[2025] SADC 132

Prosecution: R Counsel: MS F LINALE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: PHONEXAYSACK RAWATXAY Counsel: MR J MARCUS - Solicitor: EDGE LAW Hearing Date/s: 13/05/2025 to 16/05/2025, 19/05/2025 to 20/05/2025 File No/s: DCCRM-23-039836 B DISTRICT COURT OF SOUTH AUSTRALIA (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. R v RAWATXAY Criminal Trial by Judge Alone [2025] SADC 132 Reasons for the Verdict of his Honour Judge Durrant 19 November 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY The accused was charged with aggravated recklessly causing serious harm. He elected for trial by judge alone. Self-defence was in issue. The prosecution relied on circumstantial evidence to prove each of the elements of the charged offence, including whether it had excluded beyond reasonable doubt the accused had acted in lawful self-defence. The prosecution led evidence about the number of, nature of, and seriousness of the injuries suffered by DB and about how those injuries had been inflicted, and of observations made of the scene. The testimony of the accused as to the voluntariness of the cause of the injuries to the complainant and as to his acting in self- defence rejected. The evidence of the prosecution accepted and the only reasonable inference open on that evidence drawn that the accused had recklessly used a samurai sword to inflict serious harm on the complainant and had not acted for a defensive purpose. Charge proved beyond reasonable doubt. Verdict: The accused is guilty of aggravated recklessly causing serious harm. Criminal Law Consolidation Act 1935 (SA) ss 15, 23; Juries Act 1927 (SA) s 7, referred to. BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v Western Australia [2008] 232 CLR 438; Aiken v The Queen [2014] NSWCCA 213; Ryan v The Queen (1967) 121 CLR 205; R v Moores (2017) 128 SASR 340; R v Musa (No.2) 2023 111 NSWLR 228; Bell v The King [2025] SASCFC 97; The Queen v Sutton (No.2) (1983) 32 SASR 533, considered. -- 1 of 65 -- -- 2 of 65 -- R v RAWATXAY [2025] SADC 132 Introduction 1 The complainant (DB), a type 1 diabetic, and the accused Phonexaysack Rawatxay, had been close friends for over 20 years. 2 That dramatically changed on 2 April 2023. 3 DB said he suffered a hypoglycaemic attack at the home of the accused and the prosecution allege the accused used a samurai sword to cause DB serious harm. 4 The accused was charged with aggravated recklessly causing serious harm and elected for a trial by judge alone.1 5 The prosecution led evidence at trial as to the number, nature, and seriousness of the injuries suffered by DB, and about how those injuries had been inflicted, and of observations made of the scene. 6 The prosecution submitted I should accept that evidence, reject the testimony of the accused who said he had acted in self- defence and draw the only reasonable inferences open; the accused had recklessly used a samurai sword to inflict serious harm on DB and had not acted in self- defence.2 7 I have found the accused guilty of the charged offence.3 The Elements of Aggravated Recklessly Causing Serious Harm 8 To prove the offence of aggravated recklessly causing serious harm, the prosecution had to prove seven elements beyond reasonable doubt.4 9 The first element was the accused had performed an act or acts. 10 The second element was his act or acts had been voluntary and deliberate. 11 The third element was DB had suffered serious harm. 12 The fourth was that act or acts of the accused had caused that serious harm. 13 The fifth element was the accused had caused that serious harm recklessly. 1 Information filed 17 January 2024 (FDN13); Aggravated Recklessly Causing Serious Harm, Criminal Law Consolidation Act 1935 (SA), s 23(3); Juries Act 1927 (SA), s 7. 2 Criminal Law Consolidation Act 1935 (SA), Part 3, Division 2. 3 Sufficient reasons must be given to properly explain my verdict but I am not obliged to express all matters, ‘which necessarily have to be stated to a Jury, unfamiliar with the basic principles of law’; BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34 [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia [2008] 232 CLR 438; and Aiken v The Queen [2014] NSWCCA 213. 4 Criminal Law Consolidation Act 1935 (SA) s 23(3). -- 3 of 65 -- [2025] SADC 132 2 14 The sixth element was the accused had acted unlawfully. In respect of the sixth element, self-defence must be excluded by the prosecution. 15 Self-defence operates where an accused genuinely believes his conduct was necessary and reasonable to defend himself and his conduct was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed existed. 16 An accused does not have to prove self-defence; the prosecution must exclude it. The prosecution relied on each of the two ways available to do so. 17 First, the prosecution submitted it had established he had not genuinely believed his conduct had been necessary and reasonable to defend himself. 18 Second, the prosecution submitted it had established his conduct had not been, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed he faced. 19 The seventh element was the accused had used an offensive weapon. The evidence 20 The prosecution evidence comprised the testimony of: DB; the senior orthopaedic surgeon who treated DB; the credentialled diabetes nurse educator who assisted DB to manage his condition; a friend of the accused who went to the home of the accused to help work on a car; and police officers who attended at the scene. 21 The prosecution tendered exhibits which included the sword, photographs of DB’s injuries and the scene and facts agreed.5 22 The defence case comprised a single exhibit and testimony of the accused.6 General directions 23 While it is not necessary to direct myself in the same way a jury would be directed, I have reminded myself of the following general directions and have elsewhere in these reasons detailed some further specific directions. 24 To decide this case, I must find facts and draw inferences from the evidence led at trial, as well as apply the law to the facts found. 25 I must bring an open and unbiased mind to bear, view the evidence clinically and dispassionately, and not let emotion enter my decision-making. 5 Exhibit P14- Agreed Facts Document. 6 Exhibit D3. -- 4 of 65 -- [2025] SADC 132 3 26 The prosecution and accused are entitled to verdicts free of partiality or prejudice, favour or ill-will and according to the evidence. 27 As in any criminal case, the prosecution always bears the onus of proving the guilt of the accused. An accused does not have to prove anything. 28 The standard of proof is beyond reasonable doubt. 29 Where I refer to something which must be or has been proved or established, or that I must be or have been satisfied of something; that thing must be or has been proved, or I must be or have been satisfied, beyond reasonable doubt. I have made my findings beyond reasonable doubt, unless specified otherwise. 30 The accused is presumed innocent unless and until the evidence I accept satisfies each element of the charge beyond reasonable doubt. 31 If the evidence fails to satisfy me beyond reasonable doubt of the offence charged, the accused remains presumed innocent. 32 The burden of proof is always on the prosecution. 33 The assessment of witnesses involves a consideration of whether the witness is honest. If satisfied the witness is honest, that assessment then must involve consideration of whether the evidence of the witness was reliable and accurate. 34 In the assessment of the witness's evidence, I am entitled to have regard to my experience of life, my dealings with other people and common sense. 35 I am not bound to accept all a witness's evidence or to reject all of it. I am entitled to reject some parts and to accept other parts. 36 I am entitled to consider the manner of a witness when they gave evidence and how the witness stood up when being cross-examined. 37 I must keep in mind the different backgrounds, age, personal qualities and characteristics of witnesses and the impact on memory of the elapse of time. The Witnesses Evidence of DB 38 At the time he gave evidence, DB was 48 years old. He said he had suffered from type 1 diabetes since he had been about 15 years of age. 39 As at 2 April 2023, DB said he had been a close friend of the accused for over 20 years and was the best man at his wedding. He said he would often go to the home of the accused at Blakeview and sleep over on the couch in the lounge. -- 5 of 65 -- [2025] SADC 132 4 40 DB said he and the accused would often work on cars and train for boxing.7 He said that training involved pad work and combination punches. 41 While boxing had been important to DB, he said his type 1 diabetes had prevented him from fulfilling his ambition to become a professional. As well, he said his diabetes had affected his daily life. Particularly, he had to manage his condition by the monitoring and stabilising of his blood sugar levels.8 42 DB explained a sensor had been installed in his right tricep about two months prior to April 2023 to continually report his sugar levels onto the display of a small handheld device. Before that, he said he had to put blood onto a strip and then into a machine, to obtain a reading of his blood sugar level. 43 His new device, DB elaborated, would beep if his blood sugar recorded above or below a pre-determined level as set by his nurse educator, Ms Vyas. He said he could then put the device close to his sensor and it would give him a reading. 44 DB said, as at April 2023, his nurse educator Ms Vyas had set a low level of 3.5 or 3.7 and a high level of 13.9 He said the beeping would stop only if he pressed an onscreen button.10 He said also his device would sometimes lose its signal.11 45 DB said he had understood his device retained his blood sugar readings going back for 6 months, and that it constantly read his sugar level. 46 When his blood sugar went below the low-level setting, DB said he had been instructed to consume glucose and then carbohydrates.12 47 DB said he had explained to the accused, his wife Crystal and their son, how his new device had worked. He said each of them had understood that and knew from experience what he needed if his blood sugar was too low. 48 DB said he had experienced hypoglycaemic attacks, due to low blood sugar, before. He said they made him feel weak and delusional and affected his memory and concentration.13 Such attacks, he said, would last several hours. 49 If his blood sugar exceeded 13.5, DB said he would inject a fast-acting insulin shot. He said he normally injected insulin three times per day in any event.14 50 DB said, as at April 2023, he had been regularly seeing his nurse educator to discuss his readings from the past fortnight. 7 T15. 8 T16-T17. 9 T18. 10 T20. 11 T21.23-27. 12 T22. 13 T22. 14 T23-T24. -- 6 of 65 -- [2025] SADC 132 5 51 On Saturday 1 April 2023, DB said he had gone to the accused’s house to help fix a car; a white Subaru. 52 He said only he and the accused had been home, and he stayed the night, going to bed after his nightly insulin.15 53 On Sunday 2 April 2023, DB said he had awoken about 9am, having slept on the lounge. He said he scanned his sugar level using his device. 54 A screenshot from his device showed three readings for that day.16 55 The first was from 12.29am; 13→. DB said he understood that indicated a steady sugar level. He said that reading had been recorded after he had injected his nighttime insulin.17 56 The second reading was from 8.06am of 13.6↑. DB said he had understood that 13.6↑ reading meant his sugar level had still been high. 57 DB said he recalled, consistent with his usual practice, that he had injected fast-acting insulin that morning. 58 DB said he recalled having toast and coffee with sugar for breakfast. 59 After breakfast, DB said he and the accused worked on the car in the driveway, for about two hours. He said about mid-morning, he and DB had shared a point of methylamphetamine and he had smoked his share. 60 DB said he had felt fine until his device had beeped at 12.10pm (P1). DB said that reading- the third shown on the tendered screenshot- of 3.8↓, had been recorded when he had been underneath the car. 61 DB said he had understood that reading 3.8↓ to mean his sugar level had been coming down. DB said he had gotten out from under the car and told the accused he needed to have lunch. He said the accused had understood that need from experience, and they went inside the house so he could have something to eat. 62 DB said he remembered being in the lounge room and next, being in the bedroom of the accused and his wife. DB said he had never been there before. 63 He said he recalled in the bedroom that the son of the accused had given him a drink and told him to have it. He could not say whether he had drunk it. 15 T27. 16 Exhibit P1 – Screenshot Diabetes Monitoring Device Complainant 2 April 2023. 17 T29.1-13. -- 7 of 65 -- [2025] SADC 132 6 64 While he had a vague recollection of being in an ambulance, DB said his next clear memory was of being at the Royal Adelaide Hospital and of being injured. He said he had cuts to his left hand, throat, left upper back and head. 65 All those cuts, he said, other than the one to his back, had required stitches. His injury to his left-hand, he reported, had required lengthy surgery. 66 In cross-examination, DB said his handheld monitoring device had been about the size of a small mobile phone. He said that device, when it detected a low reading, would continue to beep until he rectified that situation. 67 He accepted, if he had low blood sugar, the accused and his wife and his son, would have known what to do to help. 68 If his blood sugar was low, DB said, he had trouble going for a run, lifting anything and could be mistaken for being drunk. DB said he had never been violent during a hypoglycaemic attack, but he had passed out. 69 DB accepted he had been a good boxer; winning 6 or 7 state titles and national titles. He said he had not fought for about 15 years, due to his diabetes. 70 As for his boxing training, DB said sometimes he did that at his home as well. He agreed he would instruct the accused and his son about boxing techniques. 71 As for his relationship with the accused, DB said they had disagreements. He said he had never been violent towards him, but he had seen the accused be violent. 72 DB accepted he had told police in a statement he and the accused had never had any disagreements or that the accused had been violent. 73 It was put to DB he told police he had not taken drugs or alcohol on 1 April 2023 and 2 April 2023. DB said his statement only related to 1 April 2023. 74 It was put to DB he had not mentioned to police that the accused had taken methylamphetamine at all. DB said he had not been asked about that by police. 75 DB accepted his monitoring device created a graph of his sugar levels going back for a couple of months. DB was asked why he had only taken the screenshot P1 rather than download a graph. He replied he had not thought to do that. 76 He said his reader had been left at the accused’s house when he had been taken to hospital. 77 DB confirmed he recalled sitting down in the lounge room at the rear and opposite end of the house from the master bedroom.18 18 Exhibit D3. -- 8 of 65 -- [2025] SADC 132 7 78 DB said when hypoglycaemic he could still move around but would be too weak to have a fight.19 He confirmed he had passed out on the couch that day. 79 DB denied having told the accused he had been accused of assaulting his partner R, his brother, another partner A or that he had knocked someone out at a petrol station and had a fight with an Aboriginal man in an olive grove. 80 DB accepted the accused had knives and swords at his home. Evidence of Viju Vyas 81 Ms Vyas is a certified diabetes nurse educator. 82 She said DB had been her patient in April 2023 and she had been seeing him every two weeks. She confirmed he had been a type 1 diabetic from the age of 15. 83 Ms Vyas said the device used by DB as at April 2023, retained readings for two weeks. Ms Vyas said her role had been to provide education to DB to manage his diabetes. She confirmed DB had suffered hypoglycaemic episodes. 84 Ms Vyas said the receiver used by DB would not work if uncharged and the tricep device would lose its signal if more than 6m from the receiver. 85 Otherwise, she said if DB’s blood sugar went below its set low level the device would continue to beep until the alarm had been switched off. 86 Ms Vyas said the settings maintained for DB at April 2023, were 3.9 (low) and 13.3 (high). She said a low sugar level is considered less than 4.0, as determined by Diabetics Australia. She said a blood sugar level above 10 is dangerous. She said a blood sugar level below 4.0 is a hypoglycaemic attack.20 87 To retain a blood sugar level reading on the device, she said it had to be at that level for 15 minutes, as the device recorded in 15-minute blocks of time. 88 Ms Vyas explained a sugar level reading with an upward arrow ↑ indicated a very rapidly rising blood sugar level and a reading with a downward arrow↓ indicated that the sugar level was dropping very quickly. 89 Through Ms Vyas, a report from DB’s device had earlier been tendered.21 She confirmed only a monthly summary had been able to be extracted from his device. She said daily summaries for 1 and 2 April 2023, had not been available. 90 In respect of the symptoms DB might have been suffering at the time of the recorded 3.8↓ reading, Ms Vyas said ‘common symptoms [would be] dizziness, 19 T135.17-26. 20 T180.10-11. 21 Exhibit P5. -- 9 of 65 -- [2025] SADC 132 8 headaches, disorientation, hunger, lack of concentration and feeling nauseous’.22 Ms Vyas said her goal was to fix the daily lows and daily spikes DB had. 91 Ms Vyas was cross-examined about how the average blood sugar level per day recorded in the report Exhibit P5 had been calculated. She said the average was not a measure she used, as the daily report gave the most useful information. 92 She explained hypoglycaemia was completely dependent on the sugar level at the time and different to the average sugar level recorded in the report. 93 Ms Vyas agreed the report showed DB had on Sunday 2 April 2023, scanned his device on four occasions. She explained the screenshot Exhibit P1 showed something different to the result of those manual scans. 94 Ms Vyas explained her role had been to address spikes and low sugar levels, because of the risk such spikes caused to cardiovascular health. 95 Ms Vyas confirmed diabetes affected the brain and cognition. She confirmed during a low sugar event, a diabetic would be lethargic and very low in energy. Evidence of Professor White 96 Professor White is an expert in pharmacology; the study of the effects of drugs on the body. His expert report was tendered and his expertise accepted.23 97 His report opined that while it was not known when the accused had used methylamphetamine prior to this alleged offending, if he had used methylamphetamine intravenously 30 minutes or more prior, his methylamphetamine blood concentration would have been falling for all the period between the incident and blood collection. 98 The accused’s blood had been collected at 12.30am on 3 April 2023. 99 If his methylamphetamine blood concentration had fallen over that period, using an average half-life of methylamphetamine of 10 hours, Professor White determined the likely concentration of the drug in his blood at 5.50pm on 2 April 2023, would have been 0.52mg/l. 100 Professor White said that concentration was in the range found in experienced users and was sufficient to produce significant effects; ‘toward the upper end of the range commonly found in people using methylamphetamine’. 101 The typical duration of such effects, he opined, was ‘4-6 hours with rebound effects following that time’. He further opined methamphetamine use, ‘has frequently been linked to aggressive and violent behaviour’. 22 T179.3-6. 23 Exhibit P6. -- 10 of 65 -- [2025] SADC 132 9 102 Professor White confirmed the effects of methylamphetamine usually lasted about 4 to 6 hours, depending on the amount consumed and the way it was administered. As methylamphetamine is metabolised or chemically broken down in the body, he said, its concentration declined over time. 103 He explained the 10-hour half-life of methylamphetamine was the measure of how rapidly the concentration fell after its peak, to 50% concentration. 104 The effects of methamphetamine on users opined by Professor White included: feelings of energy; elevation in mood; enhanced feelings of self- confidence; increase in heart rate and blood pressure; appetite suppression; impulsive risky or reckless behaviour; self-confidence; paranoia; hallucinations; delusions; and aggression. 105 Professor White said that it did not appear a tolerance to methylamphetamine developed over time, as the effects seemed more common in experienced users. 106 Professor White opined occasional users might reach a concentration lower than 0.1mg, while heavier users would reach a concentration higher than 0.5mg. 107 The median values for recreational usage, Professor White said, tended to be somewhere around 0.23mg. 108 Professor White back calculated a sample of DB taken at 7.38pm on 2 April 2023 of 0.28mg, and that his methylamphetamine concentration at 5.50pm of 0.32mg. Evidence of Dr Robertson 109 Dr Robertson is a senior orthopaedic registrar. His expertise was accepted. 110 On 3 April 2023, Dr Robertson said he had examined DB in the holding bay of the Royal Adelaide Hospital emergency area and documented his observations. 111 He observed DB had one large cut to his scalp, a large cut to the middle of his collarbone, a laceration to his neck, and lacerations to his left forearm and hand. 112 The large cut to DB’s left forearm, he said, was 20cm by 10cm and took up a large portion of the front side. 113 A separate large cut, he observed, had been made to the outside or the pinkie side of the palm of DB’s left hand. That cut was significant, he said, and took up most of the palm and wrapped around front and back in the middle of the hand. 114 Dr Robertson said the scalp injury to DB was an 8cm linear scalp laceration just anterior to the vertex (near the top of the head) through the periosteum of the skull (the thin outer layer bone) and just into the bone itself. -- 11 of 65 -- [2025] SADC 132 10 115 The collarbone injury to DB, he observed, was a 5cm oblique wound over the right middle third of the left clavicle which had penetrated through the most superficial layer of the neck; the platysma. 116 The laceration to DB’s neck, said Dr Robertson, was a 15cm curvilinear or slightly curved cut to the posterolateral or back/side part penetrating through the platysma and partially into the posterior border of the sternocleidomastoid (the second layer of neck muscle). 117 Dr Robertson said he had closed DB’s scalp wound in layers with a braided suture and had used a clear dissolvable suture for the last layer. 118 As for the right clavicle laceration, Dr Robertson said he had closed that cut by using a braided small suture sewn with 3-0 vicryl. He said he had repaired the skin with a Monocryl Monofilament soluble suture (a small clear dissolving stitch). 119 Dr Robertson said he similarly closed DB’s neck wound muscle with a 3-0 vicryl and the skin with a non-dissolvable monofilament in separate sutures. 120 Dr Robertson said the neck wound had been large and deep enough to penetrate through the first layer of neck muscle and partially to the deeper layer. 121 Dr Robertson said under those deeper layers in the neck, superficial to the larger neck muscles, was located the external jugular. He said that deep into that muscle was located DB’s internal carotid artery and internal jugular vein. 122 As for the injuries to the left forearm and hand of DB, Dr Robertson confirmed he had performed a lengthy operation. 123 He said he had first performed bone repairs to the hand. 124 He had fixed the fifth metacarpal with two screws. He had fixed a proximal phalanx with a wire and screw. He said the fourth proximal phalanx had a small fleck of bone and he had stitched that down to the capsule at the joint. 125 Following that, Dr Robertson said he had repaired the tendons of DB’s left hand, sequentially, from his thumb to pinkie. 126 The first digit which required repair was the thumb; being the cut to DB’s left hand which had severed about a third of the width of the thumb tendon. 127 As for DB’s second digit, Dr Robertson said the superficial tendon had been 100% cut through and the deep tendon had been 50% cut through. 128 As for DB’s third digit he said the superficial tendon had been 50% cut through and the deep tendon had been wholly (100%) cut through. 129 Dr Robertson said DB’s fourth digit – as to both its superficial tendon and its deep tendon – had also been cut through 100%. -- 12 of 65 -- [2025] SADC 132 11 130 Dr Robertson said as to DB’s fifth digit – the pinkie –both the superficial tendon and the deep tendon had also been cut through 100%. 131 Dr Robertson said he had observed two lines below the cut of those tendons which were the result of the cut which had wrapped around the side of DB’s left hand. That cut, he said, had severed 100% of the extensor tendon on the back of DB’s hand. 132 Dr Robertson said he had repaired each of those tendons by a core stitch to bring the edges of the cut together. After that, he said he had used a finer stitch to smooth the rough ends of each of those tendons. 133 The surgery to complete those repairs had taken 7 or 8 hours, including the time needed to insert the metal implants into DB’s left hand. 134 Dr Robertson described the injury to the forearm of DB as a more superficial laceration. He said that a large flap of skin, still attached close to the elbow, had been cut through, as well as 90% of the muscle on the front side of the forearm. To repair the forearm, he brought the muscle edges together, as well as the skin. 135 Dr Robertson said one of the most significant parts of the surgery was his repair of the median or ulna nerve of DB on the pinkie side of the forearm. The ulna nerve gives both motor movement and sensation to the hand. 136 Dr Robertson said that nerve had been cut completely, to the extent of sensation only, at the point just after the nerve splits into two branches. He said DB could therefore not feel his fourth and fifth digit – his pinkie and ring fingers. 137 He said the main blood supply to the hand had also been cut through. 138 In cross-examination, Dr Robertson confirmed the blood sugar reading of DB recorded by the ambulance officers at the scene had been 4.4.24 He agreed those records did not suggest DB had been given glucagon, glucose or glucose IV. Evidence of Detective Brevet Sergeant Brook 139 DBS Brook attended the tasking to the accused house that night. He observed three people standing in the driveway; the accused, his wife and Mr Matthew Eerden. His impression was: the accused was quite agitated; Mr Eerden was very excitable and hyped-up; and the wife of the accused was panicked. 140 DBS Brook said he had a conversation with the accused. He asked him whether the injuries to DB had been self-inflicted. He said the accused had said, in a defensive manner, ‘more like self-defence’. DBS Brook said he had observed blood stains on the t-shirt and face of the accused. 24 By reference to Exhibit P7. -- 13 of 65 -- [2025] SADC 132 12 141 When he approached the front door, DBS Brook said he observed DB in the entrance in a slumped sitting position. He saw lots of blood and injuries to his wrist and hand. He described DB as panicked and scared with multiple cut injuries to the top of his head. As well, he observed DB had been wearing jewellery and had a cut injury which had exposed the muscles around his neck. 142 In cross-examination, DBS Brook said he had not made any notes of his attendance that day. He confirmed he had first mentioned what the accused had said about self-defence in his second statement taken on 12 May 2025. He confirmed that interaction had not been in his first statement taken 21 April 2023.25 Evidence of Senior Constable Freeman 143 SC Madeline Freeman also attended at about 5.50pm. She said the two men and woman standing outside had appeared calm. She recalled a small amount of blood had been on the accused. 144 She reported the accused had said to her DB had come at him and he picked up one of the multiple samurai swords he had, in self-defence. She said the accused had pointed out the sword he had used under some bushes in the front garden. 145 In cross-examination SC Freeman said children were present, but she was unable to recall if they had been there when she had arrived. Evidence of Constable Pearce 146 Constable Pearce attended and removed items from the hallway to assist the ambulance officers on scene. He had also recorded a video sweep of the house.26 Evidence of Detective Brevet Sergeant Delaney 147 DBS Delaney was the investigating officer. Through her, the sword and photographs of the clothes worn by the accused upon arrest were tendered.27 148 DBS Delaney was cross-examined about her statement taking practices in taking statements from DB on 13 April 2023, 19 December 2023 and 8 May 2025. She confirmed he had been given an opportunity each time to read his statement and had not pointed out any errors. Agreed Facts 149 Finally, in the prosecution case, facts were agreed as follows: Toxicology 25 The statement DBS Brook attributes to the accused ‘more like self-defence’ is equivocal and I have given it no weight in my overall assessment. 26 Exhibit P15. 27 Exhibit P8 and P9, P11, P12. -- 14 of 65 -- [2025] SADC 132 13 1. A blood sample was collected from Phonexaysack Rawatxay at about 12.30am on 3rd April 2023. Subsequent analysis of that sample showed the presence of the following: a. methylamphetamine at a concentration of 0.33mg/L (milligrams per litre of blood); b. amphetamine at a concentration of approximately 0.04mg/L; c. sildenafil at a concentration of 0.068mg/L. 2. A urine sample collected at about the same time from Phonexaysack Rawatxay which showed the presence of methylamphetamine, amphetamine, sildenafil and carboxyl THK (11-nor-9-carboxy-∆9-tetrahydrokannabinol). 3. A blood sample was collected from DB at 7.38pm on 2nd April 2023. Subsequent analysis of that sample showed the presence of the following: a. methylamphetamine at a concentration of 0.28mg/L (milligrams per litre of blood); b. amphetamine at a concentration of approximately 0.06mg/L; c. fentanyl at a concentration of 1.7mg/L; d. 11-nor-9-carboxy-∆9-tetrahydrokannabinol. 4. DB was prescribed Fentanyl by emergency services who treated him at the scene. DNA 5. A sword was seized by the police outside 2 Northridge Gardens, Blakeview on 2nd April 2023 (Exhibit PE0059). 6. Swabs were taken from both the sword handle and the sword blade, both of which were later submitted to the Forensic Science Centre, South Australia for DN analysis. 7. That analysis was undertaken by a DNA expert, Olivia Handt. The results of the analysis on the handle of the sword return a mixed DNA profile with two contributors to that DNA profile. a. There was extremely strong support for Mr Rawatxay being a contributor to that DNA profile. b. There was also very strong support for the complainant, DB being a contributor to that DNA profile. 8. In relation to the swab on the sword blade, there was a single source DNA profile with one contributor; a. There was extremely strong support for DB being a contributor to that DNA profile. 9. A jacket worn by Phonexaysack Rawatxay on 2nd April 2023 was seized (Exhibit PE0004). The jacket had blood staining. A cutting was submitted to the Forensic Science Centre, South Australia for DNA analysis. The results indicate there was a single source DNA profile with one contributor; -- 15 of 65 -- [2025] SADC 132 14 a. There was extremely strong support for DB being a contributor to that DNA profile. 10. A swab was taken from the exterior side of the bedroom door at 2 Northbridge Gardens, Blakeview. The swab gave a positive result to a presumptive test for blood at FSSA. The results indicate there was a single source DNA profile with one contributor; a. There was extremely strong support for Mr Briggs being a contributor to that DNA profile. Crime Scene 11. All red-brown stains located in the interior or exterior of 2 Northridge Gardens, Blakeview between 2nd and 3rd April 2023, which had the Appearance, Behaviour and Context consistent with blood, tested positive to a presumptive test for blood. The presumptive test for blood utilised was the Hemastix. 12. At approximately 9.15pm on 2nd April 2023, Crime Scene Investigator, Steven Gresch attended 2 Northridge Gardens, Blakeview and took a folio of photographs marked 1875322, of the exterior of the property. 13. At approximately 4.45pm on 3rd April 2023, Crime Scene Investigator, Craig Robertson attended 2 Northridge Gardens, Blakeview and took a folio of photographs marked 1885639, of the interior of the property. 000 Call 14. Crystal Rawatxay called 000 on 2nd April 2023 at 5.54pm. Clothing 15. A singlet (PE00033), ADIDAS shorts (PE00038), Under Armour Top (PE00054), Under Armour Hoodie (PE00055) were seized from 2 Northridge Gardens, Blakeview. They belonged to DB and he was wearing these on 2nd April 2023. They were not sent for analysis. Evidence of the Accused 150 While the accused gave evidence in this case, he did not have to do so. He had a right to silence and did not have to say, do or prove anything. 151 The accused said that for 20 years prior to the incident he and DB had been great or best friends. While DB had been his best man, he said they were no longer friends. 152 The accused said he had learnt about DB’s diabetes early on in their friendship. He said he had seen DB having a hypoglycaemic attack and had initially been confused by it. He said they had then openly discussed his condition and he understood from then what his symptoms were and how he could help. 153 The accused described DB as irresponsible with his diabetes, in the sense he did not look after himself. He said he had seen DB with low blood sugar levels ‘countless times’ in 20 years. High blood sugar, he said, was harder to recognise. -- 16 of 65 -- [2025] SADC 132 15 154 Low blood sugar, the accused said, affected the cognition and behaviour of DB and he often appeared to have not remembered what had happened. 155 The accused said when DB had a hypoglycaemic attack, coffee with a lot of sugar would help. If too far gone, he would have to coerce DB to drink the coffee. He said the worst attack he knew of was when DB had choked on his tongue. 156 The accused said he had been aware of the new beeping device. 157 As for their boxing training, the accused said he had known DB was interested in boxing from the start, but diabetes had stopped him getting in the ring. He said DB had trained with him and with his son and other people. 158 The accused said he was 160cm tall and weighed about 75kg to 85kg. 159 The accused said DB had told him of several occasions when DB had said he had been accused, or it had been alleged, he had assaulted someone. He said DB had told him that had happened in respect of his ex-partner, another partner, his brother, an Aboriginal man in an olive grove and a man at a service station. 160 The accused said DB would sometimes antagonise and make people feel uncomfortable by repeating what the person had said. He considered DB would do that to either amuse himself or provoke a fight. 161 The accused said he had three children, and an adult daughter. He said his adult daughter, as of April 2023, did not live with him and his wife Crystal. He said his other daughter had still been at home but was away that weekend. 162 The accused said he collected knives and samurai swords. He said at the time he had about 15 knives and swords in the house and they would often be moved; some were in his bedroom in a box on the side of his bed. 163 The accused said he had intended to display his knives and swords at his home but had not yet got around to that, as at April 2023. 164 The accused said on 1 April 2023, DB had come around to his home and had stayed there until he left in an ambulance the following day. The accused said DB had come over before lunch, to work on a car and for them to enjoy each other’s company. He said they had ‘indulged’ in some methamphetamine. 165 At that time, the accused said the other members of the household had gone for the weekend. He said he had expected his wife and his two children, who went with her, to return some time Sunday night or afternoon. 166 The accused said he had been addicted to methamphetamine and a user for 20 years. He said he would inject one or two points, two or three times a week. He said he had supplied methylamphetamine to consume on 1 April 2023. -- 17 of 65 -- [2025] SADC 132 16 167 The accused said he and DB each had a point and he then had one point left. 168 He said DB had smoked his point at the dining room table and after about 45 minutes to an hour later, he had gone into his bedroom and injected a point. 169 The accused said he put the remainder point in the top drawer of his bedside cabinet on the window side of his bed. He said there was space to walk either side of the bed. 170 After that, the accused said he and DB had spent the day tidying around the house. He could not recall DB experiencing any difficulty with his diabetes. 171 The accused could not recall when they had gone to bed. He said he had slept in his bed and DB had slept on the couch in the lounge.28 172 On Sunday morning, the accused said he and DB had each worked to tidy up the house; ‘whatever looks messy’. He said he had heard DB outside cleaning up the driveway with a pressure cleaner, at about 6am or 7am. He said they had not spoken much that morning, as DB had been outside and he had been inside. 173 When DB came back inside, the accused said DB had just floated around, while he had been trying to tidy up. His definition of cleaning, he said, given there had been a lot lying around in the house, was to tidy to be able to move around. 174 The accused said DB had not raised with him any issue with his blood sugar. He said DB stopped communicating with him when inside, but that was not unusual, as it had happened in the past. 175 The accused said he had spoken to his wife, who had said she would be coming home that afternoon. He said DB had been on the couch at that time. 176 He said, upon learning that news, he had a ‘lightning fast’ shower and when he had looked at the couch thereafter, DB was not there. 177 The accused said he went to his bedroom and was taken by surprise as DB was on the bed. He said DB had never been in there before, without his consent.29 178 He asked DB, ‘hey bro, what are you doing?’ and got no response. He said DB just laid face down with his arms in front of his head, using them like a pillow. 179 The accused said, ‘come on [DB] there’s no way you could be asleep in the time it took me to have that shower’. He tried to get a response for quite a while; ‘look [DB] as I said, Crystal is going to be home soon, she’s going to need the bed to lay the baby down’. 28 Exhibit P13 at [18], (Image 35). 29 The accused said DB had been in his bedroom at another house with his permission. -- 18 of 65 -- [2025] SADC 132 17 180 The accused said he observed no signs DB had an issue with his diabetes that day or that DB showed any outward sign of being affected by methylamphetamine. 181 He said he had not felt the effects of the methamphetamine, other than that he had felt a little more alert. 182 The accused said he had spent 20-25 minutes trying to get a response from DB up until he had heard his wife outside the front door. He said he was ‘pretty annoyed’ with DB at that point. 183 He remembered, as he went to greet his wife, he had said, ‘I don’t know what your deal is, but, as I said, Crystal is home now’. 184 The accused said for that whole time, DB had not responded and had just laid on the bed and had not said a word. 185 He insisted in his evidence DB had not been having a hypoglycaemic attack as his previous experiences of such attacks included that DB had been sweating, had pale skin and had been slurring. 186 The accused said he greeted Crystal who asked why DB was on their bed. He said she asked, ‘is he having a hypo’. 187 The accused said he was annoyed and said to Crystal ‘you make him a coffee if you want to be sure or get him a drink’. 188 At that point, the accused said he tried to gather himself and made his way to the couch. He said Crystal told their son to make a coffee and he sat on the couch, ‘trying to work through my head’. 189 He said he next heard DB and Crystal speaking from the bedroom, but not what they said. He said he got up. 190 In the bedroom he saw his son on his side of the bed near the window and Crystal on her side and DB propped up in bed with a drink in his hand. 191 The accused said he had seized that moment, to go in and get DB off the bed. He said he told DB ‘you don’t make it easy for me some days’. 192 He said DB looked up at him and smiled and they had got into a sort of hug, which had turned into a wrestle and then into play fighting on the bed. 193 He said the bed had been about 60cm from the ground to the top of the bed base. He said a samurai sword about 1m long had been leaning against the base of the corner of the bed. He said a cot had been at the end of the bed, which had been used only for storage, as the baby had slept in the bed. 194 After a minute of play fighting, the accused said he told DB ‘fun-time’ was over and they were going to put the baby down on the bed. -- 19 of 65 -- [2025] SADC 132 18 195 The accused said DB dropped onto the bed flat as he had laid before. He said he had shaken DB two or three times and asked him to get off the bed. 196 By that time, the accused said he had gone to the foot of the bed and said, ‘[DB] get off the bed man the baby needs to sleep’. 197 The accused described DB as propping himself up in the bed and as looking at him with ‘antagonising behaviour’. He said DB had spoken at him, in gibberish two or three times. 198 The accused said he had been thrown by that and had been pretty irate. 199 He said he told DB ‘I’m not sure where this is coming from but you’re pushing the friendship’. 200 The accused said DB turned around in response and said, ‘You’re not my fucking blood you can’t tell me what to do’. The accused said he had been cut deeply by that, as they had never spoken to each other that way before. 201 The accused said he had been ‘quite annoyed and irate’ and had brought up all the bad things which DB had done during their friendship. 202 The accused said he had, at that point, needed to get away from the situation and walked out of the bedroom and Crystal had followed him outside. 203 Outside, the accused said he noticed Matthew Eerden, whom he said he knew already was coming. He said he told Eerden ‘I need to go for a drive’. 204 The accused said when he did leave the bedroom he had earlier said to DB ‘Look, I don’t know where this is coming from, but you’ve crossed the line. I want you gone by the time I get back, I’m going for a drive’. 205 The accused said he told Crystal ‘okay I’m getting out of here I need some time away from this situation. You wait here, wait for [DB] to leave to make sure he’s gone’. 206 The accused said Crystal had not wanted to stay and he and Crystal, Matthew, and his children got in the car in the driveway and went for a drive. He said they had returned to the house about 10-15 minutes later. 207 The accused said he got out the car and told the others ‘just wait a second I’ll just go and check and make sure he’s gone’. 208 The accused said he had recalled earlier telling DB ‘20 years of friendship you’ve thrown away’. 209 The accused said DB was propped up on his side of the bed, his legs crossed out in front and with his chin looking downwards and that he told DB, ‘what the fuck are you still doing here’? -- 20 of 65 -- [2025] SADC 132 19 210 The accused said DB swung his legs to the side of the bed and stared at him with his head aggressively tilted forward in his direction. 211 The accused said DB had used that gesture before when DB had been arguing with someone before a fight. He said DB had never reacted like that to him before. 212 The accused said he could not say if Crystal had been in the room. 213 The accused said DB used his right hand to point at him, tilting his head slightly forward and looking at him. 214 The accused said the distance between the edge of the door to the master bedroom and the cot was about 1.5m. 215 He said several storage items were on the floor and around the bedroom. 216 The accused said he felt uneasy and that DB was going to come at him soon and there was no way he was going to make it to the door as DB was so fast. 217 He said he had told DB ‘stop, stay back don’t even think about it’. 218 The accused said he pointed at DB and said, ‘don’t even think about it, stay there’ and then grabbed the sword, as he thought that would be enough to make DB think twice about coming at him. 219 He said he held the sword toward DB, ‘don’t even fucking think about it’, in his right-hand arm straight and he had his left arm pointing at DB. 220 The accused said the demeanour of DB did not change but he had looked over the accused’s shoulder. 221 The accused said he had then thrown the sword down in ‘one hard, bang stop’ onto the bed such that it had embedded itself into the bed end.30 222 The accused demonstrated that in the witness box. He held an imaginary sword in two hands in front of his body arms straight out and the imaginary blade pointed to the ceiling of the courtroom. 223 The accused swung the imaginary sword up with two hands and in a circular motion over the top of his head and then enacted swiftly a swinging motion of the imaginary sword downwards in front of his face with straightened arms onto an imaginary bed frame in front of him. It was a powerful and quick movement. 224 The accused said as he swung the sword standing just at the bottom side of his wife’s side just near the cot, DB had been sitting on the other side of the bed. 30 Exhibit P13, [21]-[22] and [24]-[26]. -- 21 of 65 -- [2025] SADC 132 20 225 He said, when the sword had stuck in the end of the bed, DB had looked up and had said, ‘you’re fucked’ and ‘had been pointing at him with a straight arm’. 226 The accused accepted in cross-examination, at that point in time, there had been nothing preventing him from getting through the door behind. 227 The accused explained the handle of the sword had been leaning on his wife’s side of the bed closest to the door opposite to where DB had been. 228 The accused said he had grabbed the sword in his right hand and had flicked his wrists into an upright position and had moved half a step down the bed. 229 The accused said after he had swung the sword down into the bed end, he had yanked the sword out. He said he had then brought it up again in front of himself, holding it by the handle in his two hands, blade pointed up as he had before. 230 The accused said DB after saying what he did, then jumped onto the middle of the bed, and in one bounce, was on his wife’s side of the bed. 231 The accused said DB was then about 2m from him on the same side of the bed within arm’s reach of each other. 232 The accused said he then thought his wife had followed him into the room. 233 The accused said he had known DB intimately and had known to watch out for DB’s favourite combination; a left jab and a left hook. 234 The accused said he had tried to get the sword out of the bed quick enough to put it up in front of himself. He said as DB was ‘quite taller than’ him, he had wanted to show him he had a sword in his hand. 235 He said DB threw a shoulder height left hook from about 1 to 1.5 metres. He demonstrated that as thrown from DB’s shoulder with him holding the sword in two hands in front. He said he felt the sword go away from his front to his left. 236 The accused demonstrated the movement of his wrist, hands and sword at that point of contact. He held out two clasped hands at arm’s length and twisted his wrists left and angled, to show the tip had tilted at about 45 degrees. 237 The accused said he assumed DB had ‘hit the sword, slapped the sword away or punched the sword away’.31 His demonstration was of the sword moving at its tip at a 45-degree angle toward his left shoulder. 238 The accused said DB had used a clenched fist.32 31 T369.21-24. 32 T476.31-38. -- 22 of 65 -- [2025] SADC 132 21 239 The accused said he thought the shoulder high left hook had connected with the sword, because his hands had been flung away towards his left shoulder. 240 The accused demonstrated how he had brought the sword back to a position straight out in front again, with its point up as he anticipated DB would throw a further left-hand punch. 241 The accused demonstrated the straight left punch DB threw. He said the sword went diagonal again and he then brought it back up again to his right shoulder. 242 The accused described and demonstrated how he had then backed away toward the door of the bedroom behind him, to keep a distance between the two of them. The accused said he slammed back into the frame of the bedroom door. 243 The accused said he got the sword back in front of himself and hit the doorframe hard and ‘bounced forward’ and that he and DB ‘collided’. 244 He said he had his eyes closed and thought ‘I am still standing’. 245 The accused said he opened his eyes and pushed DB away holding the sword in his right hand (demonstrated) with two flat palms pushing out in front from about his shoulder height.33 246 The prosecutor asked for a description of that to be recorded on the transcript. 247 Hearing that request, the accused gave a different version, he said he had the handle gripped in his right hand and had pushed DB holding the sword clenched in his right hand and with an open palm with his left hand. He demonstrated his reviewed actions in pushing DB away; clenched right fist, open left palm. 248 The accused said he then turned around and ran right into his wife and said, ‘get out, get out’. He said they had then made their way outside. 249 The accused said the sword hit his forehead when DB and he collided, before he had pushed away with the blade in front in an upright position; point to the top. 250 The accused said it had all happened very fast and was a bit of a blur. He remembered thinking this is really happening, and to watch out for DB’s left hand. 251 The accused said as he had turned around and exited the room, he went to his left and the sword in his right hand tilted backwards over his shoulder as he exited the door. 33 T372. -- 23 of 65 -- [2025] SADC 132 22 252 In respect of his intention when he had picked up the sword, the accused said he had done that to make DB think twice about moving on him. The accused said the sword had been a deterrent to allow him to get out of the room. 253 The accused said any suggestion he had meant to harm DB was ‘absurd’. 254 The accused said he thought DB had gone into his bedroom to look for the left-over point of methylamphetamine from the day before. 255 In cross-examination, the accused said he had 15 or more knives and 15 or more swords at home, as at April 2023. He said all his swords had been sheathed. He believed the sword he had used had a sheath; black and made of wood. 256 He said the sword he used had been leaning on the portable cot, handle up. He said the cot was used for storage as his son slept in the bed. He said his son had been crawling at that time and had started to walk. He confirmed there had been knives in the bedroom, in a box under the bed. 257 The accused confirmed at the time he banged into the door DB had run into him via his upper torso. He said he had still been holding the sword upright in his two hands and had pushed DB in the chest. 258 The accused confirmed he had picked up the sword to give himself enough time to get out of the bedroom. He said if he had not picked up the sword. he considered DB would have caught him in an instant. 259 The accused said he was not sure whether the hand, forearm or knuckles of DB had connected with the sword. 260 The accused accepted the lacerations to the neck and clavicle of DB were ‘done by the sword’.34 He said they had been caused by his actions in self-defence. 261 The accused said his only option had been to defend himself with the sword. Prosecution Address 262 The prosecution relied on four strands of circumstantial evidence: (1) the nature of the injuries sustained by DB; (2) the number of injuries sustained by DB; (3) the seriousness of the injuries sustained by DB; and (4) the way the injuries had been inflicted against DB. 263 Ms Linale for the prosecution identified those injuries as the lacerations to the neck, back, the top of head, clavicle, left forearm and left hand, of DB. 264 Ms Linale said there was no dispute the injuries had been caused by the sword. 34 T491. -- 24 of 65 -- [2025] SADC 132 23 265 As to the voluntariness and recklessness of the acts of the accused, the prosecution said the accused was neither a credible nor reliable witness, accepting that DB had no recollection of how those injuries had occurred. 266 Going to credit, Ms Linale said the evidence the accused had checked the point of methylamphetamine in his drawer, had not been recalled chronologically. 267 As to the plausibility of the accused version, Ms Linale questioned whether he had really been that fearful of a stare from a man he called a brother who had never been previously aggressive towards him. 268 The prosecution suggested it was not believable a sword had been leaning near the bed, when children had been living in the house. 269 Ms Linale submitted the accused had not formed a genuine belief, when he had picked up the sword, that was reasonable and necessary to defend himself. 270 Ms Linale said the sword had been swung down onto the bed by the accused with such force, the accused had to yank it out. She asked if that was a warning shot to DB and necessary and reasonable in the circumstances. 271 The prosecution asked me to consider whether swinging the sword, in such a manner in such a cluttered space, had been reckless. 272 Ms Linale said the evidence of the accused was he was not sure where DB had connected the sword, just that he must have, because it had moved in his hands. 273 The prosecution asked me to consider why, after that, a man who said he had been in fear of death, would close his eyes as he held the sword in front. 274 Ms Linale suggested the accused had changed his story. She said he had demonstrated pushing DB away with two open palms and had then changed his account that his right hand had gripped the sword and only his left palm was open. 275 Ms Linale submitted the injuries to DB could not have occurred, as the accused had described; his evidence was of one connection with DB’s arm or hand, which he had not been sure about. 276 The prosecution submitted the injuries to DB’s scalp, neck, clavicle and back lateral could not have possibly occurred as the accused explained. Ms Linale said the accused could not say how the injuries to the back or head of DB had occurred. 277 Notwithstanding the concession made DB had suffered serious harm, Ms Linale said the medical evidence established that element, nonetheless. 278 The prosecution relied on the screenshot of the reading from 2 April 2023 in Exhibit P1, as the device was a continuous monitor of the sugar levels of DB. -- 25 of 65 -- [2025] SADC 132 24 279 The prosecution relied on the reading of 3.8↓ at 12.10pm, to prove the blood sugar level of DB was in a rapid decline and he had been hypoglycaemic. 280 The prosecution reminded me Ms Vyas said the monthly data was unreliable and that was why DB, who had a low reading on 2 April 2023, came to have little or no memory of events of that day. Ms Linale submitted I could conclude DB was, at about 5.50pm on 2 April 2023, having a hypoglycaemic attack. 281 In respect of the evidence of DBS Brook, I was asked to consider what the accused had meant by what was attributed to him, as going only to state of mind. 282 As for s 15C of the Criminal Law Consolidation Act 1935, the prosecution submitted the accused had not established that defence, for several reasons. 283 First, because the accused had not ‘genuinely believed [DB] was committing a home invasion’.35 Second, because the accused had nonetheless engaged in ‘criminal misconduct that might have given rise to the perceived threat’.36 Third, because the accused mental faculties at the time of the incident had been ‘substantially affected by the voluntary consumption of [methylamphetamine]’.37 Submissions of the Defence 284 Principally, the defence contended the accused had acted in self-defence. 285 As to how this incident had happened, Mr Marcus relied on three things. 286 First, that the prosecution had failed to prove that the serious harm caused to DB had in fact been the result of a voluntary act on the part of the accused. 287 Second, that the accused had held the requisite belief his actions had been genuinely necessary and a reasonable person standing in his shoes knowing what he knew at the time would consider his actions proportionate to the threat faced. 288 Third, s 15C applied as the accused had genuinely believed, on the balance of probabilities, DB had been committing a home invasion. 289 Mr Marcus said it was not in dispute the injuries caused to the left hand and left forearm of DB had been caused by the accused holding the sword as he said. 290 As for the injuries to DB’s shoulder and head, Mr Marcus suggested I may not be troubled to find they had been caused by the sword but it was disputed all the injuries to DB had been caused by the accused acting voluntarily. 291 Mr Marcus submitted therefore two real issues and areas of factual dispute arose in this case. 35 Criminal Law Consolidation Act 1935 (SA), s 15c(2)(a). 36 Ibid; s 15c(2)(b). 37 Ibid; s 15c(2)(c). -- 26 of 65 -- [2025] SADC 132 25 292 First, whether the accused had acted deliberately when the injuries had been caused. That is, was it a reasonable explanation or hypothesis consistent with innocence that DB had struck the sword or had forced himself onto the sword. 293 Second, had the prosecution excluded as a reasonable possibility as to the state of mind of the accused, that he had been acting in self- defence. 294 Mr Marcus submitted DB had been neither a credible nor reliable witness. He submitted where his evidence conflicted with the accused, the evidence of the accused should be preferred. 295 Mr Marcus said DB had told lies to the court, had withheld information and had been contradicted by other objective evidence. He submitted DB’s evidence had not accorded with common sense and logic and was unreliable. 296 Under the banner of lies, Mr Marcus relied on what he said were differences between what DB had said in his sworn statements and what he had said in evidence. By way of example, Mr Marcus said DB had said to police he and the accused had never been in conflict and the accused had not been violent.38 297 Further, Mr Marcus said that it was open to construe the police statements of DB as stating he and the accused had not taken drugs on the Sunday. 298 Finally, he said the evidence of DB that he had not read his statements before signing them and that he had sought to excuse his omissions by reference to his use of painkillers and his diabetes, conflicted with the evidence of DBS Delaney. 299 As for withholding information, Mr Marcus said DB could have obtained a graph from his device for the whole of 2 April 2023, not just the screenshot P1. He submitted he did not because it would not have supported his version of events. 300 Mr Marcus submitted there was evidence which contradicted DB’s evidence he had a hypoglycaemic attack. 301 The defence relied upon the reading from the ambulance taken at 6.12pm that DB had a sugar level of 4.4. Mr Marcus described that reading as within DB’s target or healthy range. He submitted it should be assumed that reading had been taken just minutes after the injuries to DB had been sustained. 302 Mr Marcus said an assessment of that reading, together with the average sugar level for that day of 10.7 in P5, meant DB had not been hypoglycaemic. As I understood that submission, Mr Marcus asked me to draw that conclusion because the average across the shortened day, recorded on 2 April 2023, had been 10.7. Given that average, and the submission that the fourth scan of the device by 38 See T64-T65. -- 27 of 65 -- [2025] SADC 132 26 DB that day had to be after 12.10pm, it followed DB must have been in the safe zone that afternoon. 303 As I understood that submission, it was premised on the screenshot Exhibit P1 being a record of three of the four tricep scans P5 recorded DB took that day. 304 Further, submitted the defence, there had been no evidence that police or any other witness had heard beeps. That would have been the case, it was submitted, if the sugar level of DB had not been addressed and it had remained below 3.8. As I understand that submission, it was premised on the handheld device once activated with a low reading, it would have continued to beep until switched off. 305 Mr Marcus also said the accused had known how to address DB’s low blood sugar and if he had been hypoglycaemic, the accused would have acted and it would have resolved. He pointed out the tankard like glass which could be seen on the bedside cabinet and what he described as a red substance in a glass on the bed, as evidence members of the household had tried to help DB.39 306 The defence submitted a significant question to be considered was how DB had got down to the bedroom. Mr Marcus said DB’s evidence was he would have been lethargic and accordingly, his explanation did not stack up. 307 As for the genuineness of the threat held by the accused, Mr Marcus pointed to the obvious size difference between DB and the accused, as well as their different skills as boxers. Mr Marcus said DB accepted if he had attacked the accused, he would have left marks on him and that he had been bigger and stronger. 308 As for the reliability of DB, Mr Marcus pointed to the significant memory gap DB professed in his evidence. 309 In respect of the accused, the defence submitted he had given his evidence in a forthright and direct manner and it should be accepted generally, and in preference to that of DB, where it conflicted. 310 As for the injuries to DB, against the evidence of the accused, Mr Marcus said the accused ‘does not say he did not cause those injuries’.40 311 He submitted a very real difficulty in measuring the version of the accused of those injuries without expert evidence to explain how they were caused. 312 The explanation for those injuries, which the prosecution must exclude as a reasonable possibility, submitted the accused, was they had been caused by the way the accused held his sword, the punches thrown by DB and the collision between the accused and DB, as the accused had described. 39 Exhibit P13, image 58. 40 T556.3-8. -- 28 of 65 -- [2025] SADC 132 27 313 That tied into the voluntariness of any acts of the accused, submitted Mr Marcus. He said the accused said he had not hit DB with the sword, but rather DB had hit the sword with parts of his own body. 314 Mr Marcus described those hits or collisions as ‘either directly through the hook or swipe or whatever we might call the lateral blow struck with the left hand and then that [DB] came upon [the accused]’.41 315 As for how the injuries to the left hand of DB had been caused, Mr Marcus submitted ‘whether or not the opening or closing of the fist was a barrier to causing the injury’ is ‘beyond the finder of fact to make without expert evidence’.42 316 Mr Marcus submitted there was insufficient evidence to prove the accused had struck DB with the sword and the prosecution had not proved the actions of the accused had been voluntary, as there had been no movement of his muscle. 317 Mr Marcus submitted the accused was passive and had not acted voluntarily.43 318 As for putting the sword in front - the defence submitted that had not been a reckless act because DB had struck the sword and DB had caused his own injuries. 319 In respect of the evidence of Professor White, Mr Marcus submitted the impact of methylamphetamine varied from person to person. 320 In any event, it was submitted, the opinion of Professor White that the consumption of methylamphetamine led to aggression might equally apply to DB. 321 As for whether the accused had been ‘substantially affected’, as required by s15C, the accused submitted there was no evidence he had been.44 322 If the accused had consumed the day before as he said, it was submitted, the effective life of the drug had completed by the time of this alleged offending. 323 Even accepting there had been .5ml in the blood of the accused, it was submitted, there was no evidence the accused had been ‘affected’.45 324 As for whether the accused ‘engaged in criminal misconduct that might give rise to the threat or perceived threat’,46 Mr Marcus submitted no temporal or factual connection between the drugs in the drawer and these events. 325 Mr Marcus submitted no clear and necessary link had been established between the behaviour of DB and the methylamphetamine in the bedside cabinet. 41 T556.21-23. 42 T558. 43 In that respect Mr Marcus referred to Ryan v The Queen (1967) 121 CLR 205, [213]. R v Moores (2017) 128 SASR 340, [126]-[127] and R v Musa (No.2) 2023 111 NSWLR 228, [7]. 44 Criminal Law Consolidation Act 1935 (SA), s 15C (2)(c). 45 T653-T564. 46 T535.33-34. -- 29 of 65 -- [2025] SADC 132 28 He described the proposition of the accused that DB had been looking for the methylamphetamine as simply speculation on his part. 326 As for the nature of the injuries suffered by DB, Mr Marcus said DB had nonetheless been mobile afterward. It followed, said Mr Marcus, the defensive acts by the accused had been proportional. He submitted one injury was not enough and if the accused had slashed at DB, it was reasonable to do so, more than once. 327 Mr Marcus urged a cautious approach to consideration of the magnitude of the injuries suffered as a gauge of reasonable proportionality, absent an examination of the rest of the facts, and considering how fights take place. 328 Mr Marcus contended the accused defended himself against a larger, stronger, heavier, more experienced fighter who behaved aggressively and in a strange way, believing DB had an aggressive temper or reputation for violence. 329 The defence submitted the accused told DB to leave his home and DB would not go and, in his own home, with his wife and young children present, DB had said to him 'You're fucked' and jumped at the accused. Consideration Elements of offence 330 The prosecution must prove the seven elements of aggravated recklessly causing serious harm: (1) the accused performed an act or acts (2) his act or acts had been voluntary and deliberate (3) DB suffered serious harm (4) the act or acts of the accused caused that serious harm (5) the accused caused that serious harm recklessly (6) the accused had acted unlawfully and (7) the accused had used an offensive weapon.47 Real issues in this case 331 The third element was not in dispute; DB had suffered serious harm. 332 Contrary to the assumption of the prosecution in its opening, what acts were performed by the accused with the sword to cause those injuries, and whether those acts had been voluntary, deliberate, and reckless, were in dispute.48 333 The defence submitted the prosecution had not excluded as a reasonable explanation or hypothesis consistent with innocence that DB had struck or forced himself onto the sword causing the injuries he suffered. 334 The prosecution therefore had to establish each of the first, second, fourth, fifth and sixth elements of the charged offence. 47 Criminal Law Consolidation Act 1935 (SA) s 23(3). 48 The prosecution opened its case on the basis it did not consider it was in dispute the acts were conscious and voluntary; T8.37-9.3. -- 30 of 65 -- [2025] SADC 132 29 335 In respect of the sixth element, the defence submitted the prosecution had not excluded that the accused had acted in lawful self- defence. 336 There were therefore two real issues in this case. 337 First, had the prosecution proved the accused deliberately, voluntarily, and recklessly used the sword to cause DB the injuries he suffered. 338 Second, had the prosecution excluded as a reasonable possibility the accused acted in lawful self- defence. Approach to circumstantial evidence 339 The prosecution relied on circumstantial evidence to prove the accused, voluntarily and recklessly used the sword in the confined space of his bedroom to cause serious harm to DB, and to exclude self-defence. 340 The prosecution submitted the only reasonable inference or conclusion open was that the accused had recklessly and unlawfully inflicted serious harm on DB. 341 It was my task to weigh all the evidence and to decide what I accepted and what inferences could be drawn from that evidence. 342 That assessment was a matter for my experience of life and commonsense. 343 As this was a circumstantial case, a verdict of guilty cannot be returned unless the circumstances relied upon by the prosecution exclude any rational or reasonable hypothesis, or theory, or explanation, consistent with innocence. 344 Kourakis CJ has recently distilled the reasoning process giving circumstantial evidence its probative force without assuming the ultimate fact to be proved:49 • There are no categories and no attempt should be made to force particular circumstantial evidence into a mould; • The criteria by which the cogency of circumstantial evidence as proof is to be evaluated must be drawn from life itself; • The probative force of circumstantial evidence depends on the united force of all the circumstances put together; • So evaluated, a body of circumstantial evidence may attain a high degree of cogency, notwithstanding its constituent items are, individually, colourless; • There can be two or more stages of drawing inferences before a conclusion is reached; and 49 Bell v The King [2025] SASCFC 97 at [5] referring to The Queen v Sutton (No.2) (1983) 32 SASR 533 per Wells J. -- 31 of 65 -- [2025] SADC 132 30 • Medial inferences can be drawn from a body of circumstantial evidence, and form part of the primary material, from which further inferences are drawn. 345 In this case the relevance and cogency of pieces of evidence become apparent when later items of evidence are locked into place, whereupon the relevance and cogency of all the items are demonstrated. Accused gave evidence 346 While the accused did not have to prove anything, he gave sworn evidence about his use of the sword. I have kept in mind the accused did not have to prove anything and it was for the prosecution to prove the offence. 347 Defence counsel submitted I should accept the evidence of the accused as a reasonably possible alternative version of events, going both to the deliberateness and voluntariness of his acts and as to self-defence. 348 I have assessed the evidence of the accused as part of the whole of the evidence in the same way as any other witness. His evidence is not deserving of less weight because he is the accused. Approach to expert evidence of Dr Robertson 349 Dr Robertson gave evidence about the nature, number and the seriousness of DB’s injuries. His orthopaedic surgeon expertise and opinions were unchallenged. 350 His evidence was an exception to the general rule a witness can only speak to the facts because he was duly qualified and able to express opinions in his area of expertise. While I am not bound to accept his opinion, there is no reason not to. 351 I accept the evidence of Dr Robertson and his expert opinions. 352 Dr Robertson was not asked whether the injuries to DB might have been caused by strikes or slashes of the sword to the scalp, neck, clavicle, hand and forearm. He was not asked about the force needed to cause those injuries. 353 Mr Marcus accepted the accused ‘does not say he did not cause those injuries’.50 He contended though a ‘very real difficulty measuring the version of events of the accused against those injuries, without expert evidence to explain how they could have been caused’. 354 As to whether the opening or closing of the left fist of DB was a barrier to the cause of the injuries to his left hand, Mr Marcus submitted that was beyond the finder of fact, without the assistance of expert evidence. 50 T556.3-8. -- 32 of 65 -- [2025] SADC 132 31 355 As the finder of fact, I can draw inferences as to how the injuries to DB were caused. The cogency of that evidence is to be evaluated from my experience of life, and by application of my common sense. 356 As this is a circumstantial evidence case, consideration of the facts must be approached in that usual way looking at the items of circumstantial evidence relied upon which are accepted and deciding which facts are established. 357 The combined strength of those established facts must be considered to draw any inference or inferences which are open. 358 It is for the prosecution to establish the only reasonable inference is that the injuries to DB were inflicted by the deliberate and voluntary use of the sword, excluding any reasonable explanation or hypothesis consistent with innocence, including that DB struck or forced himself onto the sword thereby causing his injuries or that he had acted in self-defence. Assessment of DB as a witness 359 DB gave evidence by CCTV. That does not influence its weight and nor have I drawn an inference adverse to the accused because of that. 360 DB said he had a limited recollection of what had happened as he lost consciousness due to a hypoglycaemic attack. 361 DB recalled being in the bedroom and the son of the accused giving him a drink. He realised he had suffered injuries at the Royal Adelaide Hospital. 362 As the prosecution must prove the accused is guilty, the prosecution must convince me DB’s evidence is true and accurate. 363 It is not for the defence to show DB was wrong or was lying. There can be many reasons a witness might lie, and I have not speculated about those. 364 DB’s evidence is not more credible, or believable, because there may be no evidence providing a reason he might lie. I have not concluded the absence of such evidence meant he had no reason to lie and told the truth. 365 In respect of all the witnesses, I have considered whether they were honest. 366 To the extent I considered a witness honest, I then considered the reliability and accuracy of their evidence. 367 Mr Marcus suggested several things going to DB’s honesty and reliability, should cause me to reasonably doubt the prosecution case. 368 He submitted DB was neither a credible nor reliable witness and that the evidence of the accused should be preferred where it conflicted. -- 33 of 65 -- [2025] SADC 132 32 369 The prosecution submitted I should accept DB suffered a hypoglycaemic attack and reject the evidence of the accused as not reasonably possibly true. 370 In my consideration of the prosecution case, and any other reasonable hypothesis, theory or explanation consistent with innocence, I have had regard to those submissions about DB and the accused. 371 If I reject the evidence of the accused, in whole or in part, I must put it aside and consider whether the prosecution has established its case. 372 I have accepted DB as an honest witness, who was trying to tell me the truth. 373 In that respect, my assessment of all the witnesses was a matter for my experience of life, my dealings with other people, and my commonsense. 374 I have considered people vary in backgrounds, intelligence, education, personality, character and age and the way witnesses gave evidence and how they stood up to cross-examination. 375 As for the demeanour of DB and his manner, he presented at times as defensive and nervous. I have not given it much weight for several reasons. 376 DB was not a sophisticated or polished witness. 377 Nor was DB a witness who presented as being highly intelligent or educated. 378 His defensiveness and nervousness, in my view, reflected his anxiousness about having to give evidence, the impact of the serious injuries he suffered, and his upset about the end of his long-term friendship. 379 His low-level of literacy was also obvious and relevant to his credit and reliability. DB struggled to comprehend documents and received aid.51 380 During his evidence, his monitor also alarmed several times. He was embarrassed and had to take breaks to deal with his diabetes. 381 DB was candid about his unreliability, because of his memory gaps. 382 Those memory gaps do diminish DB’s reliability. I have given that weight in my assessment and have kept that in mind where his evidence conflicted with the accused, and in assessing his evidence against other evidence I accept. 383 I have, given that, assessed DB’s evidence with extra care. 51 I have accepted the evidence of DBS Delaney her practice had been to give witnesses the opportunity to read their statement or have it read to them before signing it and that she believed DB had read his statements and that he did not raise anything with her about them; T67-68. -- 34 of 65 -- [2025] SADC 132 33 Established facts 384 I have accepted the evidence of DB and Ms Vyas that DB suffered from type 1 diabetes since he had been about 15 years of age. Ms Vyas had treated DB and is a credentialled nurse educator in diabetes. 385 There is no reason to not accept Ms Vyas evidence in all respects as honest and reliable. She was a helpful and informed witness. 386 DB and the accused said: they had been close friends; DB had been his best man; DB would sleep over on the couch in the lounge; and they would work on cars and train for boxing together. 387 I have accepted that evidence as consistent with their friendship as they had described it and DB’s attendance that weekend. 388 DB and Ms Vyas said DB had: to manage his diabetes by monitoring and stabilising his blood sugar levels; a sensor had been installed in his arm which reported his sugar levels onto a handheld device; and DB had been using that device for about two months prior to April 2023. I accept that evidence. 389 DB, the accused and Ms Vyas said his device would beep if his blood sugar recorded above or below a pre-determined level. I accept that evidence. 390 DB said, as at April 2023, Ms Vyas had set his device to a low level of 3.5 or 3.7 and a high of 13.52 I prefer though and have accepted the evidence of Ms Vyas she had maintained his settings, as at April 2023, at 3.9 (low) and 13.3 (high).53 391 I accept the evidence of Ms Vyas a low sugar level was less than 4.0, and a sugar level below 4.0 meant the person was having a hypoglycaemic attack. 392 Ms Vyas said if DB’s blood sugar went below its low level, his device would beep until the alarm was turned off. She said the sensor would lose its signal about 6m from its receiver. I accept that evidence and the evidence of Ms Vyas that the receiver would not work if it had not been charged. 393 DB said his device retained readings for 6 months and constantly read his sugar level. For reasons elaborated later, DB poorly understood his device and diabetes. I have not accepted his evidence about how the device worked or what it recorded, unless supported by, or consistent with, other evidence I accept. 52 T18. 53 T168.19. -- 35 of 65 -- [2025] SADC 132 34 394 I prefer and accept Ms Vyas that the data recorded lasted two weeks. She had been downloading and interpreting it on that basis.54 I have also accepted the evidence of Ms Vyas that the device continually read DB’s sugar level. 395 I have accepted the unchallenged evidence of DB that he took the photo of the screenshot Exhibit P1.55 That exhibit was tendered on that basis without objection. 396 Mr Marcus challenged the honesty of DB, by reference to that exhibit. He submitted DB withheld the graphical information from his device as it did not support his evidence he suffered a hypoglycaemic attack. 397 Mr Marcus submitted, in combination, Exhibit P1, the average sugar level of 10.7 for 2 April 2023 recorded in Exhibit P5, and the ambulance reading of a sugar level of 4.4 at about 6.15pm on 2 April 2023, supported a conclusion DB had not been hypoglycaemic at 5.50pm on 2 April 2023. 398 I do not consider DB withheld information he knew would not support the prosecution case. Nor do I consider the combination of evidence just mentioned demonstrates DB was not having a hypoglycaemic attack at 5.50pm. 399 DB accepted his device could provide a graph. He said he did not think to obtain one for 2 April 2023, when he took the photo of the screenshot, P1. 400 There is no evidence DB knew how to obtain a graph, knew what information it would contain, or that he would have understood it. DB had a poor understanding of his device and condition; he wrongly thought P1 recorded his manual scans. 401 Ms Vyas said, ‘[DB’s] literacy level was really, really low’; he could not count calories or determine correct dosages of insulin and he did not know anything about diabetes, did not manage it well, had a poor diet and guessed what food and insulin he needed.56 402 Whilst Ms Vyas knew more than DB about the device, there were also limits to her understanding about how it worked, the information it contained and the use which could be made of that information. 403 That reflects her objective which was to eliminate sugar peaks and lows and prevent the serious physical impacts of diabetes. 404 Ms Vyas agreed Exhibit P5 showed DB had on Sunday 2 April 2023, scanned his device four times. She said the screenshot Exhibit P1 reported stable 15-minute sugar level readings at the time indicated, not those scans. Ms Vyas said only daily summaries helped her and she had no regard to averages. 54 T161.13-15. 55 Exhibit P1. 56 T163; T164. -- 36 of 65 -- [2025] SADC 132 35 405 Ms Vyas explained a hypoglycaemic attack was a consequence of the sugar level of the diabetic at a point in time, not the average daily sugar level. 406 The average sugar level in P5 is not a point in time continuous reading. 407 The average for 2 April 2023 of 10.7 does not indicate DB was having or not having a hypoglycaemic attack, at any point of time. 408 I am satisfied the blood sugar level of DB of 3.8↓ going down very quickly at 12.10pm showed that he was at that time hypoglycaemic. I am satisfied his blood sugar level would have continued to decline, unless some intervention occurred. 409 The next blood sugar reading of DB in evidence was that taken by ambulance officers at about 6.15pm, of 4.4. I cannot conclude if DB’s blood sugar at that time was stable, rapidly rising or rapidly declining. 410 I do accept DB took four scans that day but there is no evidence from the device as to when they were taken or the results of those scans. 411 The device record of 3.8↓ (going rapidly down) at 12.10pm is consistent with the evidence of DB that his device had beeped around lunchtime. I have accepted his evidence about that, as it is also consistent with the evidence of Ms Vyas, DB and the accused, about how the device had worked and it makes sense. 412 DB’s evidence was he had told the accused he needed to have something to eat. That is plausible and makes sense as his blood sugar had been 3.8↓ and his device had beeped. 413 Ms Vyas and the accused both said DB knew a low blood sugar reading meant he should have something to eat.57 It is also consistent with the evidence of the accused, that DB had come inside at about that time. 414 The accused said DB had not raised any issue about his blood sugar with him at all on the Sunday. DB may have been mistaken that he had told the accused that. 415 The accused may not have heard DB say he had needed something to eat as there is force to the submission that if the accused had been aware of DB needing something to eat he would have done something about it. 416 I accept the evidence of the accused to the extent he had been unaware at that time, inside the house, DB had an issue with his diabetes. I accept his evidence he had not seen DB eat anything at all that day; that makes sense. 417 As for the submission the average in P5 enables a conclusion of DB’s blood sugar levels later that day, at 5.50pm; that does not follow considering the average on its own, or in combination with the other information relied upon. 57 T22. -- 37 of 65 -- [2025] SADC 132 36 418 An average is the total of the values recorded for a relevant period (the sum) divided by the total number of those recorded values (the sets). 419 The sum and the sets inputted into P5 to calculate the average for 2 April 2023, are not known. The recorded average does not make explicit any of the point in time levels (sets). 420 The ambulance reading does not allow determination of the sugar levels of DB during the afternoon of 2 April 2023. It is a point in time reading of 4.4 and does not indicate if the level was going up, down or is stable. 421 The defence submitted I should accept there had been liquid in a tankard, observable in tendered photographs, on the cabinet on the side of the bed occupied by DB, of the type which might raise the sugar level of DB. 422 That, submitted the defence, supported the evidence the accused son had made and given DB a drink and the low sugar level of DB had been addressed and he could not have been hypoglycaemic at the time his injuries had occurred. 423 DB said he vaguely recalled being given a drink by the accused son, as he laid in bed. DB said the accused’s family knew to give him a sugary drink. 424 The accused said sometimes DB had to be coerced to have such a drink. He said his wife had talked to DB in the bedroom after that drink had been delivered. 425 If I accept there had been drink on the bedside as described, it supports evidence the son had given DB a drink. While DB could not recall drinking anything, the accused said DB held a drink when he had been talking to his wife. 426 I accept a drink had been on the bedside cabinet. 427 No other evidence was given about what that drink was or if it was the drink the son had given to DB, or when or how it had been put there. 428 The presence of that drink and other evidence I accept, provides some support for the evidence of DB that he had a hypoglycaemic attack, had ended up in the bedroom, had lost consciousness and had no memory of being injured. 429 On Saturday 1 April 2023, DB and the accused had both said DB had gone to the accused’s house to help him fix or work on a car. I accept that and their common evidence only the accused had been home. 430 The accused said he had been addicted to methamphetamine and injected one or two points two or three times a week. I accept that evidence; DB and the accused said they were users, and Professor White opined they had used. 431 The accused said he provided the methylamphetamine for himself and DB on Saturday, 1 April 2023. I accept he supplied that drug but do not accept his evidence they had not used on the Sunday, only on the Saturday. -- 38 of 65 -- [2025] SADC 132 37 432 That evidence of drug use by the accused that weekend and before, which I have accepted, is discreditable conduct evidence. 433 I can use that evidence to consider the whole of the circumstances of this alleged offending and to provide context to what occurred and in respect of my consideration of the expert evidence of Professor White that consumption of methylamphetamine may cause aggressive behaviour. I have only used it in that way and have not used it for any other purpose. 434 I have not used it to reason simplistically that merely because the accused had done bad things in the past, he is a bad person, and therefore the sort of person who is more likely to have committed the crime with which he is charged in these proceedings. Reasoning in that way would be wrong and unfair. 435 That temporal difference- Saturday or Sunday- was said by the defence to be a significant matter going to the credit of DB. 436 I have preferred the evidence of DB about that and accept his evidence they had both consumed on Sunday. I have rejected the evidence of the accused they did not consume on the Sunday. 437 The accused said DB smoked his point on the dining room table on the Saturday, and 45 minutes or so later, he went to his bedroom and injected a point. 438 DB denied they consumed any methylamphetamine Saturday; he said they had consumed a point between them the following day. 439 Going to the impact of that drug on the accused, an expert report of Professor White was tendered and his expertise accepted.58 While I am not bound to accept his opinion, there is no reason not to do so. I accept his evidence and opinions. 440 Professor White had not been instructed as to when the accused had used methylamphetamine. He said, relevant to that, the effect of methylamphetamine usually lasted about 4-6 hours from consumption, with rebound effects following, dependent on the amount taken and way administered. 441 He said oral consumption led to a longer lasting effect. 442 There was no evidence either DB or the accused had orally consumed. 443 Professor White opined methylamphetamine metabolised or chemically broke down in the body, and its concentration declined over time. 444 On that basis he opined, if the accused used methylamphetamine intravenously as he said, his blood concentration would have fallen between the time of consumption and when his blood was collected at 12.30am on 3 April 2023. 58 Exhibit P6. -- 39 of 65 -- [2025] SADC 132 38 445 Professor White (using an average half-life of methylamphetamine of 10 hours) opined the accused’s likely methylamphetamine blood concentration as at 5.50pm on 2 April 2023, would have been 0.52mg/l.59 446 Professor White said that concentration was in the range found in experienced users and was sufficient to produce ‘significant effects’. 447 I have considered the opinion of Professor White that methylamphetamine usually lasted 4-6 hours, and the likely concentration of 0.52mg/l was ‘toward the upper end of the range commonly found in people using methylamphetamine’.60 448 Relevant to that, the accused was asked about the effect methylamphetamine on the Sunday, at about the time he had been urging DB to get out of his bed: Q. At that point in time as well, how were you feeling in respect of you consuming methamphetamine. A. Normal, like he didn't, yeah, like he was, yeah, that amount that I consumed doesn't do me, any more than make me a little bit alert, I've been doing it a very long time.61 449 The accused acknowledged the effect of that drug Sunday afternoon was a heightened alertness consistent with what Professor White opined. 450 Professor White said users experienced: feelings of energy; elevation in mood; enhanced feelings of self-confidence; increased heart rate and blood pressure; suppressed appetite; impulsive risky or reckless behaviour; self- confidence; paranoia; hallucinations; delusions; and aggression. 451 Contrary to the self-assessment of the accused, Professor White opined it did not appear a tolerance to methylamphetamine developed over time, as the effects noted seemed more common in experienced users. 452 In cross-examination, Professor White back calculated DB’s methylamphetamine concentration at 5.50pm on 2 April 2023 as 0.32mg. 453 DB said he and the accused had consumed methylamphetamine after lunchtime Sunday, within the 4-6 hours range of effect opined by Professor White. 454 The accused said he had injected more than 24 hours before that and DB had consumed his point about an hour earlier than counsel for the accused submitted. In that case, the effects of the drug on them both, would have ceased. 59 Professor White explained the half-life was 10 hours. He elaborated that was the measure of how rapidly the concentration of methylamphetamine in the blood fell after its peak, to 50% concentration. 60 Exhibit P6. 61 The reference to ‘he’ was referable to his earlier answer to a question in cross-examination that the accused said DB did not seem effected by methylamphetamine; T344.27-30. -- 40 of 65 -- [2025] SADC 132 39 455 The evidence of DB about when they consumed sits comfortably with the opinion of Professor White. 456 The evidence of the accused about when they had consumed sits uncomfortably with that opinion, for several reasons. 457 Professor White said the effect of methamphetamine usually lasted 4-6 hours, depending on the amount and method of administration. 458 The 0.52mg/l concentration calculated for the accused, at about 5.50pm on the Sunday, was in his opinion sufficient to produce ‘significant effects’. 459 The accused acknowledged the methylamphetamine he consumed affected him on the Sunday; at the time he had been trying to raise DB from the bed. 460 If the accused had consumed some 24 hours before, the effect of heightened alertness on Sunday afternoon, would have been exhausted. 461 The expert evidence is consistent with and supports the evidence of DB they had consumed methylamphetamine 4-6 hours before 5.50pm on the Saturday. 462 The expert evidence is not consistent with the evidence of the accused they had consumed a point each more than 24 hours before that. 463 I accept the evidence of DB he and the accused had consumed methylamphetamine on Sunday 2 April 2023. 464 I reject the evidence of the accused they had not consumed Sunday. 465 Mr Marcus submitted nonetheless I should accept DB had made a prior inconsistent statement about when they had used methylamphetamine. 466 I accept DB said to police in an out of court statement, ‘On Saturday night, 1 April 2023, I was around at [the accused] house helping him work on his car. Crystal and the kids were not there that night. I stayed the night and slept on the lounge, we didn’t drink alcohol or do any drugs we just worked on the car, everything was fine between [the accused] and I Saturday night’.62 467 Mr Marcus submitted DB told police they had not taken drugs that weekend. When put to DB, he said he had been referring only to Saturday. 468 I consider DB recounted they did not consume drugs Saturday, consistent with that. No inconsistency was established by proving that out of court statement. 469 Mr Marcus said an inconsistency arose as DB did not say in his out of court statement they had done drugs Sunday. That is an omission, not an inconsistency. 62 T68.33; T145. -- 41 of 65 -- [2025] SADC 132 40 470 DB explained when he told police he had taken drugs, the last thing he had been thinking about was taking drugs. He said he considered drugs nothing to do with these events.63 He said police had not asked him about taking drugs.64 471 I have considered that omission and its impact on my assessment of the honesty and reliability of DB as part of his reliability being diminished by his poor memory due to having a hypoglycaemic attack. 472 There was a further inconsistency between DB’s evidence and what he told police. DB said to police he never conflicted with the accused and had never seen him be violent. His evidence was to the opposite. 473 The defence argued since DB gave different accounts about important things at different times and gave evidence he had never read his statements when the investigating officer said he had, I should not accept his evidence of a hypoglycaemic attack, and where inconsistent with the evidence of the accused. 474 I cannot use any prior inconsistent statements I accept to demonstrate the truth of what was said to police. I must have regard to the evidence for that. 475 In assessing the evidence of DB, I have accorded some weight to the inconsistencies and omissions I accept, in assessing his honesty and reliability. I have only used those inconsistencies in that way. 476 Further, submitted the defence, there was no evidence of beeping after 12.10pm. That, said the defence, supported a reasonable hypothesis DB had not been having an attack at 5.50pm that day. 477 There was no evidence DB’s device had or had not beeped after about 12.10pm on the Sunday. The absence of any such evidence has not caused me to reasonably doubt DB was having a hypoglycaemic attack. 478 It has not caused me to doubt his blood sugar had been going rapidly down at 12.10pm or that he had displayed behaviours that afternoon, as recounted by the accused, consistent with having a hypoglycaemic attack. 479 The evidence as to whether DB continued to be hypoglycaemic and had blacked out comes from DB, the observations of the accused and the evidence of Ms Vyas about how previous hypoglycaemic attacks had affected DB. 480 The accused said he and DB had spent the Saturday tidying around the house and he could not recall any difficulty with his diabetes and said DB had not reported to him any issues on the Saturday. 63 T146. 64 T72. -- 42 of 65 -- [2025] SADC 132 41 481 The accused could not recall when they went to bed. DB said he went to bed after his nightly insulin and had slept on the couch.65 482 The accused said he slept in his marital bed and DB on the couch.66 483 As for the screenshot Exhibit P1, I accept it showed three continuous readings recorded by DB’s device on 2 April 2014.67 The first was from 12.29am; 13→. The second was from 8.06am of 13.6↑; that showed DB’s blood sugar had been increasing. 484 On Sunday 2 April 2023, DB said he woke about 9am and took a reading. 485 The CGM report (P5) said four scans had been taken that day. It makes sense DB would take a scan in the morning when he had woken. 486 DB said he recalled, consistent with his usual practice, he had injected fast- acting insulin that morning and had toast and coffee with sugar. 487 On that Sunday morning, the accused said he and DB had worked to tidy up the house; ‘whatever looks messy’. He said DB had cleaned up the driveway with the pressure cleaner found out the front of the house, starting at about 6am or 7am. 488 The accused said DB had not spoken much that morning, as he had been outside and the accused had been inside; nothing unusual. After breakfast, DB said he and the accused had worked on the car in the driveway, for about two hours. 489 He said mid-morning he and DB had shared a point of methylamphetamine. He said he had smoked his. As explained, I accept DB about when they had consumed and reject the evidence of the accused about when they had drugs. 490 Differing versions, between DB and the accused, about the work they did around the house, is of little weight. A pressure cleaner was outside, the inside was very cluttered, and items were on the floor and around the home. The accused’s idea of tidying up was to enable movement around the house. They both said DB had been there to work on a car in the driveway; the one Mr Eernden had come to work on. They regularly worked on cars. 491 I accept DB’s device had beeped at 12.10pm and had a reading of 3.8↓, going quickly down. I accept he was hypoglycaemic at that time. 492 It follows DB was at risk of continuing to be hypoglycaemic thereafter, unless his condition was addressed. The evidence supports a conclusion nothing was done until DB was given a drink by the accused’s son much later. 65 T27. 66 Exhibit P13 at [19]. 67 Exhibit P1 – Screenshot Diabetes Monitoring Device Complainant 2 April 2023. -- 43 of 65 -- [2025] SADC 132 42 493 DB could not recall if he had eaten and the accused said he did not see DB eat. I accept nothing was done until he was given a drink by the accused son later. 494 A reasonable explanation for the failure to address the hypoglycaemic attack is that the accused did not consider DB was having one. I accept he was, at 12.10pm hypoglycaemic, and nothing changed until DB was given a drink. 495 The accused said DB stopped communicating when he came inside and had later been entirely unresponsive face down on the bed. 496 That is how DB had presented before having a hypoglycaemic attack and consistent with him having a hypoglycaemic attack at 12.10pm. 497 Ms Vyas said DB would be lethargic and low in energy. The accused said low blood sugar affected DB’s cognition and behaviour. 498 DB said he could still move around but might appear drunk and he could not remember what had happened after an attack. 499 The accused said DB appeared to not remember what had happened after an attack and DB said he had no significant memory of what happened that day. 500 Mr Marcus submitted a ‘significant question’ going to whether DB had an attack that day was how he got to the bedroom, as his explanation did not stack up. 501 There is no direct evidence about how DB got to the bedroom. The accused said he went to the shower and shortly thereafter DB was on the bed. 502 I did not consider how the accused got to the bedroom a significant matter going to his credit or reliability. The only reasonable inference open is DB got to the bedroom by his own motion. It makes sense and is plausible that DB walked down to the bedroom; lethargic and low in energy, but he could still move. 503 Other evidence supports and is consistent with DB’s evidence he blacked out and remembered being in the bedroom and continued to have an attack. 504 DB had been silent that morning after coming inside. 505 The accused had not seen him eat. 506 DB was on the bed, unresponsive and face down, arms in front of his head. 507 The accused spent 20-25 minutes trying to get a response without success. 508 The accused had been ‘pretty annoyed’ with DB and ‘irate’. The accused did not think DB was having an attack, as he would sweat, have pale skin and slur. 509 Ms Vyas mentioned slurring but not sweating or pale skin. DB accepted he might seem drunk but had not mentioned sweating or paleness of skin. -- 44 of 65 -- [2025] SADC 132 43 510 The accused said DB was later responsive after his wife and son had gone into the room with a drink. The accused said DB had to be coerced at times. 511 That responsiveness, in those circumstances, was consistent with the evidence of the accused he had given DB coffee before when he was ‘having a hypo’, and it had worked to bring him round.68 512 The accused said it would ‘generally take about five to ten minutes to get in his system and slowly bring him out,69 consistent with the other evidence DB was hypoglycaemic, albeit the accused had not realised he was having an attack. 513 I accept the evidence DB had been provided a drink at that time. I accept the evidence, if given a drink of the right type, it might assist DB with recovery. 514 Both DB and the accused said it had worked before and DB remembered vaguely being given a drink. 515 The accused said after having that drink, DB had looked up at him and smiled and got into a sort of hug turning into a wrestle and play fighting. 516 I accept the accused had been upset with DB and anxious about the pending return of his wife and baby. He took time out in the lounge to collect his thoughts and suggested to his wife a drink should be made for DB. 517 The accused told Mr Eerden ‘I need to go for a drive’ and his wife, ‘okay I’m getting out of here I need some time away from this situation. You wait here, wait for [DB] to leave to make sure he’s gone’. 518 When he returned about 10-15 minutes later, the accused said DB had still been in his bedroom. The accused told him, ‘what the fuck are you still doing here?’ consistent with having earlier being irate and angry with DB. 519 The accused said DB responded by staring at him aggressively; a ‘gesture’ he had seen before when DB had gotten in a fight. He said DB had never done that to him before and he said DB also had pointed at him. 520 The accused had an unimpeded path out the door.70 The door was about 1 metre from where he stood and the front door had been very close. 68 After the coffee had been made, the accused said he overheard speaking between DB and Crystal coming from the bedroom, but not what they were saying. He said he had gotten up and saw his son was in the bedroom on his side of the bed near the window. He said Crystal was on her side of the bedroom and DB was propped up in bed with a drink in hand. 69 T315.4-24. 70 Exhibit P13; [17, 21, 45, 58]. -- 45 of 65 -- [2025] SADC 132 44 521 Having had regard to the photos of the room, the walk-through video and evidence of the accused, DB was not impeded from exiting out the bedroom door and the front door,71 even if his wife had followed him into the bedroom. 522 That evidence must be weighed and considered against the accused’s stated objective; to get out of the room. He wanted to get out the room because he felt ‘uneasy’ standing there. He thought DB was going to come at him soon and there was no way he was going to make it to the door, because DB was so fast. 523 Given what I have already found about the distance to the door and then out the house, that evidence does not make sense and is implausible. The accused could have easily exited the room, without being caught. 524 DB had been staring at him, but was on the bed, sitting, on the other side. He would have had to have stood up, come around the bed to its end, or come over the bed with the double bed and cot between them. 525 The distance between the accused and the door was about 1 to 1.5m and between the accused and DB nearly the length of the bed, and the size of the cot. 526 The unease expressed by the accused must be assessed in context. 527 DB had never been violent towards the accused before; they had enjoyed a very long friendship. Just a short time before they had been play-fighting. 528 DB had boxing skills but had never used them on the accused. 529 DB was at the home of the accused family, where he had been many times. The family of the accused were present. 530 The son and wife of the accused had just cared for DB and they were well known to each other. They all cared for each other. 531 The accused said it was the demeanour and gestures of DB, while he was on the bed, which caused him unease. He said he had seen that before when DB had challenged others in an argument or fight. 532 The accused said he responded to that unease about his friend of 20 years by telling DB ‘stop, stay back don’t even think about it’. 533 He said the demeanour of DB did not change when he said that; DB remained staring at the accused with his head tilted forward. 534 The accused said he then pointed at DB and said, ‘don’t even think about it, stay there’. DB did not move at all. 71 Exhibit P15. -- 46 of 65 -- [2025] SADC 132 45 535 The accused said he had then been aware of the handle of the sword leaning on the bed on the side closest to the door on his wife’s side. The accused said he grabbed the sword with his right hand, flicked it upright and in doing that moved half a step down the bed. He said he directed the point of the sword at the accused. The accused said he took that action to enable him to get out the door. 536 That response, in the circumstances, does not make sense. 537 There had never been violence between them before and they were best friends over 20 years. The accused thought picking up the sword and pointing it at his best friend, was the only response enough to make DB think twice about coming at him. The accused said as he pointed it at DB, he moved towards him. 538 I am satisfied the accused could still have easily exited the room at that point in time. The position of DB had not changed. His way out was unimpeded. DB had remained where he was; he had ‘stayed there’. 539 The accused said he held the sword toward DB in his right hand with a straight arm, his left pointing at DB. He said he wanted DB to see the sword. He said DB looked over his shoulder. 540 The accused did not exit out the door. I am satisfied he could still have exited the room at that point in time. The position of DB had still not changed. 541 The accused had a samurai sword in his right hand and was pointing his left at DB about 1 to 1.5 metres from the exit. The accused explained his stance toward DB as actions to make DB think twice about coming at him, reflective of his genuine belief DB would come at him. 542 DB remained where he had been and his actions had not escalated. 543 On the other hand, the accused had significantly escalated the situation; he had picked up a sword and was pointing it at DB. Next, the accused swung the sword up in a circular motion over his head and downwards. 544 The damage to the bed end caused by that act is consistent with that demonstrated act and consistent with significant force being applied.72 545 I am satisfied the accused swung the sword above his head and down; ‘one hard, bang stop’ on the bed as he said, with enough force to embed the sword into the wooden end; it got stuck.73 546 That action would have made a lot of noise; the blade stuck and had to be yanked out by the accused.74 72 Exhibit P13, [21], [22], [24],[25] and [26]. 73 Exhibit P13, [21]-[22] and [24]-[26]; T474.19-20. 74 T474.19-20. -- 47 of 65 -- [2025] SADC 132 46 547 If that swing had connected with a human being, I am satisfied it would have caused injury; given the damage to the wooden bed. Common sense and life experience tells me that action was done with considerable force and speed. 548 The photographs of the damage to the bed end show a wedge in the bed end consistent with such force and a mighty strike from the sword.75 549 That was a very dramatic escalation in the exchange between DB and the accused. DB had at that time been staring and pointing at the accused as he sat on the other side of the bed. 550 The accused provided an explanation for the violent act to the bed end; a warning. That does not make sense. DB had not moved. He had ‘stayed there’ as the accused had demanded and the accused could have still exited at that point. 551 The accused said DB looked up in response and said, ‘you’re fucked’ and had pointed at him with a straight arm’. 552 The accused took that as further threatening behaviour but DB was still on bed. The accused accepted again there was nothing preventing him from getting through the door behind. 553 The accused said DB moved toward him and DB jumped onto the middle of the bed, and in one bounce was on the same side as him. 554 The accused said he stayed where he was; about 1- 1.5m away. The accused said DB was 2m from him, on the same side within arm’s reach. 555 Given what the accused had said about his unease, the clear warning he had given and the ease with which he could still escape and his handling of the sword; it does not make sense he stood his ground. 556 The accused, on his evidence, held a sword in front and towards DB upright with both hands around the handle and with outstretched arms. 557 He said he returned to the striking pose after striking the bed end. 558 The accused said, knowing DB intimately, he had to watch out for DB’s favourite combination; a left jab and a left hook. 559 The accused said at this point, rather than escape or warn DB, he needed a samurai sword upright and in front, to defend those expected blows. 560 I accept DB had been a good boxer, winning 6 or 7 state titles and national titles. He had not fought for about 15 years and had stopped due to his diabetes. 75 Exhibit P13, [21-22]. -- 48 of 65 -- [2025] SADC 132 47 561 He continued to work out and had instructed the accused and his son about boxing technique. He was a more proficient boxer than the accused and he said if he wanted to strike the accused he would mark him. 562 The accused demonstrated how DB threw a left hook with a clenched left fist and with a bent left elbow at DB’s shoulder height from DB’s left to right and the accused’s right to left, thrown from about 1- 1.5m away, within an arm’s length. 563 The accused said he felt the upright blade of the sword he held in front go away from him to his left. He said the sword had been moved by that punch from his right to his left and he assumed DB ‘hit the sword, slapped the sword away or punched the sword away’.76 564 He demonstrated the sword moving at its tip 45-degrees across and toward his left shoulder from his stable twisted wrists consistent with the motion of a left hook hitting the sword from the accused’s right, on the side of the sword blade.77 565 DB had missed the otherwise still accused and had hit the sword held out in front. That sits uncomfortably with the accused’s expectation he would be hit by DB and DB’s assessment that if he wanted to hit the accused he would mark him. 566 It is implausible and does not make sense that DB would have missed the accused, if he had been trying to hit him, at such close quarters. The left hook accurately thrown would connect to the right side of the head of the accused. Not only had the skilled boxer DB missed the head or body of the accused from 1 to 1.5m, but he had come up an arm’s length short and had hit the upright sword. 567 The accused said he brought the sword back up and straight in front of himself to defend another expected impact from DB’s left hand. 568 The accused demonstrated how DB then threw a straight left-hand punch at him as he backed away towards the door, with his eyes closed. 569 According to the accused, that punch again missed and instead DB had hit the sword. If DB had been trying to hit the accused that second time, it was another surprising miss difficult to reconcile with the pugilistic proficiency of DB. 570 DB had been near enough that time, said the accused, that when he had hit against the doorframe hard and ‘bounced forward’, he and DB ‘both collided’. 571 The accused said he then opened his eyes and pushed DB away while still holding the sword in his right hand. He did then go to exit and as he turned around had ran right into his wife and said, ‘get out, get out’. He said they made their way outside, without any further contact with DB. 76 T369.21-24. 77 T476.31-38. -- 49 of 65 -- [2025] SADC 132 48 572 While the accused does not have to prove anything, it was submitted his evidence about their interaction should cause me to reasonably doubt the injuries to DB had been caused by the voluntary and deliberate actions of the accused. 573 The defence urged me to conclude as a reasonable possibility that the injuries suffered by DB detailed by Dr Robertson were caused by the interaction recounted by the accused having regard to how fights happen. 574 I have excluded as reasonably possibly true that DB suffered his injuries during the altercation as described by the accused and have accorded significant weight to the evidence of Dr Robertson. 575 Dr Robertson said DB had presented with: a large 20cm by 10cm cut to the front side of his left forearm;78 a large cut to the outside or pinkie side of his left hand taking up most of the left palm and which wrapped around the front and back to the middle of his left hand;79 an 8cm linear scalp laceration anterior to the top of his head through and into the thin outer layer bone of his skull; a 5cm oblique wound over his right middle third of the right clavicle through the thin muscle in the neck; a 15cm slightly curved cut to the right back/side part of his neck penetrating through the platysma and partially into the posterior border of the sternocleidomastoid (the second layer of neck muscle); his left first digit thumb tendon severed about a third of the way through; his left second digit superficial tendon severed 10% and his deep tendon severed 50% of the way through; his left third digit superficial tendon severed 50% through and a deep tendon severed wholly through; his left fourth digit superficial tendon and his deep tendon severed wholly through; his left fifth digit pinkie superficial tendon and his deep tendon severed wholly through; two cut lines below his wholly severed left fifth digit pinkie superficial tendon and deep tendon; a cut wrapping around the side of his left hand which wholly severed the extensor tendon on the back of that hand; a laceration taking a large flap of skin still attached closer to his elbow; a laceration through 90% of his muscle located on the left front or volar side of his forearm; a wholly severed left ulna nerve at the point just after his nerve split into two branches; no sensation in his left pinkie and ring finger; and a cut through the main blood supply to his left hand. 576 I accept that evidence about the nature of the injuries suffered by DB and to assist my understanding of the evidence and descriptions given by Dr Robertson had regard to photographs of those injuries.80 577 The photographs of the left hand and left arm of DB prior to and post-surgery show what Dr Robertson observed and assist an understanding of the surgery he undertook and the extensive nature of those injuries. 78 Exhibit P10. 79 Exhibit P10. 80 Exhibit P2; Exhibit P10. -- 50 of 65 -- [2025] SADC 132 49 578 I accept the evidence of Dr Robertson about that surgery. He said he had operated on DB on 3 April 2023, for 7 to 8 hours. 579 Dr Robertson reported that he: closed the scalp wound in layers with a braided suture and a clear dissolvable suture for the last layer; closed the cut over the right clavicle by using a braided small suture sewn with 3-0 vicryl and closed the skin with a soluble suture; closed the right-side neck wound with 3-0 vicryl and the right-side neck skin with non-dissolvable monofilament sutures; fixed a bone in the left fifth metacarpal with two screws; fixed the left proximal phalanx with a wire and screw; stitch down a left fourth proximal phalanx fleck of bone to the capsule at the joint; repaired the cuts to the left-hand tendons, sequentially from the thumb to pinkie, by core stitch to bring the edges together and by finer stitch to smooth the rough ends; brought together the left forearm muscle edges; and repaired the left ulna nerve. 580 There is no dispute the sword seized caused those injuries to DB and that it was owned by the accused .81 I am satisfied the sword caused all those injuries. 581 The agreed facts establish extremely strong support for the accused being a contributor to the mixed DNA profile on the handle of the sword,82 and for DB being the sole contributor to the DNA profile on the blade of the sword.83 582 I have used my common sense and life experience in assessing the force needed to cause those injuries. 583 DB had a clear memory of being at the Royal Adelaide Hospital injured: cuts to his left hand, throat, left upper back and head. He did not have those injuries at the accused house earlier that day, when he came inside. 584 Photos showed blood on the bed and throughout the bedroom.84 585 The accused said his encounter with the sword had been in the bedroom. 586 I am satisfied the injuries to DB had been caused when the accused had hold of the sword and the accused caused those injuries to DB in the bedroom. 587 The accused submitted it reasonably possibly true those injuries resulted from DB striking or pushing himself into the sword or reasonably possibly true they were caused by his acts in self-defence, as he had described them. 588 I have accepted DB and the accused had never been violent to each other before that day. That was their common evidence. 81 Exhibit P14, [5]. 82 Exhibit P14, [6]-[7]. 83 Exhibit P14, [8]. 84 Exhibit P13. -- 51 of 65 -- [2025] SADC 132 50 589 As for whether the accused knew DB to be violent, DB denied having told his friend he had been accused of assaulting his partner R, his brother, another partner A or that he had knocked someone out at a petrol station or that he had a fight with an Aboriginal man in an olive grove. 590 I accept the evidence of the accused that he knew DB could box. DB was bigger and if he tried to hit the accused would have succeeded in doing so. I accept the accused was aware DB held skills that could be used violently. 591 Mr Marcus contended the accused defended himself against a larger, stronger, heavier, more experienced fighter who behaved aggressively and in a strange way, believing DB had an aggressive temper or reputation. 592 The evidence of the accused that DB had acted aggressively prior to striking the sword on the bed, was that DB stared at him and pointed his finger at him. 593 The accused said he genuinely considered the only reasonable response to that behaviour was to pick up a samurai sword, point it at DB, swing it around and plant it into the wooded bedhead between them. 594 That evidence is implausible and it does not make sense and I have, for the reasons explained, rejected that evidence. 595 At all times during the encounter, as recounted by the accused, his ability to exit out of the room was unimpeded and open. The distance to the bedroom door was much less than the space between him and DB on opposite sides of the bed. 596 The stated objective of the accused at that time, he said, was to get out. He said though he did not have time and needed the sword to give him time. Once he had the sword in hand, the accused stayed in the bedroom. 597 I have accepted, as Professor White opined, methylamphetamine may result in aggressive behaviour. That opinion applies to both the accused and DB and must be assessed against the evidence neither DB nor the accused had been violent toward each other before while on methylamphetamine. 598 The behaviour of DB on drugs, on this occasion, as recounted by the accused, is consistent with how DB had presented previously on methylamphetamine. 599 The defence submitted I should accept the evidence of the accused about his use of the sword, to the extent it provides a reasonable doubt that his acts caused the injuries and had been voluntary and deliberate. 600 The defence submitted the accused was an honest witness and gave his evidence in a forthright and direct manner. The defence submitted in that respect the accused, ‘does not say he did not cause those injuries’.85 85 T556.3-8. -- 52 of 65 -- [2025] SADC 132 51 601 For reasons explained, I have not accepted the evidence of the accused he and DB consumed drugs only on the Saturday. That has diminished his credit. 602 The evidence of the accused about how the injuries occurred is also implausible and lacking in sense and also diminishes his honesty and his reliability. 603 The accused submitted, in respect of his version, a very real difficulty with measuring it against the injuries suffered without expert evidence to explain how those injuries could have been caused. 604 I have used my common sense and life experience to assess the evidence about those injuries and the version of events given by the accused as to the reasonable possibility he asserted. 605 While the accused does not have to prove anything, his counsel suggested his evidence about how he held the sword and the actions of DB provided a mechanism by which DB had suffered his injuries. 606 Mr Marcus submitted it was a reasonable possibility the injuries were caused by the way the accused had held his sword and the punches thrown by DB and the collision between the men. 607 As with the evidence of DB, the lack of any expert evidence about the mechanism of injury, neither enhances nor diminishes the evidence of the accused. 608 I have assessed the evidence of the accused using my common sense and life experience and having regard to other evidence I accept. 609 His evidence does not provide a reasonable explanation consistent with innocence and I reject it is reasonably possibly true, as to how the injuries occurred. 610 Having rejected the accused evidence, I have put it to one side and the question remains; has the prosecution proved the guilt of the accused. 611 As for the submission there is a very real difficulty measuring the evidence about the use of the sword absent medical evidence to explain how the injuries were caused, there is expert medical evidence about the nature of the injuries and what was needed to effect repairs. Further, there is the photographic evidence. 612 I have kept in mind the extent of the injuries must be assessed carefully, putting aside the shocking and graphic nature of those images and descriptions. 613 The extensive nature of the injuries should not be diminished though, just because they are gruesome. That they are of that nature, informs my common sense consideration of the force and actions necessary to cause them. -- 53 of 65 -- [2025] SADC 132 52 614 The accused contends by punching or pushing himself into the sword, DB caused those injuries. I have not accepted that account and have rejected it as a reasonable possibility those injuries were caused in that way. 615 Going to the honesty of the accused, Ms Linale noted his evidence that he checked the point of meth had been in his drawer was not recalled chronologically. 616 Mr Marcus when leading the accused brought him back to what he had done with the left-over methylamphetamine out of chronological order. 617 It is not uncommon for witnesses to recall events out of order and for counsel to draw them back to earlier events. 618 I noted, at the time he gave his evidence about the left-over methylamphetamine, it had been given out of order as he had to be reminded to elaborate about what he had done with the leftover meth. 619 The accused was an excitable witness. I have given the order in which he recalled that evidence little weight as he tended to rush and was prone to giving a narrative. Mr Marcus simply refocussed the accused, as counsel sometimes must. 620 As to the plausibility of the evidence given by the accused about his genuine belief he was going to be attacked by DB, Ms Linale questioned whether he had really been that fearful of a stare from a man whom he had called a brother and who had never been aggressive before towards him. 621 There is force in that submission. I have already set out why I have found that evidence of the accused to be implausible and lacking in sense and why I have rejected it as reasonably possibly true. 622 Both men said they had a very close relationship for over 20 years. Earlier, they he had been play-fighting. The accused said DB had never been violent towards him yet the accused considered he had to grab the sword to defend himself. 623 The accused always accepted he had the unimpeded opportunity to exit. Earlier that afternoon, he had walked away, sat in the loungeroom to process his thoughts, and then had gone for a drive to cool down. 624 The accused said DB had been so quick that he would never have got away. That is also implausible. He was just 1-1.5m from the door if he backed up. On the accused version, DB was sitting down on the other side of the bed. 625 The accused had by that time picked up a samurai sword, pointed it at DB and had moved towards him. He had the opportunity to easily exit out of the bedroom with the protection of the sword in front and towards DB. 626 The accused evidence was, knowing DB intimately, he had to watch out for DB’s favourite combination; a left jab and a left hook. -- 54 of 65 -- [2025] SADC 132 53 627 DB was well out of range to throw punches; from the other side of the bed. 628 The response to that unease, said the accused, was to strike the bed head very hard with a samurai sword, not exit. 629 I have rejected the evidence of the accused and his belief that he was genuinely under threat at that time. 630 As to the accused evidence about the punches he said were then thrown by DB, and that they caused the recorded injuries, I have also rejected that evidence as implausible and not making sense, for the reasons explained. 631 The accused said DB threw a left hook with a clenched fist which caused the upright sword to go away from him to his left. The motion of the sword tipping to a 45-degrees pivot, left from his twisted wrists, makes sense if DB struck the side of the blade from the accused right.86 That is consistent with the motion of a left hook. The sword was moving away in the same direction as the fist. 632 It does not make sense that motion caused the extensive injuries to the left hand or forearm of DB. They were two separate cuts as Dr Robertson said. 633 The contact, in respect of that left hook, would have been either to the side of the sword or its back, not the sharp part. 634 I do not consider the left hand of DB – to the extent of severed bones and tendons– would have been injured by contact with the side of the sword. 635 The left hook demonstrated by the accused was that the left forearm of DB had been inside the punch. The accused said DB brought the hook around from his shoulder and his forearm had faced inward, as did his clenched fist. 636 That mechanism or action does not allow contact between the inside of the forearm and the blade. Contact could only have occurred, on the accused evidence, to the back of the sword, as the sharp part of the blade had faced towards DB. 637 I consider contact with the blunt, square back of the sword could not reasonably possibly cause the cut to the front side of the left forearm of DB. 638 I reject for the reasons explained, as a reasonable possibility, a left hook as the accused described caused the 20cm by 10cm laceration to DB’s left forearm. 639 I have applied my common sense and my life experience of the composition and strength of the human body, including of its bones and tendons. 86 T476.31-38. -- 55 of 65 -- [2025] SADC 132 54 640 That cut left a 20 by 10cm flap of skin attached closer to the elbow, cut through 90% of the muscle in the forearm and wholly severed the left ulna nerve and the main blood supply to the left hand. 641 I have also applied my common sense and life experience to whether the left hook caused the separate large cut to the outside or pinkie side of DB’s left hand. 642 To repair that cut and resultant damage, Dr Robertson had been required to pin bones when he fixed those injuries as part of a surgery that took 7-8 hours. 643 He had to fix a bone in DB’s left fifth metacarpal with two screws, fix DB’s left proximal phalanx with a wire and screw and stitch down a fleck of DB’s bone in his left fourth proximal phalanx. 644 The application of common sense tells me the force necessary to cause such bone damage was greater than that described by the accused in his evidence. 645 By reference to the medical evidence and photos, taking a commonsense approach to the composition and strength of the human body and the bones and tendons of the hand, I reject as a reasonable possibility the left hook as described by the accused caused those injuries. 646 That separate cut to the left hand took up most of the left palm, wrapped around the front and back to the middle of DB’s left hand. 647 As well as requiring bones to be pinned, the cut severed the left first digit thumb tendon, severed about a third of the way through the left second digit superficial tendon and the deep tendon to 50%, severed the left third digit superficial tendon to 50% and the deep tendon wholly through, severed the left fourth digit superficial tendon and a deep tendon wholly through, and severed the left fifth digit pinkie superficial tendon and a deep tendon wholly through. 648 It also created two cut lines below the wholly severed left fifth digit pinkie superficial tendon and deep tendon and severed the whole of the extensor tendon on the back of that left hand of DB. 649 The accused said he had then brought the sword back up straight in front to defend another expected impact from DB’s left hand; the straight left thrown. 650 The accused demonstrated that straight left-hand punch thrown by DB as he had backed away and hit against the doorframe hard and ‘bounced forward’. 651 The accused said they collided chest first. It is reasonably possible that DB hit the sword and contacted with the sharp part of the blade as they collided. 652 I have considered whether, if DB had again struck the sword or if DB had collided with the sword with his chest and head, whether the hand and forearm injuries suffered by DB could have reasonable possibly been caused by those acts. -- 56 of 65 -- [2025] SADC 132 55 653 I reject as a reasonable possibility those actions caused the separate injuries to the left forearm, left hand, left neck, left clavicle, top of head and latissimus dorsi, as recounted by Dr Robertson and DB. 654 It does not make sense a sword blade held as the accused said, as he and the sword had gone backwards such that it hit his own forehead and moving away in the same direction as the straight left fist, caused any of those injuries. 655 It does not make sense the force or movement generated by the bounce forward caused any of those injuries. 656 I reject as a reasonable possibility those actions caused the laceration to the left forearm by reference to the photos of those injuries in evidence, the description of those injuries and the surgery required and my common sense and life experience as to the composition and strength of the human body. 657 I have also applied my common sense and life experience to what would be required to cause the separate large cut to the outside or pinkie side of DB’s left hand by reference to the photos in evidence, the description of those injuries, the surgery and the composition and strength of the human body. 658 For the same reasons as with the left hook, I reject as a reasonable possibility the straight left punch caused those injuries. 659 As for the cut to the latissimus dorsi, there is no scenario in which the actions of the collision or any use of the sword recounted by the accused could have caused a cut to the back of DB. There is no evidence DB had his back to the accused. 660 I reject that injury was reasonably possibly caused by the punches and collision as described by the accused. 661 The accused then said that, as he exited the room turning to his left, he still had the sword in his right hand. He said it had been tilted backwards over his shoulder but he did not report any contact had been made with DB at that time. 662 The sword was tendered. The handle is about 30cm long. The blade is about 75cm long. In total the sword is about 1m in total length. The handle is solid and heavier than the blade; the weight of the sword is in the handle. 663 As for the 8cm linear scalp laceration anterior to the top of the head that went through and into the thin outer layer of bone, there was no evidence given by the accused as to a mechanism to explain or hypothesise that injury. 664 It is of course for the prosecution to exclude as a reasonable possibility that injury occurred during the interaction with DB, as either described by the accused, or in some other way consistent with innocence. -- 57 of 65 -- [2025] SADC 132 56 665 Analysing the account of the accused that DB threw his left straight punch, the accused held the sword vertically in front as DB’s chest collided with him. 666 DB is taller than the accused. It is conceivable if DB had his head down at the time of that collision, and there had been contact between the blade and his head, some injury to DB might have occurred. 667 The accused said the sword had been pushed back, as the collision occurred. 668 I reject as a reasonable possibility the bounce back, as described by the accused, caused the cut suffered to the top of the head by DB into his skull bone. In doing so I have considered the injury, the surgery required to fix it and the strength of a human skull. 669 My common sense and life experience tells me it is not reasonably possible the collision as described caused the skull injury suffered by DB. 670 As for the injury to the neck, there was no evidence of contact to that area. The accused described, after the left hook, the tip of the sword going down 45⁰. 671 I exclude as a reasonable possibility the laceration to the neck of DB was caused by that sideways movement. There is no evidence of any contact in that area. The cut went through into the first layer of neck muscle. 672 I have applied my common sense and life experience to what would be required to cause that cut to the neck. I have done so by reference to the photos in evidence, the description of those injuries and the surgery and the composition and strength of the neck muscles of the human body. I reject as a reasonable possibility the collision, as described by the accused, caused those injuries. 673 As for as the injury to the left clavicle, there was similarly no evidence of contact to that area of DB’s body during the collision. 674 For the same reasons as with the neck injury, I exclude as a reasonable possibility the injury to the clavicle was caused by the 45⁰ sideways movement of the sword or the collision as the accused described it. 675 As for the left straight punch, the movement of the sword if struck would have been toward the accused. I exclude as a reasonable possibility that movement caused the injuries to either the neck or collarbone of DB. 676 I am satisfied, based on observations of the photos of the injuries and the evidence of Dr Robertson and the whole of the evidence, that each of the injuries to DB were caused by separate contact with the sword. 677 Having excluded the accused version of events as reasonably possibly causing those injuries, it is for the prosecution to prove they were caused by the deliberate and voluntary acts of the accused. -- 58 of 65 -- [2025] SADC 132 57 678 I am satisfied on the whole of the evidence I accept, those separate injuries were caused by separate blows or strikes of the sword in the bedroom. I am satisfied the accused voluntarily and deliberately struck those blows. 679 I have applied my common sense and life experience, having regard to the strength of human muscles and bone and tendons and the nature and extent of the injuries as described by Dr Robertson and the surgery required to fix and repair. 680 That is the only reasonable explanation given the evidence I accept about the number of, nature of, and seriousness of the injuries suffered by DB and from my assessment of the observations made of the scene. 681 I have, in respect of the cause of those injuries, excluded any other reasonable explanation, theory or hypothesis consistent with innocence. 682 I am satisfied the actions of the accused were deliberate, voluntary or reckless acts on his part, in using the sword in the confined area of the bedroom. 683 I am satisfied the accused caused serious harm to DB as the result of separate, voluntary and deliberate acts. 684 I am satisfied, as the only reasonable hypothesis or explanation from the evidence I have accepted, the accused struck DB with the sword several times to his head, his neck, his collarbone, his back, his left forearm and his left hand, with force sufficient to cause the injuries DB suffered. 685 I am satisfied the use of the sword in that way and with that force in the confined space of the bedroom was both voluntary and reckless. 686 I am satisfied of each of elements one, two, three, four, five and seven of the offence charged in this case, beyond reasonable doubt. Self- defence 687 As for the sixth element, as self-defence is enlivened the prosecution must prove the accused acted unlawfully; that is, he did not act in lawful self-defence. 688 Self-defence operates where an accused genuinely believes his conduct was necessary and reasonable to defend himself; and his conduct was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed to exist. 689 The prosecution has the onus of proof. The prosecution must show beyond reasonable doubt the accused did not act in self-defence. The accused does not have to prove self-defence. The prosecution must exclude self-defence by proving beyond reasonable doubt the accused’s conduct was not done in self-defence. 690 There are two ways to prove the accused did not act in self-defence. -- 59 of 65 -- [2025] SADC 132 58 691 First, the prosecution can establish the accused did not genuinely believe his conduct was necessary and reasonable to defend himself. 692 Second, the prosecution can establish his conduct was not, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed he faced. 693 If the prosecution does not prove either of those two pathways, I must find the accused not guilty. It is not for the accused to show he did act in self-defence. 694 The prosecution can prove the sixth element by reference to the accused’s state of mind; by showing he did not genuinely believe his conduct to be necessary and reasonable to defend himself. 695 I must look at all the circumstances, including what the accused said and did. 696 If there is a reasonable possibility he thought it reasonable and necessary to use the samurai sword to cause the injuries to DB, the prosecution has not proved the first pathway. 697 I have already rejected as a reasonable possibility the version of events given by the accused as to the cause of those injuries. 698 I am satisfied the injuries were caused by the accused by multiple blows or strikes of the sword to the head, neck, clavicle, left hand, and left forearm. 699 The accused said he picked up the sword because he wanted to get away and make DB think twice about moving on him. 700 The accused said he had sense of unease about the situation he found himself in as DB was a boxer, had a reputation for violence and was doing what he had previously done before getting in a dispute or a fight with others. 701 The accused said he picked up the sword and positioned it towards DB as a deterrent to allow him to get out of the room. 702 The accused proffered a reason for the behaviour of DB, that he had gone into his bedroom to look for the point of methylamphetamine left over from the night before. He said he checked and the bag was still there but had moved. 703 While counsel for the accused disavowed that explanation as speculation it goes to what the accused said he had thought at the time and his state of mind as to the genuineness of his belief about the threat he said he faced. 704 The accused said he considered the only option open to him, in the circumstances, was to pick up the samurai sword to enable his escape or defence. 705 As for the genuineness of threat, Mr Marcus said the size difference between them was significant and their respective skills as boxers disparate. -- 60 of 65 -- [2025] SADC 132 59 706 The accused said he thought DB was going to come at him soon; that is, the threat was imminent. He said he thought there was no way he was going to make it to the door because DB was so fast. 707 I am satisfied the accused could have exited the room, without being caught by the accused if he had come at him, at all relevant times. 708 Initially DB was on the bed, sitting and facing the window. DB would have had to have stood up, come around the bed to its end or come over the bed. The double bed and cot were between DB and the accused. At that point in time, the accused had the sword and had positioned it toward DB, between DB and his exit. 709 The distance between the accused and the door was about 1 to 1.5m and the distance between the accused and DB, was the length of the bed and the cot between them. 710 The accused had just come through the bedroom door. His way back was clear. His wife and Eerden were outside. He held the sword in front of himself between DB and the door. He could have easily exited. 711 DB had never been violent towards the accused before; they had enjoyed a very long friendship. DB had boxing skills but he never used them on the accused. 712 DB was often at the home of the accused family and the son and wife of the accused had just been caring for him, and DB cared for the accused and his family. 713 The accused did not exit and said to DB ‘stop, stay back don’t even think about it’. He said the demeanour of DB did not change as DB remained staring at him with his head tilted forward. The accused said he then pointed at DB and said, ‘don’t even think about it, stay there’ and that DB had stayed put. 714 The accused said he thought picking up the sword and taking a step closer to DB was the only response to make DB think twice about coming at him. That does not make sense and is implausible when considered in context. 715 The position of DB had not changed; he could still then have exited the room. 716 The accused could have talked to DB or called his wife in or called Eernden for help or asked any of them to call the police. 717 The accused said he had held the sword out toward DB in his right hand with his arm straight and his left arm pointing at DB. The accused said DB looked over his shoulder. His position on the bed had not changed when he did. 718 The accused did not at that point exit out the door when DB remained on the bed. The accused had the samurai sword in his right hand toward DB and was about 1 to 1.5 metres from the exit to the room. He again did not back out with the sword up. He stood his ground. -- 61 of 65 -- [2025] SADC 132 60 719 The accused then swung the sword in his two hands up and in a circular motion over the top of his head and downwards into the bed with enough force to embed it into the wooden end such that it got stuck and had to be yanked out.87 720 DB, he said, had at that time been staring and pointing at him. The accused provided an explanation for that act; a warning to DB. I am satisfied the accused could have still exited the room at that point; DB remained on the bed. 721 The accused said DB looked up and said, ‘you’re fucked’ and ‘had been pointing at him with a straight arm’. DB remained on the bed. 722 The accused accepted there was then still nothing preventing him from getting through the door behind. 723 The accused said it was after he said that when DB moved to the same side of the bed. As he did that, the accused stayed where he was; back to the door about 1- 1.5m away from an exit. 724 The accused said DB was then about 2m from him, on the same side of the bed. The accused still held the sword in front and towards DB. 725 The accused said, knowing DB intimately, he had to watch out for DB’s favourite combination; a left jab and a left hook and needed the sword upright in front to defend those blows. 726 At no point before then had DB been near enough to hit the accused. 727 In all the circumstances as I have described, I do not accept the evidence of the accused he genuinely believed DB would strike him at the time he picked up the samurai sword and when he had used it (bang) to hit the wooden bed end and that he could then have easily exited the bedroom. 728 DB and the accused had been metres apart, with a bed and cot between them. DB was staring but had never been violent towards the accused before in their very long friendship. He was not being in any way violent towards the accused then; beyond what the accused considered to be an aggressive gesture. 729 Just a short time before the accused said he and DB had been play fighting. DB was at the home of the accused as he had many times. The son and wife of the accused had just cared for DB consistent with the mutual affection they all held. 730 The accused could have easily exited out the bedroom door and outside the house as he had done when he had gone for a drive earlier. 731 This interaction had been going on for quite some time; most of the afternoon. 87 Exhibit P13, [22]. -- 62 of 65 -- [2025] SADC 132 61 732 Going to his state of mind, the accused repeatedly said he had been angry and irate at DB and that he had to take a break and get out of the house. 733 When he returned the accused had immediately said to DB ‘what the fuck are you still doing here?’ That goes to his state of mind and his earlier professed anger toward DB. 734 A short time later he picked up a samurai sword because DB’s stare had made him uneasy. Shortly after he struck the sword with a bang and hard, so it stuck in the wood end of the bed and had to be yanked out. That goes to his state of mind and continuing anger at DB. 735 The second way the prosecution can prove this element involves considering the accused’s conduct from an objective view. 736 I must decide whether his conduct was reasonably proportionate by reference to the threat the accused thought he faced and put myself in the accused’s shoes at the time, facing the situation and the threat he thought he was facing, and decide whether his actions were reasonably proportionate. 737 There are a few principles I must take account of when deciding whether his conduct was reasonably proportionate. 738 A person can use more force than faced with, but there is a limit where the force used is so much greater than the threat faced that it becomes excessive, or disproportionate. 739 A person generally cannot be expected to calmly and carefully judge how much force to use when faced with violence. 740 I must consider other options the accused had available. Could he have run away or escaped? Self-defence is not a last resort, but the availability of other options might lead to a conclusion the accused’s actions were excessive. 741 As to the sixth element, going to his state of mind and whether he was acting in self-defence, I am satisfied the prosecution has excluded the accused genuinely believed his conduct necessary and reasonable to defend himself. 742 In all the circumstances, I do not consider the accused genuinely believed his conduct in picking up the sword was necessary and reasonable to defend himself. 743 The prosecution has also excluded the conduct of the accused was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat he genuinely believed to exist. 744 I have relied on the nature of the injuries caused by separate strikes or blows and have rejected the submission of the defence that more than one blow was required, as DB had been able to move into the hallway. -- 63 of 65 -- [2025] SADC 132 62 745 I consider his conduct in striking multiple blows or strikes to cause the injuries to not be reasonably proportionate. The accused struck DB multiple times to cause separate cuts to his head, left hand, left forearm, neck, clavicle and back. 746 The accused said the threat he believed he faced was of being struck by DB with his favourite punch combination. 747 I consider the force used by the accused was disproportionate to that threat of being struck with a fist and was so much greater than that threat. 748 The force used was excessive or disproportionate. 749 As I have also found, the accused could have escaped. Criminal Law Consolidation Act 1935 (SA)- s15C 750 I have been satisfied the prosecution has excluded that the accused genuinely believed the conduct to which this charge relates was necessary and reasonable for a defensive purpose. 751 Consequently, s 15C is not enlivened and it is not necessary, given my findings about self-defence, for me to determine the matters raised by the parties.88 752 The accused submitted he had established he genuinely believed DB to be committing a home invasion, that he was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat and that his mental faculties were not substantially affected by the voluntary and non-therapeutic consumption of a drug. 753 The prosecution submitted the accused had not established that defence. 754 First, because the accused had not ‘genuinely believed [DB] was committing a home invasion’.89 755 Home invasion means a serious criminal trespass in a place of residence.90 756 That offence has several elements: (1) that DB entered a private place being a place not open to the public; (2) the private place was a place of residence; (3) DB entered or remained in the private place as a trespasser; (4) DB knew he was a trespasser or was reckless as to whether he was a trespasser; and (5) DB entered or remained in the private place intending to commit a specified offence. 757 Second, the prosecution says 15C does not apply as the accused had engaged in ‘criminal misconduct that might have given rise to the perceived threat’.91 88 Criminal Law Consolidation Act 1935 (SA), s 15c(2)(a). 89 Ibid. 90 Ibid, Part 6A. 91 Ibid, s 15c(2)(b). -- 64 of 65 -- [2025] SADC 132 63 758 The prosecution says the accused supplied or was in possession of methylamphetamine. 759 Third, the prosecution says the accused mental faculties at the time of the incident had been ‘substantially affected by the voluntary consumption of [methylamphetamine]’.92 760 In respect of each of those issues, Mr Marcus elaborated contrary arguments which it is not necessary for me to consider. Verdict 761 For those reasons above, I find the accused guilty. 92 Ibid, s 15c(2)(c). -- 65 of 65 --