospital for further treatment. He died there on 8 February 2017. Shortly after his admission to hospital, blood was taken from Mr Boyce that was analysed. No alcohol was detected, but there was approximately 0.26 mg methylamphetamine per L and approximately 0.04 mg amphetamine per L. The presence of amphetamine in the blood was likely to be from the metabolism of methylamphetamine by the body. 57 Forensic pathologist, Dr Charlwood, who did the autopsy of Mr Boyce gave evidence which the trial judge summarised (at [104]-[124] of the reasons). It included the following. Death was caused by blunt force head injuries. The bruising to the face and scalp were consistent with blunt force impacts or blows but Dr Charlwood could not determine the exact number and nature of such blows or the exact aetiology. The blunt force head injuries were of the type known to occur with impact, acceleration, and deceleration forces with sheering associated tangential forces applied to the brain. The assessment of the injuries was complicated by Mr Boyce’s survival for nine days between the attack and his death. Mr Boyce had a basal skull fracture which would result in blood leaking in and around the eye. Bruising of the right periorbital region was confirmed, extending into the right cheek tissue over the cheekbone, upper mandible and the temple. There was a bruise over the mid-left cheekbone in the lower orbital region consistent with blunt force trauma and bruising to the superior orbital region on the left side. Dr Charlwood noted injuries on the chest, trunk, abdomen and upper limbs and bruises and abrasions on the legs and feet but none was medically significant and did not contribute to death. On internal examination, the brain was extremely swollen and congested. Dr Charlwood considered the brain swelling was evidence of trauma. Mr Boyce had several areas of haemorrhage and some haemorrhaging within the spaces within the brain. Dr Charlwood was unable to offer any opinion as to the number of blows that may have been inflicted as any potential patterning in bruises would have dispersed after nine days. Dr Charlwood said it was difficult to give an opinion as to the sort of force required to fracture the skull but due to the multifocal nature and extensive haemorrhage and intraventricular haemorrhage, she thought the degree of force was severe. 58 Dr Charlwood was asked to assume that three days before the assault Mr Boyce had fallen off his motorcycle, got up, was seen running, was able to push the motorcycle back to his house and, in the days that followed, moved without any sign of inconvenience. Dr Charlwood did not see anything on examination that suggested an incident of that nature three days prior to the assault had any causative effect on death. 59 During cross-examination, Dr Charlwood agreed that it may be possible to see various injuries to the brain from a single application of force and the fracture would have associated injuries to the brain itself. It was possible to postulate that the fracture was caused by a single application of force which may have produced a variety of signs of injury within the brain as it moved within the skull. Dr Charlwood agreed the fracture site was at one of the thinner portions of the -- 18 of 43 -- [2026] SASCA 52 The Court 17 bony structures of the skull but the fracture went up the side of the temporal bone which was not as thin. She therefore agreed the fracture could potentially be caused by moderate to severe force. It was not possible to quantify the degree of force required to cause a traumatic brain injury due to the complicated biomechanics and unpredictable individual biological responses involved but the clinical impression was of a diffuse brain injury with scans reported as consistent with diffuse axonal injury. Diffuse axonal injuries are considered to lie at the high end of the spectrum where the strains on axons have resulted from severe forces leading to irreversible damage in a widespread or diffuse distribution. It was impossible to tell the sequence of injuries. Dr Charlwood would not ascribe any of Mr Boyce’s injuries to a fall off the motorcycle if Mr Boyce had not had concussion, not sought medical advice, or had any problems after the accident. Officer West’s notes 60 Late in the trial the notes of Officer West made on 31 January 2017 (exhibit D89) were tendered in the appellant’s case on the basis, stated by the prosecutor, that the notes would be admissible pursuant to s 34KB of the Act relevant to the evidence of Mr Perkins. Agreed fact 2 in exhibit D90 also related to those notes: At about 2:30 am on 31 January 2017 Officer Trent West conducted a debrief with Mr Perkins in the cells at Elizabeth Police Station. He obtained from Mr Perkins, a description of the three men said to have been involved in the attack on Mr Boyce. Officer West recorded the descriptions provided by Mr Perkins in his notebook. D89 records the description of the males as provided by Mr Perkins. 61 The trial judge set out the content of Officer West’s notes at [72] of the reasons: 0230 Perkins debrief – (0230) (Elizabeth cells) Surge - the Russian (linked up to everyone) (to get product) (drugs) (Male 1) (no specific OMCG association) Athletic. Approx 35 years Caucasian Russian Short sandy hair No facial hair; No tattoos Driving blue Barina with faded roof Lives just off Port Rd/Tapleys Hill Rd. (Heard him have conversation with Boyce) to the effect of “Where’s Sam” *Blue Barina – Driver* Passenger had red tee-shirt (chased Boyce) of blue Barina Caucasian (male 2) Late 20’s Hat (possibly black) (no other details) Third male in silver 4WD (male 3) Ethnic Tall (Approx 30 years). Caucasian -- 19 of 43 -- [2026] SASCA 52 The Court 18 Dark beard, spiked hair – woggy Black tee-shirt Late 20’s/30. Looked like a club member. Could not recall who (no other details to substantiate) The trial judge’s reasons for the verdict 62 The trial judge formed the view (at [433] of the reasons) that Mr Thaller was reluctant to assist the Court fully. The trial judge identified what parts of Mr Thaller’s evidence were accepted (at [434]), including his evidence about calling Mr Wheatley to arrange a lift for Mr Perkins, but preferred the CCTV footage depiction of movements of people in and out of 20 Hill Street and the relevant times of those movements over the evidence of Mr Thaller. 63 In relation to Mr Perkins’ evidence, the trial judge noted (at [439] of the reasons) the appellant’s submission about the significant disadvantage for him due to the absence of cross-examination particularly in respect of Mr Perkins’ reference to ‘Serge the Russian’ and that he initially described the driver as having no tattoos. The trial judge identified (at [441]-[444]) the aspects of Mr Perkins’ evidence that were supported by other evidence which the trial judge expressly accepted (at [445]). Importantly, the evidence of Mr Perkins was consistent with, and supported by, the CCTV footage in many respects (at [441]). Mr Perkins’ account about getting a ride with Mr Wheatley was supported by Mr Thaller (at [442]). His evidence about his movements inside 11B and onto the roof and his interactions with Mr Boyce were generally supported by Mr Crampton and Mr Rozenboom (at [443]). The description of the sound of the exhaust on the small car was supported by Mr Sicari’s statement (at [444]). The trial judge dealt with other aspects of Mr Perkins’ evidence later in the reasons. 64 On the basis of Dr Charlwood’s evidence, the trial judge found beyond reasonable doubt (at [453] of the reasons) that the cause of the blunt force injuries and thus the cause of Mr Boyce’s death was one or more blow or blows inflicted on Mr Boyce by one or more of the men during the attack shown in the CCTV footage. 65 The trial judge found beyond reasonable doubt (at [455] of the reasons) that as at 30 January 2017 the appellant, Mr Grant and Mr E were known to one another. The trial judge found (at [461]) that Mr Thaller had known Mr Grant and Mr Wheatley for years and accepted that Mr Thaller knew of the appellant. The trial judge accepted (at [462]) that Mr Grant and Mr Wheatley must have been acquainted to some extent because Mr Grant can be seen in the CCTV footage with Mr Wheatley in front of 20 Hill Street on 30 January 2017. 66 Even though it had been urged on behalf of the appellant at the trial that a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573 was required in respect of the identification of the small car as the Toyota Echo WSL 073, the trial judge concluded (at [466] of the reasons) that a Shepherd direction was not required, given the manner in which the prosecution framed its case. There -- 20 of 43 -- [2026] SASCA 52 The Court 19 is no challenge on the appeal to that decision on the law. The trial judge accepted (at [466]) that a conclusion that the appellant was guilty of the offence necessarily required a finding of fact beyond reasonable doubt that the appellant was present in Hill Street at the time of the assault of Mr Boyce and one of the group who attacked Mr Boyce. 67 The appellant’s submission at the trial was that limited or no weight should be placed on Mr Greer’s evidence that the small car in the CCTV footage is a Toyota Echo based on the asserted influence in the emails from Officer Chewter. The trial judge rejected that submission (at [476]-[478] of the reasons). The trial judge explained (at [482]-[490]) how her Honour was able to see ‘style features of a Toyota Echo as described by Mr Greer in the CCTV footage’. The trial judge concluded (at [491]-[492]): 491 While there is no doubt that the CCTV footage quality is poor, I do not think it is so poor that I ought not accept or place any weight on Mr Greer’s opinion. I have determined to accept Mr Greer’s opinion in light of his expertise, his independence, my assessment that he was an honest, reliable and credible witness and his explanations in evidence and cross-examination for the opinion he reached. I have also taken into account my ability to see style features upon which he relied. Nevertheless, given the poor quality of the CCTV footage, I would not place such weight on his opinion to be satisfied beyond reasonable doubt by that opinion alone that the small dark car is [the appellant’s] Toyota Echo. 492 Mr Greer’s opinion that the small dark vehicle is a Toyota Echo is one matter to be weighed in my assessment of the entirety of the evidence about the small dark vehicle and its potential connection to [the appellant]. 68 In relation to the statements of Ms Blake and Ms Taylor, the trial judge compared their accounts with the CCTV footage of Hill Street and noted (at [493] of the reasons) that their accounts were not consistent with the movement of vehicles seen on the CCTV footage. After referring (at [494]-[495]) to some of those differences, the trial judge concluded (at [496]) that the two cars referred to by Ms Blake and Ms Taylor were not the two cars associated with the group. 69 The trial judge also accepted (at [499] of the reasons) that the larger silver vehicle was a Toyota RAV4 GX model, approximately 2011-2014. 70 The trial judge accepted (at [500]-[501] of the reasons) Mr A’s evidence and the Department records relating to the ownership of Toyota Echo WSL 073 and that Mr A sold his Toyota Echo to the appellant and the trial judge therefore found beyond reasonable doubt (at [502]) that the appellant owned that Toyota Echo and that the vehicle was blue, had a faded roof and a ‘hotdog’ muffler. Based on the evidence adduced in relation to the remnants of the vehicle found at Ponde including remnants of blue paint, that the chassis had the modified ‘hotdog’ style muffler and that the engine number on the engine block, the trial judge found (at [507]) beyond reasonable doubt that the vehicle located at Ponde was the appellant’s Toyota Echo. -- 21 of 43 -- [2026] SASCA 52 The Court 20 71 The trial judge made detailed findings in respect of the telecommunications evidence at [508]-[536] and [539] of the reasons. The key findings made by the trial judge in respect of the telecommunications evidence have been set out above in the summary of that evidence. 72 The findings made by the trial judge in respect of the events from 10:02 pm when Mr Perkins left 20 Hill Street and moved to 11B until the completion of the attack on Mr Boyce are set out at [546]-[563] of the reasons. The trial judge noted (at [566]) that no submission had been put why Mr Sicari’s observation and/or Mr Perkins’ observation about the loud exhaust of the small car would not be reliable or should not be accepted and accepted their evidence on that issue. Apart from the forensic disadvantage in the inability to cross-examine Mr Perkins, the trial judge noted (at [567]) that no specific submission was put to challenge Mr Perkins’ description of the roof of the small car as faded and specifically noted not overlooking that disadvantage. The trial judge noted (at [568]) that, while Mr Perkins may have ‘mistakenly [stretched] his recollection of events’, that did not necessarily detract from the credibility or reliability of his description of the vehicles or the voice he heard. The trial judge accepted (at [569]) Mr Perkins’ description of the roof of the small car as faded, noting that Mr Perkins was positioned on the roof of 11B and the photographs taken by Detective Britton demonstrated that Mr Perkins would have been able to see the roof of the vehicle and the position of the streetlight on the western side of Hill Street in the vicinity of 11B would be expected to cast light on the roof of the vehicle. The trial judge also inferred (at [570]) from the consistent descriptions of the exhaust by both Mr Sicari and Mr Perkins that the small car had some form of modified exhaust which would result in the sports exhaust sound. 73 The trial judge inferred (at [571] of the reasons) from the combination of Mr Greer’s opinion (leading to a likelihood that the small car was a Toyota Echo), and the evidence about the modified exhaust and the faded roof, that the small car in Hill Street was a Toyota Echo vehicle with characteristics consistent with the appellant’s Toyota Echo. The trial judge made this finding notwithstanding the evidence that appeared inconsistent, including Mr Sicari’s statement that the vehicle was dark, ‘possibly green’, and that the windows were tinted and that Mr Perkins had described the car to Officer West as ‘a blue Holden Barina (a small hatch)’. 74 Although it could not be conclusively established, the trial judge inferred (at [576] of the reasons) that it was likely the Toyota Echo ceased travel on South Australian roads at some time after 26 February 2017 and it was likely the Toyota RAV4 ceased travel on South Australian roads at some time after 14 March 2017. 75 From the depth under the soil at which the Toyota Echo was located, the destruction in part of the vehicle by fire, the absence of the VIN number and the compliance plate and the partial dismantling of the chassis with hand tools, the trial judge inferred (at [583] of the reasons) that those steps were conducted to ensure the Toyota Echo would not be located. The trial judge noted, however, (at -- 22 of 43 -- [2026] SASCA 52 The Court 21 [585]) that no conclusion could be reached about which individuals were involved in the partial destruction and burying of the Toyota Echo. The trial judge therefore did not use those matters to suggest consciousness of guilt on the part of the appellant. The trial judge did infer (at [585]) that those steps could not have occurred at Ponde without the knowledge and involvement of HA members given the evidence which the trial judge accepted about the ownership, use, location and layout of Ponde and the limited ability for members of the public to obtain access. 76 The trial judge accepted (at [586] of the reasons) that Mr Perkins was located in a position where he could hear the driver and accepted Mr Perkins’ evidence that he heard the driver of the small car speak with an accent which was not Australian. The trial judge noted (at [587]) that Mr Perkins’ evidence was that the driver of the Toyota RAV4 was taller and skinnier than the driver and the passenger of the small car who were about the same height and that accorded with the photographs of the men adduced through Detective Britton (exhibits P68, P69 and P70). The trial judge accepted (at [588]) that Mr Perkins gave the description of ‘Serge the Russian’ which included ‘Caucasian, Russian, short sandy hair, no facial hair, no tattoos, driving a blue Holden Barina with a faded roof’ to Officer West at 2:30 am on 31 January 2017. The trial judge noted (at [589]): Given the inability to cross-examine Mr Perkins, it is not possible to assess matters such as whether Mr Perkins thought he was describing to Constable West the man he saw from the roof or whether it was possible he was describing the man he knew as Serge the Russian because he thought it was Serge and if so, why. 77 The trial judge set out (at [591] of the reasons) her Honour’s observations of Mr Zaporoshenko as he gave his evidence. He was short and direct in answering questions and did not appear ‘ill at ease’. He was very firm in his denials in cross- examination concerning the vehicles which may have been in his workshop premises and that he did not know about the vehicles in the car park area. The trial judge recognised (at [591]) that it was not likely Mr Zaporoshenko would make admissions if he had been involved in the offending but he appeared willing to give his evidence. His demeanour and his evidence did not give rise to doubts about his reliability and credibility. The trial judge accepted his evidence (at [591]) and noted that the other evidence including the telecommunications evidence and the evidence about the types of cars seen in the CCTV footage supported the truthfulness of Mr Zaporoshenko’s evidence. 78 The trial judge addressed (at [592]) of the reasons) the discrepancy in the description of the driver of the small car given by Mr Perkins to Officer West with the other evidence. The trial judge noted the defence reliance on Mr Perkins’ reference to ‘no tattoos’ when the appellant has obvious tattoos. The trial judge noted that Mr Perkins also described the passenger in brief terms and did not describe the passenger of the small car by reference to having tattoos or not having tattoos, when Mr Grant has visible tattoos on his left arm and those on his right arm would have been obscured by the cast. Mr Perkins gave evidence the passenger was wearing a t-shirt so that the absence of any reference by Mr Perkins -- 23 of 43 -- [2026] SASCA 52 The Court 22 at the time of speaking to Officer West to the passenger of the small car having tattoos gave rise to doubt about the reliability of the reference to no tattoos. The trial judge concluded (at [592]): Mr Perkins did not identify the passenger as Mr Grant, despite recognising him in the CCTV footage, or refer to the cast, which also gives rise to the possibility his descriptions of the features of the individuals involved may have been flawed. 79 The trial judge recorded (at [593] of the reasons) reviewing the totality of the evidence to consider whether all reasonable hypotheses consistent with the appellant’s innocence were excluded and whether the matters pressed by the defence were any more than ‘mere conjecture’. The conclusions of the trial judge are set out at [594]-[596]). The trial judge concluded (at [594]) ‘that the totality of the evidence excludes all reasonable hypotheses consistent with [the appellant] not being the driver of the small dark vehicle, or put differently, with someone other than [the appellant] being the driver’. The trial judge then recorded (at [594]) the following matters as significant in that conclusion: … the association between [the appellant], Mr E and Mr Grant; the association between Mr Thaller and Mr Wheatley, Mr Thaller and Mr Grant and Mr Grant and Mr Wheatley; Mr Perkins’ presence at 20 Hill Street and then 11B Hill Street; the fact Mr Thaller arranged a ride for Mr Perkins with Mr Wheatley; the characteristics of [the appellant’s] Toyota Echo, in particular the faded roof and the “hotdog” muffler; the evidence of Mr Perkins concerning the faded roof and the evidence of Mr Perkins and Mr Sicari concerning the sports exhaust on the small dark car; Mr Greer’s opinion the small dark vehicle was a Toyota Echo and the larger silver vehicle was a Toyota RAV4; the consistency of the larger silver vehicle with the Toyota RAV4 available to Mr E; the lack of sighting of both the Toyota RAV4 available to Mr E and [the appellant’s] Toyota Echo after the police media release; the location and state of [the appellant’s] Toyota Echo when found at Ponde; the conclusion Mr Grant was the passenger of the small dark vehicle; the call charge records supporting the inference the phone subscribed to [the appellant] moved from Valley View to Pooraka to Elizabeth Vale in about the half hour leading up to the attack; the repeated drive-bys in Hill Street; the interest in the occupants of the vehicles in 11B Hill Street when Mr Perkins was at 11B Hill Street; the phone call from the phone subscribed to Mr Grant’s girlfriend to Mr Wheatley at 10:12 pm; the phone call from the phone subscribed in the name of [the appellant] to the phone subscribed in the name of Mr Wheatley at precisely the time Mr Wheatley was parked in front of 11B Hill Street and the two vehicles were driving down Hill Street; the call from the phone subscribed in the name of [the appellant] to the phone subscribed in the name of Mr Grant at 11:05 pm after the attack; Mr Perkins’ reference to the driver of the small dark vehicle having an accent; and the evidence that [the appellant] has a slight accent when angry.” 80 The trial judge addressed (at [595] of the reasons) the evidence that was either inconsistent or potentially inconsistent with the prosecution case and was the subject of defence submissions. This included the reference by Mr Perkins to ‘Serge the Russian’ and the description given to Officer West, including the reference to no tattoos, the references by Mr Sicari to tinted windows and the car possibly being green, the defence hypotheses about the state of the Toyota Echo at Ponde and the absence of an ability to prove precisely the position of the phone subscribed to the appellant. The trial judge inferred (at [595]) that Mr Perkins’ reference to ‘Serge the Russian’ must have been mistaken but, in any case, the -- 24 of 43 -- [2026] SASCA 52 The Court 23 evidence in its totality was sufficiently compelling to prove the appellant’s presence and involvement in the attack. The trial judge dismissed (at [596]) as inherently implausible that the telephone services subscribed in the names of Mr Grant, Mr E, Mr Wheatley and the appellant were not being used by those men on 30 January 2017. The trial judge inferred (at [596]) the interactions between them related to finding Mr Perkins for a purpose ‘that was not friendly’ and considered there was not a reasonably open inference consistent with the phone calls between them being unrelated or that the phone call at 10:39 pm from the appellant’s number to Mr Wheatley’s number was unrelated or coincidental at the crucial time in the drive-by sequences. (That phone call was between the third drive by and the fourth drive by.) The trial judge then concluded (at [596]) with the following: I also consider inherently implausible and dismiss as far-fetched the possibility that all of the matters to which I have referred above would have coincidentally occurred if [the appellant] was not the driver of the small dark car and thus the principal assailant in the attack on Mr Boyce. Those combined, related occurrences are not capable of explanation consistent with a reasonable hypothesis of innocence. 81 The trial judge accepted (at [599] of the reasons) that any joint enterprise of the group prior to the start of the chase of Mr Boyce in Hill Street must have related to Mr Perkins but found that did not preclude the formation of an agreement in relation to Mr Boyce at the time Mr Grant started to chase Mr Boyce, the other two men followed, and the three men attacked Mr Boyce together. The trial judge found that, when Mr Perkins was not located, the men in combination chased down and attacked Mr Boyce without apparent motive, given their interest in Mr Perkins. The trial judge inferred from the CCTV footage that the men acted together, in unison, when Mr Grant started chasing Mr Boyce. The trial judge concluded (at [600]) in respect of the joint enterprise: I infer from the behaviour of the three men observed on the CCTV footage that all three acted consistently with each other and with a common purpose of inflicting blows on Mr Boyce. It is readily apparent from the CCTV footage that the three men acted together by tacit agreement moving immediately to follow Mr Grant when he started the chase. I find beyond reasonable doubt that [the appellant] entered into an agreement with one or more of Mr Grant and the driver of the larger vehicle to attack Mr Boyce and participated in that agreement. 82 The trial judge then considered (at [601]-[612] of the reasons) whether the agreement of the group was an agreement to inflict grievous bodily harm or to do something less. The trial judge accepted (at [602]) the defence submission that the partial destruction and disposal of the Toyota Echo did not necessarily lead to an inference that the appellant had the state of mind consistent with a joint enterprise to commit murder. 83 The trial judge identified (at [604]-[607] of the reasons) the factual matters that were relevant to the state of mind as to the nature of the joint enterprise and the intention with which the blows were delivered: -- 25 of 43 -- [2026] SASCA 52 The Court 24 (a) the men acted simultaneously and immediately upon Mr Boyce running away (at [604]); (b) the appellant moved rapidly from the small car to Mr Boyce and commenced attacking him immediately, delivering a number of the kicks and punches (at [605]); (c) after delivering a number of blows, the appellant stepped back and then moved forward in a motion consistent with a forceful kick (at [605]); (d) the appellant moved aside to allow the driver of the larger vehicle to join in the attack (at [605]); (e) Mr Grant then stopped holding Mr Boyce (at [605]); (f) the appellant and the other men continued to kick Mr Boyce while he was lying down after Mr Grant had stopped restraining Mr Boyce and he was lying on the pavement and did not fight back (at [605]); (g) the blows were delivered with force to Mr Boyce’s head (which was consistent with Dr Charlwood’s evidence) (at [606]); and (h) while it cannot be determined which precise blow or blows were the substantial cause of death, the CCTV footage demonstrated consistency in the observable force with which blows were delivered by the men and the trial judge inferred that the blows were delivered with the same intention (at [607]). 84 The trial judge therefore concluded (at [608] of the reasons) that the prosecution had proved beyond reasonable doubt that the joint enterprise into which the appellant entered and participated was an agreement to cause grievous bodily harm. The trial judge further concluded that the blows which were a substantial cause of death were delivered with that intention and that was the only inference available from the conduct of the men as seen in the CCTV footage. The trial judge noted (at [609]) that, while the attack was short, it was ‘violent and frenzied’ and was sufficient to result in fatal injuries in a very short time. Blows were directed at Mr Boyce’s head which is a vulnerable location and Mr Boyce was quickly rendered unconscious. As to why the trial judge was satisfied that the prosecution had proved beyond reasonable doubt there was an agreement between the three men to cause Mr Boyce grievous bodily harm, the trial judge explained (at [610]-[612]): 610 The rapidity of the blows, the direction of the blows, the observable force and, significantly, the continued kicking of Mr Boyce after he was lying on the pavement belies any lesser intention. The CCTV footage does not support an inference that the men ceased the attack once Mr Boyce was on the ground. 611 The absence of a weapon or any uncertainty about precisely how many blows were delivered does not cause me to doubt my conclusion. While the men did not utilise -- 26 of 43 -- [2026] SASCA 52 The Court 25 a weapon, they employed their fists and feet as weapons in the delivery of a series of punches and kicks including blows directed at Mr Boyce’s head. 612 I do not consider there is reasonably open an inference consistent with an intention only to cause harm or serious injury in view of the ferocity and nature of the attack generally, blows aimed at Mr Boyce’s head and the continued kicking when Mr Boyce was prostrate. 85 The trial judge concluded (at [614] of the reasons) that there was ‘no reasonably open hypothesis consistent with [the appellant’s] innocence on the charge of murder.’ Ground 1 – reception of evidence under s 34KA 86 As the above summary of the relevant evidence adduced at the trial shows, Mr Perkins’ evidence was directly relevant to the events leading up to the assault of Mr Boyce, the description of the small car and that the driver spoke with an accent. Before considering whether the verdict was unreasonable (Ground 3), it is logical to deal with Ground 1 that asserts there was a wrong decision on a question of law in that Mr Perkins’ evidence should not have been admitted. 87 The appellant accepts that the transcript of Mr Perkins’ evidence at the Grant trial was admissible under s 34KA of the Act but submits that it should have been excluded primarily under the unfairness discretion. It is common ground on the appeal that the standard of appellate review that applies to the refusal to exclude Mr Perkins’ evidence is the correctness standard: Moore (a pseudonym) v The King (2024) 282 CLR 460 at [14] and [25]. 88 In brief reasons given on 27 June 2023, the trial judge was not persuaded the evidence was more prejudicial than probative. The trial judge also was not persuaded that the receipt of Mr Perkins’ testimony in the Grant trial would be productive of such unfairness as to result in an unacceptable risk of miscarriage of justice, taking into account a number of matters including that the loss of the right to cross examine was sufficiently counterbalanced by the capacity provided for by s 34KB of the Act for the admission of extraneous material bearing on Mr Perkins’ reliability and credibility. The trial judge foreshadowed that fulsome written reasons would be provided in due course. The voir dire reasons were provided on 19 April 2024. 89 As Officer West’s notes made on 31 January 2017 which were not introduced until late in the appellant’s trial were not available to the trial judge on the voir dire, that specific evidence should not be taken into account for the purpose of considering whether the trial judge’s decision on the voir dire to admit the transcript of Mr Perkins’ evidence given at the Grant trial was a wrong decision on the law. The notes, however, should be considered as an example in that category of extraneous material available to the appellant at his trial for use under s 34KB of the Act to attack Mr Perkins’ credibility and reliability. -- 27 of 43 -- [2026] SASCA 52 The Court 26 90 The trial judge (at [10] of the voir dire reasons) referred to the fact that, in his initial statement given on 10 February 2017, Mr Perkins described the attack, including giving the description of the two vehicles, and that the driver of the small car was ‘Serge’ who spoke with an accent. The trial judge also noted (at [10]) that Mr Perkins gave further signed statements dated 16 January and 6 June 2019 and in a later statement, he said that the driver of the car was the appellant and gave reasons why he had changed his position about the identity of the driver. Despite these police statements being available on the voir dire, as noted by the trial judge (at [13]), the prosecution did not seek to tender the signed statements of Mr Perkins as evidence at the trial but limited what it sought to tender at the appellant’s trial to the transcript of Mr Perkins’ evidence in the Grant trial. 91 In 2016, psychologist Dr Lim had prepared a report in which she concluded that Mr Perkins’ presentation was consistent with an underlying antisocial personality disorder, post-traumatic stress disorder and amphetamine use disorder. Evidence was given by psychiatrist Dr Begg on the voir dire hearing which is summarised at [15]-[22] of the voir dire reasons. Dr Begg reviewed historical documents relating to Mr Perkins including police apprehension reports, social background and psychological and psychiatric reports, including Dr Lim’s report. Dr Begg agreed with Dr Lim’s opinion and considered that Mr Perkins met the criteria for antisocial personality disorder. Dr Begg gave evidence as to the consequences for Mr Perkins’ reliability and credibility as a result of his having an antisocial personality disorder. Dr Begg saw evidence in the materials provided to him of deception, manipulation, impulsive behaviour, irresponsibility, a lack of remorse and a disregard for Mr Perkins’ own safety and the safety of others. Dr Begg thought that Mr Perkins’ agenda would almost invariably have been to put himself first and to give a story that would seek to favour his own agenda. The trial judge recorded (at [16]) Dr Begg’s opinion that Mr Perkins would have the capacity to accurately and truthfully relate events but only if he was not disadvantaged by doing so and Mr Perkins’ prime consideration would have been himself. 92 The focus of the appellant’s submissions on the voir dire (set out at [25] of the voir dire reasons) was that Mr Perkins met the diagnostic criteria for antisocial personality disorder which impugned the reliability and credibility of the police statements taken from him and his evidence from the Grant trial could not now be the subject of cross-examination. In addition, the other matters relied on by the appellant (set out at [25]-[26]) included the following. There was no audio-visual record of Mr Perkins’ statements to the police. The statements were recorded in narrative style and taken in circumstances where the witness may have perceived a benefit available to him in assisting the police. All parties at the Grant trial accepted that Mr Grant was depicted in the CCTV footage and it was not in issue at that trial that the other two people with Mr Grant were the appellant and Mr E. The appellant would be deprived of the opportunity to cross-examine, to observe Mr Perkins’ demeanour and to have the psychiatrist retained on behalf of the appellant, Dr Begg, make observations of Mr Perkins while giving evidence. The -- 28 of 43 -- [2026] SASCA 52 The Court 27 appellant would be deprived of the opportunity to cross-examine on the circumstances in which statements were obtained, the reason for Mr Perkins’ change in account of the identity of the driver of the small car, the extent he believed he would obtain a benefit, the nature and extent of his antisocial personality disorder and other matters going to his reliability and credibility. The trial judge noted (at [31]) the appellant’s submission that the change in position by Mr Perkins on the identification of the appellant as the driver of the small car was a reconstruction which was so flawed that it would be difficult to accept any of his evidence. 93 The prosecution submission (recorded at [34] of the voir dire reasons) was that the evidence given by Mr Perkins in the Grant trial was important to the prosecution case against the appellant to establish that the small car seen on CCTV was blue, had a faded roof and a sports exhaust, and was being driven by a man with an accent and that the driver repeated the question as to where was Sam three times. It was noted by the trial judge (at [35]) that the prosecution relied on the consistency across the statements given by Mr Perkins to police and during evidence that the car was a small blue car with a faded roof and a loud exhaust. The further contentions of the prosecution (noted at [35]) included that other witness statements supported Mr Perkins’ claim about the colour of the car and that it had a sports exhaust, the sequence of events described by Mr Perkins was consistent with the CCTV footage, the telephone records which placed the appellant’s phone in the area at the time of the killing, the call from the telephone subscribed in the appellant’s name to a telephone subscribed in Mr Wheatley’s name about three minutes before the incident and that the appellant and Mr E were known to Mr Grant. 94 The trial judge noted (at [60]-[63] of the voir dire reasons) the factors identified by Kourakis CJ in R v Haines [2016] SASC 96 at [39]-[40] on whether the discretion to exclude evidence admissible under s 34KA of the Act should be exercised. Although Haines was followed in Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274 at [42], Lovell J amplified the statutory context of s 34KA and the relevance of the ameliorating provisions in s 34KB, s 34KC and s 34KD. Lovell J’s analysis was embraced by the trial judge (at [64]- [71] of the voir dire reasons) and particularly the comments in Mullen at [40]: It is correct to observe that Parliament retained the court’s general common law discretions to exclude evidence. However, when considering the discretions retained by s 34KD of the Act, the Parliamentary intention, encapsulated in s 34KA of the Act, cannot be ignored. Parliament has provided a scheme whereby statements not normally admitted in evidence become, subject to the criteria set out in s 34KA(2) of the Act, admissible. That Parliament was aware of the potential unfairness to an accused can be inferred from the enactment of s 34KB and s 34KC of the Act, which sections ameliorate that potential unfairness. 95 The trial judge also noted (at [72] of the voir dire reasons) the observations of Lovell J in Mullen at [45]-[46] based on R v Lobban (2000) 77 SASR 24 at 39- 45 and Rozenes v Beljajev [1995] 1 VR 533 at 549 for the proposition that ‘unfairness which is relevant to the residual unfairness discretion is not unfairness -- 29 of 43 -- [2026] SASCA 52 The Court 28 in some general sense but an unfairness that the defendant will not receive a fair trial’. 96 The key finding made by the trial judge (at [75] of the voir dire reasons) was that Mr Perkins’ testimony in the Grant trial was not more prejudicial than probative, as the evidence had potential probative value given Mr Perkins witnessed and heard events leading up to, and including, the fatal attack. His testimony in the Grant trial was therefore capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceeding against the appellant which was whether the appellant was one of the men in the small car in the CCTV footage. The trial judge accepted (at [75]) the prosecution submission concerning the lack of relevant prejudice in the Christie sense, as the prejudice must be more than prejudice arising out of the probative value of the evidence. The trial judge was not satisfied (at [76]) that Mr Perkins’ testimony in the Grant trial should be excluded in the appellant’s trial in the exercise of the general unfairness discretion for the reason then set out (at [77]) that the inability to cross-examine Mr Perkins would give rise to forensic disadvantage but that was the result of s 34KA of the Act which modifies the common law means of proof. The trial judge therefore concluded (at [77]) that the admission in the appellant’s trial of Mr Perkins’ testimony in the Grant trial would not result in ‘an unacceptable miscarriage of justice’. 97 The trial judge expanded on these reasons (at [79]-[89]) of the voir dire reasons) by reference to the Haines factors. In brief terms, these included that Mr Perkins’ testimony was evidence of a direct witness to the incident in which Mr Boyce was killed and the aspects of Mr Perkins’ evidence relied on by the prosecution (such as the sound of the muffler on the small car) were of significance in the prosecution’s case as evidence linking the appellant to the small car seen in the CCTV footage. The trial judge rejected (at [83]) the appellant’s submission that the change in the identification of the driver of the small car in Mr Perkins’ signed statements from ‘Serge the Russian’ to the appellant would taint all Mr Perkins’ evidence. The trial judge noted (at [84]) that Mr Perkins observed events from a location which is known and at a time which is known, so that issues such as his distance from the events, his line of sight and level of darkness could be the subject of submissions as to the weight to be placed on them. The trial judge referred (at [86]) to the significant material available to the appellant (such as Mr Perkins’ prior statements) to deploy in relation to his reliability and credibility. The trial judge also noted (at [87]) there was no suggestion of the danger of an ‘induced’ statement applying to the statement taken in February 2017 from Mr Perkins, as this first statement was prior to those of other relevant witnesses. Another key finding made by the trial judge on the voir dire (at [88]) was that the change in the statements made by Mr Perkins concerning the identity of the driver of the small car did not sufficiently impact on the reliability of the sworn testimony in the Grant trial which concerned the sequence of events and the observations of the vehicles. -- 30 of 43 -- [2026] SASCA 52 The Court 29 98 The trial judge applied Dr Begg’s opinion that a person with antisocial personality disorder is more likely to view and recount events from their own perspective (at [89] of the voir dire reasons) but noted it was not immediately apparent what benefit Mr Perkins would have gained by implicating ‘Serge the Russian’ and then by implicating the appellant. Similarly, it was not apparent why a diagnosis of antisocial personality disorder would influence the reliability of Mr Perkins’ account of the colour of the vehicle, the sound of its muffler and the words he heard. The trial judge accepted (at [89]) that a diagnosis of antisocial personality disorder was a relevant factor which may be proffered by the appellant as impacting on the reliability of Mr Perkins’ testimony and constituting a relevant consideration in assessing the weight which may be placed on that evidence and that the appellant had available relevant reports and materials which could be employed at the trial on this issue. 99 The appellant relies on two matters as significant to his argument on ground 1. The first is that Mr Perkins knew the appellant prior to the incident on 30 January 2017. The second matter is the description of the three men that Officer West had obtained from Mr Perkins on 31 January 2017. As noted above, ground 1 is concerned with the decision made by the trial judge on the voir dire and should not be considered by reference to the specific evidence of Officer West’s notes of 31 January 2017 but to the material before the trial judge in the form of Mr Perkins’ signed statements in addition to the transcript of his evidence at the Grant trial. It appears from the voir dire reasons (at [10]) that Mr Perkins’ statement of 10 February 2017 reflected the information in Officer West’s notes in any case, particularly that Mr Perkins described the driver of the small car as ‘Serge’ who spoke with an accent and did not identify the appellant as the driver of the small car. 100 The appellant argues on the appeal as follows. The known incompleteness of the transcript of Mr Perkins’ evidence from the Grant trial for testimonial use reduced its probative value. It is relevant that Mr Perkins’ evidence at the Grant trial was given in a materially different forensic context. The prosecution was effectively allowed to rely on those parts of what Mr Perkins said at the Grant trial that was helpful to it for a testimonial use, while limiting the use of those parts which were unhelpful to it, as going only to consistency or reliability of the testimonial parts. That was the consequence that followed where the evidence that contained the unhelpful parts was adduced pursuant to s 34KB of the Act which could then be used only as a prior inconsistent statement capable of affecting a judgment about the consistency or truthfulness of Mr Perkins’ evidence and could not be used for the truth of the assertions in the inconsistent statement. It is arguable, in any case, that Mr Perkins’ evidence in his statement made on 10 February 2017 about ‘Serge the Russian’ was not inconsistent with his evidence at the Grant trial. 101 It is also argued that, if Mr Perkins had remained alive, there was the potential for a successful cross-examination of him by reference to his initial identification of the driver of the small car being ‘Serge the Russian’. The appellant’s loss of the -- 31 of 43 -- [2026] SASCA 52 The Court 30 right to cross-examine Mr Perkins could not be sufficiently counterbalanced by the capacity to introduce material bearing on Mr Perkins’ reliability and credibility under s 34KB of the Act. There was a real risk of misuse by the trial judge of the transcript of Mr Perkins’ evidence at the Grant trial as any use would amount to misuse due to its incompleteness. The appellant’s counsel described the relevant prejudice or unfairness as arising from the use by the prosecution of ‘only the fragments helpful to the Crown’ that were admitted under s 34KA. 102 This is an unusual case in that the voir dire was concerned only with the tender of the transcript of Mr Perkins’ evidence in the Grant trial despite the existence of the previous signed police statements by Mr Perkins concerning the same incident of which statements the appellant was aware. Although the appellant complains on the appeal about the known incompleteness of the transcript of Mr Perkins’ evidence from the Grant trial, the trial judge was not required to deal on the voir dire with an argument from the appellant that any tender at the trial of the transcript of Mr Perkins’ evidence in the Grant trial should be permitted only in conjunction with at least the tender of Mr Perkins’ first signed statement under s 34KA of the Act. The prosecution limited the ambit of the evidence from Mr Perkins pursuant to s 34KA for the reason referred to at [41] of the voir dire reasons (and set out above) that the prosecution considered the later identification by Mr Perkins of the appellant as the driver of the small car was a reconstruction by Mr Perkins rather than recognition of the appellant at the time of the incident. That exercise of the prosecutorial discretion was not challenged on the voir dire, the trial or on this appeal. The limited material representing Mr Perkins’ evidence tendered at the trial by the prosecution under s 34KA was consistent with the limited purposes for which the prosecution was relying on Mr Perkins’ evidence and the circumstantial case advanced by the prosecution for the identification of the appellant as the driver of the small car. That is the framework for considering ground 1. 103 It was critical to the trial judge’s decision on the voir dire (at [79]-[89] of the voir dire reasons) that Mr Perkins’ evidence given at the Grant trial was for the limited purposes of identifying the features of the small car observed and heard by Mr Perkins and identifying that the driver of the small car spoke the words he said he heard and that he had a bit of an accent. Some aspects of that evidence of Mr Perkins found support in other evidence adduced at the trial, namely the small car was blue (supported to a degree by Mr Sicari’s evidence that the car was dark, possibly green) and the exhaust of the small car had a different sound like a sports exhaust (supported by Mr Sicari’s evidence that it had a loud exhaust). It was not in contention that one of the group asked the question about the whereabouts of Sam three times. The two aspects of Mr Perkins’ evidence that did not have some support in other evidence were his observations the small car had a faded roof and it was the driver of the small car who had an accent that spoke the question. 104 Section 34KA of the Act reflects a policy choice of the Parliament to enable the statement of a person who is unavailable as a witness in a criminal trial to be adduced as evidence of the truth on matters in the statement. Where the statement -- 32 of 43 -- [2026] SASCA 52 The Court 31 is tendered by the prosecution, the protections for a defendant are those provided within s 34KA and in s 34KB, s 34KC and s 34KD of the Act: see Mullen at [40]. As was noted in Mullen at [39], the inability to cross-examine a witness whose statement is tendered under s 34KA would not, of itself, amount to a sufficient reason to exercise the discretion to exclude the statement that was otherwise admissible under s 34KA. Effect must be given to the legislative scheme which has facilitated the admission of evidence where a witness is otherwise unavailable: compare Police v Dunstall (2015) 256 CLR 403 at [36]. Relevantly, the forensic disadvantage in not being able to cross-examine the statement maker is mitigated, to an extent, by s 34KB of the Act: see Mullen at [41] and the recent summary of the relevant principles in Collins, Harris & Simpson (pseudonyms) v The King [2026] SASCA 46 at [83]-[96]. 105 The probative value of Mr Perkins’ evidence was not insignificant in a circumstantial case where there were two aspects of his evidence that were relied on by the prosecution for the identification of the Toyota Echo registered in the appellant’s name being present in Hill Street when Mr Boyce was assaulted that were not otherwise the subject of evidence at the trial. Even though the identity of the three men was not in issue in the Grant trial, Mr Perkins’ evidence at the Grant trial was eyewitness evidence of the second and fourth drive bys and the interaction of the group with Mr Boyce outside 11B Hill Street until Mr Boyce ran out of sight and the two cars drove after him. Mr Perkins was in a good position on the roof of 11B to see the roof of the small car, identify that it was the driver of the small car who spoke and to say what he heard. 106 The Christie discretion requires an evaluation of the probative weight of the evidence and prejudice associated with its admission where the prejudice is not the detriment that flows from the probative force of the evidence but prejudice that arises from the evidence which cannot be cured by judicial direction, such as undue weight may be placed on it or it may be used for an inadmissible purpose: R v Duke (1979) 22 SASR 46 at 47-48 and R v Lindsay (2016) 126 SASR 362 at [12]. The appellant emphasises the known incompleteness of what was admitted for testimonial use as reducing its probative value. That is not how the Christie discretion is applied. The probative value of the transcript of Mr Perkins’ evidence at the Grant trial did not reduce because there was other extraneous material such as his previous signed statements that could be tendered under s 34KB of the Act for the purpose of challenging the reliability of the evidence and credibility of the witness. In considering the exclusion of evidence under s 137 of the Evidence Act 2008 (Vic) where the probative value is outweighed by the danger of unfair prejudice to the accused in The Queen v Bauer (2018) 266 CLR 56 at [95], the High Court observed that for the purpose of applying s 137 the probative value of the evidence must be assessed at its highest. The known incompleteness of the transcript of Mr Perkins’ evidence from the Grant trial compared to the content of his previous signed statements was not relevant to the Christie discretion. 107 As the trial judge found (at [75] of the voir dire reasons), there was a lack of relevant prejudice on which to base the exercise of the Christie discretion in favour -- 33 of 43 -- [2026] SASCA 52 The Court 32 of the appellant. The trial judge’s decision was correct. The appellant fails on this aspect of ground 1. 108 Most of the appellant’s submissions on ground 1 were directed at the unfairness discretion, because of the inability to explore in cross-examination the discrepancies in Mr Perkins’ descriptions of the driver of the small car compared with the appellant’s tattooed appearance and otherwise to seek to confirm or undermine the evidence relevant to the identity of the driver. It was expressly contemplated by the trial judge in giving the decision on the voir dire (at [86] of the voir dire reasons) that the extraneous material made available to the appellant would be able to be deployed in relation to Mr Perkins’ reliability and credibility. (That was done at the trial by the tender of Officer West’s notes in the appellant’s case.) 109 The judgment of the plurality in Dunstall (at [26]) explained that the exclusion of evidence in a criminal proceeding in the exercise of the general unfairness discretion is generally understood to refer to the application of the common law rules applying to the admission of confessional statements, the Christie discretion, and where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authority (the discretion in Bunning v Cross (1978) 141 CLR 54 at 74-75). The plurality noted (at [25] and [26]) that intermediate appellate courts in Australian jurisdictions ‘have also identified a residual common law discretion to exclude admissible evidence on the ground of unfairness’, including Police (SA) v Hall (2006) 95 SASR 482 at [24], [35], [88], [94] and [167] and Haddara v The Queen (2014) 43 VR 53 at [12], [16] and [50]. 110 The appeal was successful in Dunstall where it was held that the relevant evidence which the legislative scheme permitted to be adduced had been excluded in error in reliance on the general unfairness discretion. The plurality observed (at [48]) that the preferable course to prevent unfairness arising from the continuation of criminal proceedings that are oppressive or unjust is in determining whether the circumstances justify a permanent stay ‘and not in circumventing that inquiry by the exclusion of the evidence in the exercise of a “general unfairness discretion”’. The tenor of the plurality’s judgment is that the circumstances for applying the unfairness discretion to exclude admissible evidence that does not otherwise fall within one of the three categories identified at [26] of the plurality’s judgment are limited. 111 In a separate judgment in Dunstall, Nettle J agreed with the orders proposed in the plurality’s judgment and observed at [67]: There are, therefore, clear advantages to adhering to the notion that the fairness discretion is a residual discretion which applies where, although none of the recognised discretions is engaged, the receipt of otherwise admissible evidence would be productive of such unfairness as to result in an unacceptable risk of miscarriage of justice. -- 34 of 43 -- [2026] SASCA 52 The Court 33 112 The further observations by Nettle J in Dunstall at [83] emphasised that what is a fair trial according to law may be affected by statutory modification: As was earlier identified, the fairness discretion exists to ensure a fair trial according to law. A fair trial according to law is a fair trial according to law as the law may be affected by statutory modification, and in particular as it may be affected by statutory modification of common law means of proof. The discretion facilitates a fair trial according to law in that sense by enabling the exclusion of otherwise admissible evidence which would be productive of an unacceptable risk of miscarriage of justice. It does not exist to give effect to idiosyncratic notions of “fair play” or of “whether the forensic contest is an even one” … still less to deny effect to statutory modifications of common law means of proof of which, because of idiosyncratic notions of what is fair, a judge may disapprove. (footnote omitted) 113 There is no error in the factors which the trial judge identified (at [79]-[89] of the voir dire reasons) as relevant to whether Mr Perkins’ evidence in the Grant trial should be excluded in the exercise of the unfairness discretion. The trial judge took into account (at [81]) the different focus of the Grant trial. It did not follow from the incompleteness of Mr Perkins’ evidence given in the Grant trial (in comparison to his previous signed statements) that consideration by the trial judge of Mr Perkins’ evidence at the Grant trial would be a misuse of that evidence. This was particularly so when the prosecution relied on that evidence for limited purposes and there was the opportunity for the appellant to make use of s 34KB of the Act in relation to material that could affect the reliability and credibility of Mr Perkins’ evidence admitted under s 34KA. It was relevant that much of Mr Perkins’ transcript of evidence from the Grant trial concerning the chronology of events and his observations of the two vehicles and their occupants was supported by the CCTV footage and evidence of other witnesses. 114 It does not necessarily result in unfairness when evidence is admitted under s 34KA of the Act, if the potential for ameliorating the loss of the right to cross- examine (by adducing evidence under s 34KB, as relevant to the reliability and credibility of the statement of witness whose evidence was adduced under s 34KA) does not equate with what cross-examination may have had the potential to achieve. As explained in Mullen (at [40]), s 34KB ameliorates the potential unfairness as part of the legislative scheme but the policy choice of the Parliament was reflected in the enactment of that scheme that permits evidence to be adduced under s 34KA in the circumstances to which it applies. The scheme provides for the possibility of amelioration of the loss of the right to cross-examine. 115 There was some debate during the hearing of the appeal as to whether Officer West’s notes were relied on at the trial for the truth of their contents. The basis on which they were admitted was unequivocally referable to s 34KB of the Act, which permitted their admission only for the purpose of assessing the reliability and credibility of the statement of Mr Perkins received under s 34KA. It may well be that the trial judge’s treatment of those notes (at [588] of the reasons), where her Honour accepted that Mr Perkins, as recorded in the notes, described the driver of the small car as ‘Serge the Russian’ and as having ‘no tattoos’, went beyond using -- 35 of 43 -- [2026] SASCA 52 The Court 34 those notes to test the reliability and credibility of Mr Perkins. In particular, it may well be that her Honour used those notes as evidence of the truth of their contents. To the extent that this was so, however, it reflected an approach which was acquiesced in by the parties, which was favourable to the defence, and was not the subject of any specific complaint on appeal. It was also ultimately of no significance to the outcome because the trial judge (at [595]) rejected that those notes detracted from the reliability of the transcript of Mr Perkins’ evidence given at the Grant trial on the basis that Mr Perkins’ reference to ‘Serge the Russian’ must have been mistaken. 116 The significance of Mr Perkins’ evidence in a circumstantial case was in the two aspects of his evidence identified above that were not to be given by any other witness and were relevant in the identification of the small car, but in the context of other evidence at the appellant’s trial that supported the balance of Mr Perkins’ evidence given at the Grant trial of how he came to be at 11B Hill Street on the evening of 30 January 2017 and what he observed leading up to the confrontation between the three men and Mr Boyce. The death of Mr Perkins before the appellant’s trial was the circumstance that allowed the application of s 34KA of the Act to admit into evidence at the appellant’s trial the transcript of Mr Perkins’ evidence given at the Grant trial. 117 The potential forensic disadvantage for the appellant in not being able to cross-examine Mr Perkins was implicit in the condition that permitted the admission of Mr Perkins’ evidence but it remained a relevant consideration for whether the unfairness discretion should be applied. The forensic disadvantage was mitigated to some extent by the evidence having been given by Mr Perkins as a witness in the Grant trial where he was describing his observations of the same incident (even though the issues were different in the Grant trial) that is the subject of the appellant’s trial. It was also mitigated by the potential use of s 34KB of the Act, if the appellant was so advised, in relation to the extraneous material (that included all the previous signed statements by Mr Perkins about the events) that was available to the appellant for that purpose. It is not to the point that the appellant limited the extraneous material put before the trial judge under s 34KB to Officer West’s notes. It was the availability of the extraneous material that was the relevant matter. The weighing up of all the relevant considerations did not justify excluding the transcript of Mr Perkins’ evidence given at the Grant trial from the appellant’s trial. There was no error in the trial judge’s conclusion that such evidence of Mr Perkins should not be excluded under the unfairness discretion. The appellant also fails on this aspect of ground 1. Ground 2 – was there a miscarriage of justice in failing to take into account the forensic disadvantage for the appellant of Mr Perkins’ evidence? 118 If the appellant fails on ground 1, he seeks to reach the same result, in effect, by asserting that the trial judge should have put Mr Perkins’ evidence to one side after bringing into account the forensic disadvantage for the appellant arising from not having heard Mr Perkins give evidence, receiving his evidence given in the -- 36 of 43 -- [2026] SASCA 52 The Court 35 Grant trial which was led having regard to the issues in the Grant trial and not the issues in the appellant’s trial, and the inability to cross-examine Mr Perkins on his evidence. This requires Officer West’s notes to be expressly considered in relation to ground 2. 119 The appellant acknowledges that the trial judge expressly referred throughout the reasons (at [27], [439], [440], [567], [589] and [595]) to the forensic disadvantage for the appellant in respect of Mr Perkins’ evidence. The effect of the appellant’s argument on this ground is that, despite the express reference in the reasons to the trial judge’s regard for this forensic disadvantage, her Honour’s failure to reject Mr Perkins’ evidence meant that there was a failure, in substance, to take into account the forensic disadvantage. In other words, the only outcome in the process of fact-finding in the appellant’s trial was to put Mr Perkins’ evidence to one side, as the forensic disadvantage for the appellant in relation to Mr Perkins’ evidence given in the Grant trial meant that the evidence could not be accepted as reliable and credible. 120 There are four aspects of Mr Perkins’ evidence listed in ground 2 in respect of which the appellant asserts that he was at a significant disadvantage in not being able to cross-examine Mr Perkins. There was no significant disadvantage in respect of the aspects in 2.1.1 and 2.1.2 of ground 2, as the CCTV footage and other Hill Street witnesses provided support for much of what Mr Perkins said he saw and heard of people and vehicles from his position on the roof of 11B Hill Street and the circumstances in which Mr Perkins came to make those observations from the roof and the happenings inside 11B Hill Street were supported by the evidence of Mr Crampton and Mr Rozenboom. 121 The focus of ground 2 is therefore on the aspects set out in 2.1.3 and 2.1.4 which relate to the version of the incident recorded in Officer West’s notes and the circumstances in which that version was given. It is curious that on the appeal the appellant asserts a disadvantage in 2.1.3 in not being able to cross-examine Mr Perkins on the interaction between Mr Perkins and Officer West in the cells of the Elizabeth Police Station, when Officer West was not a witness at the trial but his interaction with Mr Perkins was the subject of agreed fact 2 in exhibit D90 and Officer West’s notes (exhibit D89) were tendered by the appellant with the prosecution’s agreement for the tender under s 34KB of the Act. 122 The information that Officer West recorded as provided by Mr Perkins, including the details of the driver and the passenger of the small car, could therefore be used for the purpose of the trial judge’s testing the reliability and credibility of the transcript of Mr Perkins’ evidence adduced at the Grant trial in respect of the same matters. 123 The appellant’s submissions on the appeal focus on the descriptions in Officer West’s notes that identify the small car as a Holden Barina and the driver as ‘Serge the Russian’ and having no tattoos. The appellant argues that if Mr Perkins had been able to be cross-examined, he may have confirmed one or -- 37 of 43 -- [2026] SASCA 52 The Court 36 more of those descriptions as true which would have assisted in weakening the prosecution case against the appellant. 124 There is no support in the evidence adduced at the appellant’s trial for speculating on such success if any cross-examination of Mr Perkins had been possible. First, the prosecution was relying on Mr Perkins’ evidence for the identification of the small car and not the identification of the third offender. Second, even though the focus of the Grant trial was different and Mr Perkins was cross-examined in that trial about the larger vehicle and not the small car, Mr Perkins’ evidence in the Grant trial was of what he saw and heard of the events in Hill Street on the evening of 30 January 2017 which were the same events that were the subject of the appellant’s trial and many aspects of his evidence were supported by other evidence adduced at the appellant’s trial. Third, the trial judge accepted (at [591] of the reasons) the evidence of Mr Zaporoshenko that he was neither in Hill Street nor involved in the assault of Mr Boyce. Fourth, the trial judge expressly considered the discrepancies between Mr Perkins’ evidence at the Grant trial and Officer West’s notes and gave reasons (including at [567]-[571], [592] and [595]) for why those discrepancies did not detract from the acceptance of Mr Perkins’ evidence that it was the driver of the small car who asked the question about the whereabouts of Sam, he spoke with an accent and the small car had a faded roof. 125 The appellant therefore does not show that the trial judge did not take into account in assessing the evidence of Mr Perkins the forensic disadvantage of the inability to cross-examine Mr Perkins on the version that he gave Officer West, particularly in his descriptions of the small car and the driver. There is no basis shown for the asserted miscarriage of justice. Ground 2 fails. Ground 3 – was the verdict unreasonable in not disregarding Mr Perkins’ evidence which was not supported by other evidence? 126 The function of an appellate court in determining a criminal appeal on the unreasonable verdict ground was settled by M v The Queen (1994) 181 CLR 487 at 492-495. It applies not only to a jury verdict but to the verdict of a judge after a trial by judge alone. Dansie v The Queen (2022) 274 CLR 651 concerned an appeal from a conviction following a trial by judge alone. The High Court explained (at [16]-[17]) how the court on appeal approaches the finding of fact made in a judge alone trial when undertaking the independent assessment of the evidence required by the application of M v The Queen: [16] Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as -- 38 of 43 -- [2026] SASCA 52 The Court 37 to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. [17] The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight. 127 The unreasonable verdict ground is framed in terms that the evidence as to the identity of the third offender in the company of Mr Grant and Mr E did not enable the trial judge to infer beyond reasonable doubt that the appellant was the third offender. The argument is advanced, however, on the basis that the limitations on the evidence of Mr Perkins meant that no finding could be made in respect of it and it could not be taken as supporting any aspect of the prosecution case. Similar to the appellant’s approach to ground 2 that the trial judge erred in not setting Mr Perkins’ evidence to one side, the unreasonable verdict ground is argued on the narrow basis that the reasonableness of the verdict should be considered by disregarding Mr Perkins’ evidence for which there was no support from other evidence. It is implicit in the appellant’s approach to ground 3 that the reasonableness of the verdict is not challenged, if the appellant does not succeed in its argument about those parts of Mr Perkins’ evidence which should be disregarded. 128 The appellant points to five findings of the trial judge which he asserts the trial judge relied upon or accepted Mr Perkins’ evidence: (a) the driver of the small car spoke the words ‘Where the fuck’s Sam?’ (at [586] of the reasons); (b) the driver spoke with an accent which was not “Aussie” (at [586]) ; (c) the driver and the passenger were described as being similar in height (at [587]); (d) Mr Perkins knew the appellant (at [588]); and (e) the small car had a faded roof (at [569]). 129 In relation to finding (a), the appellant’s trial counsel conceded in the final submissions at the trial that those words were spoken three times (when Mr Boyce was confronted by the three men outside 11B). That concession is noted at [562] of the reasons. Those words were relied on by the appellant’s trial counsel for the submissions (noted at [405]) that the group was looking for Mr Perkins and there -- 39 of 43 -- [2026] SASCA 52 The Court 38 was no motive suggested by the prosecution to explain why the men went after Mr Boyce. 130 Finding (d) does not assist the appellant’s argument on ground 3 as it was not a finding used to infer a circumstance against the appellant in the circumstantial case. In fact, the appellant’s final submissions at the trial made use of Mr Perkins’ evidence that he knew the appellant in the submission (noted at [424] of the reasons) that there was no evidence identifying the appellant as the driver. 131 In relation to which of the three men asked the question three times that was the subject of finding (a) and in relation to findings (b), (c) and (e), these were observations that were made by Mr Perkins when he was on the roof of 11B. He had got up onto the roof when he had seen the four headlights after he had gone out to speak to Mr Wheatley in front of 11B. The inference from that conduct was that he was concerned about those vehicles. When he saw the four headlights they were travelling south along Hill Street which was the second drive by. He made observations about the first car being smaller than the one behind, had a faded roof, had an exhaust that made a different sound and was a bluey colour. He was then on the roof for the fourth drive by when the vehicles stopped outside 11B and the confrontation with Mr Boyce commenced before Mr Boyce fled. It was relevant to the assessment of Mr Perkins’ evidence of what he saw and heard that he had a good view from the roof of 11B. 132 For the same reasons as why the appellant fails on ground 2, it was open to the trial judge to accept the evidence of Mr Perkins that was not supported by other evidence, namely finding (a) to the extent Mr Perkins identified that it was the driver of the small car who asked the question and findings (b), (c) and (e). Once it is concluded that these aspects of Mr Perkins’ evidence should not be disregarded, there is nothing further to consider in relation to ground 3. If it were necessary to consider otherwise whether the trial judge’s verdict based on the finding that the appellant was the third offender was unreasonable or not supported by the evidence, our independent assessment of the evidence, taking into account those findings of the trial judge which are not challenged on the appeal, is that, as a question of fact, it was open for the trial judge to conclude beyond reasonable doubt that the appellant was the third offender. 133 In particular, Mr Perkins’ evidence of his observations of the small car at the time of the second drive by and then his observations on the fourth drive by as the confrontation with Mr Boyce commenced, including of the small car and its driver, from the roof of 11B, Mr Sicari’s evidence that the small car had a loud exhaust (which was supported by Mr Perkins’ evidence to similar effect), and the opinion of Mr Greer from viewing the CCTV footage that made it likely that the small car was a Toyota Echo, supported the inference drawn by the trial judge (at [571] of the reasons) that the small car in Hill Street was a Toyota Echo with characteristics consistent with the appellant’s Toyota Echo. The findings in relation to the Toyota Echo seen in Hill Street were amongst the circumstances found by the trial judge (and identified at [594]) that resulted in the finding beyond reasonable doubt that -- 40 of 43 -- [2026] SASCA 52 The Court 39 the appellant was the third offender. The existing association between the appellant, Mr Grant and Mr E was particularly compelling in conjunction with the telecommunications evidence of the contact amongst the phones subscribed to, or used, by the appellant, Mr Grant and Mr E on 30 January 2017. It was also compelling that the telecommunications evidence supported the inference that the appellant’s phone moved on 30 January 2017 from where he resided to the vicinity of Hill Street during the half hour leading up to the attack. 134 The appellant fails on ground 3. Ground 5 – was the trial judge’s reasoning inadequate? 135 There is some overlap between grounds 5 and 6 to the extent that ground 5.1 asserts the trial judge engaged in inadequate reasoning in that the evidence did not exclude manslaughter as a reasonable possibility and ground 6 asserts that the trial judge’s reasons for excluding manslaughter as a reasonable possibility were inadequate. The distinction between inadequate reasons and inadequate reasoning is succinctly summarised in Bowen (a pseudonym) v the King [2025] SASCA 36 at [30]-[39]. As observed at [32], a complaint of inadequate reasoning ‘is a complaint that the trial judge’s reasoning, although apparent, does not support a finding of guilt beyond reasonable doubt’. 136 The essence of the appellant’s submissions on ground 5.1 is that the evidence was ambiguous as to the precise intention of the three men in relation to the deceased in that it was consistent with the offenders’ intending to inflict ‘really serious harm’ or something lesser. The prosecution would only have proved intent to cause grievous bodily harm to Mr Boyce beyond reasonable doubt, if the evidence satisfied the trial judge beyond reasonable doubt that the intent of the appellant as part of the joint enterprise of the three men was to inflict ‘really serious harm’ and not merely serious harm: R v Perks (1986) 41 SASR 335 at 337. The appellant submits that it was therefore not open to the trial judge to conclude that the evidence excluded the intention to inflict something lesser than really serious harm and the trial judge therefore engaged in inadequate reasoning. 137 The summary of the trial judge’s reasons dealing with intention (at [601]- [612] of the reasons) are set out above. The trial judge recognised the shortcomings of the CCTV footage but was still able to discern sufficient detail about the nature of the ‘violent and frenzied’ attack on Mr Boyce to reach a conclusion about the intention of the three men at the time the kicks and punches were inflicted. The trial judge also had regard (at [606]) to Dr Charlwood’s evidence concerning the location of the injuries and the degree of force with which the blows were delivered. The considerations which the appellant addressed to the trial judge were repeated on the appeal, including that it could not be determined when Mr Boyce became unconscious, that it could not be said that the forceful kick delivered by the driver of the small car to Mr Boyce was aimed at his head or connected with his head, the shortness of the physical attack of no more than 15 seconds, and the absence of any weapon other than the feet and hands of the attackers. -- 41 of 43 -- [2026] SASCA 52 The Court 40 138 An intention to cause grievous bodily harm does not need to have been a long-held intention but it must subsist at the time of the attack that caused the injuries. When the group did not locate Mr Perkins, their attention turned to Mr Boyce who fled. The trial judge’s findings (at [604] and [609] of the reasons) that the men acted ‘simultaneously and immediately upon Mr Boyce fleeing’ and the attack was ‘violent and frenzied’ are borne out by the CCTV footage. Dr Charlwood’s evidence supports the location and the nature of the injuries and the severity of the force used to fracture Mr Boyce’s skull at the fracture site. 139 The appellant’s argument on ground 5.1 amounts to a submission that the verdict of murder was unreasonable and should have been a verdict of manslaughter. Applying the approach required by M v The Queen of an appellate court in deciding whether a verdict is unreasonable, our independent assessment of the evidence relevant to the issue of intention (which is the CCTV footage and Dr Charlwood’s evidence) is that the verdict of murder was, as a question of fact, not an unreasonable verdict for the reasons identified by the trial judge. 140 Ground 5.2 asserts that the trial judge engaged in inadequate reasoning in that the evidence did not exclude the reasonable possibility that the appellant was not present on Hill Street when Mr Boyce was attacked. The appellant’s submissions on ground 5.2 assert the findings made by the trial judge in accordance with Mr Perkins’ evidence without support of other evidence or findings made by the trial judge that were supported with Mr Perkins’ evidence had been arrived at in an unsound way and the trial judge erred in engaging in inadequate reasoning. It is acknowledged on behalf of the appellant that there is significant overlap between ground 5.2 and ground 3. The appellant’s argument on ground 5.2 amounts to a submission that the finding that the appellant was the third offender was unreasonable. Ground 5.2 is disposed of by the same reasoning applied above in dealing with ground 3. 141 The appellant fails on ground 5. Ground 6 – were the trial judge’s reasons inadequate in explaining why manslaughter was excluded as a reasonable possibility? 142 The focus of the appellant’s submissions on ground 6 are [602]-[603] of the reasons: 602 Defence submitted that the disposal of the Toyota Echo does not speak to the intention with which the attack was committed. I agree that the partial destruction and disposal of the Toyota Echo does not necessarily lead to an inference of a state of mind consistent with murder. 603 I have considered the evidence in its entirety in assessing what inferences can be drawn concerning state of mind as to the nature of the joint enterprise and the intention with which the blows were delivered. (footnote omitted) 143 The argument based on [603] of the reasons is that the trial judge has referred to the evidence in its entirety in assessing what inferences can be drawn relevant -- 42 of 43 -- [2026] SASCA 52 The Court 41 to the issue of intention but the trial judge failed to identify what was taken into account by the reference to ‘the evidence in its entirety’. It is apparent from the structure of that part of the reasons dealing with intention that the evidence which was relied on for drawing the inferences concerning intention is that evidence that is described in [604]-[612] of the reasons. It is implicit that the reference to ‘the evidence in its entirety’ is a reference to the evidence that is relevant to the issue of intention which is then identified in the paragraphs of the reasons that follow. 144 The appellant submits that [602] of the reasons is ambiguous in the use of the words ‘does not necessarily’ as to whether any form of consciousness of guilt reasoning has been taken into account on the intention issue. The trial judge was making it clear by [602] that consciousness of guilt reasoning due to the partial destruction and disposal of the Toyota Echo was irrelevant to determining the intention with which the attack was committed. That is borne out by the matters that are then identified in [604]-[612] of the reasons. 145 The trial judge’s reasons are not inadequate in the respects identified by the appellant. The appellant fails on ground 6. Orders 146 The orders which should be made are: 1. Permission to appeal on grounds 1, 2, 3, 5 and 6 granted. 2. Appeal dismissed. -- 43 of 43 --