[2025] SADC 74

Prosecution: R Counsel: MS G GROSSET - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: MARCUS WILLIAM LANE Counsel: MS K WAITE - Solicitor: PERROTTA LEGAL Hearing Date/s: 05/05/2025 File No/s: DCCRM-23-027309 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal: Disputed Facts Hearing) 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. R v LANE [2025] SADC 74 Reasons for Ruling of his Honour Judge Durrant 24 June 2025 CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE Defendant pleaded guilty to aggravated creating likelihood of harm, creating likelihood of harm and aggravated assault - factual basis of sentencing settled other than in respect of aggravated assault - no dispute defendant threw victim to the ground - disputed that defendant punched and kicked victim while on the ground several times or at all - disputed facts hearing - victim gave evidence - whether supported by other oral evidence - consideration of other witnesses on the voir dire and other evidence in the prosecution brief - satisfied the defendant punched victim several times while she was on the ground - factual basis for sentencing established. Held: The defendant will be sentenced in respect of the aggravated assault on the factual basis that, having flung the victim to the ground, he punched her several times to the head. Criminal Procedure Act 1921 (SA) s 123; referred to. -- 1 of 12 -- -- 2 of 12 -- R v LANE [2025] SADC 74 Introduction 1 The defendant Marcus William Lane has pleaded guilty to one count of Aggravated Creating Likelihood of Harm, one count of Creating Likelihood of Harm and one count of Aggravated Assault. 2 The factual basis for his sentencing is settled,1 save for some of the facts alleged to constitute the aggravated assault. 3 In relation to that offence, it is not in dispute that the defendant threw the victim C, to the ground. 4 It is in dispute that he punched and kicked her several times, while she was on the ground. 5 Those disputed facts were the subject of a disputed facts hearing. For reasons that follow, I am satisfied beyond reasonable doubt the defendant punched C several times to the head while she was on the ground. I have not been so satisfied that he kicked C, while she was on the ground. Undisputed Facts 1. C, and the defendant, Marcus Lane, were in a domestic relationship for around four years until separating in May 2021. They have three children. 2. The defendant committed acts of physical abuse and verbally threatened C throughout the relationship. 3. On 17 November 2022, C was at the Greenacres shopping centre with her sister, H, her sister’s partner, J, and their infant son B. 4. At around 7.30pm they all travelled to C’s home address in Gilles Plains. J was driving his white Holden Omega with registration X. On the journey, C noticed a silver Holden Commodore driving in the opposite direction which she suspected was the defendant. 5. After driving around the block, J arrived at C’s home address in Gilles Plains. A silver Holden Commodore VF with black rims and registration X was parked outside C’s premises. The defendant was in the driver’s seat. 6. At C’s request, J continued driving and observed the defendant’s vehicle in pursuit along North East Road. The defendant caught up and drove into the right rear corner of J’s vehicle causing it to complete a full rotation and come to a stationary position. J was driving at approximately 80km/h at the time of the collision. 1 Criminal Procedure Act 1921 s 123(1); Prosecution Case Statement in respect of defendant William Marcus Lane (FDN15). -- 3 of 12 -- [2025] SADC 74 2 7. J again attempted to drive away from the defendant. Approximately 500m further along North East Road, near the Highlander Hotel, the defendant caught up and was travelling in the adjacent lane to the right of C’s vehicle. 8. The defendant swerved into the driver’s side of J’s vehicle, colliding with the front right wheel. This caused the vehicle to rotate and collide with the median strip where it came to a stop. 9. The defendant parked his vehicle nearby. C exited the vehicle and began running away from the scene. The defendant intercepted C by grabbing her shirt and throwing her onto the road. C injured her left wrist and shoulder from breaking her fall. 10. M was driving his Nissan El Grand van past the scene and stopped around 100m away to provide assistance. M exited his van and observed the defendant throw a female to the ground. 11. The defendant returned to his vehicle and performed a ‘U-turn’ to drive south along North East Road. He collided with M’s parked van causing damage to the driver’s side. 12. L was another motorist travelling south along North East Road in his silver Holden Commodore with registration X. L stopped his vehicle due to the scene of the collision. He heard a screeching noise and observed the defendant’s vehicle approaching from behind him. 13. The defendant attempted to drive between L’s vehicle and M’s parked van which resulted in a collision with the passenger side of L’s vehicle. 14. The defendant continued driving south away from the scene. L pursued the defendant but lost sight of him soon after. L attended Holden Hill police station to report the incident. 15. C was taken to the Modbury Hospital by the South Australia Ambulance Service for treatment. 16. The defendant sent C abusive emails on the day of the incident prior to the alleged offending and apologetic emails over the following days. 17. On 18 November 2022 the defendant sent an email to G, a senior social care worker at the Department of Child Protection, making slights against C’s character. 18. CCTV recordings from Car Wash King at 605 North East Road, Gilles Plains show a snapshot of the defendant’s vehicle in pursuit of J’s vehicle at 8.31pm on 17 November 2022. 19. CCTV recording from premises opposite the defendant’s home address on Browne Court in Craigmore show the defendant’s vehicle returning at around 8.52pm on 17 November 2022. 20. On 19 November 2022 police attended the defendant’s home address on Browne Court in Craigmore. Police observed a silver sedan with damaged side panels parked in the carport behind a roller door. The defendant was not present. 21. On 21 November 2022 the defendant attended the Elizabeth police station where he was arrested. When interviewed the defendant told police that he is the owner of the -- 4 of 12 -- [2025] SADC 74 3 silver Holden Commodore. He also admitted to driving the vehicle in the evening on 17 November 2022. The defendant did not recall if he was driving at 8.20pm or what time he stopped driving. Evidence About the Disputed Facts 6 I am entitled to and have had regard to the whole of the prosecution brief. That evidence was supplemented in this case by oral evidence in chief and cross- examination of three witnesses: C; her sister H; and the former domestic partner of H, J. Evidence of C 7 C said when the car of the defendant came to a stop, having collided with the car she was in, she looked over her shoulder. She said she saw the defendant get out of his car.2 C said she opened her car door and went to start running.3 She said the defendant ‘grabbed to the left side of me and threw me to the ground’.4 8 When asked about what part of her body the defendant had grabbed, she said, ‘the left of my shirt around my shoulder area’.5 9 Asked what had happened when she found herself on the ground, C said the defendant had hit her in the head with his hand, ‘roughly four times’.6 C said he had then stood up and started kicking the right side of [her] stomach,7 ‘roughly three times’.8 C reported suffering ‘fractures’ to her hand as a consequence of the actions of the defendant.9 10 C said in cross-examination, that she had not discussed what had happened with her sister.10 She said that, since the incident, she had only started talking to her sister again, a ‘couple of weeks ago’.11 11 C accepted in cross-examination she had received a message from the defendant earlier in the afternoon prior to this offending which said, ‘call my phone’ and, ‘I’m on the way to yours now’.12 2 T5.13-18. 3 T5.18-19. 4 T5.19-21. 5 T5.33-35. 6 T6.27-32. 7 T7.6-10. 8 Ibid. 9 T8.12-13. 10 T9.18-22. 11 T9.23-31. 12 Exhibit D1; T13.6-17. -- 5 of 12 -- [2025] SADC 74 4 12 C confirmed in cross-examination the defendant had not grabbed her hair when he had assaulted her.13 She said when the defendant had exited his car to assault her, he had blood on his face and his forehead.14 13 C denied, when challenged by counsel for the defendant, she had in fact been pushed to the ground from her shoulder. She said, rather, ‘it was a grab and throw to the ground’.15 C denied she had been grabbed around her waist and thrown.16 14 C confirmed in cross-examination she could not remember telling the doctor at the Modbury Hospital who treated her, she had been grabbed by the hair.17 15 C confirmed she had told police she had fractured her hand.18 She denied the x-ray taken at hospital had indicated ‘there were no fractures’19 and maintained she had sustained a fracture to her hand.20 16 C, in cross examination, said she had not retained any messages with the defendant. She said she only had emails,21 as her phone had been smashed, and the recovery of messages from that phone was impossible.22 17 C, in re-examination, said she believed she had been told by hospital staff that there had been a fracture of her hand.23 Evidence of H 18 H said the car in which they were travelling had come to a stop when the defendant had ‘hit the back end of their car’. She said the defendant had flung C to the ground and he had ‘punched her in the head and the body’.24 She elaborated that action, ‘I just seen him hitting her in the head and I can’t recall what part of the body he hit her, but I know he definitely hit her in the head’.25 19 In cross-examination, H said she had not, since the offending, spoken to her sister specifically about what had happened.26 She agreed her sister had neither been pulled out of the car, nor pulled by her hair.27 H rejected the suggestion the 13 T16.5-10. 14 T16.18-28; T17.5-10; Exhibits D2 and D3. 15 T18.26-36. 16 T19.4-9. 17 T20.12-21. 18 T23.1-7. 19 T23.1-38. 20 T23.1-T24.38. 21 T26.13-16. 22 T26.17.28. 23 T26.1-38. 24 T36.14-30. 25 T37.21-30. 26 T41.31. 27 T44.13-22. -- 6 of 12 -- [2025] SADC 74 5 defendant had picked up C between her legs and thrown her. H said C had been grabbed and flung. H said she had not seen the defendant kicking her sister.28 Evidence of J 20 J said the defendant had ‘chased after [C] and picked her up and then threw her to the ground and kicked her multiple times’.29 21 He elaborated the defendant had ‘picked her up and threw her to the ground pretty aggressively and then he kicked her twice is what I remember’.30 22 J accepted in cross-examination he had discussed what had happened, with C and her sister, on more than one occasion.31 He confirmed what he had said in his police statement, that the defendant had picked [C] up with both arms with his left arm between her legs with his other arm around her shoulder.32 23 J, in cross-examination, said C had told him she had fractured her wrist during the assault.33 Other Evidence 24 I have considered the whole of the evidence in the prosecution brief, including those parts of the brief that were specifically tendered.34 25 My attention was drawn to: the photographs of C’s vehicle following the collision; the statement of M; the statements of M made on body-worn footage taken at the scene shortly after the incident; the body-worn video of the victim taken following the assault; SA Ambulance records; and the discharge records of the victim from the Modbury Hospital. 26 As for the hospital records, the follow up treatment of C was recommended to rule out a wrist bone fracture which may not have been obviously visible within the first 24 hours post injury. 27 In his written statement M said: “I saw the male throw her [C] to the ground. The female had hit the ground to the point where she bounced off the bitumen, it was hard. Other people were trying to help her; there was another young female and male. They were screaming too at the time. I kept saying ‘what’s going on, what’s going on?’ to everyone to figure out what happened. The male with the shaved head then walked away and got into his car which was parked over the island in the middle of the road and took off”. 28 T47.3-11. 29 T50.25-29. 30 T51.8-19. 31 T53.26-T54.15. 32 T56.19-T57.6. 33 T58.1-4. 34 Exhibits D1, D2, D3, D4, D5, D6 from Disputed Facts Hearing 5 May 2025. -- 7 of 12 -- [2025] SADC 74 6 28 On the body-worn footage, M said: ‘The girl was then thrown to the ground and he actually like striking her and shortly after thrown her to the ground and striking her’. 29 When he said ‘striking her’ on each occasion, M acted out a downward punch, with a clenched fist and with his left hand, to demonstrate what he had been saying and was describing. Submissions of the parties 30 The prosecution urged me to accept the evidence of C that she had been kicked and punched in the head, by assessment of the evidence as a whole and in combination. That is, submitted the prosecution, because the witnesses supported each other as to those facts of punching and kicking, and were not inconsistent. 31 Each of the witnesses – C, her sister, the brother-in-law and M – said C had been thrown by the defendant. 32 C had said she was punched and kicked. H had said C was punched, but she did not see C kicked. J had said he did not remember any punching, but C had been kicked. 33 As for M, his sworn statement did not address the issue of kicking or punching. It was silent about that. The body-worn video from the night of the offending though, taken shortly after these events, recorded his clear report of the defendant ‘striking’ C and it involved a clear demonstration on his part of that action. 34 As for the credibility of C, the prosecution submitted she had to her credit, told ambulance officers she had been kicked and punched. While she had been mistaken that she had actually fractured her wrist, submitted the prosecution, the advice provided by doctors had been equivocal and had likely been misunderstood by C. 35 In combination, submitted the prosecution, all of the crucial witnesses had said C had been punched or kicked. 36 The defence accepted there was evidence to support a pushing or a fling. The defence though submitted the evidence of J, that C was picked up and thrown, should be rejected. 37 A ‘fling’, the defence submitted, in the circumstances could be seen as being more consistent with a push to the ground. What was fundamentally denied, submitted the defence, was any kicking or punching of C or any picking up and throwing of C by the defendant. 38 The evidence of C, as to both kicking and punching, submitted the defence, had not been ‘corroborated’ by the other witness as to both ‘kicking and throwing’. -- 8 of 12 -- [2025] SADC 74 7 39 The lack of credibility of C, submitted the defence, should cause me to reasonably doubt her evidence about being punched and kicked. As to her credibility and reliability, the defence submitted C: • at worst had lied about her injuries –and at best she had exaggerated her injuries; • had lied about never discussing what had happened with her sister until just before two weeks from the disputed facts hearing; • had given different versions about what had happened to different people ie the doctor at the Modbury Hospital and to the Police Officer Cliff; • had given a version of the method of being thrown inconsistent with other witnesses; and • had been an unconvincing witness in her explanation as to why she had been unable to produce any messages with the defendant from her phone. 40 Principally, as going to whether C had been both kicked and punched, the defence submitted there was ‘no consistent evidence with her entire version’. Ms Waite submitted while evidence of the whole of her version could be drawn from a variety of sources, to do so should cause the court to hold a doubt it had happened at all.35 Consideration 41 The dispute for the purposes of sentencing is whether the defendant punched in the head and kicked C several times while she was on the ground. 42 I cannot take into account those facts on sentencing – which are adverse to the defendant - unless the alleged punching and kicking has been established, beyond reasonable doubt.36 43 In this case, the evidence about that of C, her sister and her former brother- in-law has been tested by cross-examination. In respect of each of those witnesses, it is therefore open for me to make findings as to their credit. 44 I am entitled also to rely on the whole of the prosecution brief in respect of this dispute as to the facts.37 45 The evidence of M in his statement and on the body-worn vision, recorded shortly after he said he witnessed the assault, has not been tested by cross- examination. While I have exercised some caution in the weight I have attributed to that evidence, it is not inconsistent with the evidence of C. While his statement 35 T90-94. 36 Prosecution Case Statement (FDN 15) at [10]. 37 Prosecution Case Statement (FDN 15). -- 9 of 12 -- [2025] SADC 74 8 does not address punching or kicking, the video taken was contemporaneous and it is clear and it is not capable of any misunderstanding. M says (and acts out) the downwards striking of C while she was on the ground. 46 There is also evidence from the witnesses in combination, that the defendant punched and kicked C, while she had been on the ground. The issue is whether I am satisfied of those facts, given that support, beyond reasonable doubt. 47 I am entitled to accept the evidence of witnesses in whole or in part and to attribute differing weight to different parts of the evidence of witnesses. 48 C said she was hit in the head ‘roughly four times’. She said she was kicked in the side ‘roughly three times’. 49 The defence has raised a number of matters going to her credit and reliability. As a consequence, I have exercised caution in accepting her evidence where it is inconsistent with or unsupported by other evidence. 50 The medical evidence was that while her wrist was injured, it was not broken. She had thought she had x-rays on her wrist. While follow up x-rays were noted as potentially required as confirmation that there had been no fracture, when she left hospital with a cast (or brace), her wrist had not been broken. 51 C’s wrist had certainly been hurt. When she told others, and this Court in evidence, it had been fractured, she was wrong. That does impact on the reliability of her evidence to some extent, as she did not recall accurately what she had been told. She had been injured to the wrist and the medical evidence mentions the possibility of a fracture, and C had been through a traumatic incident and said she had been told she had broken her wrist. 52 I accept the prosecution submission such a misunderstanding was understandable, given the equivocal medical advice as to her injury, and that she had been simply mistaken, and because of the impact of what had happened to her. 53 The defence argued that statement was a knowing lie, or an exaggeration in court, which should lead me to reasonably doubt her evidence she had been punched in the head and kicked, on its own or in combination with other matters going to reliability and credibility. 54 I am not prepared though to find she was lying about that to exaggerate her injuries. I consider that incongruity in the evidence of C does though go to diminish her reliability to some extent. 55 C, in comparison to the evidence of her sister and former brother-in-law, did exaggerate her temporary estrangement from her sister. -- 10 of 12 -- [2025] SADC 74 9 56 Further, there were differences between the descriptions of the ‘throw’ effected by the defendant in the evidence of C, to that of her sister, to that M and most notably, with that of her former brother-in-law, J. 57 Only C said she had been both punched in the head and kicked. C’s sister said she had been punched in the head but did not see the defendant kicking her. J did not ‘remember’ any punching, but was very clear C had been kicked twice. J had also described a very different mechanism of the ‘sling’ to the ground. 58 While the sworn statement of M does not mention any kicking or punching, in the body worn video in the prosecution brief he is asked by police, shortly after the offending, what he observed. He was in a slightly heightened state of excitement, understandable given what he had just seen, but his manner and re- enactment was compelling. His statement was done and said while events were very fresh in his mind. His evidence on that video was ordered and clear and in respect of the striking of C, supported by other witnesses. 59 In respect of M, the defence suggested his intervention in this incident, should cause me to reasonably doubt the defendant had punched or kicked C. By shouting at the defendant, it was argued, it was the interaction of M which had caused the defendant to flee to the scene. 60 I was therefore urged by the defendant to consider the extent of the assault was limited to a throw. That is not though, how M described and re-enacted what had happened, shortly after the incident, in the video. His recount of the incident was made when these events were fresh in his memory. 61 While I have exercised some caution in my consideration of the body-worn video, as it was not subject to cross-examination, M is clear in both his description and demonstration. He said the defendant struck C several times while she was on the ground. He acted out the downward motion of punching for the police officer. I do not consider there is any room for misunderstanding about what he had been describing and re-enacting, or that there is a basis to consider that he conflated the act of the throw. He re-enacted downward punches. M described two different actions; the throw and punches. 62 It is clear that his demonstration of punching is distinct from his earlier description of the throw. I accept his evidence the defendant punched C while she was on the ground. I find the manner of his oral description and of his re-enactment compelling and credible. 63 The evidence of C and M is consistent to the extent of the punches. M supports the evidence of C she had been punched in the head several times. 64 I am satisfied beyond reasonable doubt that C was punched by the defendant several times in the head. I accept C’s evidence about that, as supported by other evidence While her reliability is somewhat diminished, in so far as that evidence -- 11 of 12 -- [2025] SADC 74 10 of punching is supported by other witnesses, I accept it and find she was punched several times in the head by the defendant while on the ground. 65 As for whether C had also been kicked, her evidence about that is supported by what J said. Her sister did not see her kicked and M does not mention it in his written statement or on the video. 66 J describes a detailed mechanism for C being thrown to the ground. He says C was picked up. No other witness described it that way. The mechanism J described has some similarity to the description of a fling, but I am cautious though about accepting J’s evidence about such a pick-up and throw in that manner. I am satisfied C was flung, but no other witness described the throw as he did. That is sufficiently distinct in description from the others, as to make me reasonably doubt that it happened the way J described. 67 The differences between the description of the throwing mechanism given by J and the other witnesses – who were broadly consistent –does cause me also to doubt his reliability about the kicking of C by the defendant. I do not consider J to be a reliable witness in describing the mechanism used in the assault by the defendant. Together with the concerns I have about C, I do not consider there is evidence of kicking supported by other witnesses which I accept, to a sufficient extent, such that I can find beyond reasonable doubt C had been kicked. 68 I will sentence the defendant on the basis he punched C several times in the head while she was on the ground, and on the basis she was flung by the defendant from a standing position onto the road. -- 12 of 12 --