[2024] SASC 58

Prosecution: R Counsel: MR J PEARCE KC WITH MS A ZIMMERMANN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: TOBIAS STEFAN SAHLSTORFER Counsel: MR W BOUCAUT KC WITH MR B ARMSTRONG - Solicitor: WOODS & CO LAWYERS Hearing Date/s: 13/11/2023 to 17/11/2023, 05/12/2023 to 08/12/2023, 12/12/2023 File No/s: SCCRM-20-40 B SUPREME 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 SAHLSTORFER (No 2) Criminal Trial by Judge Alone [2024] SASC 58 Reasons for the Verdict of the Honourable Justice Stein 19 April 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE On 30 January 2017, Mr Boyce was chased, detained and beaten by three men and later died from his injuries. The accused was charged with the murder of Mr Boyce contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The prosecution case relied on circumstantial evidence. Held. 1. The accused is guilty of murder Criminal Law Consolidation Act 1935 (SA) s 11, referred to. De Gruchy v R (2002) 211 CLR 85; Plomp v R (1963) 110 CLR 234; Ryan v The Queen (1967) 121 CLR 205; Royall v The Queen (1991) 172 CLR 378; R v McDonald (2015) 123 SASR 313; Kural v The Queen (1987) 162 CLR 502; Peacock v The King (1911) 13 CLR 619; R v Baden-Clay (2016) 258 CLR 308; R v Perks (1986) 41 SASR 335; R v PL (2009) 261 ALR 365; R v Moffatt (2000) 112 A Crim R 201; R v Gardiner [2015] SASCFC 107; McAuliffe v The Queen (1995) 183 CLR 108; Mitchell v The King (2023) 276 CLR 299; Likiardopoulos v The Queen (2012) 247 CLR 265; Miller v The Queen (2016) 259 CLR 380; R v Polanski [2005] SASC 361; Barca v The Queen (1975) 133 CLR 82; Dent v The King [2024] SASCA 12; Shepherd v The Queen (1990) 170 CLR 573; R v Singh -- 1 of 129 -- [2019] SASCFC 51; R v Tartaglia (2011) 110 SASR 378; Nasaris v The Queen [2021] SASCA 143; R v Quist (2017) 127 SASR 471; Brooks v The Queen (2012) 36 VR 84, considered. -- 2 of 129 -- R v SAHLSTORFER (No 2) [2024] SASC 58 Criminal: Trial by Judge alone STEIN J. 1 On 30 January 2017, Mr Mark Boyce was attacked by three men. The attack involved a series of punches and kicks delivered in a period of about 30 seconds. Mr Boyce was found unconscious shortly after the attack and was taken by ambulance to hospital. He did not regain consciousness and died on 8 February 2017. 2 The attack was captured on very poor quality closed circuit television (“CCTV”) footage. The footage of the incident showed Mr Boyce running down the road pursued by a man who caught up with him. A small dark car and a larger light car pulled up alongside them. The driver of the small dark car got out of the vehicle and inflicted a series of blows on Mr Boyce. The driver of the other car and the man who had pursued Mr Boyce on foot joined in the attack. 3 Mr Sahlstorfer was charged with the murder of Mr Boyce pursuant to s 11 of the Criminal Law Consolidation Act SA (1935). 4 For the reasons below, I have concluded the prosecution has established beyond reasonable doubt that Mr Sahlstorfer was guilty of the murder of Mr Boyce. Brief outline of the prosecution case 5 I set out below a high level summary of the prosecution case to assist in understanding the evidence. 6 In general terms, the prosecution case was that on 30 January 2017, three men (Mr Sahlstorfer, Mr Grant and Mr E1) were looking for Mr Perkins, a friend of Mr Boyce. Prosecution alleged that Mr Sahlstorfer, Mr E and Mr Grant knew each other through a mutual association with the Hells Angels outlaw motorcycle club. 7 In the evening of 30 January 2017, Mr Perkins was initially at Mr Robbie Thaller’s house, and he later moved to Mr Boyce’s house which was located in the same street. Through Mr Thaller, Mr Perkins had arranged to get a lift with Mr Christopher Wheatley. Mr Perkins was to be collected from Mr Boyce’s house. At around the time Mr Wheatley arrived to collect Mr Perkins from Mr Boyce’s house, two vehicles, a small dark vehicle followed by a larger light coloured SUV, were driven past Mr Boyce’s house three times. On the prosecution case, the first 1 Mr E’s name is suppressed. -- 3 of 129 -- [2024] SASC 58 Stein J 2 of the two cars was a Toyota Echo driven by Mr Sahlstorfer with Mr Joshua Grant in the front passenger seat, followed by a silver Toyota RAV4 driven by Mr E. 8 On the fourth occasion, as the two vehicles approached Mr Boyce’s house, Mr Boyce was standing alongside Mr Wheatley’s car speaking with Mr Wheatley. For reasons which will be explained below, at this time, Mr Perkins was on the roof of Mr Boyce’s house. 9 Two of the men got out of the small dark car. Following a verbal exchange, Mr Boyce ran down the street. He was pursued by the passenger of the small dark car who caught up with Mr Boyce further down the street, overpowered and restrained him. The two other men drove their cars down to where Mr Boyce was being held. The two men got out of their cars and went over to where Mr Boyce was being held. The driver of the small dark car immediately attacked Mr Boyce and the other two men joined in what prosecution described as a short and brutal incident in which Mr Boyce was repeatedly punched and kicked. The three men then got back into the cars and drove away. 10 The attack left Mr Boyce with severe head injuries which were ultimately fatal. The subsequent post-mortem examination revealed the cause of death was blunt force trauma to the head. 11 The prosecution contended that when Mr Boyce walked out to the car, he walked into an ambush, the intended target of which was Mr Perkins. 12 The prosecution case relied in part on evidence given by Mr Perkins, now deceased, at a previous trial regarding the events leading to Mr Boyce’s death. 13 The prosecution case also relied in part on the CCTV footage and mobile telephone records which were alleged to show relevant contact between telephones subscribed in the name of, or used by, individuals involved in the incident. Data was said, among other things, to place Mr Sahlstorfer’s mobile phone in the vicinity of the street at the time of the attack and to show Mr Sahlstorfer’s mobile phone made a call to Mr Wheatley at the time Mr Wheatley was waiting in front of Mr Boyce’s house to collect Mr Perkins. 14 Prosecution also relied on evidence said to connect Mr Sahlstorfer with the small dark car and Mr E with the large light car in the CCTV footage and to establish Mr Grant as the passenger in the small dark car. 15 Prosecution alleged that Mr Sahlstorfer is guilty of murder on the basis of joint enterprise or, alternatively, on the basis of extended joint enterprise. Brief outline of the defence case 16 Mr Sahlstorfer’s predominant defences related to identity and intention. Mr Sahlstorfer disputed that the evidence established beyond reasonable doubt that -- 4 of 129 -- [2024] SASC 58 Stein J 3 he was the driver of the small dark car and involved in the attack or the intention was to cause grievous bodily harm to Mr Boyce. Trial by judge alone 17 Mr Sahlstorfer elected for a trial by judge alone pursuant to s 7(1) of the Juries Act 1927 (SA). Legal directions Burden of proof 18 Mr Sahlstorfer is presumed to be innocent. The prosecution bears the onus of proving each element of the offence beyond reasonable doubt. A reasonable doubt is one I am prepared to entertain after hearing all of the evidence. Mr Sahlstorfer does not have to prove anything. Right to silence 19 Mr Sahlstorfer was not obliged to give evidence and he chose not to give evidence. I must not draw any inference adverse to him or the case his counsel put forward from the exercise of his right to remain silent. I must not, and have not, speculated on the reasons why he did not give evidence. Expert evidence 20 Prosecution relied on a number of expert witnesses. I must consider the evidence of the expert witnesses together with the evidence of all other witnesses. I must determine what of their evidence I accept, what weight is to be attached to that evidence and any inferences that arise from the evidence. In assessing the evidence of an expert witness, relevant factors for my consideration include the qualifications of the witness, the extent to which their evidence accords with other evidence and their impartiality. I am entitled to accept or reject their evidence in whole or in part in the same manner as any other witness. View 21 After the prosecution opening, a view was conducted of Hill Street. The view does not constitute evidence and was conducted for the purpose only of assisting me to understand the evidence subsequently called. Exhibits and aide memoires 22 The exhibits included CCTV footage and photographs. I was provided with a number of aide memoires including a summary of processed CCTV files,2 CCTV footage timeline,3 and a summary of phone call details.4 Those documents are not evidence and were provided only as aide memoires for the purposes of assisting 2 Exhibit P6. 3 Exhibit P54. 4 Marked for identification (“MFI”) D91. -- 5 of 129 -- [2024] SASC 58 Stein J 4 me. I have relied only upon my assessment of the CCTV footage, processed footage and telephone records. Discreditable conduct 23 Mr Sahlstorfer is a member of the Hells Angels Motorcycle Club. Evidence about his membership was led by prosecution as relevant to a number of matters, including his association with Mr Grant and Mr E, the close relationship between the address of a Hells Angels Motorcycle Club clubroom and the address on a phone said to be that of Mr Sahlstorfer and the discovery of a Toyota Echo buried at Ponde (a property used by the Hells Angels Motorcycle Club). I address separately below in my reasons the permissible purposes for which I may use the evidence. I must not use the evidence to reason that because Mr Sahlstorfer is a member of the Hells Angels, he is the sort of person who is more likely to have committed the charged offence. I have not used any of the evidence for such an impermissible purpose. Motive 24 Motive is not an element of the offence and the prosecution does not have to prove motive.5 However, the absence of any motive is a circumstance that can favour an accused.6 Section 34KA 25 I admitted the transcript of evidence given by Mr Perkins, now deceased, pursuant to the provisions of s 34KA of the Evidence Act 1929 (SA) (“Evidence Act”). 26 The evidence was given by Mr Perkins during the trial of Mr Grant for the murder of Mr Boyce. 27 The admission of the evidence of Mr Perkins in circumstances in which defence cannot cross-examine him results in forensic disadvantage. I have taken into account the inability to cross-examine in assessing the reliability and credibility of the evidence of Mr Perkins. It would be improper for me to take into account the outcome of the trial of Mr Grant in which Mr Perkins gave evidence and I have put aside my knowledge of that outcome. Agreed facts 28 Pursuant to the provisions of the Evidence Act, the parties agreed 51 facts which are set out below in these reasons. 5 De Gruchy v R [2002] HCA 33 at [32]; (2002) 211 CLR 85 at 93-4 (Gaudron, McHugh and Hayne JJ). 6 De Gruchy v R [2002] HCA 33 at [28]; (2002) 211 CLR 85 at 92-3 (Gaudron, McHugh and Hayne JJ), quoting Plomp v R [1963] HCA 44 at [6]; (1963) 110 CLR 234 at 250 (Menzies J). -- 6 of 129 -- [2024] SASC 58 Stein J 5 Elements of the offence of murder 29 A person commits murder if that person causes the death of another person, deliberately and unlawfully, while intending to cause death or grievous bodily harm. 30 In order for an accused to be found guilty of the charge, the prosecution must prove beyond reasonable doubt each of the following elements of the offence: 1. the act or acts of the accused were a substantial cause of the death of the victim; 2. the act or acts of the accused were voluntary and deliberate, that is, they were the result of the exercise of the accused’s will; 3. the act or acts of the accused which caused death were done with the intention to kill or cause grievous bodily harm to the victim. The intention must exist at the time of the act or acts which caused the death of the victim; 4. no lawful excuse or defence applied to the killing. Intention 31 In order to prove specific intention, the prosecution must adduce evidence of circumstances sufficient to allow the inference beyond reasonable doubt that the accused had the requisite intention at the time of performing the acts which were the substantial cause of the victim’s death.7 32 The state of mind of a person is a fact which can be inferred from what a person does and says.8 The intention with which a person did something may be inferred, including from the person’s actions at the relevant time.9 An inference must rest on something more than mere conjecture to be reasonable.10 33 The requisite intention for the offence of murder is the intention to kill or cause grievous bodily harm. Grievous bodily harm generally does not require explanation, but, if explained, means really serious bodily harm.11 7 Ryan v The Queen [1967] HCA 2 at [25]-[27]; (1967) 121 CLR 205 at 217-218 (Barwick CJ); Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 393 (Mason CJ), 401 (Brennan J), 414 (Deane and Dawson JJ), 426 (Toohey and Gaudron JJ), 458 (McHugh J); R v McDonald [2015] SASCFC 99; (2015) 123 SASR 313 at [29] (Kourakis CJ). 8 Kural v The Queen [1987] HCA 16 at [2]; (1987) 162 CLR 502 at 504 (Mason CJ, Deane and Dawson JJ). 9 Kural v The Queen [1987] HCA 16 at [2]; (1987) 162 CLR 502 at 504 (Mason CJ, Deane and Dawson JJ). 10 Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 661 (O’Connor J); R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ). 11 R v Perks (1986) 41 SASR 335 at 337 (King CJ), 345-348 (White J; O’Loughlin J agreeing). -- 7 of 129 -- [2024] SASC 58 Stein J 6 Causation 34 The prosecution must prove that the acts relied on as causing death were a substantial or significant cause of death.12 The question of causation is to be determined as a matter of common sense, recognising that the purpose of the inquiry is to attribute legal responsibility in a criminal action.13 It is not necessary for the prosecution to identify a precise act which causes death in order to prove murder or manslaughter. This includes cases in which the accused committed a series of acts in which the fatal blow cannot be identified.14 Joint enterprise 35 A joint criminal enterprise exists where two or more people enter into an agreement to carry out acts involving the commission of a crime. If the offence is committed while that agreement remains on foot, all those participating are guilty, regardless of the particular role each played.15 36 The elements of liability under the doctrine of joint criminal enterprise are:16 1. the accused entered into an agreement with one or more other people to commit the offence; 2. the accused participated in the joint agreement; 3. while the agreement was on foot, one or more of the parties to the agreement did the acts necessary to commit the offence; and 4. the accused had the state of mind necessary to commit the charged offence. 37 The agreement does not need to be express and may be inferred from the conduct of the persons involved.17 The relevant understanding or agreement can be formed immediately before the commission of the relevant acts.18 12 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 398 (Brennan J), 411 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ). 13 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 387 (Mason CJ), 411-2 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ), 441 (McHugh J), citing Campbell v The Queen [1981] WAR 286 at 290 (Burt CJ). 14 R v PL [2009] NSWCCA 256; (2009) 261 ALR 365 at [46]-[50] (Spigelman CJ); R v Moffatt [2000] NSWCCA 174 at [26], [61], [66]; (2000) 112 A Crim R 201 at [26], [61], [66] (Woods CJ). See, eg, R v Gardiner [2015] SASCFC 107, in which cause of death was blunt head, chest and abdominal trauma but death from a particular cause could not be ascribed. 15 McAuliffe v The Queen [1995] HCA 37 at [12]; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Mitchell v The King [2023] HCA 11; (2023) 276 CLR 299 at [13]- [14] (Kiefel CJ) and [54]-[55] (Gordon, Edelman and Steward JJ). 16 Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 at [19] (French CJ); Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). 17 Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); McAuliffe v The Queen [1995] HCA 37 at [12]; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ). 18 R v Polanski [2005] SASC 361 at [24] (Nyland J). -- 8 of 129 -- [2024] SASC 58 Stein J 7 Circumstantial evidence 38 The prosecution case against Mr Sahlstorfer is circumstantial. 39 When the case against an accused is based substantially upon circumstantial evidence, the trier of fact cannot return a verdict of guilty unless the circumstances are inconsistent with any reasonable hypothesis other than the guilt of the accused.19 It is necessary not only that the accused’s guilt should be a rational inference but that it should be “the only rationale inference that the circumstances would enable [the fact finder] to draw…”.20 40 The force of circumstantial evidence lies in the combined strength of different items of evidence which together become increasingly persuasive.21 In Plomp v The Queen (“Plomp”), Dixon CJ, quoting Martin v Osborne, said:22 If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. 41 An inference must be based on more than mere conjecture to be reasonable.23 The trier of fact should not engage in tortuous reasoning or stretch credulity to explain each individual circumstance as being consistent with innocence.24 42 In considering a circumstantial evidence case, the evidence is not to be considered piecemeal. There may be evidence which, considered in isolation, is consistent with an inference of innocence. However, all of the circumstances established by the evidence must be considered and weighed in determining whether there is reasonably open on the evidence an inference which is consistent with innocence.25 19 Barca v The Queen [1975] HCA 42 at [11]; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ); Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634 (Griffith CJ). 20 Plomp v The Queen (1963) 110 CLR 234 at 252 (Menzies J). 21 Dent v The King [2024] SASCA 12 at [34] (Livesey P and Lovell JA, Nicholson AJA agreeing). 22 Plomp v The Queen (1963) 110 CLR 234 at 243 (Dixon CJ), quoting Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 (Dixon J; Latham CJ agreeing). 23 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Dent v The King [2024] SASCA 12 at [38] (Livesey P and Lovell JA; Nicholson AJA agreeing). 24 Dent v The King [2024] SASCA 12 at [38] (Livesey P and Lovell JA, Nicholson AJA agreeing). 25 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Dent v The King [2024] SASCA 12 at [39] (Livesey P and Lovell JA; Nicholson AJA agreeing). -- 9 of 129 -- [2024] SASC 58 Stein J 8 43 Resolution of the case depends upon assessment of all the evidence which includes any inferences, explanations, and submissions put forward on behalf of the accused.26 44 Mr Sahlstorfer is not to be found guilty of murder unless the circumstances, as established by all of the evidence, exclude any reasonable explanation consistent with innocence. If on all of the evidence there remains any rational inference consistent with Mr Sahlstorfer’s innocence, he must be acquitted. 45 I must first consider the evidence and decide which facts I accept are established. Having done so, I must consider what inferences can be drawn from those established facts. Shepherd principles 46 I must determine whether I accept the submission by counsel for Mr Sahlstorfer that this is a case in which the principles in Shepherd v The Queen27 (“Shepherd”) apply. Counsel submitted that this is a Shepherd case and thus that proof that the small dark vehicle seen in the CCTV footage is Mr Sahlstorfer’s Toyota Echo is a critical link in the chain, rather than a strand in a rope (using commonly referred to metaphors), requiring proof beyond reasonable doubt. 47 The requirement to meet the burden of proving all elements of the offence beyond reasonable doubt does not mean that every fact and every piece of evidence relied upon to prove an element by inference must be proved beyond reasonable doubt. In Shepherd, the High Court concluded that it is not the case that in a matter based on circumstantial evidence a jury may only properly draw an inference of guilt upon individual items of evidence all proved beyond reasonable doubt. However, if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt.28 That is the case whether the intermediate fact is a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence.29 48 Justice Dawson stated:30 On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp 412-414 – the evidence 26 Dent v The King [2024] SASCA 12 at [41] (Livesey P and Lovell JA; Nicholson AJA agreeing). 27 [1990] HCA 56; (1990) 170 CLR 573. 28 Shepherd v The Queen [1990] HCA 56 at [14]-[15]; (1990) 170 CLR 573 at 585 (Dawson J) (with whom Gaudron and Toohey JJ each concurred). 29 Shepherd v The Queen [1990] HCA 56 at [8]; (1990) 170 CLR 573 at 581 (Dawson J). 30 Shepherd v The Queen [1990] HCA 56 at [5]; (1990) 170 CLR 573 at 579 (Dawson J). -- 10 of 129 -- [2024] SASC 58 Stein J 9 consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. 49 In R v Singh (“Singh”),31 this Court considered whether a certain fact was an indispensable link in the chain of reasoning leading to conviction. Justice Doyle (with whom Peek and Parker JJ agreed) explained the process of considering a Shepherd direction and determining whether a fact is an indispensable intermediate fact. 50 Justice Doyle said an indispensable intermediate fact is a fact which, in the context of the case, is an indispensable step in the process of reasoning towards an inference of guilt. In such a case, the jury must find that fact proved beyond reasonable doubt before acting on it. Justice Doyle continued to say:32 In determining whether, in a particular circumstantial case, a Shepherd direction is appropriate, it will be necessary to consider the role and significance of the particular evidence or fact in respect of which the direction is said to be appropriate. If, by reason of either the inherent role or significance of that evidence or fact in the case, or in light of the way in which the case has been conducted, it forms an indispensable link in the chain of reasoning towards the defendant’s guilt, then such a direction may be appropriate. An item of evidence or fact is more likely to be characterised in this way in a case involving a small number of circumstantial facts. As McHugh J said in Shepherd v The Queen: Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances – often numerous – which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance. In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied upon to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilty beyond reasonable doubt. 51 In R v Tartaglia (“Tartaglia”),33 Sulan J (with whose reasons Peek J relevantly agreed) suggested that an item of circumstantial evidence may be considered an indispensable link in the chain of reasoning (thus warranting a Shepherd direction) where there are facts which, if not established despite other items of circumstantial evidence, would result in the Crown case collapsing.34 52 In Singh, Doyle J noted that the Court is generally reticent to isolate particular items of circumstantial evidence to be the subject of a Shepherd direction.35 31 [2019] SASCFC 51. 32 R v Singh [2019] SASCFC 51 at [89]-[90] (Doyle J; Peek and Parker JJ agreeing). 33 [2011] SASCFC 88; (2011) 110 SASR 378. 34 R v Tartaglia [2011] SASCFC 88; (2011) 110 SASR 378 at [10] (Sulan J; Peek J agreeing). 35 R v Singh [2019] SASCFC 51 at [101], [102] (Doyle J; Peek and Parker JJ agreeing). The Court of Appeal referred to the analysis by Doyle J of the authorities concerning the circumstances in which it -- 11 of 129 -- [2024] SASC 58 Stein J 10 53 In order to determine whether or not this is a Shepherd case, it is necessary for me to consider the circumstantial evidence in the context of the prosecution case. I return to consider the applicability or otherwise of Shepherd below. Location 54 Hill Street, Elizabeth South runs in an approximately north-south direction. At its northern end it intersects with Fairfield Road and at its southern end with Thompson Street. Number 11B Hill Street, where Mr Boyce lived, is located on the eastern side of Hill Street towards the northern end of Hill Street. Number 20 Hill Street, where Mr Thaller lived, is on the western side towards the southern end of Hill Street. Number 11B Hill Street can be seen from number 20. 55 The unit at 11B Hill Street sits between 11A and 11C and the three dwellings are adjoined. The unit runs in an approximately east-west direction. The front door is on the street side. A hallway runs down the length of the unit with the family room at the rear of the unit. Sliding doors from the hallway open to a courtyard on the southern side of the dwelling closest to 11C.36 Events of the evening according to witnesses Mr Perkins 56 Mr Perkins was present in Hill Street on 30 January 2017 and observed and heard the two vehicles, heard the driver speak and witnessed Mr Boyce running down the street. As Mr Perkins’ evidence sets out some relevant context and background to other evidence, I commence with a summary of the transcript of his evidence.37 57 Mr Perkins knew Mr Boyce and had known him since he was 14 years old. In January 2017, Mr Boyce was living at 11B Hill Street, Elizabeth South. In 2016, Mr Perkins was released from prison on parole conditions. He had failed to comply with those conditions and was aware that a warrant had been issued for his arrest. Mr Perkins was on the run, spending time all over the place and at houses in Hill Street, was attempting to avoid police attention and avoiding other people because he had behaved in a way which might have resulted in him making enemies. After being released on parole, Mr Perkins went to “Robbie’s house” (Mr Thaller’s house) with people he knew. Mr Thaller’s “missus”, Ms Erin Bourke, who was pregnant at the time, was at Mr Thaller’s house. Mr Perkins told Mr Thaller he was on the run and Mr Thaller said he was welcome to stay there. During about a month until the incident when Mr Boyce died, Mr Perkins spent approximately a quarter of his time at Mr Thaller’s house, predominately in the garage. may be necessary to give a Shepherd direction in Nasaris v The Queen [2021] SASCA 143 at [37] (Livesey P, Doyle and David JJA). In that case the Court of Appeal concluded a Shepherd direction was not required. 36 Exhibit P8 37 Exhibit P55. -- 12 of 129 -- [2024] SASC 58 Stein J 11 58 Mr Perkins knew Mr Grant and saw him at Mr Thaller’s house on an occasion during the daytime. Mr Perkins was in the garage and it was possible to see who was coming up and down the driveway on the CCTV screen. He saw Mr Grant arrive at the house in a little, blue car which parked on the same side of the road as Mr Thaller’s house. Mr Grant then got out of the car and Mr Thaller met him at the end of the driveway. Mr Perkins also knew a man by the name of Toby Sahlstorfer. He saw him at 20 Hill Street on the CCTV screen when he arrived in a Range Rover about a fortnight before Mr Boyce’s death. Mr Perkins said there was a conversation between Mr Thaller, Mr Sahlstorfer and the driver of the vehicle. Mr Thaller left with Mr Sahlstorfer in the car for perhaps 20 minutes. 59 On 30 January 2017, Mr Perkins went to Mr Thaller’s house in the evening by car, arriving when it was still daylight. Mr Perkins wanted to go see someone else at a different area and tried to arrange a lift. Two women, Ms Erin Withers and Ms Brooke Surman, agreed to give him a lift. However, when they tried to get there to collect Mr Perkins, they were pulled over by police. Mr Perkins could see the flashing lights on the CCTV screen. As he was on the run, he panicked and got someone at Mr Thaller’s house to go out the front to see who it was. The person described the car and Mr Perkins knew it was the car the two girls had come to get him in. Mr Perkins thought one of them might give up his location so he decided to move on. He asked Mr Thaller to organise him a lift. Mr Thaller agreed and told him one of his mates, Mr Wheatley, would come and get him. Mr Perkins knew Mr Wheatley from being at the house. 60 Mr Perkins did not want to hang around at Mr Thaller’s house knowing the police were close by. He left to go to Mr Boyce’s house. He did not want to take his backpack to Mr Boyce’s in case he needed to run from the police. Mr Thaller said he would organise for Mr Wheatley to come by and grab the bag so it would be in the car when Mr Wheatley came to get Mr Perkins at Mr Boyce’s house. Mr Perkins left the bag and ran or jogged up the road to 11B Hill Street; it was dark when he arrived. Mr Boyce was inside 11B Hill Street with some of his friends, all called Matthew. Mr Perkins knew two of them by the nicknames “Fat Matt” and “Superman”. Mr Perkins went into the lounge room at the back of the house with the other Matts and at some point asked if Mr Boyce would go with him. Mr Boyce said he was happy to go with Mr Perkins. At the time of the discussion, Mr Boyce was wearing a black T-shirt. 61 Mr Perkins described the layout of the house and said he had a ladder in the little courtyard area so he could run up, go on the roof and over the back fence. Mr Perkins said he and Mr Boyce organised the ladder for that reason. 62 Sometime later, Mr Perkins become aware that his lift had arrived by telephone or a message from Mr Thaller and went out the front to ask the driver of the car if Mr Boyce could come with him. Mr Wheatley was in the driver’s seat of a dark green VF Commodore parked out the front of 11B Hill Street on the wrong side of the road, facing towards Fairfield Road. Mr Perkins spoke to -- 13 of 129 -- [2024] SASC 58 Stein J 12 Mr Wheatley through the window and asked if it was alright if Mr Boyce could come to which the driver responded “yeah, tell him to hurry up”.38 63 At that point, Mr Perkins saw two cars travelling south from Fairfield Road. He noticed the headlights and said they were not travelling fast. The one in the front was “littler” than the one behind and had a faded roof. Mr Perkins described the exhaust as having a different sound which made him think it was a sports exhaust. The smaller car was a “bluey” colour and the car behind was larger “like a RAV4 or something” and a darker “champagney” colour. He could not see if anyone was in the car because of the headlights. Mr Perkins walked back to the house and closed the door, leaving it slightly open. He looked out and saw the little car in front had stopped at the back of Mr Wheatley’s car adjacent to the boot and the driver was leaning forward over the passenger seat, looking at the door to the house. There were two people in the smaller car. He could not see who was in the other car. 64 Mr Perkins went up the hallway and into the kitchen and looked for something to protect himself as he was worried he might have to defend himself. Mr Boyce asked him what was going on and he said it was something out the front. Mr Boyce told him to relax and that he would go out there and Mr Perkins told Mr Boyce not to go outside. Mr Perkins said he was going onto the roof and used the ladder to do so. Mr Boyce was at the sliding door and assisted Mr Perkins by putting his foot on the ladder. Mr Boyce asked Mr Perkins what he was doing and he responded that something was going on out the front and he wanted to have a look at what it was and where they had gone. Mr Perkins got onto the roof and saw Mr Boyce walking back in through the sliding door, into the hallway. 65 Mr Perkins described where he was located on the roof by reference to a photograph. When he got up on the roof he came back over the verandah, over the angled part around to where the angle started coming down the coping of the roof; once he got to that position on the roof, he could see Mr Wheatley’s car in the same position with the lights on and Mr Wheatley inside. 66 Mr Perkins said when he went up to the roof, he heard “where the fuck’s Sam?” spoken three times. Mr Perkins moved to the front of the point of the roof and saw Mr Boyce out the front on the passenger side of Mr Wheatley’s car on the roadside. He could see the two cars stopped, the little car had moved a bit past Mr Wheatley’s car and was in front and the larger one was perhaps 10 metres behind. Mr Perkins saw two people get out of the smaller car and one out of the larger car, the driver door of the larger car was open and the driver had one leg in the car and his right leg on the ground. After he heard “where the fuck’s Sam?” spoken by the driver of the little car, Mr Perkins described the passenger as being in a “bridging” motion, standing with his chest puffed out, and his body language appeared as “ready to attack”. The man who got out the driver’s side of the car said the words in an aggressive tone, and when asked whether the words were said 38 Exhibit P55 at T453.19-453.20. -- 14 of 129 -- [2024] SASC 58 Stein J 13 with any kind of accent, the answer was “yeah, a bit of an accent. It wasn’t Aussie, you know what I mean, yeah”. Mr Boyce said “I haven’t seen him” or “he’s not here” or words to that effect and then Mr Boyce ran around the front of Mr Wheatley’s car, putting his hand on the bonnet to get around the car quicker as he had thongs on. Once he came around the driver’s side of Mr Wheatley’s car, he passed the back passenger door and boot, heading towards Mr Thaller’s house down the footpath. The passenger of the smaller car was standing at the back of Mr Wheatley’s car near the boot and began chasing Mr Boyce. At the same time, the drivers of both cars got in and started driving down the road. As a result of the foliage, Mr Perkins lost sight of Mr Boyce as he was being chased past the big bushes going into the neighbour’s hedge. The man chasing Mr Boyce was not far behind him and was still on the road. Mr Perkins said the two cars drove down quickly, the little car was in the front and the larger car was behind. When he was on the roof, Mr Perkins heard Mr Boyce, heard a noise two or three times and then heard car doors. He could not see the cars but could hear them and thought they went left at the end of Hill Street. At that point, Mr Thaller was still at the front of Mr Boyce’s house. Mr Perkins described himself as “buzzing” and “freaking out”, he said he could not get close to Mr Boyce because he did not want to see him, he knew what had happened and he blamed himself. “Fat Matt” went to pick up Mr Boyce’s girlfriend and they organised to get an ambulance. Mr Perkins went back into the house and was arrested on the Parole Board warrant that night. 67 Mr Perkins said the smaller car was blue with a faded roof, he could see the roof from where he was. Mr Perkins described the man who got out of driver’s side of the smaller car as about his height, perhaps a bit shorter than six foot, but maybe he would be just average height if he was looking parallel to the road. He described him as having a fit build. He said he was wearing a hat and a T-shirt that he thought was lighter coloured with darker coloured shorts. Mr Perkins thought the man who got out the passenger side of the blue car was a bigger build, about the same height. He was wearing a reddish T-shirt which was darker coloured and had glittery, shiny stuff on it. The man who got out of the larger car did not get out completely, but he thought he was taller and skinnier and had shorter hair that was a bit longer on the top. 68 Mr Perkins was shown the CCTV footage. At the footage from 9:08 pm,39 he recognised himself as the person with the backpack. From 10:01 pm,40 Mr Perkins recognised Mr Thaller going to the front door and recognised himself in the red Adidas singlet. At that point, Mr Perkins described himself heading to 11B Hill Street, waiting for the lift from Mr Wheatley at which point he did not have his bag with him. Mr Perkins at 10:34 pm41 recognised the man coming around the car as Mr Wheatley and recognised the item placed in the car as his Nike bag. At 10:35 pm,42 Mr Perkins recognised the rear car lights of Mr Wheatley pulling 39 Exhibit P9 at 49:51 (this refers to the timecode of the compilation). 40 Exhibit P9 from 1:32:57. 41 Exhibit P9 from 2:05:25. 42 Exhibit P9 at 2:06:50. -- 15 of 129 -- [2024] SASC 58 Stein J 14 up. At 10:36 pm,43 Mr Perkins said the figure coming out the house was him. Mr Perkins said that was the first time he went out and then walked in and closed the door. 69 In cross-examination, Mr Perkins said he spoke to Detective Britton about 10 days after the incident, Detective Britton typed his statement onto a computer and read it back to him and he then signed each page as correct. Mr Perkins was asked questions about his description of the clothing worn by the men and the stance of the driver of the small dark car by reference to the statement he gave to Detective Britton. Mr Perkins could not recall what he told Detective Britton as it was a while ago but agreed that if it was in his statement that is what he would have told Detective Britton and it would have been correct at the time. It was put to Mr Perkins that when he was at Mr Thaller’s house he was smoking amphetamine to which he said that he smoked pipes every day. Mr Perkins denied taking fantasy and could not recall what he told Detective Britton about “gee gee”. Mr Perkins agreed that the “Italian guy was shouting people gee gee” on the night of the incident but did not see Mr Boyce take any “gee gee”. When asked whether he told Detective Britton that “Cuzzy” had come to the house earlier that day and had given “Boycey some juice with the Italian bloke, he was buzzing a bit”, Mr Perkins agreed that was true. Mr Perkins said it was probably himself “buzzing”.44 70 It was put to Mr Perkins that he did not describe the larger car to the police in his statement 10 days after the incident as a Toyota RAV4. When asked whether it was what he described as a silver four-wheel drive, Mr Perkins agreed. Mr Perkins said he described the other car as a blue Holden Barina and said “yes, that’s correct, the shape of it, you know what I mean, a little car”.45 71 In cross-examination, Mr Perkins agreed that the driver of the smaller car was the one speaking to Mr Boyce, the passenger of that vehicle chased Mr Boyce down the road, and the other driver of the larger vehicle was getting out of the car. Mr Perkins said he did not hear any yelling from out the front of the house before the people disappeared. Agreed facts – Constable West’s note of debrief with Mr Perkins46 2. At about 2:30 am on 31 January 2017 Officer Trent West conducted a debrief with Sam Perkins in the cells at Elizabeth Police Station. He obtained from Mr Perkins, a description of the three men said to have been involved in the attack on Mr Boyce. Officer West recorded the descriptions provided by Mr Perkins in his notebook. D89 records the description of the males as provided by Mr Perkins. 72 The handwritten notes taken by Officer West are as follows:47 43 Exhibit P9 at 2:07:35. 44 Exhibit P55 at T501.14. 45 Exhibit P55 at T502.23-24. 46 Exhibit D90. 47 Exhibit D89. -- 16 of 129 -- [2024] SASC 58 Stein J 15 0230 Perkins debrief – (0230) (Elizabeth cells) Surge - the Russian (linked up to everyone) (to get product) (drugs) (Male 1) (no specific OMCG association) Athletic. Approx 35 years Caucasian Russian Short sandy hair No facial hair; No tattoos Driving blue Barina with faded roof Lives just off Port Rd/Tapleys Hill Rd. (Heard him have conversation with Boyce) to the effect of “Where’s Sam” *Blue Barina – Driver* Passenger had red tee-shirt (chased Boyce) of blue Barina Caucasian (male 2) Late 20’s Hat (possibly black) (no other details) Third male in silver 4WD (male 3) Ethnic Tall (Approx 30 years). Caucasian Dark beard, spiked hair – woggy Black tee-shirt Late 20’s/30. Looked like a club member. Could not recall who (no other details to substantiate) Mr Crampton 73 In the evening of 30 January 2017, Mr Matthew Crampton was at 11B Hill Street, Elizabeth South. Mr Crampton travelled to Hill Street with a friend called Mr Matthew Marshall, who went by the nickname “Fat Matt”. They travelled together in Mr Marshall’s LandCruiser to go to 11B Hill Street to pick up his trailer. He thought he arrived late at night. When he arrived, he, Mr Marshall and Mr Boyce went to the family room which was the farthest room away from the street. Another man, also called Matt, with the nickname “Superman”, arrived afterwards as did Mr Perkins, perhaps about 15 minutes later. 74 Mr Crampton said Mr Perkins was trying to organise a lift to go somewhere and asked Mr Boyce to go with him. Mr Boyce said he would go with Mr Perkins and asked Mr Marshall, Mr Crampton and “Superman” if they wanted to hang around and they decided to do so. Mr Crampton recalled that while Mr Boyce proceeded to get ready, Mr Perkins went to the front of the house. Mr Crampton remained in the family room and could not see what Mr Perkins was doing. He thought Mr Perkins may have been gone for three to five minutes. Mr Crampton said that while Mr Boyce was getting ready to go with Mr Perkins he came back to the lounge and asked where Mr Perkins was. Mr Boyce then proceeded to go out the front looking for him. -- 17 of 129 -- [2024] SASC 58 Stein J 16 75 Mr Crampton believed Mr Perkins was on the roof from the amount of noise he was making in the courtyard area and hearing footsteps on the roof. Mr Crampton said there was a ladder kept in the courtyard area. He did not see Mr Perkins climb up the ladder, but he heard it. After he heard noises from the roof, at which time Mr Boyce was out the front looking for Mr Perkins, Mr Marshall went and looked for Mr Boyce. Mr Marshall came in on the phone a few minutes later saying that Mr Boyce had been bashed up. Mr Crampton then walked down Hill Street towards the Thompson Street end and saw Mr Boyce on the ground. Mr Boyce was unconscious. People came out from other houses and attempted to assist Mr Boyce. When Mr Crampton walked out the front door and looked down the road and walked down the road he did not see any cars moving up or down the street. 76 Mr Crampton said when they arrived at 11B Hill Street they parked Mr Marshall’s vehicle in the street on the same side as 11B Hill Street, on the Fairfield side, in front of the house to the north of 11A. 77 In cross-examination, Mr Crampton said he had met Mr Perkins once or twice and that he was a drug user. As far as he knew, Mr Perkins used methamphetamine. Mr Crampton had not seen him use methamphetamine that night and nobody used methamphetamine while he was there. 78 When taken to the statement Mr Crampton provided to police, Mr Crampton was reminded that he told police “Sam was telling us that he had told Mark not to go out there” and that Mr Crampton had said he did not know what Mr Perkins told Mr Boyce, but he was upset and muttering to himself. Mr Crampton said Mr Perkins was saying something about Serge but he did not know who Serge was or what it was about. Mr Crampton agreed that Mr Perkins was in an agitated state. Mr Rozenboom 79 Mr Matthew Rozenboom, nicknamed “Superman”, was also at 11B Hill Street when Mr Boyce was injured. He travelled to 11B Hill Street in Mr Marshall’s vehicle to collect Mr Marshall’s trailer. When they arrived at the house, they went to the back and sat on the lounge and watched TV with Mr Crampton and Mr Marshall. Mr Rozenboom did not think anyone else was there at the time but then Mr Perkins and Mr Boyce turned up. 80 Mr Rozenboom recalled Mr Perkins trying to arrange a lift to go somewhere, but did not know who he was calling. Mr Rozenboom thought Mr Boyce asked to go with him. Mr Boyce started putting on a T-shirt and from what he could remember, Mr Perkins went to the courtyard and climbed onto the roof. Mr Rozenboom could hear noises on the roof. Mr Boyce then went out the front door. The last Mr Rozenboom saw of Mr Boyce was him leaving the family dining room area and walking towards the front door. Mr Rozenboom recalled seeing Mr Perkins enter the courtyard and then he lost sight of him. He thought Mr Boyce would have gone after that. It was about the same time that he heard noises on the roof which sounded like someone walking across the roof. Mr Rozenboom -- 18 of 129 -- [2024] SASC 58 Stein J 17 thought Mr Marshall then went out. He heard something had happened to Mr Boyce and Mr Marshall was in distress on the phone. Mr Rozenboom did not go and see Mr Boyce. 81 In cross-examination, Mr Rozenboom confirmed he did not see Mr Perkins come down off the roof. He agreed Mr Perkins was distressed and said that it was meant to be him. Mr Perkins mentioned the name Serge but Mr Rozenboom could not recall Mr Perkins saying he had seen Serge. Mr Rozenboom did not see Mr Perkins use drugs that night and he did not know of anyone else using drugs that night. 82 Mr Marshall did not give evidence due to illness. I have not drawn any adverse inference from the failure to call him. Ms Bourke 83 Ms Erin Bourke was living at 20 Hill Street on 30 January 2017 with her then partner, Mr Thaller and a friend, Mr Sicari. At the time, she was heavily pregnant, giving birth in February. 84 Ms Bourke said that in the early hours of 31 January 2017 police woke her up and seized the CCTV unit. She was out on 30 January 2017 with a friend and she thought she returned before midnight at which time Mr Thaller was at home inside the house. She recalled Mr Sicari returning home a little bit after her. Ms Bourke confirmed Mr Sicari was a particularly short man. 85 Ms Bourke drove in from the Fairfield Road end of the street. She said she did not recall seeing any cars as she drove along Hill Street. 86 In answer to many questions, Ms Bourke said she could not remember. 87 Ms Bourke was shown the CCTV footage and confirmed she was the pregnant lady walking in the front door of 20 Hill Street. Mr Thaller 88 Mr Thaller was living at 20 Hill Street, Elizabeth South in January 2017. He said he had been living there for about one year together with Ms Bourke, his partner and his friend, Mr Sicari. Mr Thaller had a CCTV footage recording unit with a number of cameras placed on the outside the house showing different angles of the front yard, driveway and carport which all recorded to a recording unit. Mr Thaller had a monitor inside the house and one in the garage that allowed him to see what was happening outside in real time. 89 Mr Thaller knew Mr Wheatley who had been a friend for years. He saw Mr Wheatley weekly and Mr Wheatley sometimes visited his house. They had mutual friends. At January 2017, Mr Thaller had known Mr Grant for years. Mr Grant would occasionally visit him and he would occasionally socialise with him. Mr Thaller did not recall Mr Grant visiting his house on 30 January, nor -- 19 of 129 -- [2024] SASC 58 Stein J 18 having an injury to one of his arms. Mr Thaller knew Mr Sahlstorfer but not as an associate. He did not remember seeing him in the days leading up to the incident. He did not recall when he last saw Mr Sahlstorfer prior to the evening of the incident. 90 Mr Thaller had only just met Mr Perkins through another friend staying at his house and was probably introduced to Mr Perkins a week before. He said Mr Perkins had been visiting him but he did not think he stayed in his house and could not recall how many times Mr Perkins had visited. Mr Thaller had met Mr Boyce perhaps three or four times. Mr Thaller thought he saw Mr Perkins on 30 January 2017 and said he visited at night time when he came looking for a lift. He did not recall the time but said it was sometime between sunset and midnight. Mr Thaller thought Mr Perkins asked for a lift so he called one of his mates, Mr Wheatley, to give Mr Perkins a lift and Mr Wheatley agreed. Mr Thaller thought Mr Perkins left and did not come back. He said he did not see Mr Wheatley on the night until after the attack. Mr Thaller was alerted to the assault by his girlfriend who got home and called him when she was in the driveway asking what was going on. He said he met her at the front door and then went out and saw Mr Boyce unconscious on the ground. Mr Thaller thought he had seen Mr Wheatley before but did not remember him coming to the house before Mr Boyce’s assault. 91 Prior to Mr Boyce being assaulted, Mr Thaller was out the front on the phone trying to get Mr Perkins a lift from Mr Wheatley. He did not recall making any phone calls to Mr Perkins that night. He could not remember communicating with Mr Perkins regarding whether he had been successful in arranging a lift for him. Mr Thaller said he assumed Mr Perkins was at Mr Boyce’s house when he called Mr Wheatley because Mr Perkins walked that way from his house. 92 Mr Thaller was shown CCTV footage from 30 January 2017 including particular points at which certain people appear. Mr Thaller confirmed the CCTV footage showed him sitting on the trailer and he thought the person who appeared on screen at 10:00 pm48 was Mr Perkins; he thought the person who pulled into his driveway and got out of the driver’s seat at 10:29 pm49 was Mr Wheatley; and the person who walked out the front door carrying a backpack at 10:34 pm50 was possibly Mr Wheatley. He did not recall anyone arriving. Mr Thaller confirmed the particularly short man in the CCTV footage was Mr Sicari and agreed that Mr Sicari was shown parking his car and then walking to the front door at 10:36 pm.51 93 During cross-examination, Mr Thaller confirmed Mr Perkins regularly used methamphetamine. He said he used methamphetamine with Mr Perkins at some point during the day, however, did not recall “an Italian bloke” arriving during the 48 Exhibit P9 at 01:31:05. 49 Exhibit P9 at 02:00:47. 50 Exhibit P9 at 02:05:46. 51 Exhibit P9 at 02:07:57. -- 20 of 129 -- [2024] SASC 58 Stein J 19 day driving a Holden Barina. He did not recall someone shouting people fantasy and did not witness Mr Perkins take fantasy. Mr Thaller did not note whether Mr Perkins would become agitated when using methamphetamine and thought Mr Perkins was paranoid all the time. He did not know a man called Serge. Mr Sicari 94 Mr Sicari was not called to give evidence. A statement of 7 June 2017 was read into the transcript on the agreed basis that the statement represented the evidence Mr Sicari would have given if he were called. 95 In his statement, Mr Sicari said at about 9:00 pm on 30 January 2017, he finished his shift and left to travel back to 20 Hill Street, Elizabeth South. He was driving a blue 1998 Holden VS Statesman. Between about 9:40 pm and 9:45 pm he was travelling west on Fairfield Road trying to turn left into Hill Street. As he turned left, there was a small dark car almost in the middle of the road on Hill Street facing north at the junction with Fairfield Road. There was another car parked on Hill Street facing south from the kerb close to Fairfield Road. The position of the cars did not allow him to get past them. He beeped his horn to get the small dark car to move and it moved forward slightly and he was able to fit through to travel south on Hill Street. He could hear the small dark car had a loud exhaust when it moved forward. As Mr Sicari was travelling south on Hill Street he saw a four-wheel drive vehicle travelling towards him in the opposite direction, travelling north on Hill Street. The four-wheel drive travelled to the end where it stopped to the right side of the small dark car that was still there. Mr Sicari said he parked outside 20 Hill Street, facing north towards the two cars he had seen. The two cars were side by side and it appeared as if they were talking to each other. 96 When Mr Sicari arrived home, Mr Thaller was playing FIFA on the Xbox in the loungeroom. He got out of his work clothes and went and had a shower. At some point after he arrived home, Ms Bourke and Mr Wheatley arrived at the house. Mr Wheatley used to come and go from the address. Mr Sicari did not really know him. After Mr Sicari had got out of the shower he saw lights out the front of the house on the CCTV screen. He went out the front and saw a male, who appeared to be unconscious, on the footpath in the front of number 18. He did not see what had happened. There were people gathering and the ambulance officers told them to go away. 97 Mr Sicari did not recall when Mr Wheatley left the house that night. He did not recall being out the front of the house with Mr Thaller after he got home and before he walked out the front and saw Mr Boyce on the ground. He was not aware Mr Wheatley was down the road before he walked out the front and saw Mr Boyce. 98 Mr Sicari described the small car blocking him from getting into Hill Street as a small dark coloured hatch, possibly green with a detectably loud exhaust system. He heard the exhaust when it moved forward. He did not see the driver as the windows were up. It had tinted windows. He would describe the vehicle as a year 2000 model. It did not look like “a bomb”. He described the four-wheel -- 21 of 129 -- [2024] SASC 58 Stein J 20 drive vehicle as a big, normal sounding vehicle with bright headlights. He was not sure of the colour, make or model. It was possibly black. Agreed facts – Erin Withers and Brook Surman52 Police Attendance in Thompson Street, Elizabeth South 27. At approximately 9:00pm on 30 January 2017, members of the South Australian Police force pulled over a vehicle in Thompson Street, Elizabeth South. They remained at the location for long enough to search the vehicle and arrest the driver on a warrant. The occupants of that car were Erin Withers and Brook Surman. Serge “the Russian” 99 Mr Serge Zaporashenko did not know Mr Boyce and gave evidence that he did not know anything about the death of Mr Boyce. He was never involved in an assault with other men in a suburban street in Elizabeth South and had never been to Hill Street, Elizabeth South. 100 Mr Zaporashenko said he knew Mr Perkins and he had an altercation with Mr Perkins about a car Mr Perkins stole from him perhaps about four of five years before police were first speaking to him about Mr Boyce. Mr Zaporashenko said he had never owned a Toyota Echo or silver Toyota RAV4. 101 Mr Zaporashenko confirmed he was Russian and had been in Australia since 1994. He had a few workshops including one at Para Hills West for the storage of cars. Mr Zaporashenko said in 2017, about six cars would be stored in the premises. A Holden Barina was never stored at the workshop. He confirmed “100 percent” there was not a Ford Laser inside his workshop. Mr Zaporashenko was not aware of anyone driving a Ford Laser and did not recall a blue Ford Laser with a faded roof. The outside area was shared premises with about 20 workshops at the location and there could have been any car in the carpark. 102 Mr Zaporashenko said Mr Perkins did not owe him money. There was a physical altercation between Mr Perkins and Mr Zaporoshenko after Mr Perkins stole a car. Mr Zaporashenko saw Mr Perkins on Port Road and they had an altercation which involved blows. This occurred well before 2017, perhaps eight to 10 years ago. Mr Zaporashenko said he was in the car as a passenger with someone driving and he jumped out. He did not restrain Mr Perkins but they had a “tiff” through the window of the car and Mr Perkins was not tied up. Agreed facts – Search at workshop premises53 1. At about 14:30 (2:30pm) on 31 January 2017, Officer Tiller attended a two-story workshop at premises, XX Beafield Road Para Hills West.54 Outside of this premises Tiller observed a blue Ford Laser motor vehicle with a faded roof. 52 Exhibit P84. 53 Exhibit D90. 54 Address details have been partially redacted. -- 22 of 129 -- [2024] SASC 58 Stein J 21 Mr Boyce’s treatment and death 103 The following facts were agreed in relation to the attendance of South Australian Ambulance Services at Hill Street, the subsequent medical treatment and the death of Mr Boyce. Agreed facts – Medical treatment of Mr Boyce55 South Australian Ambulance Services 10. Paramedics Anastasia Bougesis and Hannah Andia were talked to attend Hill Street, Elizabeth South on 30 January 2017 at 10:47pm. They arrived at the front of 18 Hill Street at 10:54pm. They were the first Ambulance on scene. 11. Mr Boyce was unconscious and unresponsive. He was incontinent to urine. He was observed to be sweating profusely, breathing loudly and snoring. No large blood loss was observed. His t-shirt was cut off him and placed on the fence of 18 Hill Street, to enable medical treatment to be provided. 12. Ms Bougesis observed a scrape mark to Mr Boyce’s right knee and scrape marks to both feet. Ms Andia felt a lump approximately 1.5cm in diameter to the left side of the base of Mr Boyce’s skull (along the occiput). 13. Paramedics attempted to support his airway and they applied a collar to protect his neck. 14. At 10:56pm a second Ambulance arrived, with Paramedics James Kosmala and Alexandra Penn. 15. At 11:08pm Mr Boyce left the scene in the Ambulance with Paramedics Bourgesis and Andia. He arrived at the Lyell McEwin Hospital at 11:12pm where he was handed over to a resuscitation team. Lyell McEwin Hospital 16. On arrival at the Lyell McEwin Hospital Mr Boyce was in a poor condition. He was unresponsive and his blood pressure was high. He was sweating profusely. 17. Mr Boyce was noted to have bruising and swelling to both ears, around his left eye and the left side of his cheek. There were abrasions to his face. 18. There was blood in his mouth that required suctioning and the right side of his nose appeared as though it had been bleeding. Abrasions and deformities to both knees were noted. 19. On 31 January 2017 at about 1:00am Mr Boyce was transferred to the Royal Adelaide Hospital for further treatment. 20. On 8 February 2017 Mr Boyce died in the Royal Adelaide Hospital. 55 Exhibit P84. -- 23 of 129 -- [2024] SASC 58 Stein J 22 21. Shortly after the admission of Mr Boyce to hospital, blood was taken from him and forwarded to SA Pathology. The blood sample was subsequently seized by South Australian Police and delivered to Forensic Science SA for toxicology analysis. 22. The blood was analysed by Christine Nash, a forensic scientist qualified to examine blood for the presence of drugs and other chemicals. 23. No alcohol was detected. 24. The following drugs were detected in the blood: a. Approximately .26 mg methylamphetamine per L b. Approximately .04 mg amphetamine per L 25. The presence of amphetamine in the blood is likely to be from the metabolism of methylamphetamine by the body. 26. No other prescription drugs or drug of abuse were detected. Dr Charlwood 104 Dr Cheryl Charlwood is a forensic pathologist employed by Forensic Science SA. She has significant expertise which was not challenged. Dr Charlwood conducted the post-mortem examination of Mr Boyce. When Dr Charlwood prepared her reports she had access to medical notes from both the Lyell McEwin Hospital and the Royal Adelaide Hospital concerning the treatment of Mr Boyce. 105 Dr Charlwood attributed death to blunt force head injuries.56 Dr Charlwood concluded from the overall pattern of injuries that the injuries were consistent with a physical altercation, particularly the bruising to the soft tissues of the face including over the cheekbones and periorbital tissues of the skull fracture. Dr Charlwood considered the bruising to the face and scalp consistent with blunt force impacts or blows but she could not determine the exact number and nature of such blows or the exact aetiology from the pathology alone. 106 Dr Charlwood considered the blunt force head injuries of the type seen are known to occur with impact, acceleration, and deceleration forces with sheering associated tangential forces applied to the brain. These cause relative movement of the brain within the skull and within brain tissues themselves with subsequent tearing and rupture of delicate cortical blood vessels, sheering and tearing within tissue planes of the brain substance, contusions and haemorrhages. Such injuries induce secondary brain swelling, comprising perfusion of the brain which in turn will further aggravate and compound brain injury, oedema and swelling, and can induce extensive hypoxic ischemic damage and subsequent brain death, as was seen in Mr Boyce’s case. 107 Mr Boyce’s survival of nine days between the attack and his death had consequences for Dr Charlwood’s assessment of injuries observed. Given the 56 Exhibit P63. -- 24 of 129 -- [2024] SASC 58 Stein J 23 intervening period from the injury, the healing process will result in both internal and external changes and can cause more damage to the brain and consequently injuries may not appear as they would have appeared at the time of the assault. 108 Dr Charlwood observed periorbital bruising (around the eye) which was consistent with blunt force trauma. Bruising could be from an object striking the deceased or the deceased striking an object or as a result of shifting under gravity. It was not possible to accurately estimate age of a bruise by appearance. Mr Boyce had a basal skull fracture which would result in blood leaking in and around the eye. Bruising of the right periorbital region was confirmed, extending into the right cheek tissue over the zygoma (cheekbone), upper mandible, and the temple. There was a bruise over the mid-left zygoma in the lower orbital region consistent with blunt force trauma. There was also bruising to the superior orbital region on the left side. 109 A number of injuries were noted on the chest, trunk, abdomen and upper limbs and there were a number of bruises and abrasions on the legs and feet. None of the bruises and abrasions to the arms and legs were medically significant and they had no contribution to death. Dr Charlwood was able to exclude any form of disease or underlying illness as relevant to death other than in the central nervous system. 110 On internal examination, Dr Charlwood noted patchy merging bruising to the right frontal aspect with bruising extending into the muscle on the side of the head. There were bruises to the facial soft tissues and on the left side of the scalp. The skull demonstrated a fracture within the right anterior cranial fossa, the thin bone over the surface of the eye at the base of the skull, extending backwards into the sphenoid measuring approximately 6.3 centimetres in length. The jaw was intact. 111 The brain was extremely swollen and congested. Dr Charlwood’s visual observation agreed with the clinical history. The scans and impressions were of a significant brain injury. The brain was swollen with excess fluid within the brain which could be consistent with unconsciousness from the time of the assault. Dr Charlwood observed focal subdural haemorrhage over the surface of the brain and a little extradural haemorrhage in the region of the fracture on the under surface of the right lobe of the brain. 112 Dr Charlwood placed the brain in a fixative solution and sent it to Professor Blumberg, neuropathologist. Dr Charlwood received his report and met with him to discuss it. Professor Blumberg’s assessment confirmed the brain was swollen with congestion and with subarachnoid haemorrhage closely applied to the surface of the brain. There was cerebellar tonsillar grooving towards the under surface of the brain where it had been pushed downwards. 113 Dr Charlwood said brain swelling can be caused by trauma and in this case, she considered the swelling was evidence of trauma. There were contusions to the -- 25 of 129 -- [2024] SASC 58 Stein J 24 brain and many small haemorrhages within the brain caused not just by contact but by the associated movement of the brain. When the brain moves within the skull it can impact fibrous membranes and the skull surfaces but also the white matter and grey matter can move on each other affecting the cell processes and the small vessels within the brain producing haemorrhages. 114 Dr Charlwood said greater forces tend to result in more haemorrhage and more injuries. Mr Boyce had several areas of haemorrhage and some haemorrhaging within the spaces within the brain. Dr Charlwood said ventricular haemorrhages within the brain are usually associated with severe forces. Dr Charlwood confirmed that there may be no correlation with the impact of an object and the area injured on the brain. In this case, many of the haemorrhages were not bruises to the surface of the brain but haemorrhages within the soft tissue of the brain. 115 Dr Charlwood observed scattered petechial haemorrhages which are small, usually vascular, injuries where small vessels are damaged because of the movement of the brain and the disruption of the tissues. Such petechial haemorrhages are often characteristic of shearing forces. Blunt force trauma can cause the head to move violently resulting in sudden acceleration and deceleration. 116 Dr Charlwood was unable to offer any opinion as to the number of blows that may have been inflicted. Any potential patterning in bruises would have dispersed after nine days. 117 Dr Charlwood said it was difficult to venture an opinion as to the sort of force required to fracture the skull in the area of Mr Boyce’s skull fracture as force is subjective. While it would depend on people’s individual susceptibilities, when bone is fractured she considered the force required would be at the severe end of the spectrum. Dr Charlwood said that due to the multifocal nature and extensive haemorrhage and intraventricular haemorrhage in the brain she thought the degree of force was severe. 118 Dr Charlwood was asked to assume three days before the assault on Mr Boyce that he fell off his motorbike, got up, was seen running, was able to push the bike back to his house and in the days that followed moved purposefully and without any sign of inconvenience. Dr Charlwood did not see anything on examination that might suggest the incident three days prior had any causative effect of death. 119 During cross-examination, Dr Charlwood agreed that it may be possible to see various injuries to the brain from a single application of force and you could get some of the petechial gliding contusions and some intraventricular haemorrhage. Dr Charlwood agreed that the fracture to the skull would have associated injuries to the brain itself, saying that potentially severe force causing the facture will also cause movement of the head and the brain and the tissues on themselves. It was possible to postulate that the fracture was caused by a single -- 26 of 129 -- [2024] SASC 58 Stein J 25 application of force which may have produced a variety of signs of injury within the brain as it moved within the skull. 120 Dr Charlwood thought she had not referred in her report to the degree of force required to cause the injuries because force is a subjective estimate. She could not remember the estimate she gave at the trial of Mr Grant about the degree of force required and could not recall giving evidence that “if you could say mild, moderate to severe, you would expect it to be the moderate to severe causing that fracture to the skull base”.57 Dr Charlwood said usually because a bone is involved, the force will be towards the higher end of the force spectrum, and the distribution of injuries and the intraventricular haemorrhage would usually be associated with more severe force to the brain. She did not know why she said “moderate to severe” but thought perhaps she was trying to estimate that the part of the fracture was through the thinner part of the skull over the orbital roof as well as the temporal bone. Potentially a moderate to severe potentiality is a descriptive for the degree of force required on a thin part of the skull. Dr Charlwood agreed the fracture site was at one of the thinner portions of the bony structures of the skull but the fracture went up the side of the temporal bone which is not as thin. She agreed the fracture could potentially be caused by moderate to severe force. She considered the application of force was to the general area of the fracture site because there was underlying bruising to the right side of the head and overlying scabbing. 121 Dr Charlwood said it was not possible to quantify the degree of force required to cause a traumatic brain injury due to the complicated biomechanics and unpredictable individual biological responses that are involved. The clinical impression was of a diffuse brain injury with scans reported as consistent with diffuse axonal injury. Although traumatic axonal injury comprises a spectrum, diffuse axonal injuries are considered to lie at the high end of the spectrum where the strains on axons have resulted from severe forces leading to irreversible damage in a widespread or diffuse distribution. Dr Charlwood explained her reference to subjective was meant in a medical sense, given the number of variables involved. Dr Charlwood said it is difficult to say if severe brain injury necessarily implies severe force because, in Mr Boyce’s case, there were not just the initial injuries but the body’s response to those injuries which can cause further problems to the brain itself because of the swelling and interruptions in vascular flow and those secondary effects will damage the brain as well. 122 Dr Charlwood agreed it was impossible to tell the sequence of injuries. 123 Dr Charlwood was aware of a second impact syndrome usually seen in young male athletes experiencing a concussion from which they seem to recover but then a seemingly minor injury afterwards results in the brain undergoing massive swelling. Dr Charlwood said such cases do not have the haemorrhages and contusions associated with Mr Boyce’s case. Dr Charlwood agreed that according to literature this could occur even though the first injury to the brain might not 57 T520.14-16. -- 27 of 129 -- [2024] SASC 58 Stein J 26 necessarily appear to be too significant. However, she would not consider that a prior head trauma to Mr Boyce might impact on the degree of injury she observed at autopsy because of the severity of the injuries that were present including shearing injuries and not just brain swelling. Dr Charlwood considered second impact issues were not applicable to Mr Boyce because of the distribution of actual injuries in Mr Boyce’s case, including the fracture and the intraventricular haemorrhage. 124 Dr Charlwood would not ascribe any of Mr Boyce’s injuries to a fall off the motorcycle if Mr Boyce had not had concussion, not sought medical advice or had any problems after the accident. Having reviewed the CCTV footage showing Mr Boyce falling off the motorbike, her opinion was that any impact between the motorcycle rider’s head and the road surface would not have had any bearing on her findings at autopsy and she did not change her opinion. Dr Charlwood agreed that her position would be strengthened by footage showing Mr Boyce walking down the road holding a drink, talking to people and socialising with them several hours prior to death and seemingly behaving in a normal and purposeful manner. CCTV footage processing 125 CCTV footage seized from 20 Hill Street shows part of the events of the evening. Agreed facts – Recovery of CCTV footage58 Digital Video Recorder 1. On 31 January 2017 at 12:22am Detective Brevet Sergeant of Police Benjamin Horley, seized a Digital Video Recorder (DVR) from the inside of 20 Hill Street Elizabeth South. The DVR appeared to be connected to a monitor and camera system at the house. The DVR was seized and booked in the South Australia Police secure property storage system with the identifying number 17/B47685-7. 2. The time that appears on the face of that CCTV footage is half an hour behind the actual time at the location shown, with a margin of error of plus or minus one minute. 126 Before I address my observations based on my viewing of the CCTV footage, I turn to the evidence concerning steps taken to process the CCTV footage. Unprocessed and processed CCTV footage was tendered. 127 Detective Britton reviewed the CCTV footage seized from Hill Street and prepared a compilation of footage spanning a number of days of images recorded by the CCTV footage unit.59 He ran off working copies and a working hard drive. 128 Dr Sorell is a senior lecturer at the University of Adelaide in the Faculty of Science, Engineering and Technology. He is the principal consultant and director of Digital Forensic Sciences Australia and an adjunct professor of forensic science 58 Exhibit P84 59 Exhibit P9. -- 28 of 129 -- [2024] SASC 58 Stein J 27 at Tallinn University of Technology in Estonia. Dr Sorell has a Bachelor of Science in Theoretical and Experimental Physics from the University of Adelaide; a Bachelor of Engineering in Computer Systems Engineering (First Class Honours) and a PhD and a Graduate Certificate in Management. Dr Sorell has been a consultant, particularly to law enforcement, but also to defence, in digital evidence matters and has given evidence in the Supreme Court, the District Court and other courts, particularly about CCTV footage. Dr Sorell has been teaching since 1999 and has supervised PhD, Masters and Honours students in matters relating to digital video. Dr Sorell supervises students in digital forensics and digital forensic science and teaches courses at the Tallinn University of Technology in Estonia. Dr Sorell explained that his background assists him to give evidence about CCTV footage as a CCTV system is an electronic system comprised of an electronic sensor connected to a digital storage medium requiring advanced signal processing and compression which relates directly to the way in which computers store information and process multimedia information. 129 Dr Sorell’s expertise was not challenged and I accept his expertise. 130 In 2017, Dr Sorell was retained by SAPOL to consider the CCTV footage, assess it and process it. Dr Sorell was asked to process the CCTV footage as cleanly as possible to get the cleanest possible view that could be used in the investigation. Dr Sorell said there are severe limitations as to what can be done with poor quality footage. Poor quality can arise by the way in which the video is compressed during which information the eye does not tend to perceive can be lost. Dr Sorell said with this poor quality footage not much could be done and it was important that as little as possible would be done to avoid further damage to make the most of the CCTV footage. 131 When given the hard drive and the DVD-ROM, Dr Sorell validated that the footage he had received was consistent with what he played back from the video recorder. From there, the video was imported to video editing software called “Final Cut Pro” and then certain sections were isolated and processed. After importing the video into the software, Dr Sorell was asked to address particular parts of the footage. 132 Dr Sorell used tools such as zooming to isolate a section of the screen and then expanding that out. He applied a blurring filter. Dr Sorell explained the purpose of applying a blurring filter is to address the visual impact of zooming which results in the sharp edges of individual pixels impacting the visual impact. Blurring removes high level detail not present in the original image so as to not mislead the viewer. Dr Sorell explained that blurring is a well known and well- established process in image processing. 133 In some instances, Dr Sorell slowed down the footage by reducing the frame rate by a factor of four. -- 29 of 129 -- [2024] SASC 58 Stein J 28 134 Dr Sorell adjusted some colour, tone and brightness deliberately in order to better see some shapes in the footage such as different panels on a car or features of hubcaps. In doing so, the footage loses the ability to differentiate the colours seen in the footage. In the case of this CCTV footage, there was no way of reliably determining the actual colour of objects. 135 Dr Sorell explained that he is always conscious to ensure that what is seen in the processed footage was present in the original as supplied and has not been synthesized as a consequence of the processing. 136 Dr Sorell explained that camera 5, which pointed up Hill Street in a northerly direction towards the fence, had visible light behind it. That camera operated in colour but behind the fence in the foreground the footage had poor lighting so the features in the footage were predominantly from whatever was lit, including by car headlights. Camera 6, which pointed across Hill Street, was operating in infrared mode. There was not sufficient visible light as a consequence of which the scene was illuminated in infrared. A tree in the front yard which was backlit dominated the footage, as a consequence of which the camera’s sensitivity for objects in the street was limited. 137 Dr Sorell was asked to address isolated sections of the CCTV footage. Dr Sorell’s general process was to play that piece of footage unedited and then process it in a way to better assist the interpretation of the footage such as by zooming in, blurring, slowing down and, where appropriate, applying colour, brightness and contrast adjustments to better see the features in the footage. Dr Sorell prepared a DVD containing a series of separate files resulting from the processes he employed.60 138 Dr Sorell explained that because he was making a direct copy of a binary digital file there was no further loss of quality in the process and what was produced was the same video files he produced from his editing process. 139 Each of the files produced by Dr Sorell were played and Dr Sorell explained each instance of processing employed by him. For example, in the case of the file “Boyce-C6-1628-Z2” Dr Sorell recognised footage from camera 6 with a timestamp of 16:27:58. The first sequence was the CCTV footage zoomed in by a factor of two followed immediately by the same footage at a reduced speed. Each of the processes applied by Dr Sorell were itemised in the index in exhibit P6. 140 The file naming system used by Dr Sorell contained the reference to the camera from which the footage was taken and the time, so for example, C5-2204 was the footage from camera 5 and 2204 was a reference to 10:04 pm. Dr Sorell explained that the files “Boyce-C5-2204”, “Boyce-C6-2203”, “Boyce-C5-2206”, “Boyce-C6-2206”, “Boyce-C5-2208”, “Boyce-C6-2208”, and “Boyce-C5- 221323” commenced with the unprocessed footage immediately followed by the 60 Exhibit P5. -- 30 of 129 -- [2024] SASC 58 Stein J 29 same footage with the processes applied by Dr Sorell. The files “Boyce C5 – Assault HD”, “Boyce-C5-2211”, and “Cam56-221325” commenced with processed footage and did not contain the unprocessed segments. The segment “Boyce C5 – Assault” contained only the unprocessed footage. 141 In the case of the video depicting the assault, Dr Sorell processed by zooming in and also using high definition resolution with appropriate filtering to give him more control over the field of view and to provide the clearest view possible. In the footage depicting the assault, Dr Sorell dimmed part of the screen to highlight a particular area of interest. 142 Dr Sorell explained that he started with the raw video footage, transcoded it in a way to minimise original distortion, imported it into the editing software and then copied and pasted it into the next part of the timeline to perform the additional processing. Once he had processed that section, he would copy it so that everything done to the second section was duplicated and then slowed down in the third sequence. Dr Sorell explained that he taken the first sequence and then made a copy which instructed the editing software to play the same video. Dr Sorell did not create that first section, save it and then make a new video. He duplicated the source video sequence and then processed it and then additional instructions were applied. The production stage then combined the files to create one video. 143 Dr Sorell explained that there are two techniques used to limit distortion. He could not specifically recall which technique he used, but thought he took the video and recoded it using parameters that do not introduce additional information. 144 Dr Sorell did not recall whether or not “Boyce-C6-2203” had always been the sequence of three files or whether he initially saved, for example, just the second sequence. It was possible that a version of something like “Boyce-C6- 2203” was initially produced. Dr Sorell created some processed footage and then produced a number of files on 22 June 2017. While Dr Sorell’s recollection was that files created on 22 June 2017 had not changed, there may have been a different rendering or one may have been higher quality. However, to his recollection the videos shown in Court were the sequences he produced on 22 June 2017. Dr Sorell did not recall whether there was an intermediate version of any file and then a final version. It was possible a version of the file was rendered, then subsequently some other processing was requested and a new version was rendered. Dr Sorell emphasised he would not have started afresh but a file may have been an intermediate product which was tweaked before it was re-exported or re-rendered. This could apply to all of the files other than the files in fact produced on 13 September. On 13 September 2017, Dr Sorell created a number of specific files showing the assault. There were no substantively new versions of files created in September reflecting the footage from camera 6 at 22:03 or camera 5 at 22:11. If there had been a re-rendering, the re-rendering brought in the same input video that followed the instructions given into the editing software to then construct the final video version. Dr Sorell could not recall if some adjustment was made, such as to append the slowed down sequence but it was possible. -- 31 of 129 -- [2024] SASC 58 Stein J 30 145 Dr Sorell agreed that the blurring feature effectively takes the edge off pixels. For a given level of zoom, he applied blurring by eye based on experience. If there were two stages of zoom, he would apply another level of blurring to reduce the impact of sharp edges deceiving the eye. The introduction of the blurring process was subjective, but was based on well-established requirements which are applied across all digital media in order to alleviate higher frequency artefacts. Dr Sorell said the blurring feature will reduce the impact of artefacts that trick the human eye but then introduce others and there is thus a limit to how effectively it can work. The video footage was extremely poor quality and the objects and movements seen in the background were comparable to the level of noise and the blurring applied needed to compromise clearing up the noise, avoiding edge artefacts introduced by zooming and losing the features of interest. Dr Sorell said he was using well validated technical tools but there was an application of art to balance the introduction of those tools to produce the desirable result. He agreed the footage was of poor quality, consequently, he could not produce a particularly good quality product without significantly compromising its forensic validity. 146 Dr Sorell explained the processing stages such as zooming, filtering and colour adjustment are each done in sequence and adjustments to contrast, colouring and brightness will compromise the ability of the footage to accurately depict colour. Dr Sorell was asked whether the processes to some extent can affect what the human eye can see and whether one might perceive something in the footage that is not actually recorded in the footage because of the way it is recorded in its unprocessed form. He answered that in its unprocessed form the footage might be too dark, it might be too bright and so improving the contrast allows one to be able to see that level of detail. When asked if something was too dark or too bright that compromises the ability to see it on the video as well, he agreed and observed that his computer screen would be a far better quality screen than one available in court. 147 Dr Sorell agreed the potential for changing what might be seen in the image increases with each process, as a consequence one should be very careful about interpreting what is seen in terms of fine detail and gave an example of the inability to read the licence plate. Dr Sorell agreed it is necessary to be careful about what one thinks one is seeing when asked whether one needed to treat the processed footage with considerable caution. 148 Bearing in mind the explanation of the processing employed by Dr Sorell, I now turn to address the CCTV footage. CCTV footage Identification of persons appearing in CCTV footage 149 Detective Britton was shown extracts of the CCTV footage61 and asked to identify people who appeared in the CCTV footage. He identified Mr Boyce 61 Exhibit P9. -- 32 of 129 -- [2024] SASC 58 Stein J 31 walking from 11B Hill Street to 20 Hill Street;62 Ms Bourke;63 Mr Thaller;64 and Mr Grant visiting 20 Hill Street on 24 January 2017 and 30 January 2017.65 Detective Britton identified Mr Grant arriving in a blue Mazda and confirmed that Mr Grant’s partner, Ms H,66 had a blue Mazda registered in her name.67 He identified Mr Wheatley speaking to Mr Grant.68 Events depicted in the CCTV footage 150 I viewed the CCTV footage in exhibit P9 repeatedly, including to focus on different aspects of the footage and only then reviewed the processed CCTV footage prepared by Dr Sorell, which I also viewed repeatedly. Throughout these reasons I refer to the real time of the event which is approximately 30 minutes later than shown on the timestamp. Where possible, for accuracy and for ease of reference, I have referenced the specific timecode of the compilation or individual processed files when referring to events or observations in the CCTV footage. 151 The first CCTV footage extract is on 24 January 2017 at times between 8:03 and 8:13 pm. The CCTV footage showed a small blue car driving down Hill Street from Fairfield and parking in front of 20 Hill Street on the opposite side of the road. Mr Grant got out of the vehicle, walked across the road to the driveway of 20 Hill Street and can be seen to greet by handshake a person seen in the driveway. Mr Grant can be seen to interact with several males including Mr Thaller. At about 8:11 pm, Mr Grant walked down the driveway, shook hands with a man standing next to a dark vehicle parked in front of 20 Hill Street and spoke with him. The man appears to be Mr Wheatley. Mr Thaller walked over and joined in the discussion. About nine minutes after his arrival, Mr Grant left. 152 Footage on 27 January 2017 from 7:44 pm shows a motorcycle crash involving Mr Boyce. Riding in a northerly direction down Hill Street, the rider can be seen to fall off his motorbike as it slides and topples. The rider rolled several times and immediately got to his feet and walked back across to his bike. 153 On 27 January 2017 at 9:09 pm, the CCTV footage shows Mr Grant visiting 20 Hill Street. A vehicle pulled up in front of 20 Hill Street and Mr Grant exited the vehicle from the passenger side. His right arm was encased in a white cast. Mr Grant walked through the driveway and garage area towards the house, remained out of view for about 6 minutes, then walked back out of the front door and down the driveway with another man whose appearance is consistent with that of Mr Wheatley. He stood out the front of 20 Hill Street speaking to that man. 62 Exhibit P9 from 34:55. 63 Exhibit P9 from 34:14. 64 Exhibit P9 at 00:48. 65 Exhibit P9 at 00:48 and 25:54. 66 The name of Mr Grant’s partner has been redacted. 67 Exhibit P9 at 25:54. 68 Exhibit P9 at 34:27. -- 33 of 129 -- [2024] SASC 58 Stein J 32 Mr Grant got back into the passenger side of the vehicle. The vehicle left 20 Hill Street at about 9:22 pm and the other man returned to the house. 154 On 30 January 2017, Mr Grant visited 20 Hill Street between 3:40 and 3:48 pm. A small blue car pulled up in front of 20 Hill Street. Mr Grant got out and walked across 20 Hill Street. Mr Thaller was in the driveway. Mr Grant shook hands with a person out the front of 20 Hill Street and then walked down the driveway towards the house, passing Mr Thaller. Mr Grant thereafter departed via the driveway walking with another man whose appearance was consistent with that of Mr Wheatley. A cast on Mr Grant’s arm is visible. Mr Grant and the other man stood on the pavement talking before Mr Grant returned to the blue vehicle, got into the passenger side and the vehicle departed. 155 On 30 January 2017, at 4:58 pm Mr Grant visited 20 Hill Street again for a period of about one minute. The blue car pulled up on Hill Street. Mr Grant got out of the car and walked across to the driveway of 20 Hill Street. He handed something to a man identified by Detective Britton as Mr Wheatley and then returned to the vehicle which drove off. Ms Bourke was in the front garden. 156 On 30 January 2017 between 6:29 and 6:33 pm, Mr Boyce visited 20 Hill Street. Mr Boyce walked down the pavement of Hill Street on the eastern side. He crossed Hill Street and walked across the front of 20 Hill Street. His gait appears normal. He was holding a drink in his left hand. He walked past Mr Thaller in the direction of the house. Mr Boyce returned down the driveway and walked back in the direction of 11B Hill Street with another man. 157 In CCTV footage on 30 January 2017, Mr Perkins was standing outside 20 Hill Street between 9:01 and 9:09 pm. Mr Perkins walked down the driveway to the front of the house and stood by the fence next to 18 Hill Street, looking both ways down Hill Street. He repeatedly looked down Hill Street towards Thompson Street. 158 At about 9:09 pm a car pulled into the driveway. Mr Thaller and three others got out of the car and moved towards the house. At about 9:18 pm, Mr Perkins walked down the side of the garage towards the street. He had a backpack on his back. Between 9:21 and 9:38 pm, an unidentified male can be seen standing in the front yard of 20 Hill Street. That man sat in front of the trailer in the driveway looking in the direction of Thompson Street and looking at a mobile phone at times. After sitting for a period of time, he stood up and moved around the front of 20 Hill Street continuing to look down Hill Street, primarily in the direction of Thompson Street. At about 9:32 pm, the man was briefly joined by another man, possibly Mr Thaller. 159 At about 9:33 pm, a reflection of what appears to be flashing red lights is visible in the metal fence adjacent to number 20. At about this point, the man in the front of 20 Hill Street made a phone call. After completing the phone call, the man continued to look down Hill Street towards Thompson Street. -- 34 of 129 -- [2024] SASC 58 Stein J 33 160 At about 9:52 pm, Mr Perkins stepped between the door and the screen door as a car moved down Hill Street past 20 Hill Street. He peered through the screen door. After the car was out of view, Mr Perkins emerged from behind the screen door. Mr Thaller then emerged from the house. Mr Thaller moved around the front of 20 Hill Street, stood in the driveway, paced up and down and sat on the end of the trailer looking down Hill Street. Mr Perkins and Mr Thaller can be seen talking. Mr Perkins looked down Hill Street repeatedly. At 9:59 pm, Mr Thaller made a telephone call. The call appears to last for about 30 seconds. Immediately after, Mr Thaller looked at his phone and then continued to look up and down Hill Street while Mr Perkins stood close to the door. At 10:02 pm, Mr Thaller returned to the house. Mr Perkins walked across Hill Street in a diagonal direction without his backpack. When he got to the pavement on the eastern side he jogged in the direction of 11B Hill Street. 161 At 10:29 pm, a car drove down Hill Street from Fairfield Road in a southerly direction. The driver, identified as Mr Wheatley, pulled into the driveway of 20 Hill Street and got out, walked to the door and let himself into the house. 162 At about 10:33 pm, while Mr Wheatley was in the house, a small dark car turned into Hill Street from Thompson Street and drove up the road in a northerly direction.69 About 15 seconds later,70 a second larger car turned into Hill Street from Thompson Street travelling in a northerly direction. The brake lights of the larger vehicle showed briefly when the vehicle was approximately adjacent to 11B Hill Street. 71 The vehicle then continued up Hill Street. Lights can be seen at the northern end of Hill Street as if the vehicle was stationary at the intersection. A matter of seconds after the second, larger vehicle drove down Hill Street, a vehicle travelled down Hill Street in a southerly direction from Fairfield Road. The vehicle pulled into the driveway of 20 Hill Street reversed out into Hill Street and pulled forward. The vehicle was then reversed to park in front of 20 Hill Street on the western side of Hill Street in front of number 20. 163 At 10:34 pm, as the vehicle was being manoeuvred to park, and about five minutes after Mr Wheatley entered the house, Mr Wheatley walked out of the house carrying a backpack.72 Mr Wheatley got into his vehicle, putting the backpack in the car. At this point, the driver of the vehicle on the road was still manoeuvring with his lights on. Mr Wheatley reversed out of the driveway and drove up to 11B Hill Street. The brake lights of Mr Wheatley’s vehicle showed and then the vehicle stopped on the eastern side of Hill Street, approximately in front of 11B Hill Street, facing in a northerly direction with the lights on. As Mr Wheatley drove down the road, the driver of the vehicle parking in front of 20 Hill Street pulled forward again and then reversed again before his vehicle 69 Exhibit P9 at 2:04:20. 70 Exhibit P9 at 2:04:35. 71 Exhibit P9 at 2:04:41. 72 Exhibit P9 at 2:05:48. -- 35 of 129 -- [2024] SASC 58 Stein J 34 stopped and the lights turned off. The driver of this vehicle was identified as Mr Sicari. 164 When Mr Wheatley stopped in front of 11B Hill Street, almost immediately a silhouette of a figure can be seen walking from 11B Hill Street to the vehicle73 (Mr Perkins gave evidence that the figure was him). A few seconds after the figure moved to the car, headlights appeared in the top left of the screen consistent with a vehicle(s) turning into Hill Street from Fairfield Road. Almost immediately after, and within a minute of moving to Mr Wheatley’s car, the figure next to Mr Wheatley’s car went back to the house (Mr Perkins gave evidence that he saw the car headlights and went back into the house). 165 The headlights of the approaching vehicle paused briefly in the vicinity of Mr Wheatley’s car before continuing down Hill Street in a southerly direction. The first vehicle which was small and dark was followed by a second vehicle which was larger and light coloured. The vehicles disappeared from view at about 10:36 pm. 166 Mr Sicari, having got out of his vehicle, walked down the driveway of 20 Hill Street towards the door as the two vehicles passed 20 Hill Street. Mr Sicari turned to look at the passing vehicles and entered the house at 10:37 pm. This sequence of events is relevant to Mr Sicari’s opportunity to observe the cars. At that time, Mr Wheatley’s car remained stationary in front of 11B Hill Street with its brake lights illuminated. 167 At 10:38 pm, headlights illuminated the metal fence alongside 20 Hill Street as a car turned into Hill Street from Thompson Street. The small dark car appeared followed by the larger light coloured vehicle. The brake lights of the light coloured vehicle illuminated briefly as the vehicle passed 11B Hill Street. Both vehicles continued up Hill Street to Fairfield Road. At 10:38 pm, almost as the two vehicles reached the northern end of Hill Street, Mr Thaller walked out the door straight across to the fence and immediately looked up Hill Street. His mobile phone is visible in his hand. He held the phone up to his ear as he stood alongside 20 Hill Street looking up Hill Street towards 11B Hill Street. He held the phone to his ear for approximately 15 seconds and then looked at the screen. He lifted the phone to his ear again and continued to hold the phone to his ear for about 10 seconds before again looking at his phone and then lifting his phone to his ear again. Mr Thaller primarily looked down Hill Street towards 11B Hill Street. Mr Sicari followed Mr Thaller outside. He also looked up Hill Street. 168 At almost the same time that Mr Thaller walked out the door and started looking up Hill Street, a car drove in a southerly direction down Hill Street. A pale coloured sedan pulled into the driveway of 20 Hill Street alongside the trailer. While the vehicle turned into the driveway of 20 Hill Street, Mr Thaller remained focused on his phone and looking up Hill Street. He did not pay attention to the 73 Exhibit P9 at 2:07:01. -- 36 of 129 -- [2024] SASC 58 Stein J 35 arrival of the vehicle and while the driver drove into the driveway he continued to look up the street. His back remained towards the car while he looked up Hill Street after the vehicle stopped. Mr Thaller continued to look toward Hill Street holding the telephone to his ear. After the car in the drive was stationary for several seconds, he approached the driver’s door. The driver, Ms Bourke, handed something to him and then got out of the car. Mr Thaller then walked to the door and went into the house. Ms Bourke followed Mr Sicari into the house at 10:40 pm. 169 At 10:40 pm, the lights on Mr Wheatley’s car were turned off. At 10:42 pm, a faint silhouette can be seen walking from the house towards Mr Wheatley’s car.74 Within less than 15 seconds, at 10:42 pm, headlights appeared in the top left-hand side of the screen, indicating vehicles moving down Hill Street in a southerly direction from Fairfield Road. The first vehicle pulled up in front of 11B Hill Street alongside Mr Wheatley’s vehicle. The second vehicle followed behind and pulled up behind the first vehicle. At 10:42 pm, both vehicles were stationary and Mr Wheatley’s lights appear illuminated.75 At 10:42 pm,76 the lights of the second vehicle flashed off and on as if something passed in front of them. Immediately after, a silhouette of a figure moved quickly onto the footpath. The person, known to be Mr Boyce, ran down Hill Street initially on the pavement and then crossed diagonally towards 18 Hill Street. A figure chased him. At the same time that Mr Boyce ran down the pavement followed by the pursuer, another figure moved quickly from the pavement, passed through the headlights and returned to the driver’s side of the vehicles. 170 By 10:43 pm,77 the pursuing figure appears to have caught and held Mr Boyce. The two vehicles started moving down the road at about the time Mr Boyce was being restrained. The first vehicle stopped approximately adjacent to 18 Hill Street at 10:43 pm78 and the second vehicle stopped immediately after. 171 As the headlights of the first vehicle illuminated the street at about 10:43 pm,79 it is possible briefly to see the silhouette of the two men on the sidewalk next to 18 Hill Street. The man holding onto Mr Boyce appears to be restraining him after a struggle. By the time the second vehicle stopped, the driver of the first small dark vehicle was already out of his vehicle and moving quickly to the restrained man. Although the quality of the CCTV footage is very poor, it is possible to make out the general shape of the driver of the small dark vehicle as he got out of the car and attacked Mr Boyce. He was wearing a pale coloured T- shirt and his upper body is visible. He did not pause. He attacked Mr Boyce immediately on approaching him. The attack started at approximately 10:43 pm.80 74 Exhibit P9 at 2:12:50. 75 Exhibit P9 at 2:13:43. 76 Exhibit P9 at 2:13:47. 77 Exhibit P9 at 2:14:06. 78 Exhibit P9 at 2:14:12. 79 Exhibit P9 at 2:14:10. 80 Exhibit P9 from 2:14:15. -- 37 of 129 -- [2024] SASC 58 Stein J 36 It is possible to see from the movement of the figure that he moved straight from a position with somewhat bent knees into a series of punches and kicks. The rapidity of the moves and the extent of visible bodily movement is indicative of blows delivered with force. The driver’s side door of the second silver vehicle opened at 10:43 pm,81 and the driver ran across in front of the headlights of the small dark vehicle. At this point, the driver of the small dark vehicle was punching Mr Boyce. The driver of the second larger vehicle joined in and all three figures can be seen delivering blows. When the driver of the small dark vehicle first started to strike Mr Boyce, the angle of the blows was consistent with Mr Boyce being held in an upright position. The person holding Mr Boyce then became visible suggesting he was no longer holding Mr Boyce. From this point on, the movement of all three figures indicates all three deliver blows. In the last part of the attack, the figures appear to be looking down and their lower body movements are indicative of the men delivering their blows through kicks near the ground. 172 At 10:43 pm,82 the three figures moved away from Mr Boyce and ran back to their vehicles. As the passenger of the small dark car ran through the headlights and around to the passenger side, his right arm shows in the headlights and a white cast can be seen. The larger silver vehicle started moving at about 10:43 pm83 and drove off down Hill Street followed immediately by the small dark vehicle. 173 At 10:43 pm,84 a figure walked down the driveway of 18 Hill Street to the fence and looked over the fence. The person opened the gate and crouched down alongside the gate, then walked back inside. At about the time the person from number 18 walked out the gate, a small moving light consistent with a person holding a torch or mobile phone moved down the western pavement of Hill Street from the northern end. 174 At 10:46 pm, the rear lights and then the brake light of Mr Wheatley’s car turned on. Mr Wheatley’s car performed a three-point turn, Mr Wheatley drove down Hill Street slowly and pulled into the driveway of 20 Hill Street. At 10:47 pm, Mr Sicari emerged from the door of 20 Hill Street and then ran back into 20 Hill Street. At 10:48 pm, Mr Thaller walked out the front door of 20 Hill Street followed immediately by Mr Sicari. They stood by the fence. Mr Thaller then walked up and joined two people standing alongside the prone Mr Boyce. Mr Wheatley did not get out of his car prior to the end of the CCTV footage compilation. 175 There is a streetlight on the eastern side of Hill Street visible in the screen on the left-hand side of footage from camera 5. The streetlight appears to be approximately opposite 16 Hill Street. There is a streetlight just visible in the 81 Exhibit P9 at 2:14:14. 82 Exhibit P9 at 2:14:29. 83 Exhibit P9 at 2:14:36. 84 Exhibit P9 from 2:14:53. -- 38 of 129 -- [2024] SASC 58 Stein J 37 footage on the left side of camera 5 which appears to be on the western side of Hill Street, perhaps slightly north of 11B Hill Street. 176 As vehicles travelled in a northerly direction and passed the streetlight on the eastern side of Hill Street, light reflected off the roof and panels as each vehicle moved past, with associated shadowing. When the small dark vehicle passed under the streetlight, the light reflected off the roof moving from the front to the rear of the vehicle as it passed under the streetlight. As it did so, a faint shadow appeared at the back of the roof in the area where the roof joined the top of the boot. The shadow moved briefly from the left to right side of the vehicle as it moved under the streetlight.85 When the vehicles travelled in a southerly direction a similar effect was visible with the light reflecting off the roof and panels of each vehicle.86 177 I now turn to my observations of the processed CCTV footage.87 For accuracy when referencing multiple events occurring within the same minute, I have referred to the specific timecode of the individual processed file. 178 The file named “Boyce C5-2203” shows the first drive-by at 10:33 pm. It is possible to see the brake lights on the larger vehicle light up briefly as the vehicle passed alongside 11B Hill Street. Despite the quality of the CCTV footage, the shape of the vehicles is discernible in the processed footage. As the dark vehicle comes into view, the front headlights can be seen, suggesting they wrap around from the front to the side of the vehicle. The bonnet slopes up to the roof at an angle which contrasts with a sharp angle from the roofline down the back of the vehicle. The rear lights are positioned above the rear number plate and appear to sit slightly higher than the front lights. The second vehicle is a lighter colour and bigger than the first vehicle. The front lights appear to also throw light sideways. The rear lights appear approximately rectangular and are positioned close to the number plate. 179 The file named “Boyce-C6-2203” shows the drive-by at 10:33 pm from camera 6. The larger vehicle can be seen relatively clearly. In this extract of the CCTV footage, the pale colour of the second vehicle is more visible. While acknowledging Dr Sorell’s observations about the ability to see colour, the pale colour could be consistent with silver. The shape is also more visible. This includes the shape of the bonnet, the front windscreen, roof and rear of the vehicle, what appears to be a line or crease running from front to back below the windows and a slight overhang of the roofline. In the footage, the shape of the front headlights on the small dark vehicle are more visible, and although the precise detail of the hubcaps cannot clearly be seen, it is possible to discern several semi-circular black voids against pale hubcap material that occupies most of the space in the wheels. 85 Exhibit P9 at 2:04:22 and 2:09:12. 86 Exhibit P9 at 2:07:47. 87 Exhibit P5. -- 39 of 129 -- [2024] SASC 58 Stein J 38 180 The file named “Boyce-C5-2206” shows the second drive-by at 10:36 pm in which the vehicles travel north to south. In this footage, the size discrepancy between the two vehicles is clear. The vehicles are travelling closer together. 181 The file named “Boyce-C5-2208” shows the third drive-by at 10:38 pm in which the vehicles travelled south to north. The small dark vehicle appeared to slow alongside 11B Hill Street. The brake lights of the second vehicle appeared briefly as the vehicle passed alongside 11B Hill Street. In the slowed down version of the processed CCTV footage it is possible to see the brake lights flash twice alongside 20 Hill Street, as well as alongside 11B Hill Street. 182 The file named “Boyce-C5-2211” shows the drive-by at 10:41 pm culminating in the assault. As the small dark car left after the assault, the sharp angle of the rear of the small vehicle from the roofline to the boot can be seen. 183 The file named “Boyce-C5-221323” shows the three men returning to their vehicles immediately after the assault. The cast on the right arm of the passenger of the small dark vehicle is visible. 184 The file named “Cam56-221325” shows the footage from camera 5 at 10:43 pm as the vehicles left the scene. The footage is clearer in respect of the pale vehicle and shows the hubcaps, the colour, the style line running from front to back under the windows and the shape of the front and back headlights. The darker vehicle which moved off second is harder to see. The front headlights are generally visible. The footage ran straight into the same vision from camera 6. It is possible to see a glimmer of white in the location of the driver’s seat. This is consistent with the man in the pale T-shirt who first attacked Mr Boyce driving the small dark vehicle. 185 In the file described as “Boyce C5 – Assault HD” there is a glimmer of a reflection as the driver side door of the small dark car opened alongside 11B Hill Street.88 There is a flicker of headlights consistent with a person walking in front of the vehicle and a faint flash of white can be seen consistent with a person walking in front of the headlights towards 11B Hill Street. When the chase commences it is possible to see the two figures fleeing down the footpath and a third figure returning quickly towards the vehicles and passing in front of the headlights. 186 When the driver emerged from the small dark vehicle, his pale T-shirt is visible.89 A faint outline of his arms and head are visible. He moved towards Mr Boyce and immediately struck him. A kick was followed by a series of punches and then further kicks and punches. Within several seconds it is possible to discern at least six and possibly more blows by the driver of the small vehicle. The faint outline of the person initially restraining Mr Boyce can be seen to have moved back and towards the road consistent with him no longer restraining 88 Exhibit P5 – Boyce C5 – Assault HD at 0:33. 89 Exhibit P5 – Boyce C5 – Assault HD 01:06. -- 40 of 129 -- [2024] SASC 58 Stein J 39 Mr Boyce.90 The driver of the small dark vehicle moved back a little to allow the driver of the silver vehicle to join in the assault.91 All three men can be seen delivering blows. The driver of the small vehicle engaged in a movement which may be consistent with a forceful kick.92 After the driver of the larger vehicle and the passenger joined in the assault, the driver of the small dark vehicle also continued to take part in the attack. The movement of the three men and, in particular, the driver of the small dark vehicle who is more visible as a result of his pale T-shirt, moved to primarily movements of the lower limbs consistent with the men kicking Mr Boyce while he lay on the ground. At least three bodily movements consistent with kicking are observable in the CCTV footage.93 As the men returned to the two vehicles, the plaster cast on the right arm of the passenger can be seen as he passed in front of the headlights of the small dark vehicle in the processed footage.94 Identification of vehicle types Senior Constable Chewter 187 Senior Constable Chewter was involved in reviewing the CCTV footage seized from 20 Hill Street and was asked to identify the make and model of the cars shown in the CCTV footage. 188 Senior Constable Chewter spoke to people at car dealerships that sold Toyotas, Jeeps, Holdens, Mitsubishis, Hyundais, Nissans and Subarus. He showed people six still pictures showing the cars from the CCTV footage to discuss opinions as to what sort of cars they may be. 189 Senior Constable Chewter dealt with Dr Sorell. He met with Dr Sorell on 7 June 2017 and provided to Dr Sorell three segments of footage from the DVD hard drive unit. According to the time and date stamp on the screen, the first was footage extracted from the period 4:00 pm to 4:59:59 pm from camera 6 on 30 January; a second file recorded events from camera 6 in Hill Street between 10:00 pm and 10:59:59 pm on 30 January; and the third file was footage from camera 5 during the period from 10:00 pm to 10:59:59 pm. 190 Dr Sorell was provided with the files on DVD and also given the original hard drive unit. Senior Constable Chewter collected the hard drive back from Dr Sorell on Monday 19 June 2017. 191 Senior Constable Chewter dealt with Mr Trevor Greer who worked at the Toyota Head Office at Adelaide Airport. Senior Constable Chewter initially met with Mr Greer on 18 May 2017 and showed him photographs95 focusing on the lighter coloured SUV. He met with Mr Greer on 29 June focusing on the small 90 Exhibit P5 – Boyce C5 – Assault HD at around 01:16. 91 Exhibit P5 – Boyce C5 – Assault HD at 01:17. 92 Exhibit P5 – Boyce C5 – Assault HD at 01:16. 93 Exhibit P5 – Boyce C5 – Assault HD from approximately 01:17 to 01:22. 94 Exhibit P5 – Boyce C5 – Assault HD at 01:27. 95 Exhibit P3. -- 41 of 129 -- [2024] SASC 58 Stein J 40 dark car in the CCTV footage. By then, Senior Constable Chewter had a working copy of the CCTV footage provided by Dr Sorell. Senior Constable Chewter showed Mr Greer a file.96 Mr Greer was asked to watch the footage and to pay particular attention to the small dark car. Mr Greer was shown other files which were working files provided by Dr Sorell.97 Mr Greer provided to Senior Constable Chewter a number of documents regarding Toyota Echo models. 192 On 14 September 2017, Senior Constable Chewter obtained from Dr Sorell a final version of the extracted files. 193 On 25 October 2017, Senior Constable Chewter was tasked to attend at the address of the parents of Mr E to look for a Toyota RAV4 with registration S867 AVO. It was not located and the best of his knowledge has not been located. 194 During cross-examination, Senior Constable Chewter agreed he spoke to a Mr Tannock, Mr Greer’s manager at Toyota. Mr Tannock said Mr Greer would be the best person to assist with the enquiries. Senior Constable Chewter continued to correspond with Mr Tannock in a minor capacity in relation to emails. Senior Constable Chewter was taken through a number of email communications between him and Mr Greer and Mr Tannock. These emails feature in defence’s submission that I ought not place any weight on Mr Greer’s opinion, a submission I address separately below. 195 The emails started on 18 May 2017 when Senior Constable Chewter sent to Mr Tannock and Mr Greer an email attaching four images extracted from the CCTV footage.98 The email stated that the images were not the best, but were the best available at that time. On 19 May 2017 at 9:23am, Senior Constable Chewter sent to Mr Tannock and Mr Greer an email attaching another image99 from the CCTV footage for their consideration. At 1:50 pm on 19 May 2017, Senior Constable Chewter received a response from Mr Greer100 which embedded five images into the body of the email. They included a diagram of a Toyota Echo, a Toyota Yaris and a Holden Barina. The email stated that Mr Greer would give him a call about the images. Senior Constable Chewter could not recall receiving a phone call from Mr Greer. On 19 May 2017 at 2:38 pm, Mr Greer sent to Senior Constable Chewter two images of a Toyota Echo with a message referring to the rear bumper/taillight features of the Toyota Echo for the entire model run.101 Senior Constable Chewter agreed that he asked Mr Greer to give an opinion as to the comparison between the CCTV footage and a Toyota Echo by email dated 19 May 96 File labelled “CAMS58_20-39-59CAM6.avi” that contained footage with a date and time stamp of 28 January 2017 at 8:35:58 and 8:39:59 from camera 6. 97 Files labelled “Boyce-C6-2203” that contained footage with a date and time stamp of 30 January 2017 at 22:03:16 from camera 6 and “Boyce-C5-2211” that contained footage with a time and date stamp of 30 January 2017 at 22:11:47 from camera 5 (T73.21-22 - a reference in the transcript to the timestamp 22:03:17 has been corrected to 22:11:47). 98 Exhibit D37. 99 Exhibit D38. 100 Exhibit D39. 101 Exhibit D40. -- 42 of 129 -- [2024] SASC 58 Stein J 41 2017 at 3:29 pm.102 The email embedded a diagram of a Toyota Echo alongside the CCTV image. That same day at 4:40 pm, Mr Greer sent to Senior Constable Chewter an email103 in which he said “Close could be an Echo, got your message, speak with you Tuesday”.104 When asked whether it was fair to say he was asking Mr Greer to concentrate on a Toyota Echo, Senior Constable Chewter said that he was not necessarily asking him to concentrate on it, but whether in his professional opinion he would identify that vehicle as potentially an Echo. If not, he would have had to make other enquiries. 196 Senior Constable Chewter thought he tried to call Mr Greer but he believed he was away or out of the office and left a message for him. 197 On 22 May 2017 at 2:30 pm, Senior Constable Chewter received an email from Mr Tannock, copied to Mr Greer,105 which said he had viewed the images and although they could assume it could be a Toyota hatchback such as an old Toyota Echo, the images were not clear enough to be confident in their evaluation. 198 Senior Constable Chewter agreed he showed Mr Greer footage on 29 June 2017 which was footage processed by Dr Sorell. Senior Constable Chewter agreed he was directing Mr Greer’s attention to a vehicle of interest being a Toyota Echo or potentially a Toyota Echo. Mr Greer 199 Mr Trevor Greer is Regional Fleet Manager for Toyota Motor Corporation Australia. He has worked for the Toyota Motor Corporation for 40 years. During that time, he has had roles in logistics, marketing, sales, training and fleet management. It has been a core part of his role to be familiar with the various models in the Toyota Australia range. 200 Toyota Motor Corporation provides assistance about models and the features of various models including in training material, presentations to fleet customers, data and so on. When a new model comes out, Toyota Motor Corporation head office will provide information about the new model including its features, styling, mechanical aspects and advantages. The materials address all details including minor details of lamps, badging, style lines in sheet metal, interior fit out and mechanical. Mr Greer must be familiar with the variations from model to model. 201 Mr Greer explained that generally within a model, which would normally run for an eight to 10 year cycle, at about two years a minor cosmetic upgrade or change to paint may be introduced, midway through the cycle the model might get a major facelift to stay competitive and safety upgrades may be introduced throughout the model life. With each upgrade, Toyota Motor Corporation produces an advanced product information specification sheet, which may be 102 Exhibit D41. 103 Exhibit D42. 104 T353.10-12. 105 Exhibit D43. -- 43 of 129 -- [2024] SASC 58 Stein J 42 about 400 pages long, highlighting changes with photographs of the different variants. Any changes between models will be highlighted and the documents are transmitted through every part of the corporation to inform everyone about the changes. 202 Mr Greer is familiar with the model variations for the Toyota RAV4 and for the Toyota Echo. 203 In 2013, Toyota RAV4s were manufactured overseas and imported. Prior to 2020, the distribution yard was part of Mr Greer’s responsibility. If a vehicle was imported it would carry with it a unique identifier vehicle identification number (“VIN”) for a particular vehicle with records held by Toyota recording make, model, colour and engine number details. Engine number details were stamped on the engine block. 204 On 18 May 2017, Senior Constable Chewter contacted Mr Greer and showed him a series of still images taken from the CCTV recording unit showing a particular car (the larger car in the CCTV footage). Mr Greer was asked whether he was able to form an opinion about the make or model of the car depicted in the pictures. Mr Greer confirmed that the photographs comprising exhibit P3 appeared to be reproductions of the photographs shown to him by Senior Constable Chewter. 205 There were particular features of the vehicle which caused Mr Greer to form the view that the vehicle shown in the images was a Toyota RAV4. Mr Greer pointed to the way the roof slopes down on the rear quarter panel, the shape of the rear window, a unique style line running from front to back that matches with the rear taillight and the overhang of the roof over the back of the rear windscreen. Mr Greer was asked whether the vehicle could be another kind of car. Mr Greer said no and explained he reached that view because of the style line down the side fender and the roof line on the rear window that was very unique to a Toyota RAV4 of that era, including the taillight which was quite skinny, running around the side and broadening up around the back of the car. Mr Greer said the shadow line indicated to him that that was a Toyota RAV4. Looking at the second image, Mr Greer pointed to a number of features consistent with a Toyota RAV4. He said the front fender was plumped out slightly which is visible in the shadowing of the streetlight. Mr Greer said the front headlight of a Toyota RAV4 were unique where the centre of the car came out wider towards the side of the fender. Mr Greer said the style line running from front to back of the vehicle down the bottom of the front bumper was visible. In the third photograph, Mr Greer pointed to the style line running underneath the windows of the car and skinniness of the taillight wrapped around the fender together with the style line on the wheels. Photograph 6 further confirmed Mr Greer’s opinion. He pointed to the slope of the back window with the slight slope to the window which then drops down straight; the style line, the shape of the headlights and the taillight which he described as very unique to that vehicle. Mr Greer suggested this was a base model Toyota RAV4 because there were fog light holes and the wheels appeared to be base grade as they had a steel pressed wheel with a fat spoke. The type of wheel and absence of -- 44 of 129 -- [2024] SASC 58 Stein J 43 fog lights in the front bumper indicated it was a GX range of the Toyota RAV4. This particular model ran from about 2011 to 2014 and was produced and imported to Australia from about December 2012. Mr Greer said the car in the photographs was consistent with a 2012 or 2013 production run of a Toyota RAV4 GX. 206 Mr Greer was asked to enquire about records held in the normal course of business for vehicle identification numbers and engine numbers for a Toyota RAV4 registration number S867 AVO. The registered owner was Mr E’s father with an address in Andrews Farm. The records indicated a retail sale date of 28 March 2013 from Northpoint Toyota. 207 On 18 May 2017, Mr Greer was also shown photographs of the small dark car. 208 On 29 June 2017, Senior Constable Chewter asked Mr Greer to look at sets of CCTV footage. The first set, from a video file labelled “CAMS58_20-39- 59CAM6.avi”, was described as recorded on 28 January 2017.106 Detective Chewter asked Mr Greer to concentrate on a small dark hatch in the footage. Mr Greer said there were features that enabled him to form an opinion that this was a Toyota Echo three-door hatch. Mr Greer was also asked to consider photographs comprised in exhibit P12. Mr Greer described the Toyota Echo as a very unique design for Toyota at that time. It was designed in Europe to break into the European market so was very rounded and had some unique styling lines. This included short overhangs at the back, being the distance between the rear wheel and the bumper bar, a very unique style line down the side where the body bulges out at the base of the window, very bulbous taillights mounted up quite reasonably high in line with the style line of the car with the number plate of the vehicle recessed into the rear bumper, not on the hatch, a high mounted brake light in the window, a unique roof line that slopes down from above the driver’s head to the back of the car, a unique shape of the B-pillar, the way the B-pillar and window meet, the slope of the rear window and the hubcaps. Mr Greer said the base model Toyota Echo had a unique hubcap with quite a lot of plastic and some small takeouts for ventilation. Mr Greer said the Toyota Echo had very rounded, large front headlights which wrapped to the side of the fender and which at night would give more light out onto the street but also reflect light on the fender. He said the rear taillights were mounted quite high in line with the style line of the vehicle. By reference to these features, Mr Greer said the vehicle was definitely a Toyota Echo. 209 Mr Greer said that when there are cosmetic changes to a model, they may change things like hubcaps, but they will rarely change sheet metal down the side of the car because it is too expensive. 106 Noting this was not the date of the attack. -- 45 of 129 -- [2024] SASC 58 Stein J 44 210 Mr Greer said the Toyota Echo came in a three-door and five-door model but the three-door was a bigger seller because it was a cheaper car. 211 Mr Greer was then asked to look at CCTV footage taken on 30 January 2017. Mr Greer was asked whether there were any style cues he saw in the footage from 30 January in the file labelled “Boyce-C6-2203” that gave him an indication as to the make and model. He said in the moving footage you could see the style line running from front to back underneath the side window and the way the roof line came down and bulged out. He pointed to the round and bulbous rear taillights and the roof line sloping down. He pointed to the positioning of the rear number plate and the D-pillars and a short overhang.107 Mr Greer said the CCTV footage showed the position of the brake light coming on from time to time consistent with a Toyota Echo. Mr Greer said the moving footage was a lot better than the photographs and he could see the vehicle was definitely a Toyota Echo. Mr Greer said the footage was consistent with a three-door Toyota Echo hatch and consistent with the footage he saw from two days before. 212 Mr Greer was also shown a segment of CCTV footage identified as “Boyce- C5-2211” recorded on 30 January 2017. Mr Greer said this appeared to show the same two cars he had been describing in his evidence. He said there were some style cues that were visible on viewing the footage which were “very clear”108 and consistent with the small vehicle being a Toyota Echo. 213 Mr Greer was shown three pages of photographs from CCTV footage dated 30 January 2017 and timestamped 22:13:33-22:13:34.109 Mr Greer understood they were still shots from the CCTV footage taken of vehicles driving away from what was said to be the scene of the crime. Mr Greer was asked whether there were style cues in relation to the small dark hatch and said “yes, with the same model car”. The style cues were the positioning of the A, B and C-pillars and a glimpse of the style of the hubcap and the rear frame. 214 In combination, Mr Greer’s opinion was that the make and model of the car was a three-door base model Toyota Echo. 215 Mr Greer prepared a spreadsheet depicting various features of a Toyota RAV4 2012 model from product information provided to dealerships and distributors.110 The spreadsheet includes illustrations of the style features about which he had given evidence. Mr Greer engaged in a similar process with the Toyota Echo.111 It included photographs of the Toyota Yaris for comparison purposes. The spreadsheet identified what Mr Greer regarded as features which could be identified on the CCTV footage. 107 It is unclear if the reference to D-pillar was meant to be a reference to C-pillar. 108 T216.6. 109 Exhibit P14. 110 Exhibit P49. 111 Exhibit P50. -- 46 of 129 -- [2024] SASC 58 Stein J 45 216 During cross-examination, Mr Greer agreed that the Toyota Yaris superseded the Toyota Echo and was a similar shape. However, he said it was very different because the Toyota Yaris was slightly larger, had a slightly different roof line, a very different style line down the side and different rear and side windows. Mr Greer agreed you could say the vehicles were similar in shape and that the vision in the photographs would depend on the angle with which the vehicle was photographed and the kind of photograph, such as use of a wide angle lens, could be taken into consideration. 217 Mr Greer did not know whether Mr Tannock discussed any matters with Senior Constable Chewter by telephone. 218 Mr Greer was taken to the series of emails between Senior Constable Chewter and Mr Greer dated 18 and 19 May 2017. He was asked whether, in the image in exhibit D38, the dark line across the top above the taillights of the vehicle could be a spoiler or body panel. Mr Greer agreed it could be a spoiler or a body panel. 219 Mr Greer said it would be fair to say that that in May 2017 he regarded the Holden Barina as a possible candidate for identification. If he said in an email he was going to give Senior Constable Chewter a call, Mr Greer said he would have done so, but he did not have any notes of any conversation. He was taken to images of a Toyota Yaris, Toyota Echo and a Holden Barina. When Mr Greer was asked whether Senior Constable Chewter led him to understand that at that stage he was really only interested in the Toyota Echo, he responded that from memory he thought that was the case. He said he knew the Toyota Echo was the vehicle Senior Constable Chewter was interested in and that was what he was concentrating on. Mr Greer agreed it was sometime later that he was shown the CCTV footage. The only discussion Mr Greer could recall with his colleague, Mr Tannock, was whether the legal department should be involved for Mr Greer to give a statement. 220 Mr Greer agreed that Mr Tannock expressed the view that the images were not clear enough to be confident in their evaluation in the email Mr Tannock sent112 and Mr Greer probably had read the email when copied into it. He could not recall whether he would have spoken to Mr Tannock about it but said they probably may have discussed that part of it and waited on further images coming through. 221 Mr Greer agreed that on 29 June 2017, Senior Constable Chewter asked him to view the CCTV footage from 28 January. He was asked whether he could identify the small dark hatch. When asked whether Senior Constable Chewter asked him to express a view whether or not the vehicle was a Toyota Echo, Mr Greer disagreed and said Senior Constable Chewter asked what was the dark car he could see. In relation to identifying the make and model of the vehicle of interest from the CCTV footage of 28 January 2017, Mr Greer was told nothing 112 Exhibit D43. -- 47 of 129 -- [2024] SASC 58 Stein J 46 other than it was a small dark hatch and no guidance was given. Senior Constable Chewter then asked him to look at CCTV footage relating to 30 January 2017. 222 Mr Greer was then taken back to the email dated 19 May at 3:29 pm113 in which Senior Constable Chewter sent him a drawing of a Toyota Echo and asked Mr Greer for his opinion on a comparison of the depicted vehicles. Mr Greer agreed with the proposition that Senior Constable Chewter was well and truly alerting him to the fact he was interested in a Toyota Echo but when asked whether his expression of opinion on the comparison may have been influenced by Senior Constable Chewter telling him he was really only interested in a Toyota Echo, he disagreed. Mr Greer disagreed that the footage may be something else and said after seeing the CCTV footage it was “definitely a Toyota Echo”.114 Mr Greer agreed that the CCTV footage he saw at the end of June was the “cruncher” for him.115 223 In re-examination, Mr Greer said he would have included the picture of the Holden Barina in the email116 to show the difference in the car and the Toyota Echo has higher set bulbous taillights, whereas the Holden Barina has squarish taillights and the number plate is mounted on the hatch, not in the bumper. Mr Greer said that one of the photographs117 showed the number plate down low which was definitely a decider. Mr Greer said he would have been about 85 percent confident about what car it could be when he only had access to the stills but the moving pictures were the decider. He said that “the shadow lines of the car, you could tell it was a three door Echo without a doubt”.118 Mr Glover 224 Benjamin Glover has been branch manager at Northpoint Toyota for about five years. Mr Glover provided documents to police concerning the service records of a Toyota RAV4 registration number S867 AVO. That vehicle was purchased through Northpoint. Invoices were issued each time the vehicle was serviced by Northpoint and records were kept about the registered customer and the contact for a service, who would be the person who brought the car in for service. 225 Service records provided by Northpoint for the Toyota RAV4 spanned from 20 August 2014 through to 19 January 2017, the last service tax invoice Northpoint Toyota had for the vehicle. The customer was originally listed as Mr E’s father and then changed to Mr E’s girlfriend. 226 Mr Glover was familiar with Toyota’s competitors. The Toyota RAV4’s main competitors in terms of a similar, smaller all-wheel drive would probably be 113 Exhibit D42. 114 T391.21. 115 T391.23. 116 Exhibit D39. 117 In the first page of exhibit D39. 118 T392.36-37. -- 48 of 129 -- [2024] SASC 58 Stein J 47 the Mazda, possibly the Honda. The Nissan would be bigger and the Hyundai smaller. In the current market almost every manufacturer would put out a small SUV. Mr Glover did not agree the position would be the same with small hatchbacks. He thought most manufacturers would put out vehicles of a similar size such as the Toyota Yaris and that Japanese motor corporations would put out something comparable, but he could not speak about the European motor companies. Possible red vehicle 227 I received a witness statement of Ms Michelle Blake,119 and two statements of Ms Jaclyn Taylor120 tendered by defence. Prosecution objected to the statements being tendered on the grounds of relevance but were content for the statements to be received on the grounds they represented the evidence the witnesses would have given if called. 228 In a statement provided on 18 February 2017, Ms Michelle Blake121 said that at about 9:00 or 10:00 pm on 30 January 2017, she was in the front of 5 Virgo Street, Elizabeth South. When she first came out about half an hour earlier, she saw a small black hatch parked on Thompson Street with three young girls and police speaking to them. She went back inside and about 30 minutes later when she came out again the girls had left and it looked like a LandCruiser and a small red hatchback were on the corner of Virgo Street and Thompson Street. The red car was on the left side of Virgo Street facing towards Thompson Street and the silver car was on the right side of Virgo Street facing towards her house. She saw about four people, who appeared to be males with light coloured skin, standing in between the two cars in the middle of the road for about 20 minutes, apparently talking to one another. The red car turned right on to Thompson Street, did a U- turn and then stopped on the intersection of Thompson Street and Hill Street. The silver car drove forward, did a three-point turn in the driveway of 6 Virgo Street and then caught up to the back of the red car that looked like it was waiting for the silver one. The silver and red car drove very quickly down to the middle of Hill Street and stopped all of a sudden. They stayed in that spot with their lights on for about 15 minutes and then all of a sudden both took off very quickly north on Hill Street. Ms Blake went back inside and did not see anything more until she saw ambulance lights a short time later. 229 In Ms Jaclyn Taylor’s statement to police on 2 February 2017,122 she said that about 10:00 pm she was at home in Virgo Street, Elizabeth South when she heard the sound of two cars coming from Thompson Street. She saw a red car with a body similar to a hatchback which came into the street without its lights on. She saw a silver four-wheel drive kind of car in front of the red car, they did a U-turn and went up Hill Street. Ms Taylor heard the sound of yelling but took no notice 119 Exhibit D85. 120 Exhibits D86; Exhibit D87. 121 Exhibit D85. 122 Exhibit D86. -- 49 of 129 -- [2024] SASC 58 Stein J 48 as that happened regularly in that street. Ms Taylor did not observe how many people were in the cars. 230 In April 2017, Ms Taylor provided a further statement123 in which she stated she saw a silver four-wheel drive type vehicle enter Virgo Street from Thompson Street followed by a little red hatchback, similar to a Kia, with a little fin up the top of the rear window. The little red hatch had its headlights off as it entered the street. Both of the vehicles conducted a U-turn before heading up Hill Street. 231 Virgo Street runs in approximately an east-west direction to the west of Hill Street. Hill Street intersects with Thompson Street in an approximate T-junction. There is an open area of land in the nature of a reserve separating Virgo Street and Hill Street. Virgo Street is located to the south of Hill Street so that it is approximately equivalent to a continuation of Hill Street if Hill Street and Virgo Street were not separated by the reserve in the middle. 232 I return to address the evidence about the red car later in my reasons. Toyota Echo ownership and registration Sale of Toyota Echo 233 In 2015, Mr A124 bought a blue Toyota Echo with the registration WSL 073. He registered it in his name and kept it for about a year. The Toyota Echo had paint faded on the roof, the headlights had started to fade and go yellow and there was a sticker on the back window of a unicorn defecating cupcakes. He did not do anything to the faded roof. Mr A, a heavy vehicle mechanic, swapped the rear muffler for a “hotdog” muffler by cutting out the old muffler and welding in place a “hotdog” muffler. It was about 30 centimetres long, pretty much straight through with perforations on the inside, fibreglass packing and a chrome dump tip at the end which protrudes at a 45 degree angle. The effect of the “hotdog” muffler was to make the Toyota Echo louder, which was successful. Mr A said the noise level would be similar to a Japanese style sports bike in sound and would depend on the revs going through the engine. 234 After Mr A decided to sell the car, he advertised it twice. The first time it did not sell. Mr A said when he sold the car in August 2016 the “hotdog” muffler was still in operation and he roof was still faded. He confirmed that photographs125 were photographs taken of his vehicle which accompanied the advert placed on Facebook and the second photograph showed the faded roof. He said the discoloured headlights still operated properly. 235 The second time Mr A attempted to sell the car, he was initially contacted by a female and then contacted by someone else he assumed was the female’s partner. The first and second contact was within 24 hours. Mr A arranged a time for the 123 Exhibit D87. 124 Mr A’s name is suppressed. 125 Exhibit P10. -- 50 of 129 -- [2024] SASC 58 Stein J 49 man to come and look at the car, he was the only person to look at the car on that occasion. Two males turned up to look at the car, they took it for a test drive, paid the agreed price and left with the car. The buyer introduced himself by the name “Toby”. Mr A described him as Caucasian, stocky build and tattooed with a couple of tattoos on his face. Mr A said “Toby” was wearing a hoodie or black jumper, black tracksuit pants and there were Hells Angels logos on the clothing. He engaged in small talk with the man, including asking him where his accent was from. Mr A said “Toby” had a German accent and the discussion was about Mr A’s friend, also from Germany with a very similar accent. Prior to the car being driven off, Mr A signed the notice of disposal and then lodged it at the Department of Planning, Transport and Infrastructure. 236 Mr A was shown photographs126 depicting the remains of a chassis of a car and bits of engine. Mr A said that other than being burnt and rusted, the muffler would be very similar to the “hotdog” exhaust he fitted to his Toyota Echo. He confirmed the one he fitted had a chrome tip with a slight curve to the tip and he could not see any obvious difference between the muffler in the photographs and the “hotdog” exhaust he fitted apart from discolouration. Department of Planning, Transport and Infrastructure documents 237 Department of Planning, Transport and Infrastructure documents127 evidence the registration for the period 1 July 2016 to 30 September 2016 in the name of Mr A of a Toyota sedan engine number 2NZI382985 described as a Toyota sedan, year of manufacture being 2000 and colour blue with number plate WSL 073. An application for transfer of registration of the Toyota Echo was completed with details of a sale from Mr A on 10 August 2016 of a vehicle described as a Toyota Echo sedan with number plate WSL 073. The new owner’s details were “Toby Stephan Sahlstorfer” with a date of birth of 27 March 1989 and a specified driver’s licence number. 238 Department of Planning, Transport and Infrastructure records128 evidence the registration of the Toyota Echo in the name of Mr Sahlstorfer from 1 January 2017 to 31 March 2017. The records demonstrate the last renewal of registration occurred on 1 January 2017 with the last expiry date being 31 March 2017. 239 A witness from the Department confirmed that the documents relating to the registration of vehicle plate WSL 073129 demonstrated that the vehicle was not re- registered after 31 March 2017, and that if it had travelled around on the roads after 31 March 2017 it would be unregistered. 126 Exhibit P11. 127 Exhibit P60; Exhibit P53. 128 Exhibit P59. 129 Exhibit P59. -- 51 of 129 -- [2024] SASC 58 Stein J 50 Agreed facts – Registration documents XX Beachwood Court, Gulfview Heights130 41. On 25 October 2017, Senior Constable Michael Randells attended XX Beachwood Court, Gulfview Heights. He was the allocated exhibits officer. He was handed registration papers regarding a Toyota Echo, registration WSL073 by Brevet Sergeant Andrew Jervis. 42. This item was seized and booked into the South Australia Police secure property storage system with the identifying number 17/B47685-70. Toyota RAV4 ownership and registration 240 Department of Planning, Transport and Infrastructure records evidence the registration of a vehicle with plate S867 AVO, Toyota station wagon in the name of Mr E’s father as at April 2016. 241 Department for Infrastructure and Transport records131 evidence the new vehicle registration of a vehicle with number plate S867 AVO on 28 March 2013 and a transfer of registration on 3 June 2013. The initial registration was in a company name with a transfer of registration in June 2013 to Mr E’s father. The vehicle was described as a Toyota station wagon, silver with number plate S867 AVO. Toyota Finance records evidence the entry into a consumer loan by Mr E’s father in May 2013 in relation to a 2013 Toyota RAV4, registration S867 AVO.132 242 Department for Infrastructure and Transport records evidence a series of renewals of registration, with the last transaction date being on 18 September 2017 with an expiry date of 17 December 2017. 133 After 18 December 2017, S867 AVO was unregistered. The Department witness confirmed that the Department registration record134 would show all transaction history in relation to plate S867 AVO including if there was a transfer of the number plate to a different vehicle. 243 On 1 November 2016, Senior Constable First Class Dedecke was tasked to drive past a house suspected to be the home of Mr E. The vehicles parked at the house included a silver Toyota RAV4 registration number S867 AVO. There was also a white Toyota Yaris registration number S810 AUD, registered to a female with the same name as the contact record for the Northpoint Toyota service records for the RAV4. 130 Address details have been partially redacted. 131 Exhibit P61. 132 Exhibit P25. 133 Exhibit P61. 134 Exhibit P61. -- 52 of 129 -- [2024] SASC 58 Stein J 51 Search for vehicles Agreed facts – Media release135 Media Release 36. On 2 March 2017, the South Australian Police media unit published a media release regarding the investigation into the death of Mark Boyce. 37. A text of that media release is produced and now marked as exhibit P83. 38. The media release was dated 2 March 2017. 39. On that same date, police also released CCTV footage recorded by the CCTV unit at 20 Hill Street, Elizabeth South. The footage shows the bashing of Mr Boyce, and the two cars used by the perpetrators of that bashing. The footage was subsequently aired on free to air television. This was the first public release of the footage showing the two vehicles. 244 Detective Britton gave evidence that on either 1 or 2 March 2017, a media release was issued by SAPOL into the death of Mr Boyce. The release was a request for assistance from the public and included CCTV footage from the hard drive showing the two vehicles and expressly asking people to come forward if they had information about the two vehicles. The media release referred to vehicles described as a late model light-coloured SUV and a dark coloured small hatchback driving into Hill Street and referred to the murder of Mr Boyce.136 Footage of the cars was aired on free-to-air television the night of the media release. Searches for vehicles 245 Detective Senior Sergeant Davies was involved in a search of a house in Andrews Farm on 26 October 2017 to look for a Toyota RAV4 with registration S867 AVO or any documentation or evidence regarding the Toyota RAV4. Detective Senior Sergeant Davies located documents described as “Toyota Finance Default Notices” issued to Mr E’s father and registration papers for a Toyota RAV4 vehicle plate S867 AVO issued to Mr E’s father. 246 On 26 October 2017, Detective Brevet Sergeant Sheehy was involved in a search of a house at Davoren Park which he understood to be occupied by Mr E to look for a Toyota RAV4 registration S867 AVO. Detective Brevet Sergeant Rethus was also involved in that search. No such vehicle was found at this time. Detective Brevet Sergeant Rethus said that she thought the vehicle may have been located at a later date based on things she had heard from others, however, Detective Britton confirmed that the Toyota RAV4 was not located at any time thereafter. 135 Exhibit P84. 136 Exhibit P83. -- 53 of 129 -- [2024] SASC 58 Stein J 52 Vehicle located at Ponde Search 247 Detective Senior Sergeant Ganley was involved in a search in September 2019 of a property at 591 and 555 Kenny Road, Cowirra, with the common name “Ponde”. The search was centred on looking for a Toyota Echo. 248 Detective Senior Sergeant Ganley said the property at Ponde is a rural property of about 15 hectares near the River Murray owned and frequented by members of the Hells Angels Motorcycle Gang. On the property there are a number of buildings including sheds, shipping containers and some house structures. 249 Detective Senior Sergeant Ganley has only been there on two occasions. Access to the property is from a gate running off a dirt road. He described a long road off the main road with a gate with signs to “keep out unless invited”. In addition to being used as a club facility, Detective Senior Sergeant Ganley believed Ponde used to be used for functions open to the public including concerts, sand drags and burnouts of vehicles. 250 The search commenced on 17 September 2019. There were some members of the Hells Angels Motorcycle Club present when police arrived. The search teams had access to heavy machinery. Detective Senior Sergeant Ganley accompanied a backhoe driver to a dump area they wanted to excavate. Nothing of relevance was located on 17 September but on 18 September at about 4:00 pm they conducted another search towards the top of his search area. 251 As a result of digging quite deeply with the backhoe into a man made compacted sandhill referred to by Detective Senior Sergeant Ganley as a berm, a car was located about four metres down. Detective Senior Sergeant Ganley said that a fair amount of dirt was displaced, and it was a quite dangerous area to dig.137 252 After the chassis of the car was located, it was pulled out with mechanical equipment. A number of police officers then proceeded with shovels to dig around and move any of the parts out of the dig site. There were dozens of pieces and anything that might have been part of a vehicle was taken for possible comparison later. Arrangements were made for a flatbed truck to convey what was retrieved and take it to the Ottoway police compound. 253 Detective Senior Sergeant Ganley estimated the size of the berm as sitting perhaps two metres high. He said the area being dug was a hollowed out dump with a pit at the northern end with all sorts of rubbish and bits of old cars. It was quite a deep pit and about two to three metres of dirt would have been on top of the berm above ground level but it was hard to be precise about how far below 137 Exhibit P28 shows the area searched and the area the car was located. -- 54 of 129 -- [2024] SASC 58 Stein J 53 normal ground surface the vehicle was because a huge amount of dirt was moved. However, the dirt may have been a metre or two high above ground level. 254 When asked whether it looked as if there was a burial ground for the car with a whole lot of other rubbish and dirt piled on top to make another pit, Detective Senior Sergeant Ganley answered “possibly”. 255 Detective Senior Sergeant Ganley was taken to aerial photograph of the area and he described areas including the clubhouse and a location where he thought the proprietors would have sand drags. He thought there may have been a grandstand, a stage and burnout strips and that the property was used to conduct sand drags on motorbikes, stunt jumps and burnouts. Detective Senior Sergeant Ganley thought a straight strip of graded surface might have been one of the areas of sand drags. He agreed the layout had facilities for what counsel described as “abusing vehicles”. Photographs of search location 256 On 18 September 2019, Senior Constable Southern went to Ponde to take a series of photographs of a car and car parts as well as sheds and workshops at the property.138 257 The photographs depict a large hole in the ground from which Senior Constable Southern was informed car parts had been retrieved. Senior Constable Southern took photographs from a number of angles around the remains of the vehicle, including photos showing a close up of the exhaust system of the car. The photographs included a photograph of the engine block showing the engine number stamped onto the engine block, being engine number 2NZ382985. The photographs of the sheds and workshops showed tools and machinery including an angle grinder for cutting metal, an air compressor and tyre changing machine, a drill press, cutting and grinding tools, and an angle grinder with cutting and abrasive tools. They included a metal cut off saw, a car hoist and other cutting tools. 258 Senior Constable Southern agreed there appeared to be general junk lying around but she was not aware of the nature of the junk, and from the photographs, there were possibly bits of old vehicles. She did not see other old vehicles around the place. Senior Constable Southern could not recall whether or not the pile of debris next to the chassis of the vehicle was associated with the vehicle and could not confidently say where it may have been located. Senior Constable Southern was not aware of what other junk was lying around the excavation area and she did not know the nature of the debris. She did not get the impression that the area was a general rubbish tip. Senior Constable Southern confirmed there were a lot of 44- gallon drums lying around the place, some of which were buried. She said there was a clear established entrance from the roadway to the property. 138 Exhibit P15. -- 55 of 129 -- [2024] SASC 58 Stein J 54 Examination of chassis and parts 259 Brevet Sergeant Strange has been a crime scene officer for 15 years working in Forensic Response for the last 13 years. He has undertaken training including in toolmark comparisons, shoe mark comparisons, physical comparisons and general crime scene work. 260 In September 2019, he attended the Ottoway vehicle complex to examine what appeared to be a damaged chassis and a multitude of engine parts and bits and pieces. 261 Brevet Sergeant Strange explained that the vehicle showed obvious signs of being damaged by fire and anything that may have been plastic had appeared to have melted away leaving metal remains. In some areas, including the engine bay, some traces of paint were still visible and blue paint was visible in parts of some photographs.139 Some external panels of the vehicle were missing. All the plastic components had perished. Some internal wiring was damaged but still present but generally anything external had been consumed by fire. The bonnet was missing, the front quarter panels were missing as were the guards. The A-pillar which runs up the front windscreen to the roof appeared to have been cut. Brevet Sergeant Strange considered an angle grinder could have been the mechanism for this cutting. The front cabin area of the car showed the dash had melted or been removed together with seats, console, steering and componentry. 262 The head of the engine was missing. Brevet Sergeant Strange thought the absence of debris suggested the head of the engine had been removed rather than being affected by fire. He did not find any vehicle identification plates on the chassis and could not find any compliance plate located on what was left of the chassis. A photograph140 showed the engine number as 2NZ382985. Some of the rims were attached to the chassis for both rear and front wheels but there were no tyres. A photograph141 depicted an exhaust component which, to Brevet Sergeant Strange’s knowledge, was not a factory fitted exhaust pipe but what he understood to be a “hotdog” style exhaust and which appeared to be damaged by fire and rust. He said, in addition to panels missing, there were numerous areas that were consistent with being cut and pointed to where the B-pillar, the driver’s window and back window would have been expected to be and pointed to the stub where the B-pillar was cut. 263 In cross-examination, Brevet Sergeant Strange agreed the vehicle had been cut into two main portions at least and it had been set on fire. He could not be sure whether the vehicle was set on fire before or after it was cut into portions. Brevet Sergeant Strange pointed to parts separate from the vehicle rusted to the same degree as the front chassis. He could not tell whether they were on the car at the time of fire or whether they were piled up and set on fire as a whole. The heavy 139 Exhibit P11 - Photographs 4, 5 and 6. 140 Exhibit P11 - Photograph 7. 141 Exhibit P11 - Photograph 12. -- 56 of 129 -- [2024] SASC 58 Stein J 55 rust was as a result of the fire. Brevet Sergeant Strange said that in the normal course of events, part of the engine would be covered by a rocker cover, generally made of aluminium and the exhaust manifold may potentially be aluminium. He agreed aluminium has a reasonably low melting temperature and compliance plates are aluminium, rivetted on with aluminium rivets which could disintegrate within a decent time. However, he pointed out that the rocker cover would have been bolted on with bolts that would be made of steel, not aluminium, so even if the rocker cover had melted, the screws or bolts would still be present. In his view, that indicated the vehicle had been dismantled to some degree in the engine area. 264 Brevet Sergeant Strange could not see the differential and could not tell if the differential had been damaged. He agreed there was no suggestion the engine number had been ground away with a grinder. Brevet Sergeant Strange said that the rocker arms, which are made of high tensile material with a high melting point, had been removed. He agreed that the car had been subjected to some form of wrecking with the removal of bits and pieces. Identification of vehicle located at Ponde 265 Mr Munn is a regional technical operations manager for Toyota Motor Corporation. He commenced as an apprentice mechanic, then had training in relation to diagnosis technician work and he now trains others as part of his role. Mr Munn is involved in physical inspections of vehicles including looking at engines of Toyota vehicles and he has significant knowledge of the Toyota Australia motor vehicle range. He is familiar with the Toyota Echo models and with records kept by Toyota. 266 In June 2020 and then in July 2020, Mr Munn met with Detective Britton. He was shown photographs taken by Brevet Sergeant Strange.142 Having viewed the photographs, including an additional electronic copy of 96 photos, Mr Munn formed the view that the vehicle was a Toyota Echo. Mr Munn explained his view by reference to seven photographs of the vehicle components and chassis which were photographs of the remains of the vehicle located at Ponde.143 267 After meeting with Detective Britton, Mr Munn sourced a white 2000 Toyota Echo with the same model number as the vehicle he considered was depicted in the photographs. Mr Munn provided three copies of photos of that Toyota Echo model.144 268 Mr Munn said in a Toyota Echo, the identification number is ordinarily forward of the vehicle on the engine’s cylinder block. The engine number is generally always on the block or the main part of the engine, but location on the engine can vary.145 He said the numbers he observed in the photographs were consistent with the manufacturing stamps and he did not consider the number had 142 Exhibit P11. 143 Exhibit P80. 144 Exhibit P81. 145 T574.37-38 (A reference to “vehicle identification number” has been corrected to “engine number”). -- 57 of 129 -- [2024] SASC 58 Stein J 56 been tampered with. All the numbers were straight and nice and uniform in a single imprint, which he considered would be almost impossible to replicate. The 2NZ number is part of the casting on all 2NZ engines and the numbers at the top were stamped in one straight, nice hit. Mr Munn was not concerned that the number 1 at the beginning of the string of numbers was more difficult to see. He confirmed that each of the photographs in exhibit P80 corresponded with photographs in exhibit P11. 269 Mr Munn conducted a search on 26 June 2020 of the Toyota vehicle inquiry records for the engine number shown. The result146 showed that the engine number attached to a Toyota Echo three-door hatch with a colour description “dark blue mica” with an engine number 2NZ1382985, and a registration date of 31 July 2000. The engine was fitted to the particular VIN originally sold to a company. Mr Munn said the description of the colour was consistent with the small vehicle of that era, such as a Toyota Corolla and Toyota Echo. The vehicle was produced in May 2000 with a VIN which is a unique 17-digit identification marking. 270 Mr Munn described147 where the compliance plate148 with the model number and identification markings such as the VIN would have been. He observed that the compliance plate had been removed. The compliance plate is attached with two pop rivets made of aluminium which may be removed by drilling those two rivets out, described as a simple process. Mr Munn said he had not seen compliance plates ever come loose or fall off of their own accord. Mr Munn observed that the colour of the vehicle in the photograph appeared to be blue and was consistent with the description of dark blue mica on the vehicle record. By reference to a photograph of the white Toyota Echo,149 Mr Munn demonstrated the ordinary appearance of the compliance plate which would contain the model number, engine number and frame number. 271 Mr Munn explained that the power steering on this vehicle was installed with a rubber boot that went over the top of the reservoir and that was only present on a Toyota Echo and a Toyota Hiace van, which this clearly was not. He said the intake manifold had been removed and described where that would have been. Mr Munn did not consider it possible for that part of the vehicle to have been consumed by fire, he believed it had been removed. While the manifold is plastic which would have easily melted, mounting bolts on the cylinder head would have remained, but they were not there, and nuts were also not in place. 272 Mr Munn said the vehicle was consistent with being a manual transmission. The top camshafts of the engine had been removed and there was no evidence of the camshafts or the bolts which could be removed with basic hand tools. He considered that the engine had not been further taken apart because doing so would require specialist tools. The exhaust manifold had been cut, indicating there 146 Exhibit P82. 147 By reference to the photographs in exhibit P80. 148 I will refer to this consistently as the compliance plate. 149 Exhibit P81. -- 58 of 129 -- [2024] SASC 58 Stein J 57 was no intention to reassemble it. The engine had moved forward and was not mounted into the car. He thought it was still attached to the car because certain components were unable to be removed by using hand tools, and consequently the engine assembly and transmission could not be separated from the body. It was most likely the driveshafts were holding the front part of the engine in place and special tools were required to remove the driveshafts. There was not a lot of access to physically remove them with the aid of a mechanical tool such as a grinder. 273 Mr Munn noted cuts in the top plenum area and across the front of the vehicle in certain locations. Those cuts would have allowed the front chassis to be removed and he could not see any reason to do that level of removal for the vehicle to later be put back together. Mr Munn thought some kind of angle grinder or large device such as a petrol powered cut off saw could be used to make such cuts. Mr Munn showed the location where the VIN number should have been stamped in the centre of the truss at the top in the plenum area. An area of the plenum was missing in the photographs,150 that was the area where the VIN would ordinarily be located on a Toyota Echo. Mr Munn could not think of any mechanical explanation or need to remove the plenum. 274 Mr Munn observed a modified exhaust called a “hotdog” or “glasspack muffler” which typically makes the engine noise louder. He thought it had been installed or welded on the factory original exhaust pipe because of the weld marks and the clamp holding the rear section of the exhaust. 275 Mr Munn pointed to the location of the battery cable, installed to a section of the body that had been partly removed, which was in a location that was unique to the Toyota Echo. He considered the location of the vehicle’s fuse box to be unique to a Toyota Echo. Further, Mr Munn considered the way in which the radiator was removed was inconsistent with any intention to put the car back together and only a simple tool would be needed to remove it. 276 Mr Munn had no doubt that the photographs were of a Toyota Echo. 277 In cross-examination, Mr Munn agreed that the photographs showed attempts to remove engine components, some successful and some not successful, and that the vehicle had been, in effect, cut up. He agreed that could be done with an angle grinder and that the vehicle had been consumed by fire. Mr Munn deduced the intake manifold was removed because there were no signs of any of the nuts and bolts in the recesses that would have been bolted onto the engine block. When asked whether they could have melted in the course of a fire, Mr Munn said the bolts would remain whilst the intake manifold itself would most likely be consumed by fire because it was plastic. Whether lightweight aluminium components could quite easily melt away if a car is consumed by fire would depend on the heat of the fire. As there were lighter aluminium components still present, he would suggest the fire was not that intense. Mr Munn agreed the compliance 150 Exhibit P80. -- 59 of 129 -- [2024] SASC 58 Stein J 58 plate is aluminium and quite thin and when asked whether it could melt away in a fire, he said “there could be damage to it, yes” and the same applied to rivets. Mr Munn could not see from the photos signs of drilling of the rivet holes. Mr Munn agreed a photograph151 depicted the broad nature of what happened when the vehicle was set on fire, including that the tyres were all consumed by fire. He agreed that the compliance plate is in the general area of the wheel arch above the righthand front tyre. Mr Munn said the differential is contained within the trans-axel assembly and cannot be easily viewed or easily removed and that specialist tools would be required to do so. He agreed that the components on top of the engine are pretty readily removable by a backyard mechanic. He could not say whether the differential had been in any way damaged. 278 In re-examination, Mr Munn confirmed that the compliance plate would be located on the righthand side of the vehicle, being the driver’s side, and it was the location where some blue paint could still be seen. He could see paint around the rivet hole areas. Vehicle use after March 2017 279 Ms Dani Gunner from the Department of Infrastructure and Transport (previously known as the Department of Planning, Transport and Infrastructure) gave evidence in relation to Safe-T-Cams which operate in South Australia and production of records from the system. 280 Safe-T-Cams are a network of camera systems in the metropolitan area and country locations focussing on main roads travelling in and out of the State. The system captures every vehicle travelling through the units and records every number plate and compares number plates with the database of registered vehicles. Any vehicle detected to be unregistered or uninsured or heavy vehicles deemed to have driven in excess of a specified number of hours are identified. The cameras are situated on a gantry which sits across the road and the cameras are aimed at the number plate and front of the vehicle. Pictures are taken of every car passing through and the computer system creates a digital record of the photographed number plate. The photographs of the cars are retained for a relatively short period but the data is retained for an extended period. 281 The system of recognising number plates is not foolproof. Certain characters on the registration plate create issues such as distinguishing between an eight and a zero, sometimes number plates may be damaged or there may be something obscuring the number plate or weather conditions such as glare and heavy rain can result in a misread. 282 If a person drives through a Safe-T-Cam in an unregistered vehicle, the system captures the information and the information is presented to staff in the Department who follow through and process those vehicles. For motorists driving 151 Exhibit P80 - Photograph 7. -- 60 of 129 -- [2024] SASC 58 Stein J 59 registered and insured cars, data is kept for up to seven or more years for every vehicle. 283 Ms Gunner gave evidence of producing Safe-T-Cam records for police152 and explained the entries. Her role involves reviewing product generated by the Safe- T-Cam system, in particular to review those associated with infringements. If vehicles are deemed unregistered for seven days, those are processed as an unregistered vehicle and the data is collected and sent to SAPOL for expiation. Where information is migrated from the registration database, staff review the vehicle details. The registration database produces a reading of the type of vehicle to which the data plate is registered and if the image does not match, staff make a change, process the wrong number and type in the correct number. However, if the registration plate recognised by the camera is not deemed unregistered, the entry is not reviewed and the data is stored. Accordingly, the trigger for human review is whether or not a vehicle is unregistered. 284 Photographs associated with infringements are retained but not for registered vehicles. 285 The character recognition system can mistake the following: eight and zero, Q and O or zero, C and L, M and N, V and W, W and M, W and N, S and five, T and seven, D and O or zero, one and I, Z and two, three and eight, six and zero and nine and zero. It could not be said simply by looking at the records whether or not the Safe-T-Cam system accurately captured the number plate. Weather such as rain and glare can result in a misread of a number plate or a failure to capture an image at all. 286 Mr Darren Charity has worked for the Department of Infrastructure and Transport for 18 to 20 years as a technology officer and has been involved in providing technical support for the Safe-T-Cam system since about 2009, which includes ensuring sites are online and reporting and ensuring cameras are working to manufacturer’s specifications. During 2016 and 2017, Mr Charity had oversight of the cameras. He confirmed there can be issues with character recognition on the number plates. The system is based on an algorithm which will attempt to determine the most confident plate read. The system is trained primarily in South Australian plate fonts and syntax so those are the primary matches the system makes. The system may make more errors with interstate plates where the font might be different so, for example, zeros and Os might get mixed up and incorrectly read. However, manual checks are conducted with any vehicles that are unregistered and uninsured. Any potential unregistered hit that corresponds with the registration database will generate an infringement for staff to verify and check the photographs as matters may go to court. 287 Through the manual verification process and tests involving staff on site recording vehicles going through the system, the Department records demonstrate 152 Exhibit P57; Exhibit P58. -- 61 of 129 -- [2024] SASC 58 Stein J 60 the system prior to about 2018 was between 90 and 95 percent accurate. In 2018, a system upgrade resulted in about 98 percent accuracy. Each year, testing would be carried out to see that the system was functioning in accordance with manufacturer’s instructions and it was part of Mr Charity’s role to ensure the system was operating correctly. 288 During the period January 2016 to 22 May 2019, to the best of his knowledge the system was operating correctly and in accordance with manufacturer’s specification. The system was offline for about four to eight weeks when it was upgraded to the new system but apart from that period, the system ran continuously from 1 January 2016 to 22 May 2019. 289 Mr Charity said metropolitan cameras were tested for accuracy annually. The approach with accuracy testing was the same for each metropolitan camera. Staff would record how many vehicles went through the lane at a time and compare the records with the data uploaded to ensure the correct event occurred. The sample size would be normally 15 to 20 minutes of testing which would usually be in excess of 100 vehicles. Prior to the upgrade, the Safe-T-Cams were erroneous in either one in 10 or one in 20 cars that went through them. The accuracy was based on whether the automatic number plate recognition or the optical character recognition read was accurate. Under the old system there were times when an actual capture event did not occur, though that was very rare. Usually, the failure to record an entry was associated with a damaged or non- standard plate or an obscured plate. It could happen, but it was very rare that the camera might simply not pick up the number plate for unknown reasons. The accuracy rate involved both the car being captured by the camera and the number plate recorded correctly. 290 The data from all of the sighting events is uploaded to the server for every vehicle captured. The actual image associated with each capture resides on the system unless requested by the server. If the data suggests the vehicle is unregistered, the system will call for a photograph to be produced but otherwise the image resides on the roadside unit. As a result of the capacity of the memory storage of the camera, images are overwritten. In the case of a CBD location, that may take two to three weeks. 291 Certain letters and numbers are known to be capable of confusion within the optical character recognition system. Mr Charity said it was fair to say that some letters, because of the way they look, are more likely to be confused by the software than others. Mr Charity was not able to say how many of the sample size in testing had number plates with letters that are troublesome to the optical character recognition system. The sample size of 90 to 95 percent accuracy would not necessarily take into account the composition of the sample in terms of the ease with which the optical character recognition system would recognise certain letters and numbers because it was based on whatever traffic went through at the time of testing. It was potentially the case that there would be a higher level of accuracy if the sample involved cars with number plates typically accurately recorded. -- 62 of 129 -- [2024] SASC 58 Stein J 61 Mr Charity agreed that it would represent a lower accuracy rate if the group of cars in the sample had number plates more difficult for the optical character recognition system to read, but said that the misread event is not a guarantee with the letters that cause more problems. He agreed while different values between sites were possible, he would not expect different values given all sites were running the same hardware and software. The accuracy figure is an accumulation of accuracy between all of the cameras in the system. 292 When asked whether it was possible that a particular entry153 in the records captured a sighting for a vehicle that did not have a licence plate S867 AVO, Mr Charity said it was possible but unlikely within the 90 to 95 percent accuracy parameters and given it was a standard issue South Australian plate and the system is trained on recognising those plates. He did not accept that the optical character recognition had difficulty with those specific letters on the basis that a Q may be misread to an O but not an O to a Q. However, he agreed that it did not follow that the car with a licence plate certainly travelled through the site. Mr Charity accepted as a remote possibility that a particular entry in the records154 did not mean a vehicle bearing that licence plate went through that camera. As it was a standard issue, three-letter, three-number number plate to which the system is geared, he would not expect a misread for a value at that time. However, without seeing the image he could not definitely say it was exactly that number. He had no reason to doubt for this plate syntax that it was not the vehicle, but he could not say whether the car bearing that registration plate travelled through the site. He agreed that the testing and sample size can only ever reflect an accuracy of 90 to 95 percent. Safe-T-Cam records 293 Safe-T-Cam records in relation to sightings of vehicle number plate S867 AVO for the period 1 January 2016 to 22 May 2019155 list a series of entries which purport to capture the Toyota RAV4 travelling through Safe-T-Cams located in various locations in and around Adelaide. The predominance of entries are from the Safe-T-Cam located at Globe Derby. The last entry recording the number plate of the Toyota RAV4 is on 14 March 2017. 294 The Safe-T-Cam records detailing sightings of Toyota Echo vehicle plate WSL 073 during the period 1 January 2016 to 22 May 2019156 lists a series of entries which purport to show sightings of the Toyota Echo in and around Adelaide. Again, the predominant location of sightings is at the Globe Derby Safe- T-Cam. The last entry is a sighting of that number plate on 26 February 2017 at Crafers West with the vehicle travelling in a westerly direction. 153 The first entry in exhibit P57. 154 The first entry in exhibit P58. 155 Exhibit P57. 156 Exhibit P58. -- 63 of 129 -- [2024] SASC 58 Stein J 62 Were those vehicles sighted through other means? 295 Detective Britton was aware that a motor vehicle was dug up from underneath a quantity of soil at Ponde in September 2019. He worked on the assumption that at least the engine block and parts of the chassis may be the blue Toyota Echo. Detective Britton made inquiries whether between 30 January and the date the Toyota Echo was located at Ponde, the vehicle was sighted by police, including red light cameras, traffic infringements, and traffic stops. SAPOL holdings did not record any sighting of the vehicle in that period. Similar inquiries were made in respect of the Toyota RAV4 registered to Mr E’s father. No records were found. Detective Britton confirmed that the Toyota RAV4 has not been seen since searches of Mr E’s house in October 2017. Crime scene investigation 296 Brevet Sergeant Mannering was tasked to Hill Street on 30 January 2017 following a request by ambulance members for police assistance. Brevet Sergeant Mannering arrived at the scene at about 11:30 pm. When he arrived, the street was empty. There was a black T-shirt hanging on the fence outside number 18 Hill Street which appeared to have been cut. There was some blood on the pavement and potentially a bloodlike substance in the dirt outside number 18. Brevet Sergeant Mannering cordoned off the scene, sealed off Thompson Street and had other officers seal off Hill Street further north and maintained the cordon until approximately 3:00 am. He was then directed to move to 11B Hill Street as the scene guard for a clandestine laboratory. 297 Brevet Sergeant Dennis attended Hill Street on 30 January 2017, arriving at 12:30 am on 31 January. By the time he arrived, Mr Boyce had been taken from the scene and the scene was cordoned off. Brevet Sergeant Dennis took a selection of photographs. Brevet Sergeant Dennis identified a small red-brown stain on the concrete footpath outside 18 Hill Street. He did a presumptive test for blood and then took a forensic sample from the stain. The sample was placed into the Police Property Management System (“PPMS”). Brevet Sergeant Dennis identified some red-brown staining on the dirt between the footpath and the fence and another small red-brown potential bloodstain on the pavement. Brevet Sergeant Dennis seized the item hanging over the fence which was a black T-shirt with “The Doctor 46 Valentino Rossi” on it and a pair of thongs close to the location of 11B Hill Street on the pavement. 298 Detective Brevet Sergeant Castle arrived at Hill Street at 12:15 am on 31 January, and, among other things, with colleagues seized the CCTV hard drive at number 20 Hill Street. Later, he searched 11B Hill Street, locating Mr Perkins. Mr Perkins was arrested and taken to the Elizabeth Police Station. His telephone was seized and booked into PPMS as was the black T-shirt found hanging from a fence outside number 18 Hill Street. 299 Detective Sergeant Forrest, on 30 January 2017, gave instructions for a black T-shirt hanging over the fence out the front of 18 Hill Street to be seized and placed -- 64 of 129 -- [2024] SASC 58 Stein J 63 in secure storage and any blood spots to be recorded and collected by crime scene officers. Detective Sergeant Forrest was with Detective Castle when he seized the CCTV hard drive and recording unit from number 20 Hill Street where Ms Bourke and Mr Thaller lived. Detective Castle deposited the hard drive for the CCTV system at the Electronic Crime Scene section on 8 February 2017. 300 As a result of information received, enquiries were made about Mr Zaporashenko and a search was carried out on 1 February 2017 of his home address. Nothing relevant was found. 301 Detective Sergeant Forrest said a search was conducted at Mr Zaporoshenko’s warehouse in Para Hills on 31 January 2017 and later his house on 1 February 2017. Detective Sergeant Forrest said her notes recorded observations made during a briefing which read in part “Ford Laser found just outside with faded spoiler” (being a reference to a vehicle outside Mr Zaporashenko’s warehouse). She did not know whose vehicle it was. DNA evidence Agreed Facts157 Forensic Science South Australia 28. DNA samples were obtained from the following persons in the course of the investigation: a. Mark Robert Boyce (the deceased) b. Joshua Grant c. Tobias Sahlstorfer 29. Each of these samples were appropriately stored before being delivered to Forensic Science SA for the purposes of DNA analysis and comparison. 30. The following exhibits were delivered to Forensic Science SA for DNA analysis and comparison: a. A pair of black shorts removed from the deceased on his admission to the Lyell McEwin Hospital (17/B47685-3) b. A blood swab taken from the scene by CSI officer Adam Dennis at scene marker 1 (17/B47685-4) c. A black T-shirt bearing a design with the words “The Doctor 46 Valentino Rossi” seized from a fence at the front of 18 Hill Street Elizabeth South (17/B47685-5) 302 Ms Rebecca Pinyon is a qualified reporting officer within Forensic Science South Australia. 157 Exhibit P84. -- 65 of 129 -- [2024] SASC 58 Stein J 64 303 Ms Pinyon was asked to perform DNA analysis in relation to a black T-shirt. The T-shirt was sectioned into different panels to sample cellular material through tape lifts. There was more than one contributor to the DNA profile for some of the tests. 304 In a number of instances, there was extremely strong support for the proposition that Mr Boyce was a contributor to the profile which was not surprising given it was Mr Boyce’s T-shirt. 305 In the case of Mr Sahlstorfer, the statistical results varied across the various tape lifts from extremely strong support for the proposition he did not contribute DNA to the DNA profile to moderate support for the proposition that he did not contribute DNA to the DNA profile. In some instances, Mr Sahlstorfer was excluded from the results entirely. 306 In the case of Mr Grant, the results varied from extremely strong support for the proposition that he contributed DNA to the DNA profile in the case of some tape lifts to extremely strong support for the proposition he did not contribute to the DNA profile for other tape lifts. In the case of one sample there was strong support for the proposition he contributed DNA; in the case of one sample, which was a tape lift from the outer upper rear left of the T-shirt, there was extremely strong support for the proposition Mr Grant contributed DNA and moderate support for the proposition Mr Sahlstorfer did not contribute DNA. In the case of one sample there was strong support for the proposition Mr Grant contributed DNA and in the case of another sample, there was extremely strong support for the proposition Mr Grant contributed DNA. 307 There was extremely strong support for the proposition Mr Boyce contributed DNA to the profile from a cutting with a bloodlike stain on the outer rear left collar. There was very strong support that Mr Grant did not contribute DNA and moderate support for the proposition that Mr Sahlstorfer did not contribute DNA. 308 The swab of bloodlike stain from the scene was a single source DNA profile with extremely strong support for the proposition Mr Boyce was the donor. 309 Ms Pinyon agreed the analysis of the clothing either excluded Mr Sahlstorfer or statistically pointed away from him being a contributor. Hells Angels Motorcycle Club 310 Detective Sergeant Maidment of the Crime Gangs Taskforce has been a police officer for 22 years and attached to the Crime Gangs Taskforce for 12 years. She has had responsibility for conducting investigations into and working under the supervision of others who have had the responsibility of conducting investigations for offences alleged to have been committed by outlaw motorcycle gang members or associates. The Crime Gangs Taskforce is aware of people who may be members of particular organisations. Detective Maidment has received -- 66 of 129 -- [2024] SASC 58 Stein J 65 training from senior members and has been party to ongoing investigations revealing details about the way motorcycle groups operate. Detective Maidment liaises with other senior members of like agencies across the country to share knowledge. She has attended seminars and conferences dealing with outlaw motorcycle gangs. 311 In light of objections to Detective Maidment’s evidence, with the prosecution’s agreement I received the evidence de bene esse subject to later argument. In closing submissions defence objected to the evidence on the basis it only had relevance to, and could only be used for, specific purposes being to “point to an association between Mr E, Grant and the accused” and “to point to an association between the accused and Ponde”.158 Defence submitted the evidence may be used in relation to the telephone number attributed to Mr Sahlstorfer having a connection with an old clubhouse of the Hells Angels and for no other purpose. 312 I accepted the prosecution submissions that the evidence is more generally relevant including in relation to the location of the Hells Angels’ club house at a particular time, evidence concerning the premises at Ponde and evidence about hang arounds and prospective members. I therefore have admitted the evidence. 313 Between 2011 and 2017, Detective Maidment was responsible for policing the Hells Angels and Comanchero outlaw motorcycle gangs. Detective Maidment gave evidence that in the course of her work she had become familiar with rules and characteristics of outlaw motorcycle gangs and she was familiar with clubhouses for various gangs. Hells Angels operate under the umbrella of an international organisation with three chapters in South Australia being the Hells End Chapter, the North Crew Chapter and the Adelaide Chapter. Full members are sometimes referred to as “patched” members. A member will be a prospective member for at least 12 months. A member is entitled to become a full member once 100 percent of the membership vote a prospective member into the club. That allows a person to wear patches identifying themself as a full member of the Hells Angels. 314 Detective Maidment understood certain photographs depicted the “colours” of Mr Sahlstorfer.159 315 An associate is a person who may associate with members of an outlaw motorcycle club but without necessarily having the intention of joining the club. They may socialise and attend clubrooms. The next step up the ladder is a “hang around” who needs to be sponsored by a full member to officially attend club events. A vote of 75 percent of the club is necessary to enable the person officially to be supported as a hang around of the club. After a period of time, that person can be voted as a prospect for a period of not less than 12 months. 158 T716.13-24. 159 Exhibit P52. -- 67 of 129 -- [2024] SASC 58 Stein J 66 316 Between 2008 and 2015, the Adelaide Chapter of the Hells Angels had a clubhouse at Albert Street, Clarence Gardens. Members of the public could not access the clubhouse as the property was fully fenced with sleepers over eight feet tall out the front. 317 Detective Maidment has been to the Hells Angels property at Ponde used by members of the Hells Angels. There was signage inside the premises to identify the property as a Hells Angels property. Access was via a country farm gate on a dirt road. Detective Maidment understood that the gate was kept locked. The property was open to members of the public from time to time. When open, there was a check in process. When Detective Maidment attended a burnout event, there were men at the gate, often hang arounds or prospective members or other social motorcycle club members, who would stop people, check tickets and engage with police prior to entry. Detective Maidment was allowed in, and on each occasion she walked through those events, she was with a member of the club. 318 Detective Maidment had been to Ponde three times over the past 10 years for burnout events. Those events were advertised to members of the public by Facebook postings.160 Detective Maidment could not confirm if anyone was living at Ponde full time, but there were members staying on the property from time to time. In Detective Maidment’s experience, Ponde events were open to members of the public but outside of that the property was exclusively used by Hells Angels members. Members could take guests to an event or concert. Detective Maidment understood that outside of public events Hells Angels members would accompany anyone else on the premises. She gave an example of the anniversary party where Vietnam Veterans MC attended and aerial footage showed that Hells Angels members accompanied the visitors at all times. 319 Detective Maidment thought Ponde was used regularly throughout the year by members of the Hells Angels and it was likely they would have friends and associates there as well. Detective Maidment was not involved in the search of Ponde and she had not been to Ponde on an occasion that was not an advertised burnout event. She described the burnout events as larger motorcycles conducting sand drags on a designated track like a motorcycle festival with people around the property. Burnouts involved both motor vehicles and motorcycles. Detective Maidment’s knowledge of motor vehicles for burnouts was limited. She agreed it was possible to say the type of vehicle used on occasions such as these were generally old “bombs” which may make a lot of noise and go fast. She estimated that there may be as many as 1,000 people at such events but was not able to comment on how many people would go to weekend functions, although for the anniversary event there were probably 50 men there. 320 In addition to the locked gate, access could be obtained by boat from the River Murray. Detective Maidment had only seen one gate and thought the property was several hectares. She was aware that the owner of the property was 160 Exhibit D62. -- 68 of 129 -- [2024] SASC 58 Stein J 67 there a lot. From what she had seen at the anniversary party, Detective Maidment thought other members of the public could not go there unaccompanied by a member. She did not know whether other people might go there or the premises might be used on weekends apart from the anniversary party and the three burnout events she had attended. Mr Grant, Mr Sahlstorfer and Mr E Association between the three men 321 When Mr Grant was arrested, a mobile phone was seized from which photographs were taken.161 The first photograph shows Mr E and Mr Sahlstorfer together on 22 January 2017. The second photograph was indicative of being taken on 30 July 2017 and depicts a number of people, including Mr Grant and Mr Sahlstorfer. 322 On the day Mr Grant was arrested, when simultaneous searches were carried out at addresses occupied by Mr Sahlstorfer and Mr E, a phone was seized at Mr E’s house and sent to the E-crime section. The contents revealed photographs depicting Mr Grant, Mr Sahlstorfer and Mr E. Photographs seized from the iPhone162 depicted Mr E, Mr Sahlstorfer and another man said to be the owner of Ponde taken in April 2012. A second image showed Mr Grant and Mr E, being still shots taken from a video file on the phone at a concert. The last photograph showed Mr Grant and Mr E together, taken on 15 October 2017. One of the contacts retrieved from Mr E’s seized mobile phone ended in 350 with a contact described as “Tobi Lobi”. 323 Detective Britton accessed Mr E’s publicly available Facebook page and downloaded pictures, including Mr E and other men wearing Hells Angels paraphernalia. A photograph posted on 30 December 2018163 included Mr Sahlstorfer, Mr Grant and Mr E. 324 Detective Britton was aware that on 4 November 2017 a mobile phone was seized from Mr Sahlstorfer. The contact list was interrogated and included a name listed with a first name matching that of Mr E and a number that corresponded to the telephone subscribed in the name of Mr E. 325 Detective Britton gave evidence that having had access to the phones of Mr Grant and Mr Sahlstorfer, there were multiple other photographs throughout their phones of which those tendered were representative samples. 326 Detective Britton had access to telephone intercept material recorded by police to which he listened. Detective Britton said he heard multiple telephone communications between them talking as friends may talk. 161 Exhibit P69. 162 Exhibit P68. 163 Exhibit P70. -- 69 of 129 -- [2024] SASC 58 Stein J 68 327 On 2 November 2016, photographs were taken at the address of Mr E164 showing, among other things, a team photo of members of the Adelaide Chapter of the Hells Angels and a commercial lease document for premises at Salisbury Plain taken out in the name of Mr E and Mr Joshua Roy Grant. 328 On 26 October 2017, a search was conducted of Mr Sahlstorfer’s house and paraphernalia linked to the Hells Angels Motorcycle Club were found and photographed.165 During the search, registration papers in the name of “Tobias Stefan Sahlstorfer” regarding a motor vehicle registration WSL 073 were located.166 Agreed Facts167 Hells Angels Memberships and Clubhouse 43. As of 30 January 2017, Tobias Sahlstorfer was a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club. 44. Tobias Sahlstorfer became a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club in June 2012. 45. As of 30 January 2017, Mr E was a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club. 46. Mr E became a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club in June 2012. 47. Joshua Grant was a hang around for the Adelaide Chapter of the Hells Angels Motorcycle Club as of 30 January 2017. He became a prospect for the Adelaide Chapter of the Hells Angels Motorcycle Club prior to 26 October 2017 and most likely on 11 August 2017. 48. From at least 3 August 2008 until 2015 the clubhouse of the Adelaide Chapter of the Hells Angels Motorcycle Club was at XX Albert Street, Clarence Gardens.168 49. As of 30 January 2017, the clubhouse was no longer in use. Physical characteristics of the three men 329 Detective Britton obtained photographs of each of Mr Sahlstorfer, Mr Grant and Mr E to gain a sense of the height, weight and build of each of the three men. Based on the photographs and police indices, Detective Britton assessed Mr Grant as approximately 180 centimetres tall, 95 kilograms and solid build; Mr Sahlstorfer as 175 centimetres tall, 90 kilograms and a solid, muscular build; and Mr E as 191 centimetres tall, 85 kilograms, and a lean, muscular build. 164 Exhibit P44. 165 Exhibit P52. 166 Exhibit P53. 167 Exhibit P84. 168 Address details have been partially redacted. -- 70 of 129 -- [2024] SASC 58 Stein J 69 330 A photograph posted by Mr Sahlstorfer’s partner on 26 October 2016 on her Facebook page depicts Mr Sahlstorfer with significant facial tattoos. A further photograph from that Facebook page posted on 26 December 2016 depicts Mr Sahlstorfer with tattoos to his arm and torso.169 After Mr Sahlstorfer’s arrest, permission was obtained to take photographs of Mr Sahlstorfer which included photographs of tattoos on his face and body.170 Mr Sahlstorfer’s accent 331 Detective Britton listened to telephone intercepts of phone calls between Mr Sahlstorfer and other people. He became familiar with Mr Sahlstorfer’s voice. Detective Britton said Mr Sahlstorfer has a mild accent when he is yelling, and the accent is consistent with a foreign language. Detective Britton said intercepted phone calls included calls where Mr Sahlstorfer was angry and he could hear a mild accent. Mr Sahlstorfer’s address 332 A Department for Infrastructure and Transport address history for Mr Sahlstorfer171 shows Mr Sahlstorfer’s recorded address at various times, including, Albert Street, Clarence Gardens at 11 April 2016, The Circuit, Walkley Heights at 17 May 2016 and an address in Gulfview Heights from 25 May 2017. Agreed Facts172 Residential Address 40. As at 30 January 2017, Tobias Sahlstorfer and [Ms R]173 resided at XX The Circuit, Walkley Heights, South Australia.174 Mr Grant’s medical treatment Agreed Facts175 Medical Treatment of Mr Grant 3. On Friday 27 January 2017, Joshua Roy Grant attended at the Lyell McEwin Emergency Department. 4. He received medical treatment for an injury to his right hand. 5. X-Rays revealed a fracture at the base of his right little finger. 6. A backslab plaster was applied to his right hand, which covered the right back and outside of the forearm up to the elbow. 169 Exhibits D78; Exhibit D79. 170 Exhibit P77. 171 Exhibit P76. 172 Exhibit P84. 173 The name of Mr Sahlstorfer’s partner has been redacted. 174 Address details have been partially redacted. 175 Exhibit P84. -- 71 of 129 -- [2024] SASC 58 Stein J 70 7. Mr Grant attended the Lyell McEwin Hospital on 3 February 2017 where the injury was reassessed and a new backslab plaster was applied. 8. He reattended the hospital on 7 February 2017 when the plaster was removed. 9. Whilst at the hospital, Mr Grant provided a telephone number on which he could be contacted. The number was 04XX XXX 307.176 Arrest of Mr Grant and associated searches 333 When Mr Grant was arrested on 26 October 2017 a female was present. A buccal swab was taken from Mr Grant that day and conveyed to Forensic Science SA. 334 During the arrest of Mr Grant, a laptop was seized and sent to the police E- crime section. Photographs showing Mr Grant with a white bandage covering his forearm and the back of his hand were identified on the laptop.177 The digital information indicated one photograph was taken at 11:36 am on Saturday 28 January 2017 at the Elizabeth Shopping Centre and the second was taken at 9:44 pm on 6 February 2017 at Glenelg. 335 On 26 October 2017 a search of the then home address of Mr Sahlstorfer was conducted. A woman understood to be Mr Sahlstorfer’s partner was present. During the search, no blue Toyota Echo was located at the premises. Mr Sahlstorfer’s partner’s blue Toyota Yaris was located at an address in Greenwith. Telecommunications evidence Agreed facts178 Perkin’s Phone 31. On 31 January 2017 at about 1:50am, Brevet Sergeant Trent West attended at 11B Hill Street, Elizabeth South. 32. Samuel Perkins was located in the premises and a phone was seized from his person and booked into the South Australia Police secure property storage system with the identifying number 17/B47685-8. 33. Item 17/B47685-8 was extracted by Yi-Chi Lin of the South Australian Police Electronic Crime Section. 34. The extraction was reviewed and the international mobile equipment identity (IMEI) number on that handset was 86390702472561. 35. The IMEI is reflected in the call charge records for the service number 04XX XXX 285.179 176 Telephone numbers have been partially redacted. 177 Exhibit P66. 178 Exhibit P84. 179 Telephone numbers have been partially redacted. -- 72 of 129 -- [2024] SASC 58 Stein J 71 Telstra records 336 Mr Jason Betts is a security analysis analyst in Telstra Limited. Mr Betts has worked for Telstra for 13 and a half years. His role includes responding to requests for telecommunication data and giving evidence concerning the interpretation of that data. Mr Betts has received training by Telstra to equip him to understand how the telecommunications system and the billing system works. He is familiar with records Telstra held in 2018 and familiar with evolution in the telephone network system over time. In the course of his role, Mr Betts has access to Telstra subscriber details and call charge records. Mr Betts attended to provide evidence in relation to affidavits previously given by a colleague. 337 Mr Betts confirmed that records were produced in response to a request from SAPOL to provide records relating to certain telephone numbers. A number of documents being subscriber information and call charge records were tendered through Mr Betts. Mr Betts provided an explanation of the information contained in the record and how to understand the records. 338 Mr Betts explained that in Telstra call charge records, the “A” number is a reference to the telecommunications service originating the call and the “B” number is the number which is dialled or contacted by SMS. In the case of Telstra, for both voice calls and SMS messages, the time is adjusted for daylight saving and local time and so for handsets in South Australia the time will be local SA time. In the case of Telstra records, there will be two separate lines relating to one call. The first line referring to “A” will show to which base station the A party was connected and for “B” will show where the B number was connected for the relevant event. In the case of both A and B parties being on the Telstra network the detail will be recorded for both. If the B party is not on the Telstra network the details are not recorded. 339 Mr Betts explained that an IMEI number is a unique number for each handset that is allocated by the manufacturer to the actual mobile device. In the case of Telstra records, the CGI column is a unique identifier of the cell or antenna on the actual base station the device connected to at the time. In most cases, the names subscribed to base station are indicative of the location but in larger suburbs there may be a more precise location reference. 340 Mr Betts explained that the handset sends a signal to the nearest available tower that has the capacity to generate the strongest signal. The proximity to the actual tower is the main determining factor but other qualifications include line of sight, height of buildings, mountains, topography, elevation of the actual tower and whether the tower is congested can influence which particular tower offers the strongest signal. 341 A number of Telstra records were tendered. -- 73 of 129 -- [2024] SASC 58 Stein J 72 342 Telstra records show a mobile phone number 04XX XXX 206 was subscribed in the name of Mr E from 1 January 2017 to 11 December 2017.180 343 Telstra records181 show a mobile phone number 04XX XXX 259 was subscribed in the name of Mr Jonathan Walker from 19 November 2012 and was still active as at 28 December 2017. The relevance of this number is explained below. 344 Telstra records182 show a mobile phone number 04XX XXX 285 was subscribed in the name of Ms Renee Cocks from 14 November 2016 to 4 September 2017. This phone number is relevant as agreed facts establish Mr Perkins was using Ms Cocks’ phone on 30 January 2017. 345 Telstra records183 show a mobile phone number 04XX XXX 683 was subscribed in the name of Mr Christopher Wheatley from 7 July 2011 to 2 June 2017. 346 Mr Betts explained that reverse call charge records, which relate to incoming communications rather than outgoing communications, worked the same way as call charge records. 347 Sometimes Telstra’s records will not capture data such as the particular base station to which a call connected. Telstra is required to keep records of all events on the network and one of the reasons Telstra has the records is for provision to enforcement agencies. The factors that can impact which base station a phone might connect to include a building blocking the signal and topography. A mobile device is designed to pick up whichever base station is providing the strongest signal and will constantly reassess which base station offers the strongest signal. A particular base station would not have a defined signal range. Telstra maintains its own network of base stations and all phones using Telstra or wholesale customers billed by another provider but connected to the Telstra network will use the Telstra network. Vodafone records 348 Mr Rupinder Malhi has approximately 20 years of experience working as engineer in the telecommunication industry. He holds a Bachelor of Electronics Engineering and a Master’s in information technology. He was employed from 2000 to 2013 by Optus and then from 2014 to 2022 for Vodafone. In 2020, he was 180 Exhibit P16; Exhibit P17 comprises Telstra call charge records which show call details for a phone with the number 04XX XXX 206 between 19 January 2017 and 18 February 2017 inclusive. 181 Exhibit P18; Exhibit P19 comprises Telstra call charge records which show call details for a phone with the number 04XX XXX 259 between 1 January 2017 and 4 February 2017 inclusive. 182 Exhibit P20; Exhibit P21 comprises Telstra call charge records which show call details for a phone with the number 04XX XXX 285 between 1 January 2017 and 31 January 2017 inclusive. 183 Exhibit P22; Exhibit P23 comprises Telstra call charge records which show call details for a phone with the number 04XX XXX 683 between 1 January 2017 and 4 February 2017 inclusive; Exhibit P24 comprises Telstra call charge records which show reverse call details for a phone with the number 04XX XXX 683 between 29 January 2017 and 31 January 2017 inclusive. -- 74 of 129 -- [2024] SASC 58 Stein J 73 a Vodafone agency liaison specialist and responsible for responding to technical queries for enforcement across Australia. Mr Malhi had access to Vodafone client details, billing records and data providing information regarding the location of telephone base station and individual cell sites or antenna at those base stations. 349 In 2017 the phone network was mostly 3G and 4G systems were used with an overlap as 4G was rolled out. Base stations are like towers where antenna of telecommunication companies are installed to connect handsets to serve calls and data and SMS. Antenna can be located on towers or on buildings, light poles and so on. When a person turns on their handset, the handset will look for the best serving signal. The best serving base station will depend on location, where the handset is and which is the dominant signal in the particular area. If there are two towers or two antenna serving one geographical area, the handset will connect to the signal which is the strongest. The strength of the signal can be affected by factors such as the height of antenna, the direction of antenna and geography of landscape. Signals will look for a clear line of sight from the telephone to the antenna. It is therefore incorrect that it will always be the nearest antenna that receives the signal, although most of the time that will be correct. In a suburban area which is flat, the expectation in the ordinary course would be the strongest signal would be from the nearest tower. As the signal emits away from the tower its strength diminishes. 350 In 2020, it was common to have three antenna at the top of a tower. There would mostly be three cells each serving 120 degrees of the 360 degree area. Vodafone records would record the base station and sometimes the individual cell used to send a telephone call. Vodafone identified cell sites with individual codes which were individual to each cell and antenna and correlated to a location record about the location of the tower and the position and direction of the antenna. Mr Malhi explained that the LAC is the location area code and the SAC is the service area code. The combination of the LAC and the SAC will give a unique number for the cell and location of the tower which sourced the call. 351 Mr Malhi explained the difference in format and presentation in the data for the cell ID for a 4G cell and a 3G cell. In the case of 4G the unique number is only the cell ID. For 3G a combination of LAC and SAC is required. A “U” in the first radio type column denotes a 3G service whereas an “L” denotes a 4G service. A phone may access the 3G or 4G network depending on where the handset is and the strongest signal. In some sectors there may be more than one cell coverage area. 352 A number of documents were tendered through Mr Malhi concerning site locations for base stations and antenna. -- 75 of 129 -- [2024] SASC 58 Stein J 74 353 LAC 00533 Cell ID 60709 with a site name of Valley View is located at the corner of Grand Junction and Sudholz Roads, Gilles Plains SA.184 354 Cell ID 12843277 with site name Valley View is located at the corner of Grand Junction and Sudholz Roads, Gilles Plains SA.185 355 LAC 00533 Cell ID 29027 with a site name of Elizabeth Vale is located at 100 Philip Highway, Elizabeth South SA.186 356 Cell ID 12908813 with a site name of Para Hills West is located at 37 McIntyre Road, Para Hills West SA.187 357 LAC 533 Cell ID 60706 with site name Valley View is located at the corner of Grand Junction and Sudholz Roads, Gilles Plains SA.188 358 LAC 533 Cell ID 22272 with a site name of Pooraka is located at 21 Langford St, Pooraka SA.189 359 In cross-examination, Mr Malhi agreed tall buildings and topography will affect the base station to which a mobile phone connects. Weather has very little effect but strong wind and hail could have an impact. Network congestion, referring to many mobile phones connecting or attempting to connect with a particular cell at a base station, could affect the tower to which a mobile phone handset connects. Outage of a cell would also prevent connection. Mr Malhi understood that battery strength of the phone will not have a big effect on the dominant signal from the base station. Different cells in different base stations have different signal strengths and it would not be safe to say that one must always be within a particular distance such as five or 10 kilometres of a particular cell to get a connection through that cell. 360 Mr Jagadish Mohan is an agency liaison officer within Vodafone responsible for generating and providing call charge records and other customer records. Data is kept which records the location of base stations and directions of cells attached to base stations that receive or send a call. 361 A Vodafone subscriber check190 shows a phone with the number 04XX XXX 350, being a Vodafone pre-paid activated on 25 June 2016 was subscribed in the name Ms Toby Sahlstorfer, date of birth 27 March 1989.191 184 Exhibit P29. 185 Exhibit P30. 186 Exhibit P31. 187 Exhibit P32. 188 Exhibit P33. 189 Exhibit P34. 190 Exhibit P35. 191 Exhibit P36 comprises Vodaphone call charge records which show call details for a phone with the number 04XX XXX 350 between 19 January 2017 and 18 February 2017 inclusive. -- 76 of 129 -- [2024] SASC 58 Stein J 75 362 In Vodafone records, the charge party number is the service making the call or sending an SMS or accessing data which is the equivalent to the “A” party in Telstra documents. All telephone call times are in the time zone stated in the time zone code, thus if the time zone was South Australia the time recorded for a call would be local South Australian time. The first “Radio type” represents the initiation of the call and the last group of columns represents when the call was completed. The records show the first and last base station with which the phone is communicating which may change if the person is travelling. All text messages are recorded as a “0” for duration. All text messages are recorded in AEST or Queensland time. Any reference to livevodafone.com describes a data packet through the server which may consist of the subscriber using the phone or the phone using internet in the background such as updating social media or emails. In the case of data sessions, the start time and location is not always relevant because a data session can be split into hundreds of different packets so the data session may or may not have started at the start time or may be part of a bigger data session split into multiple sessions. Optus records 363 Mr Daniel Qamar is a senior service officer employed by Optus. He has access to databases held by Optus including subscriber information and call charge record details. 364 An Optus subscriber check shows a phone with the number 04XX XXX 307 activated on 25 May 2016 and which ceased on 26 August 2017 was subscribed in the name of Mr Joshua Grant.192 365 An Optus subscriber check shows a phone with the number 4XX XXX 221 activated on 30 June 2015 was subscribed in the name of Ms H, Mr Grant’s girlfriend.193 366 In the case of Optus records, the column headed “B number” tells the number of the telephone service dialled by the number. The description “Social NWK” indicates data usage with a social networking app, and self-serve data is a form of data usage as is internet browsing. For “GPRS”, events are in New South Wales time (data usage). For phone calls, records are in local time. Location of base stations 367 The following is a summary of the base tower location data. 192 Exhibit P45; Exhibit P46 comprises Optus call charge records which show call details for a phone with the number 04XX XXX 307 between 19 January 2017 and 18 February 2017 inclusive. 193 Exhibit 47. -- 77 of 129 -- [2024] SASC 58 Stein J 76 368 Detective Britton had access to statements from Vodafone regarding the location of various base stations. Detective Britton prepared Google maps194 showing the location of the base stations and the approximate location of the house in which Mr Sahlstorfer was living in January 2017 in Walkley Heights, the location of Mr Grant’s house in January 2017 and the location of Hill Street. 369 Detective Britton used Google to measure distances “as the crow flies” between the base stations and certain locations. The distance between the Elizabeth Vale tower at 100 Philip Highway, Elizabeth South and Mr Boyce’s address on Hill Street were 360 metres apart.195 Detective Britton is familiar with the area of land. He said there are no multi-storey buildings between the Elizabeth South base station and the houses at Hill Street, and no hills or mountains blocking line of sight. 370 Detective Britton measured the distance “as the crow flies” between the Valley View tower at the corner of Grand Junction Road and Sudholz Road as 715 metres from the house Mr Sahlstorfer was living in in January 2017 at The Circuit, Walkley Heights. Detective Britton measured the distance between the Pooraka base station and Mr Sahlstorfer’s house at 2,660 metres. Detective Britton measured the distance between the Elizabeth Vale base station at 100 Philip Highway, Elizabeth South and Mr Sahlstorfer’s house at 12,190 metres. 371 Detective Britton made inquiries of phone companies as to whether or not the telephone service ending in the number 350 associated with Mr Sahlstorfer was 194 Exhibit P74; Exhibit P75. 195 Exhibit P75. Station Address ID Ex 505149_ValleyView_MV_U21A_3 Corner of Grand Junction & Sudholz Roads Gilles Plains SA 5086 LAC: 00533 CELL ID: 60709 P29 505149_ValleyView_MV_L18_3 Corner of Grand Junction & Sudholz Roads Gilles Plains SA 5086 CELL ID: 12843277 P30 558018_ElizabethVale_MO_U21_1 Elizabeth South Shops 100 Philip Highway Elizabeth South SA 5112 LAC: 533 SAC: 29027 P31 588196_ParaHillsWest_MO_L18_3 Telstra Collocation 37 McIntyre Road Para Hills West SA 5096 CELL ID: 12908813 P32 505149_ValleyView_MV_U21B_3 Corner of Grand Junction & Sudholz Roads Gilles Plains SA 5086 LAC: 533 SAC: 60706 P33 505590_Pooraka_MV_U09_2 Franco Lanfranco Furniture Factory 21 Langford Street Pooraka SA 5095 LAC: 533 SAC: 22272 P34 -- 78 of 129 -- [2024] SASC 58 Stein J 77 used with other phone services outside the period of the records held by Optus. Detective Britton also made inquiries about the IMEI number to see if the handset was used throughout any phone companies. Detective Britton gave evidence that no records were returned. 372 Mr Grant was living at a property linked to his father. The address matched the address provided by the subscriber for the phone subscribed in the name of Mr Grant. The subscriber details for a phone subscribed in the name of Mr E contained details of the subscriber’s address at a house occupied by Mr E’s father. 373 The SMS messages recorded in Queensland time had to be converted to South Australian time. Queensland does not have daylight savings and, accordingly, during wintertime Queensland’s time is half an hour ahead of South Australia and during summertime Queensland time is half an hour behind South Australian time. Summary of phone subscriber details 374 The following service numbers were subscribed in the following names as at 30 January 2017. Name Address Number Network Ex Mr E Federation Way Andrews Farm SA 5114 04xx xxx 206 Telstra P16 Jonathan Walker (Robbie Thaller) Ridley Road Elizabeth South SA 5112 04xx xxx 259 Telstra P18 Renee Cocks (Sam Perkins) N/A 04xx xxx 285 Telstra P20 Christopher Wheatley Cawrse St Davoren Park SA 5113 04xx xxx 683 Telstra P22 Toby Sahlstorfer Albert Street Clarence Gardens SA 5039 04xx xxx 350 Vodafone P35 Joshua Grant Hale Street Elizabeth Grove SA 5112 04xx xxx 307 Optus P45 Ms H (Joshua Grant) Stebonheath Road Andrews Farm SA 5114 04xx xxx 221 Optus P47 375 The service number subscribed in the name of Ms H had an address in Andrews Farm at which Mr Grant had lived and was living when he was arrested. Agreed facts 376 The agreed facts which I have referred to in various sections above are attached as Appendix A.196 196 Exhibit P84; Exhibit D90. -- 79 of 129 -- [2024] SASC 58 Stein J 78 Prosecution submissions 377 Prosecution submitted that the analysis of events in Hill Street establishes the following matters. The two cars used to facilitate the attack on Mr Boyce drove up or down Hill Street on four occasions at 10:33 pm, 10:36 pm, 10:38 pm and 10:42 pm when the fatal assault occurred. The occupants of those cars were looking for someone at 11B Hill Street, that person was Mr Perkins and the people in the two cars knew Mr Perkins was inside 11B Hill Street. Mr Wheatley arrived at 11B Hill Street to collect Mr Perkins at 10:35 pm. The occupants of the two cars knew Mr Wheatley was waiting for Mr Perkins and the occupants of the two cars were in communication with Mr Wheatley. 378 On the prosecution case, the evidence of Mr Perkins about the context in which he came to be in Hill Street, his desire to avoid police and enemies and his attempts to leave Hill Street explain matters such as Mr Perkins being seen in the CCTV footage staring intently down the road towards Thompson Street. Prosecution submitted the CCTV footage is consistent with Mr Perkins waiting and being concerned about events down the road and supported the account given by Mr Perkins about Mr Thaller’s role and the involvement of Mr Wheatley. 379 Prosecution submitted that a phone subscribed in the name of Jonathan Walker was being used by Mr Thaller on 30 January. Prosecution pointed to call charge records which show at 9:51 pm a telephone call to the service subscribed in the name of Mr Wheatley for one minute and 42 seconds. At 9:59 pm, there was a further call from the Jonathan Walker service to a service subscribed in the name of Mr Wheatley. Three minutes after the two phone calls, at 10:02 pm, Mr Perkins left 20 Hill Street. Prosecution submitted this was consistent with Mr Thaller having rung Mr Wheatley to arrange a lift, following the last of which calls Mr Perkins left 20 Hill Street. Prosecution submitted the CCTV footage also supported the inference the Jonathan Walker service was used by Mr Thaller. In the CCTV footage at 9:59 pm, Mr Thaller can be seen sitting on the trailer and then making a phone call. Prosecution contended that at 9:59 pm197 a call was made from the Jonathan Walker service, connecting to the tower at the Elizabeth South shops to Mr Wheatley’s phone. Prosecution submitted that this fitted perfectly well with Mr Thaller being shown on the footage making a phone call at 9:59 pm. Prosecution also pointed to other examples when call records for the phone subscribed in the name of Jonathan Walker show calls at the same time as the CCTV footage shows Mr Thaller on the phone. Mr Perkins gave evidence that he would have spoken to Mr Thaller on the telephone. Prosecution provided specific examples said to support contact between Mr Perkins and the Jonathan Walker service and contact between Mr Wheatley and the Jonathan Walker service. Prosecution therefore submitted that the combined force enables the conclusion to be drawn that Mr Thaller was using the Jonathan Walker service. 197 T625.20 (A reference in the transcript to a call at 10:29:32 pm has been corrected to 9:59:42 pm). -- 80 of 129 -- [2024] SASC 58 Stein J 79 380 Prosecution pointed to the phone records to which I have referred as demonstrating a reasonable amount of communication between Mr Thaller, Mr Perkins and Mr Wheatley in the half an hour between 10:02 pm when Mr Perkins left number 20 and when Mr Perkins came out to Mr Wheatley’s car parked out the front of 11B Hill Street. Prosecution submitted the phone records and CCTV footage were consistent with Mr Perkins becoming aware that his lift had arrived by text message or telephone from Mr Thaller. Prosecution submitted the CCTV footage showing Mr Wheatley stopping at 20 Hill Street at 10:29 pm and letting himself into the house suggested a close connection with Mr Thaller. Prosecution submitted that although Mr Wheatley’s lights turned on and off at various times, Mr Wheatley remained parked during the following drive-bys. 381 Prosecution submitted that the CCTV footage supported Mr Perkins account of how and why he ended up at 11B Hill Street, established that Mr Wheatley knew Mr Perkins was at 11B Hill Street and showed Mr Wheatley was at 11B Hill Street to collect Mr Perkins. 382 At the time of the first drive-by, no car was parked at 11B Hill Street and there was no one out in the street. Given the driver of the second vehicle braked briefly going past 11B Hill Street, prosecution contended the drivers of the cars knew Mr Perkins was at 11B Hill Street. The prosecution submitted that inference is not open to other reasonable hypotheses consistent with a different scenario in the context of the second, third and fourth drive-bys. 383 Prosecution pointed to the respects in which Mr Perkins’ evidence about his observations of the two vehicles was consistent with other evidence in the case about the two cars, including the CCTV footage showing the movements of the vehicles. Mr Perkins first noticed the headlights entering from the Fairfield Road end of Hill Street. He thought the cars were travelling together, not going very fast, the smaller of the two cars was in front and had a sports exhaust that had a different sound. He later described it having a faded roof and being a “bluey” colour. 384 Prosecution submitted the CCTV footage showed the vehicles stopped next to Mr Wheatley’s car confirming an inference that the men in the cars were looking for someone at 11B Hill Street and they were looking for Mr Wheatley’s car which was now parked. On the prosecution case, the link was Mr Thaller. Mr Wheatley knew Mr Thaller well enough to let himself into his house. Mr Thaller knew Mr Grant who had been a regular visitor as shown on the CCTV footage. At 10:12 pm, a call was made from the phone subscribed in the name of Ms H to the service in the name of Mr Wheatley. On the prosecution case, Mr Grant rang Mr Wheatley at 10:12 pm using his girlfriend’s phone. Prosecution contended it provided a clear link between Mr Grant and Mr Wheatley and explained why the men driving past at 10:33 pm and then 10:36 pm were behaving in a manner suggesting an interest in 11B Hill Street. The vehicles stopped for around 10 seconds alongside Mr Wheatley’s vehicle which was sufficient for an exchange with Mr Wheatley. -- 81 of 129 -- [2024] SASC 58 Stein J 80 385 On the prosecution case, at the time of the fourth drive-by, the driver of the small blue car asked expressly for “Sam” by asking “where the fuck’s Sam?”. By the time of the fourth drive-by, the driver of that car knew he was looking for Mr Perkins and had to have known Mr Perkins was there or that was where Mr Perkins would be for the first, second and third drive-bys. 386 At 10:13 pm, the service subscribed in the name of Mr Sahlstorfer with an address matching in all except for one respect (being the unit number used before the house number) the previous address of the Adelaide Chapter of the Hells Angels in Clarence Gardens was made to the service number subscribed to Mr E. On the prosecution case, Mr Sahlstorfer knew the address of the Hells Angels Motorcycle Gang clubhouse and used it at the time he gave his name and personal details. At 10.14 pm, there was another call from the phone subscribed to Mr Sahlstorfer to the phone subscribed to Mr E for 16 seconds, 19 minutes before the first drive-by. 387 Prosecution contended that the totality of the telephone base station evidence shows that in the lead up to the offence the phone subscribed in the name of Mr Sahlstorfer moved from the vicinity of Mr Sahlstorfer’s home at Walkley Heights, not far from the Valley View base station, travelled past the Pooraka base station and connected to the Elizabeth Vale base station at 10:39 pm. The connection at 10:39 pm was two minutes before the fourth drive-by. On the prosecution case, Mr Sahlstorfer’s phone was in the vicinity, as was his car, from which can be inferred that he was in the immediate vicinity of Hill Street. 388 The prosecution contended the evidence established that Mr Grant was in contact with Mr Wheatley and Mr Sahlstorfer was in contact with Mr E who had access to a silver Toyota RAV4. 389 On the prosecution case, Mr Sicari had a good opportunity to see and hear the cars and his account was supported by the CCTV footage. Mr Sicari’s observation of the four-wheel drive stopping next to the small dark car suggested a connection between the occupants of the vehicles. Prosecution acknowledged there were matters which Mr Sicari could have mentioned but did not. On the prosecution case, Mr Sicari had two opportunities to see the cars; when they crossed paths on his arrival home and after the second drive-by when he was out the front of 20 Hill Street. The prosecution submitted that Mr Sicari’s description of the cars was consistent with the description of Mr Sahlstorfer’s car with the possible qualification of the colour. 390 As the third drive-by occurred at 10:38 pm, the brake lights of both vehicles came on as they passed Mr Wheatley’s car which had its rear lights on. On the prosecution case, Ms Bourke also crossed paths with the two vehicles. Prosecution submitted the CCTV footage demonstrates that Mr Boyce was at Mr Wheatley’s car for less than one minute and in the presence of his attackers for less than 30 seconds before he had to run and, the CCTV footage was “on all fours” with Mr Perkins’ evidence. On the prosecution case, the photographs taken from the -- 82 of 129 -- [2024] SASC 58 Stein J 81 roof showed a clear line of sight to where Mr Wheatley’s car was positioned. Prosecution submitted that the words “where the fuck’s Sam?” spoken in an aggressive tone evidence that the men were looking for Mr Perkins, they expected him to be at 11B Hill Street and they knew he was being collected by Mr Wheatley. Prosecution contended that whatever happened caused Mr Boyce to apprehend fear and to flee consistent with someone acting in an aggressive manner and Mr Perkins’ account was consistent with the CCTV footage and consistent with the men getting out of the car and looking for conflict. On the prosecution case, the utterances were aggressive, indicating an intention to engage in conflict and the men bore a hostile intent that would be directed to Mr Perkins. Prosecution submitted the fact that Mr Boyce ran away within 30 seconds evidences that there was no pause, no stopping to talk and the men acted quickly and, because Mr Perkins was not there, Mr Boyce ended up in his shoes. 391 Prosecution submitted that a joint enterprise was made out by inference from all of the surrounding circumstances including the four drive-bys, the stops next to Mr Wheatley’s car, the confrontation, demanding to know where “Sam” is, the pursuit down the road, the two men immediately returning to their cars and driving off, all of which happened immediately. On the prosecution case, the driver of the small dark car walked straight over and delivered a very forceful kick and then multiple blows to Mr Boyce who was restrained. The driver of the other vehicle pulled up, came straight across and also engaged in that attack. Prosecution relied on the spontaneity as giving rise to the clear inference they were acting together as part of a common plan. 392 Prosecution accepted that the evidence of Dr Charlwood does not allow any conclusion as to which blow caused the fatal injury, whether there was one blow that caused the injury and that it is not possible to say which offender delivered a fatal blow. However, prosecution relied on the combined force of the attack. Prosecution submitted the driver of the small car was redolent of a person who has the intention to at least cause grievous bodily harm. 393 The prosecution did not submit that there was a common plan with an intention to kill. Rather, the prosecution case was based on a common plan and an arrangement between them that together they would inflict grievous bodily harm on Mr Boyce. Prosecution submitted that the circumstances in which the driver was angry, looking for Mr Perkins, went straight over and started kicking and punching a restrained man and attacked him in a short but ferocious attack enable the inference that the scope of the plan extended to inflicting grievous bodily harm. All three men took part in what the prosecution contend were “full blooded blows and kicks”. Prosecution also relied on the speed at which the two men joined in the attack by the driver of the small dark car to support a joint enterprise together with the spontaneity of the movements and actions and the nature of the movements to establish the scope of the joint enterprise. Prosecution contended that by the time the driver got out of the small dark car and attacked Mr Boyce, a common plan must have been on foot because the person restraining Mr Boyce -- 83 of 129 -- [2024] SASC 58 Stein J 82 also joined in, as did the driver of the other vehicle. On the prosecution case, it did not matter that Mr Boyce was not the original target. 394 The prosecution submitted there is no basis for challenging causation as Dr Charlwood’s evidence was clear that the motorcycle crash had no causative effect and the CCTV footage shows Mr Boyce on 30 January 2017 appearing to act completely normally. 395 Prosecution submitted Mr Grant was well acquainted with Mr Thaller as can be seen on multiple visits on the CCTV footage and Mr Thaller acknowledged he knew Mr Grant. Mr Grant had a plaster cast on his arm which can be observed in the CCTV footage. Further, prosecution contended DNA evidence of the T-shirt hanging on the fence established Mr Grant’s DNA on the T-shirt, placed there in the process of restraining Mr Boyce. The prosecution further pointed to the support from the phone records indicating a call from the service subscribed in Mr Grant’s name to the service subscribed in the name of Mr Sahlstorfer, suggesting Mr Grant and Mr Sahlstorfer were communicating with each other 38 minutes before the fatal assault and in a call made two minutes after Mr Perkins left 20 Hill Street. 396 Prosecution submitted that the phone records established that three men, known to each other, Mr Grant, Mr Sahlstorfer and Mr E were in telephone contact on the day and the communications between Mr Grant and Mr Sahlstorfer, Mr Grant and Mr Wheatley, and Mr Sahlstorfer and Mr E between 10:04 pm and 10:14 pm in combination were significant, as was the call from Mr Sahlstorfer to Mr Wheatley at 10:39 pm, just after the third drive-by, in a call that connected for 43 seconds two minutes prior to the fourth drive-by. That 43 second call was made via the base station approximately 360 metres from Hill Street. There are no hills, mountains, multistorey buildings between 20 Hill Street and 100 Philip Highway that would impact on the signal strength. While accepting that it is not always the nearest base station that will receive the signal from the phone, prosecution submitted that is the expectation because the signal strength will diminish the further away the phone is from the base station. While accepting that the phone records did not place Mr Sahlstorfer in Hill Street, prosecution submitted the phone records placed him in the area at the very time the phone was being used to talk to Mr Wheatley whose job it was to collect Mr Perkins. Prosecution contended that is sufficient to enable me to infer and conclude that Mr Sahlstorfer was there with his phone. 397 On the prosecution case, Mr Sahlstorfer’s car was also in Hill Street. The prosecution submitted the evidence establishes that Mr Sahlstorfer owned a 2000 model Toyota Echo, the registration of which expired on 30 March 2017 which was never re-registered and simply disappeared. The car was purchased from Mr A, was blue, had a faded roof and a “hotdog” muffler that made the car louder “like a Japanese sports bike”. The prosecution contended that Mr A’s description of the person who purchased the Toyota Echo, with facial tattoos, was a member of the Hells Angels and had an accent, had to be Mr Sahlstorfer. -- 84 of 129 -- [2024] SASC 58 Stein J 83 Prosecution submitted that the evidence from Mr Munn and Mr A concerning the “hotdog” muffler on the car found at Ponde was sufficient to conclude the car at Ponde was Mr Sahlstorfer’s car. 398 Prosecution submitted that Mr Greer is an expert in model features of Toyota models across the whole Toyota range with particular expertise and skill in identifying Toyota vehicles. He has expertise in the physical characteristics of vehicles and is accordingly able to identify features that may not otherwise be readily observable to the untrained eye. Prosecution submitted that Mr Greer’s evidence was that the silver vehicle was a 2011 to 2014 Toyota RAV4 which was consistent with a Toyota RAV4 registered in the name of Mr E’s father, to which Mr E had access. In relation to the Toyota Echo, the prosecution pointed to aspects of Mr Greer’s evidence including that the Toyota Echo 2000 model was a very unique design that stood out from the rest of the Toyota range including having bulbous taillights and features such as the number plate embedded into the bumper bar and his assessment that the small dark vehicle was definitely a Toyota Echo. The prosecution submitted that none of the matters put to Mr Greer in cross- examination impacted his opinion. Mr Greer indicated a Toyota Yaris was very different and eschewed any suggestion he had been influenced by Mr Chewter. Prosecution submitted that the combination of Mr Greer’s opinion and the unique features of Mr Sahlstorfer’s car, being the “hotdog” exhaust and the faded roof and the description by eyewitnesses of the car having a loud exhaust and a faded roof, provided a fair description of Mr Sahlstorfer’s car to be assessed against the other evidence including the location of Mr Sahlstorfer’s phone and his contact with Mr Wheatley. The prosecution also relied on Mr Perkins’ evidence about the driver of the car having a slight accent and Detective Britton’s evidence that Mr Sahlstorfer speaks with an accent. 399 The prosecution submitted the media release issued in relation to the vehicles made the car hot property. Prosecution submitted that the Safe-T-Cam evidence demonstrates that, at least, the Toyota Echo was never picked up after 26 February 2017. While accepting the cameras are only 90 to 95 percent reliable, the prosecution submitted it is incongruous to suggest the vehicle could have gone through the cameras time and time again between August and 26 February and then been misread by the camera on each and every occasion. Further, there was no other detection by police. 400 Prosecution relied on the circumstance in which the Toyota Echo was found at Ponde. The prosecution submitted that the state of the chassis with the A, B and C-pillars cut, the VIN plate and manufacturer’s plate removed suggested someone had gone to a lot of trouble to chop it up. Items which may have identified it were removed and it was buried, and it was not simply a case of dumping a car. Prosecution contended that the circumstances in which the car was located demonstrated the person who placed it there did not want it found, they did not want it identified and it is inconceivable the car could have been buried without the permission or knowledge of the Hells Angels Motorcycle Club, of which Mr Sahlstorfer had been a member since 2012. The prosecution submitted the -- 85 of 129 -- [2024] SASC 58 Stein J 84 logical and rational inference is the persons involved did not want the car found and identified because they knew it had been used in the commission of the crime. 401 The prosecution relied on the Toyota RAV4 seemingly going missing when Mr E had access to a Toyota RAV4 registered in his father’s name which was parked in front of Mr E’s house on 1 and 2 November 2016, was sighted up to 14 March 2017 going through the Safe-T-Cam but not thereafter and was never re- registered after 17 December 2017. 402 The prosecution pointed to the unlikelihood of a whole series of events having occurred which were not coincidences or mistakes made by witnesses: that Mr Greer made an error in identifying the vehicle types; Mr Perkins misdescribed the vehicle; Mr Sicari misdescribed the sound of the vehicle; the chances there would be another car of the general shape, colour and appearance with a noisy exhaust and a faded roof owned by a man with an accent in the location where Mr Sahlstorfer’s phone was, who had rung Mr Wheatley one or two minutes before the attack when Mr Wheatley was sitting at the end of the driveway; that Mr Sahlstorfer’s phone was used to call Mr Grant 30 minutes before the attack and to send a text to him 30 minutes after the assault; that Mr Sahlstorfer’s car mysteriously disappeared and was found at Ponde. 403 Prosecution submitted that Mr Perkins’ account to Officer West at 2:30 am on 31 January 2017 could be Mr Perkins “putting two and two together and getting five” in circumstances in which Mr Zaporoshenko gave evidence he was not the offender. Defence submissions 404 Defence submitted that the prosecution case makes assumptions and speculation. Defence pointed to the extremely poor quality of the CCTV footage and submitted that it cannot be treated as a clear depiction of what occurred, and the quality of the CCTV footage does not demonstrate the ferocity of the attack. Defence submitted that merely because there were three people attacking one person that did not necessarily equate to intention to inflict grievous bodily harm. 405 Defence accepted that the CCTV footage and the evidence of Mr Perkins made it relatively plain as to what happened to Mr Boyce when confronted outside the house at 11B Hill Street. However, there was no hint that the three men went to Hill Street to go after Mr Boyce. The prosecution did not contend as such and there was no motive suggested to explain why the men attacked Mr Boyce. Defence agreed it was abundantly plain on the evidence that the men were looking for Mr Perkins and most compelling evidence that enables the Court to reach that conclusion is the utterance of “where the fuck’s Sam?” three times. 406 Defence submitted that the headlights of the cars were on immediately prior to the assault and there are three streetlights in Hill Street. Mr Perkins was not that far away and he said none of the men had their faces covered. Not only did Mr Perkins not refer to tattoos, but he said the driver had no tattoos. Defence -- 86 of 129 -- [2024] SASC 58 Stein J 85 contended that a reading of Mr Perkins’ transcript gave the impression that Mr Perkins was doing his best and wanted to bring those responsible for killing his friend to account. Defence referred to Mr Crampton’s evidence that Mr Perkins was muttering something about “Serge the Russian” when coming down from the roof and to the small blue Ford Laser with a faded roof in the location of Mr Zaporoshenko’s business and the curiosity that he had an accent. Defence discounted Mr Zaporoshenko’s evidence that he was not involved on the basis he would hardly admit he was. Defence submitted that coupled with the lack of any evidence that a man with such distinctive features was present, coupled with the competing evidence about the car, which does not permit proof beyond reasonable doubt that the Toyota Echo was present, the prosecution case amounted to no more than guess work. 407 Defence submitted there was no evidence why the men were seeking Mr Perkins. Defence contended that if there was a joint enterprise, it was a joint enterprise to engage with Mr Perkins and that is why the three men went to Hill Street. The plaster cast, together with the DNA on the T-shirt, suggested that the man who chased Mr Boyce was Mr Grant and when the vehicles followed down the road in pursuit of Mr Grant chasing Mr Boyce, a second joint enterprise arose given the plan must have been to engage with Mr Perkins. 408 Defence accepted the attack was violent, without lawful justification or excuse and there was no doubt that the attack brought about the death of Mr Boyce. Defence pointed to the very short space of time within which the incident was completed and that Dr Charlwood could not provide assistance on how many blows were struck nor could the CCTV footage assist, given its quality, in determining the number of blows. 409 While accepting it is obvious there were multiple blows, defence submitted there cannot be a finding of what type of blow caused the fatal injury or how many blows that gave rise to the fatal injury. Defence pointed to Dr Charlwood’s evidence in the trial involving Mr Grant that the force required could be in the range of moderate to severe and that she put the force required as severe force. While accepting that the culmination of Dr Charlwood’s evidence and the viewing of the CCTV footage indicated the attackers were intending to hurt Mr Boyce, defence submitted that does not equate to murderous intent and pointed to the absence of any weapon. 410 Defence also relied on the relatively short enterprise as pointing away from murderous intent. While accepting there were punches and kicks, defence submitted this stopped after a relatively short time of about 15 seconds and thus the Court could conclude the men probably stopped because they became aware that Mr Boyce was not fighting back. Defence contended there was an absence of evidence that the men persisted and kept attacking Mr Boyce for a prolonged time after he became incapacitated such as would be found if a person had murderous intent. -- 87 of 129 -- [2024] SASC 58 Stein J 86 411 Defence submitted that the alternative pathway of extended joint enterprise may be conceivable if a weapon were involved but where there was simply punching and kicking, it does not give rise to the same reasoning as to what a person might contemplate. 412 Defence accepted the assault was unlawful and dangerous as there was the potential to cause serious injury to Mr Boyce and it may well have been intended that serious injury result. Defence submitted this was a classic manslaughter by unlawful and dangerous act case. 413 Defence contended that the identification of the Toyota Echo is an indispensable link in the prosecution’s circumstantial case in respect of which a Shepherd direction is required on the basis that proof the small dark car is Mr Sahlstorfer’s Toyota Echo is fundamental and such that, if not proved beyond reasonable doubt, the chain of evidence is broken. 414 Defence submitted that the prosecution cannot prove beyond reasonable doubt that the small dark car in the CCTV footage is a Toyota Echo. Defence contended the CCTV footage is so poor to preclude anyone sensibly reaching that conclusion and Mr Greer’s evidence should be afforded so little weight as simply to be put to one side. 415 While not suggesting Mr Greer was dishonest, defence pointed to the manner in which Senior Constable Chewter dealt with Mr Greer as showing that police were seeking to obtain from Mr Greer confirmation of the vehicle as a Toyota Echo, not an identification. Defence submitted that Senior Constable Chewter was endeavouring to tease out of Mr Greer that the vehicle was a Toyota Echo, supported by Mr Chewter seeking nine different opinions relating to the Toyota RAV4 yet for the less clear vehicle only seeking one opinion. Defence referred to the email chain from Mr Tannock in which he stated the image was simply too unclear. Defence submitted that Mr Greer firmed up in his conclusion the more he dealt with Senior Constable Chewter over time and the Court should be concerned about unconscious bias finding his way into Mr Greer’s opinion because he was being fed the Toyota Echo line. 416 Defence pointed to Mr Glover’s evidence and the many manufacturers of vehicles, the majority of which produce hatchbacks and reminded me of the evidence of Mr Glover. Defence submitted that I might have more confidence in the prosecution’s contention had I heard evidence excluding other types of vehicles. Defence submitted Senior Constable Chewter acted on the assumption he was dealing with a Toyota Echo and there was no exclusion of models like the Holden Barina and other vehicles produced by Mazda, Hyundai, Kia, and so on. Defence also pointed to the image of the Holden Barina in the email chain between Mr Greer and Senior Constable Chewter suggesting he was not excluding a Holden Barina. -- 88 of 129 -- [2024] SASC 58 Stein J 87 417 Defence submitted that Mr Greer appears to have worked on the footage processed by Dr Sorell. Defence submitted that Dr Sorell is a highly qualified, experienced, well-known professional expert witness with appropriate expertise, unlike Mr Greer, and I ought to have confidence in his opinions. Defence relied upon Dr Sorell’s evidence to the effect that the CCTV footage was of extremely poor quality and ought to be treated with particular caution, particularly when looking at the processed footage. Defence submitted Dr Sorell’s evidence concerning the inability to detect shapes, such as panels of doors, casts confusion over the imagery sent to Mr Greer and adversely impacts on Mr Greer’s opinion. 418 Defence submitted that there are many cars, especially older cars, with faded roofs and loud exhausts. 419 Defence pointed to Mr Perkins’ description of the vehicle as a blue Holden Barina and the initial reference by Mr Tannock and Mr Greer to a blue Holden Barina. Defence submitted the reference by Ms Blake and Ms Taylor to a small red car and the reference to a car with a fin at the top of the rear window introduced further confusion. The fact that Ms Taylor referred to a small red hatch with its headlights off was said to suggest that something was about to happen involving that vehicle. 420 Defence also referred to Mr Greer’s evidence in cross-examination in which he was asked about a line above the taillights and he responded that it could be a spoiler or a body panel. Defence contended that dovetails precisely into Ms Taylor’s reference to a small fin on the red car. Defence also referred to Mr Sicari’s evidence that the car was possibly green with tinted windows and did not look like a bomb. Counsel submitted that the inconsistent evidence of the vehicle being red, possibly green, with tinted windows, not a bomb, and a blue Holden Barina is such that the Court cannot conclude beyond reasonable doubt that the small dark vehicle was Mr Sahlstorfer’s Toyota Echo. 421 The case is not about the Hells Angels and defence contended there is no suggestion that outlaw motorcycle gang backgrounds are related to the incident. Defence accepted the Hells Angels evidence points to an association between Mr Sahlstorfer and Ponde and a connection between the 350 telephone number attributed to Mr Sahlstorfer having a connection with an old clubhouse of the Hells Angels and no other purpose. 422 Defence submitted the wrecked condition of the vehicle at Ponde did not mean much given Mr Sahlstorfer’s car cost $1,200 and was obviously a “bomb”. Defence contended there was an attempt to salvage parts of the wreck and because of the destruction of the vehicle, it was not possible to know whether it had blown up or become wrecked in burnouts such that it was disposed of. Further, defence submitted there is no evidence of who disposed of the vehicle or why it was disposed of, and even if Mr Sahlstorfer disposed of it, it did not necessarily follow it was done from a consciousness of guilt. Further, the disposal of the vehicle was neutral to whether the crime committed was murder or manslaughter. -- 89 of 129 -- [2024] SASC 58 Stein J 88 423 Defence submitted that, at best, the prosecution evidence concerning Mr Sahlstorfer’s phone was that it may have been in the general area of the northern suburbs. Mr Sahlstorfer lived in the northern suburbs and knew people in the northern suburbs so it was hardly surprising his phone may have been in that general area . Defence submitted there was no evidence concerning the range of the towers and consequently a tower to the north of Hill Street could have picked up phone activity further to the north. Defence also relied on the evidence that if a base station was congested the signal will connect to another base station and pointed to the imprecision of the phone evidence. 424 Defence submitted even if the Toyota Echo owned by Mr Sahlstorfer made its way to Hill Street, there is no evidence that it was Mr Sahlstorfer driving it. Not only was there no DNA and no personal identification but Mr Perkins gave evidence that he knew Mr Sahlstorfer and had seen him at 20 Hill Street on an earlier occasion when Mr Sahlstorfer arrived in a Range Rover. There was no evidence that may suggest Mr Sahlstorfer and Mr Perkins were enemies, no evidence of animosity and no evidence assisting in identifying the driver. 425 Defence submitted that the headlights of the cars were on immediately prior to the assault. Defence referred to Mr Sahlstorfer’s obvious tattoos which he had at the time of the incident, the evidence about “Serge the Russian”, the small blue Ford Laser with a faded roof in the location of Mr Zaporoshenko’s business and his accent. Defence submitted that coupled with the lack of any evidence that a man with such distinctive features as Mr Sahlstorfer was present and the competing evidence about the car, which does not permit proof beyond reasonable doubt that the Toyota Echo was present, the prosecution case was no more than guess work. Prosecution response concerning Shepherd direction 426 The prosecution disputed the necessity of a Shepherd direction. The prosecution submitted that it is necessary for the Court to be satisfied beyond reasonable doubt that Mr Sahlstorfer was present in Hill Street, but the evidence relating to his Toyota Echo was not an indispensable link in the process of reasoning. The prosecution submitted proof beyond reasonable doubt that Mr Sahlstorfer’s vehicle was in Hill Street is unnecessary but the evidence relating to the general description of the car remains relevant and a circumstance to be considered along with all other circumstances in determining whether or not I am satisfied beyond reasonable doubt that Mr Sahlstorfer himself was at the scene. The presence of Mr Sahlstorfer’s car is to be considered in conjunction with the other circumstantial evidence, and proof the small dark car is Mr Sahlstorfer’s vehicle is simply a circumstance or a strand in the rope in the process of reasoning to establish Mr Sahlstorfer’s identity as the driver. 427 Even if the evidence is not inconsistent with the small vehicle being that of Mr Sahlstorfer and no more, prosecution contended that would simply be a circumstance to be considered in deciding whether the prosecution had proved beyond reasonable doubt that Mr Sahlstorfer was present. -- 90 of 129 -- [2024] SASC 58 Stein J 89 Assessment of witnesses Expert witnesses 428 There was no challenge to the expertise of any of the experts called to give evidence. The expert witnesses had the necessary expertise to give their opinion evidence. I consider they were impartial, reliable and credible witnesses. 429 In the case of Mr Greer, defence did not directly challenge his expertise, although defence contrasted his expertise with that of Dr Sorell. Defence submitted I ought not place any weight on Mr Greer’s opinion. I address the issue of Mr Greer’s opinions separately below in the section concerning identification of the small dark vehicle. 430 I accept the opinions of all the other expert witnesses. Lay witnesses 431 Ms Bourke was visibly tense and noticeably shaking even while being sworn in. She started crying soon after examination in chief commenced. I allowed Ms Bourke a short break soon after starting her evidence, however, the level of her stress did not abate. I have no reason to doubt Ms Bourke’s reliability and credibility when she did provide answers to questions. However, Ms Bourke answered many questions by saying she could not recall. I formed the view she was not willing to fully grapple with some questions and provide proper and reliable answers to those questions. 432 Prosecution submitted that Mr Thaller was not particularly forthcoming and the evidence he gave was given begrudgingly. Prosecution also pointed to a brief exchange in the CCTV footage showing a handshake or a fist bump between Mr Thaller and Mr Perkins198 and suggested that Mr Thaller was more involved than his evidence suggested. 433 Mr Thaller leaned back while giving evidence, crossing his arms and at times was close to belligerent. He gave very short answers to questions and in some cases was not helpful. In some parts of his evidence he said he did not recall, but I was left in some doubt whether or not he was being truthful and to what extent he was simply being unhelpful. I formed the view that Mr Thaller was reluctant to fully assist the Court. 434 Mr Thaller answered some questions clearly, such as about the existence and position of the CCTV footage, as opposed to other questions such as those concerning the movements of people to and from the house on 30 January, when Mr Perkins was at the house, when he saw Mr Wheatley and so on. For example, when asked what time Mr Perkins came to his house asking for a lift, Mr Thaller said he did not have any idea, he thought night time. When prompted whether he could help by reference to sunset, midnight or dawn, he responded that it was 198 Exhibit P9 at 1:33:00. -- 91 of 129 -- [2024] SASC 58 Stein J 90 somewhere between sunset and midnight in a manner that suggested he was not willing to properly engage with the question. While he initially did not recall Mr Wheatley coming to the house and collecting a backpack, he identified “possibly” Mr Wheatley in the CCTV footage. I have accepted parts of his evidence, including about the CCTV footage at 20 Hill Street and his evidence about calling Mr Wheatley to arrange a lift for Mr Perkins. I have preferred the CCTV footage depiction of movements of people in and out of 20 Hill Street and the relevant times of those movements over the evidence of Mr Thaller. 435 I address my observations of Mr Zaporoshenko separately below in the context of my assessment of the evidence of the identity of the driver of the small dark car. 436 There were no challenges to the reliability or credibility of any of the other lay witnesses. I accept they were all honest, reliable and credible witnesses and I accept their evidence. Mr Perkins 437 Prosecution submitted that most of Mr Perkins’ movements and motivations for his movements can be established by other evidence or by inference from the transcript of the evidence in the trial. 438 The items of evidence in Mr Perkins’ evidence which prosecution pressed as important aspects upon which Mr Perkins should be accepted relate to Mr Perkins hearing a noisy car, the colour of the car, that the car had a faded roof and that the driver of the car had an accent. Prosecution contended that almost all of Mr Perkins’ evidence is supported by CCTV footage or other eyewitness evidence or by inference. 439 Counsel for Mr Sahlstorfer reminded me about the absence of cross- examination of Mr Perkins and the significant forensic disadvantage which befell the accused as a result. Counsel for the defence submitted that Mr Perkins was deeply upset by the death of his friend Mr Boyce and was doing his best to help bring those responsible for killing his mate to account. Defence accepted that the CCTV footage and the evidence of Mr Perkins made it relatively plain as to what happened to Mr Boyce when confronted outside the house at 11B Hill Street and that it was abundantly plain that the three men were looking for Mr Perkins given the utterance of “where the fuck’s Sam?” three times. Defence pointed to other evidence, primarily relevant to the identity of the driver of the small dark car, in relation to which there was no opportunity to cross examine Mr Perkins. For example, defence referred to the references to “Serge the Russian” and to Mr Perkins referring to the driver as having no tattoos. Defence submitted that this is an example of the forensic disadvantage resulting from the inability to cross- examine Mr Perkins given the obvious tattoos on Mr Sahlstorfer at the time of the incident. -- 92 of 129 -- [2024] SASC 58 Stein J 91 440 Mr Perkins’ evidence was given in a trial in the Supreme Court. He was subjected to cross-examination, although by different counsel for a different client and therefore different forensic purposes. The inability to call Mr Perkins following his death resulted in defence’s inability to cross-examine him. While one can form a very general impression about how he gave his evidence from the words spoken, that is limited, and I lost the opportunity to assess him while giving evidence. However, there are many aspects of Mr Perkins’ evidence which are supported by other evidence which assists me in accepting parts of his evidence. 441 The evidence of Mr Perkins is consistent with, and supported by, the CCTV footage in many respects, including the existence and positioning of the CCTV cameras, that Mr Grant visited 20 Hill Street, the colour of the car in which he arrived, Mr Perkins’ movements outside 20 Hill Street at about 9:00 pm when he said he was waiting for his ride, his movement from 20 to 11B Hill Street, Mr Wheatley arriving at 20 Hill Street, collecting a backpack and then driving up to 11B Hill Street, Mr Perkins walking out of 11B Hill Street to the street to interact with Mr Wheatley and then back inside, the position of Mr Wheatley’s car, Mr Perkins’ observation of the two vehicles driving down Hill Street towards 11B Hill Street from the northern end of Hill St, pausing and looking towards the house, his account of the movements of and relative position of the two cars immediately prior to the interaction with Mr Boyce leading to the attack and the movements of Mr Boyce and the passenger of the small dark car down the road followed by the movements of the drivers and the cars driving down the road to the attack. 442 Mr Perkins account about getting a ride with Mr Wheatley was supported by Mr Thaller. It was supported to some extent by the agreed fact concerning Ms Surman and Ms Withers being pulled over by police near Hill Street. 443 Mr Perkins evidence about his movements inside 11B Hill Street and onto the roof and his interactions with Mr Boyce were generally supported by Mr Crampton and Mr Rozenboom. 444 Mr Perkins’ description of the sound of the exhaust on the small dark vehicle was supported by Mr Sicari’s statement. 445 I accept Mr Perkin’s evidence in these respects which are supported by other evidence. 446 I address the other aspects of Mr Perkins’ evidence further below. Analysis and findings 447 I haven taken into account all of the evidence. I have considered all of the submissions of both the prosecution and defence. I have assessed whether the prosecution has established its case beyond reasonable doubt by considering the totality of the matters which have been proved rather than assessing piecemeal each individual circumstance. -- 93 of 129 -- [2024] SASC 58 Stein J 92 What was the cause of Mr Boyce’s death? 448 I accept Dr Charlwood’s opinion and find beyond reasonable doubt that the cause of Mr Boyce’s death was blunt force trauma to the head. 449 Dr Charlwood was unable to determine the precise number of blows which resulted in death. I cannot find precisely how many blows were delivered or which particular blow or blows was the substantial cause of death. 450 As set out above, Dr Charlwood gave evidence that severe force would have been required to cause the fracture suffered by Mr Boyce and referred to some of the brain injuries as consistent with severe force. Dr Charlwood’s explanation for her evidence in the trial of Mr Grant was that potentially moderate to severe described the degree of force required to fracture a thin part of the skull when the fracture site was at one of the thinner portions of the bony structures of the skull. However, the fracture went up the side of the temporal bone which is not as thin. 451 I accept that any description of the degree of force required to cause injuries is subjective. Considering Dr Charlwood’s evidence as a whole, I find beyond reasonable doubt that the degree of force required to cause the skull fracture described by Dr Charlwood was moderate in the thinner section of the skull but the force required to cause the fracture in the thicker part of the skull, and some of the brain injuries, was severe. 452 Dr Charlwood was clear that she did not consider there to be any link between the motorcycle accident and Mr Boyce’s death. I accept her opinion. I also observe that the CCTV footage shows Mr Boyce getting up quickly after the accident and appearing to walk and engage normally on 30 January 2017. I find beyond reasonable doubt that the motorcycle accident did not cause or contribute to Mr Boyce’s death. 453 I find beyond reasonable doubt that the cause of the blunt force injuries and thus the cause of Mr Boyce’s death was one or more blow or blows inflicted on Mr Boyce by one or more of the men during the attack shown in the CCTV footage. 454 I find beyond reasonable doubt that those blows were inflicted deliberately and unlawfully. Did Mr Sahlstorfer, Mr Grant and Mr E know each other? 455 I find beyond reasonable doubt that as at 30 January 2017, Mr Sahlstorfer, Mr Grant and Mr E were known to one another and sufficiently well known to have photographs taken together and to communicate with each other. 456 The agreed facts include that as at 30 January 2017, Mr Grant was a hang around and each of Mr Sahlstorfer and Mr E were full members of the Adelaide -- 94 of 129 -- [2024] SASC 58 Stein J 93 Chapter of the Hells Angels. Photographs199 show Mr Sahlstorfer with Mr E; and a photograph200 shows the three men together. 457 The telephone call charge records,201 demonstrate telephone contact between: • a phone subscribed in the name of Mr E and a phone subscribed in the name of Toby Sahlstorfer; • a phone subscribed in the name of Mr E and a phone subscribed in the name of Mr Grant.202 458 Mr E’s mobile phone had a recorded contact consistent with being Mr Sahlstorfer and Mr Sahlstorfer’s phone contacts included a contact consistent with being Mr E. 459 Detective Britton gave evidence that the men spoke with each other as friends. A commercial lease document for premises at Salisbury Plain taken out in the name of Mr E and Mr Grant203 is consistent with the two men being sufficiently close to enter into such an agreement. Were other individuals relevantly associated? 460 I find that the woman depicted with Mr Grant was in a sufficiently close relationship with Mr Grant to post on her Facebook page a photograph of herself with Mr Grant showing Mr Grant’s arm around her waist204 and further that she was present in the house with Mr Grant when Mr Grant was arrested in October 2017. 461 I find that Mr Thaller had known Mr Grant and Mr Wheatley for years and both would visit him. I accept Mr Thaller knew of Mr Sahlstorfer. I find that Mr Grant visited 20 Hill Street on 24 and 27 January and several times on 30 January 2017. 462 I accept that Mr Grant and Mr Wheatley must have been acquainted to some extent as Mr Grant can be seen in the CCTV footage with Mr Wheatley in front of 20 Hill Street on 30 January 2017.205 199 Exhibits P68; Exhibit P69. 200 Exhibit P70. 201 Exhibits P17; Exhibit P36. 202 Exhibits P17; Exhibit P46. 203 Exhibit P44 at 9-23. 204 Exhibit P65. 205 Exhibit P9 from 34:27. -- 95 of 129 -- [2024] SASC 58 Stein J 94 Identification of vehicles Is this a Shepherd case? 463 I return to the question whether this is a Shepherd case as my conclusion on that issue will impact how I consider the evidence. 464 I have considered carefully the submissions of counsel for the defence. 465 The relevant test for determining whether this is a Shepherd case is as set out above by Doyle J in Singh which includes consideration of whether the evidence forms an indispensable link in the reasoning as a consequence of the inherent role or significance of the evidence or the way the case has been conducted. 466 A conclusion that Mr Sahlstorfer is guilty of the offence necessarily requires a finding of fact beyond reasonable doubt that Mr Sahlstorfer was present in Hill Street and one of the three men who attacked Mr Boyce. Prosecution put its case on the basis that it is an indispensable link in the chain that Mr Sahlstorfer was one of the three men, however, proof of that fact is derived from a number of separate circumstances, none of which require proof beyond reasonable doubt. While prosecution sought to prove that the vehicle in Hill Street was a Toyota Echo and that Mr Sahlstorfer owned a Toyota Echo at the date of the attack, the prosecution case was not based on proof of either or both of those matters in isolation. While the fact the small dark vehicle was a Toyota Echo and Mr Sahlstorfer owned such a vehicle was an important part of the prosecution case in establishing the identity of the driver of that vehicle, the prosecution case would not collapse without it. It was only one aspect of the prosecution case which was put in combination with all of the circumstantial evidence relevant to that issue. That other evidence, without being exhaustive, included the CCTV footage, Mr Perkins’ and Mr Thaller’s evidence concerning Mr Wheatley giving Mr Perkins a lift from 11B Hill Street, the identification of the larger vehicle, the evidence concerning the association between Mr Sahlstorfer, Mr Grant and Mr E, the phone records including the call from the phone subscribed to Mr Sahlstorfer to Mr Wheatley at 10:39 pm when Mr Wheatley was parked in front of 11B Hill Street and the DNA evidence and CCTV footage linking Mr Grant with the attack. Given the manner in which the prosecution framed its case, I do not consider a Shepherd direction is required. Was the small dark car in the CCTV footage a Toyota Echo? 467 Mr Greer was an independent witness and his expertise was not directly challenged. I accept his extensive experience through his various roles across 40 years in working with Toyota vehicle models gave him sufficient expertise to give opinion evidence about the stylistic features of different models of Toyota vehicles over time.206 The extent of his experience and knowledge was apparent during his evidence. 206 R v Bonython (1984) 38 SASR 45 at 46-7. -- 96 of 129 -- [2024] SASC 58 Stein J 95 468 Having accepted his expertise, I must consider whether I accept Mr Greer’s opinion that the small dark vehicle is a Toyota Echo and what weight I place on that opinion. In considering those questions I have carefully considered the defence submissions and the emails between Senior Constable Chewter and Mr Greer/Mr Tannock commencing from 18 May 2017 as described above. 469 The first two emails are from Mr Chewter and attach images from the CCTV footage of the small dark car. On 19 May 2017 at 1:50 pm, an email from Mr Greer included images of a Holden Barina, a Toyota Yaris and a diagram of a Toyota Echo. Mr Greer at 2:38 pm sent another email that embedded two images of a Toyota Echo hatch including with notations about the location of the number plate and taillights. At 3:29 pm, Senior Constable Chewter sent back an email in which he asked for Mr Greer’s opinion on a comparison showing side by side an extract from the CCTV footage on 30 January 2017 at 10:33 am and the diagram of the Toyota Echo from the email of 1:50 pm. At 4:40 pm, Mr Greer responded “close could be an Echo, got your message, speak with you Tuesday”. 470 Both Senior Constable Chewter and Mr Greer were cross-examined to the effect that Senior Constable Chewter influenced Mr Greer by telling him he was only interested in a Toyota Echo. 471 Senior Constable Chewter said he was asking Mr Greer’s opinion of the comparison:207 Q. As at that stage would it be fair to say you were asking Mr Greer to concentrate on a Toyota Echo. A. Not necessarily concentrate on it, but in his professional opinion, whether that vehicle would be suitably to identify or potentially as an Echo. Because if it wasn't going to be a Toyota, then I'd have to go and make inquiries with other corporations. Q. That is something you never did anyway, isn't it. You didn't go to other vehicle manufacturers. A. No. Not in relation to this vehicle. Q. So you were asking Mr Greer to concentrate on the Toyota Echo. A. I was asking on his opinion of the comparison of those models, yes. 472 Mr Greer agreed that he regarded the Holden Barina as a possibility at the time of the email exchange, but he was firm on his opinion after seeing the CCTV footage. After it was put to Mr Greer that the Holden Barina, Toyota Yaris and Toyota Echo were candidates at that stage, the following exchange occurred:208 Q. They're the likely candidates at that stage. Did Mr Chewter say anything to you or lead you to understand as at that stage he was really only interested in the Echo. 207 T353.18-31. 208 T386.5-18. -- 97 of 129 -- [2024] SASC 58 Stein J 96 A. Look, from memory, I think that was the case, yes. Q. Then you send Mr Chewter some images of an Echo, that's D40 and that comes a bit later in the afternoon. A. Yes, got that. Q. Okay. So as at that stage you know what you're dealing with. A. Correct. Q. I withdraw that and I will put it another way. You knew that that was the vehicle that Mr Chewter was interested in. A. Yes. 473 Later in cross-examination, Mr Greer was asked about the CCTV footage he was shown in June 2017. Mr Greer said when he was first asked to view the footage of 28 January 2017, he was asked whether he could identify the make and model of the vehicle of interest and no guidance was given. He was then shown the 30 January CCTV footage. After asking questions about the CCTV footage, counsel then returned to the 19 May 2017 email exchanges. Counsel put to Mr Greer that in the email exchanges on 19 May 2017, Senior Constable Chewter was “well and truly alerting” him to the fact he was interested in a Toyota Echo. Mr Greer responded that was correct “in the bottom of this email, yes”.209 The following exchange then occurred:210 Q. Do you think your expression of opinion on this comparison may somehow have been influenced by Mr Chewter, in effect, telling you that he was really only interested in a Toyota Echo. A. No. I - once we've seen footage after that, it was - in my opinion, the footage that I saw was definitely a Toyota Echo. 474 As set out above, defence relies on the email chain as police trying to tease out of Mr Greer that it was a Toyota Echo with Mr Greer given a hint it was a Toyota Echo they were looking to him to confirm and not identify. 475 I understood that defence’s submission concerning the limited weight I should place on Mr Greer’s evidence was based on the asserted influence in the email chain of 19 May 2017 with Mr Greer’s view firming up after seeing the product of Dr Sorell’s work, being the extremely poor quality processed CCTV footage from 30 January 2017. The CCTV footage of 28 January 2017 was not tendered and the still images211 taken from and shown to Mr Greer were not otherwise used in the trial. Defence did not suggest in cross-examination that Mr Greer’s assessment of the 30 January CCTV footage was in some way inappropriately influenced by him first viewing the 28 January CCTV footage, 209 T391.11. 210 T391.12-18. 211 Exhibit P12. -- 98 of 129 -- [2024] SASC 58 Stein J 97 which is clearer than the 30 January CCTV footage. Despite defence not putting such a proposition, out of an abundance of caution I have also considered that possibility in assessing the weight I place on Mr Greer’s opinion. I have not used the exhibit comprising the images from the 28 January CCTV footage in reaching any of my findings. 476 I do not accept the defence contention that I ought to place no weight on Mr Greer’s opinion on the basis Senior Constable Chewter influenced Mr Greer. The wording of the emails between Senior Constable Chewter and Mr Greer suggests Mr Greer was identifying three possible vehicles for comparison with the CCTV footage image and Senior Constable Chewter then requested a comparison between the CCTV footage image and a Toyota Echo. This pointed to interest in a Toyota Echo, consistent with Mr Greer accepting he knew Senior Constable Chewter was interested in the Toyota Echo and his reference to the bottom of the email212 in which the side by side images of the CCTV footage and the Toyota Echo diagram were located. However, Mr Greer gave clear evidence setting out the foundation of his opinion that the CCTV footage from 30 January was of a three door Toyota Echo, without a doubt, and in cross-examination categorically dismissed the suggestion that Senior Constable Chewter influenced him. Mr Greer said the CCTV footage he saw after the emails was the “cruncher”213 and the vehicle was definitely a Toyota Echo. 477 Mr Greer was an independent witness and I have no cause to doubt his honesty, credibility or reliability. He explained clearly the style features of a three door Toyota Echo, where he could see those features in the 30 January CCTV footage, and how they combined to enable him to reach his opinion. He was firm in his opinion based on the assessment of that CCTV. 478 Further, I can see in the 30 January CCTV footage (unprocessed as well as processed) certain style features pointed out by Mr Greer as consistent with a Toyota Echo. I describe my observations of key aspects of the CCTV footage below. 479 Defence also relied on Mr Tannock’s view in his email on 22 May 2017 that the image was too unclear for identification. Mr Tannock was not included in the emails between Mr Greer and Mr Chewter at 1:50 pm, 2:38 pm and 3:29 pm on 19 May 2017 and there is no evidence of Mr Tannock’s involvement in relation to those emails. I have considered whether or not Mr Tannock’s statement on 22 May 2017 is sufficient to cast doubt on Mr Greer’s opinion such that I should not accept it. While the email and Dr Sorell’s evidence about the poor quality of the CCTV footage and the need for caution in assessing it are factors I have considered in assessing Mr Greer’s opinion and the weight I place on it, it is not sufficient to cause me to reject Mr Greer’s opinion or place no weight on it at all. This is because Mr Greer’s opinion that the vehicle was definitely a Toyota Echo 212 Exhibit D40. 213 T391.23. -- 99 of 129 -- [2024] SASC 58 Stein J 98 was reliant on the CCTV footage (which Mr Greer viewed after Mr Tannock sent his email indicating the images provided were too poor in quality) which provides an explanation for Mr Greer’s ability to reach his opinion. Further, I am able to see style features of a Toyota Echo as described by Mr Greer in the CCTV footage as described below. 480 Defence relied on Dr Sorell’s view that the images were of poor quality and the potential for the processes Dr Sorell employed to impact on what the human eye can see, such as the shape of the creases of the panel. Dr Sorell accepted that with each process he deployed, there is a potential for changing what might be seen in the images. Dr Sorell indicated it was still necessary to be careful about what one thinks one is seeing and care should be taken about interpreting fine detail. 481 The processed files prepared by Dr Sorell contained a series of extracts of the CCTV footage. Extracts mostly commenced with the unprocessed CCTV footage and then moved into the next replication of the footage in which processing techniques were applied by Dr Sorell such as enlarging and slowing down the footage. There was no differentiation in Mr Greer’s evidence as between the processed and unprocessed footage. 482 Mr Greer was able to speak authoritatively in relation to the style features of the Toyota Echo. He described the vehicle as designed in Europe to “crack into” the European market and consequently having some unique styling lines. Mr Greer was able to identify in the files “Boyce-C6-2203” a number of features which he considered were consistent with the unique style features of the Toyota Echo and consistent with a three-door Toyota Echo hatch. Mr Greer considered in the file “Boyce-C5-2211” there were style cues visible which were consistent with a Toyota Echo. They included the positioning of the A, B and C-pillars, a glimpse of the style of the hubcap and the rear frame. 483 Exhibit P50 shows a series of photos of a Toyota three-door model from 1999 to 2005 depicting the unique identifiers of a Toyota Echo. It also depicts a Toyota Yaris. Differences are observable in the general shape of the vehicle body and features such as the headlights, the rear windows, the hubcaps, the rear lights and the angle of the rear window. Differences in such features and the relative position of rear lights and number plate are also observable in the features of the Holden Barina and Toyota Yaris in D39. 484 While the quality of the CCTV footage is poor, some of the features on which Mr Greer relies for his opinion are shapes which I can discern in the CCTV footage. While acknowledging the risk that processing performed by Dr Sorell may have introduced distortion, and bearing that risk in mind, I have repeatedly watched first the unprocessed footage and then the processed footage. I am able to see certain features such as the position of the rear lights relative to the position of the number plate, the position of brake lights, the general outline of the vehicle and glimpses of the hubcaps and the side windows and pillars which Mr Greer pointed out as features unique to a Toyota Echo and which are seen in exhibit P50. -- 100 of 129 -- [2024] SASC 58 Stein J 99 485 In the file “Boyce-C6-2203”, the front headlights and the rear lights are positioned consistent with the vehicle in exhibit P50. The hubcaps are similar in colour and although the precise shape cannot be seen clearly, several relatively small, semi-circular black voids are just visible consistent with exhibit P50.214 486 In the slowed down processed CCTV footage, the reflection of a streetlight positioned near 20 Hill Street assists in making out the shape of the vehicle. Although no doubt poor quality, I can see the general slope of the roof and the boot, as well as the position of the rear lights relative to the rear wheel. A slight reflection under the windows may be the style line to which Mr Greer refers. The rear lights sit almost over the back of the rear wheel. I can see the width of the C-pillar and its position directly above the back half of the rear wheels, consistent with exhibit P50, through the reflection of the street light in the panels of the car as the vehicle moves under the street light in camera 6.215 In a series of photographs extracted from CCTV footage dated 30 January 2017, taken at 10:33 pm216 the shape of the rear lights and the position of the rear lights and number plate are consistent with the shape of a Toyota Echo in exhibit P50. While the stills are not taken directly side on, the angle and slope of the front windscreen and from the roof to the back of the hatch appear generally consistent with exhibit P50. 487 The file “Boyce-C6-2206” enables a view of the vehicle close to side on as it travels north to south and shows the angle of the roof to rear boot line. It shows a similar position of front and rear headlights and number plate. In the processed footage, I can see a very brief glimpse of hubcaps. It is just possible to make out a pattern that appears consistent with the distinctive hubcap shape in exhibit P50.217 I am able to make out the style line to which Mr Greer referred in the silver vehicle. 488 The file “Boyce-C5-2208” allows for similar observation about the general body shape, the position and shape of the headlights and rear lights relative to the number plate. I can see the shape of the front passenger window218 which is consistent with exhibit P50. The brake lights show briefly as the vehicle passes 11B Hill Street and I can see they are high above the line of the rear lights.219 This file also enables a view of the vehicle close to side on as it travels north to south which shows the angle of the roof to rear hatchback line. 489 The file “Boyce-C5-2211” is footage of the assault from camera 5. As the vehicles pull away,220 I can see the front headlights of the small dark car relative to the number plate. They appear large and appear to throw light sideways. The rear light is just visible and positioned relative to the headlights consistent with exhibit 214 Exhibit P5 – Boyce-C6-2203 at 00:31. 215 Exhibit P5 – Boyce-C6-2203 at 00:34. 216 Exhibit P13. 217 Exhibit P5 – Boyce-C6-2206 at 00:14. 218 Exhibit P5 – Boyce-C5-2208 at 00:00. 219 Exhibit P5 – Boyce-C5-2208 at 00:05. 220 Exhibit P5 – Boyce-C5-2211 at 01:48. -- 101 of 129 -- [2024] SASC 58 Stein J 100 P50. The shape of the rear roof to boot line while seen on an angle appears consistent. As one of the men pass across the headlights of the vehicle it is possible to just make out the shape of the front headlight and the slope of the bonnet and windshield which is consistent with exhibit P50.221 490 The file “Boyce C5 – Assault HD” is processed footage of the assault from camera 5. The shadow effect, resulting from the overhead streetlight reflecting on the roof of the small vehicle, casts a moving shadow immediately under the roofline which can be seen.222 As the vehicles are travelling in a southerly direction, the shadow plays on the front and driver’s side of the vehicle approximately along the region where the roof and the windows connect. This is the same shadow effect which can be seen in the CCTV footage of the cars moving north. This leads me to conclude that the dark line along the top of the rear part of the vehicle to which Mr Greer was pointed and which he said may possibly be a spoiler is most likely a shadow cast by the streetlight. 491 While there is no doubt that the CCTV footage quality is poor, I do not think it is so poor that I ought not accept or place any weight on Mr Greer’s opinion. I have determined to accept Mr Greer’s opinion in light of his expertise, his independence, my assessment that he was an honest, reliable and credible witness and his explanations in evidence and cross-examination for the opinion he reached. I have also taken into account my ability to see style features upon which he relied. Nevertheless, given the poor quality of the CCTV footage, I would not place such weight on his opinion to be satisfied beyond reasonable doubt by that opinion alone that the small dark car is Mr Sahlstorfer’s Toyota Echo. 492 Mr Greer’s opinion that the small dark vehicle is a Toyota Echo is one matter to be weighed in my assessment of the entirety of the evidence about the small dark vehicle and its potential connection to Mr Sahlstorfer. Was the small car in the CCTV footage red? 493 I have carefully considered the statements of Ms Blake and Ms Taylor and I have compared their accounts with the CCTV footage of Hill Street. While their accounts refer to two vehicles, large and small, apparently travelling together in the evening of 30 January 2017 after about 9:00 pm, their accounts are not consistent with the movement of vehicles seen on the CCTV footage. 494 Ms Blake only referred to one occasion on which the vehicles were said to drive up Hill Street and she referred to the vehicles stopping for a period of about 15 minutes, in addition her account puts this at around 40 minutes prior to the assault. There is no movement of vehicles in Hill Street which matches that description. 221 Exhibit P5 – Boyce-C5-2211 at 01:38. 222 Exhibit P5 – Boyce C5 – Assault HD at approximately 01:32. -- 102 of 129 -- [2024] SASC 58 Stein J 101 495 Ms Taylor said the vehicle lights were off and the four-wheel drive was in front of the small red car and that the red car had a little fin. This account is also not supported by the CCTV footage. The lights of vehicles were on and the small dark car was in front of the larger, silver car in each of the drive-bys. I would understand the reference to a fin to be a feature with a shape similar to a dolphin fin placed centrally at the rear of the vehicle. The CCTV footage does not support the account of such a vehicle travelling down Hill Street. 496 I therefore conclude that the two cars referred to by Ms Blake and Ms Taylor must have been two other cars. Was the larger car in the CCTV footage a Toyota RAV4? 497 Mr Greer was not challenged in relation to his opinion that the larger silver vehicle was a Toyota RAV4. The images in the CCTV footage and still photos of the larger vehicle are clearer. For example, in the top photograph on page 7 of exhibit P7, a series of still shots taken from the CCTV footage at 10:42 pm, I can observe the larger vehicle’s features in some detail, including the pale colour, the shape of the front headlights, the slope of the bonnet and rear of the car and the hubcaps. The larger vehicle is sufficiently visible in the CCTV footage to be able to make out the style features to which Mr Greer pointed in reaching his conclusion about that vehicle. 498 The images and CCTV footage appear consistent with the images of Toyota RAV4 models 2012-2019 in exhibit P49. 499 I accept Mr Greer’s opinion that the larger silver vehicle was a Toyota RAV4 GX model, approximately 2011 to 2014. Did Mr Sahlstorfer own a Toyota Echo? 500 I accept Mr A’s evidence and the Department records relating to the ownership of Toyota Echo registration WSL 073. 501 I find beyond reasonable doubt that at 30 January 2017, Mr Sahlstorfer owned a Toyota Echo registration WSL 073 with engine number 2NZ1382985 registered in 2000. I find beyond reasonable doubt that vehicle was last registered with a registration expiry of 31 March 2017 and not re-registered thereafter. 502 I accept the evidence that Mr A sold his Toyota Echo to Mr Sahlstorfer. I find beyond reasonable doubt that the vehicle was blue, had a faded roof and a “hotdog” muffler. 503 Exhibit P10 is a series of photographs of the vehicle Mr A sold to Mr Sahlstorfer showing a number of features of the vehicle. The car is dark blue. It had faded paint on the roof. The rear view of the car shows the number plate embedded in the bumper bar and the shape and positioning of the rear lights. The rear lights sit quite high and are large, sitting between the rear bumper bar and the base of the rear window. The rear wheels are close to the back of the vehicle. -- 103 of 129 -- [2024] SASC 58 Stein J 102 The headlights are large and wrap around slightly to the side of the vehicle. The hubcaps are pale and occupy most of the space within the wheel with a distinctive pattern with five relatively small semi-circular spaces alongside the rim. The angle of the front windscreen is quite pronounced. The B-pillar between the front and rear seats is angled and the C-pillar is relatively wide. The angle from the roof to the top of the rear window is quite sharp. At the back of the roofline there is a small rim or overhang between the roof and the rear window. The side panels bulge out under the windows and a distinct line under the windows from under the back of the car through to the small light on the side of the vehicle is visible. There is a small elliptical light or reflector on the side of the front panel above the centre of the front tyre. The photographs in exhibit P10 show a vehicle consistent with the images of the Toyota Echo in exhibit P50. Was Mr Sahlstorfer’s Toyota Echo found at Ponde? 504 The chassis of the vehicle located at Ponde bears remnants of blue paint. The chassis has a modified “hotdog” style muffler consistent with the non-standard muffler I accept Mr A welded on to the Toyota Echo which he sold to Mr Sahlstorfer. 505 The engine number on the engine block matched that of the Toyota Echo registered in Mr Sahlstorfer’s name. 506 I accept the evidence of Detective Senior Sergeant Ganley, Senior Constable Southern, Brevet Sergeant Strange and Mr Munn concerning the search of Ponde, the location and photographing of the vehicle and the assessment of that vehicle. 507 Based on that evidence, and in particular the evidence concerning the engine number, the remnants of blue paint and Mr Munn’s and Mr A’s evidence about the “hotdog” muffler on that chassis, I find beyond reasonable doubt that the vehicle located at Ponde was Mr Sahlstorfer’s Toyota Echo. What do the phone records show? 508 The following table summarises the telephone subscriber details. Name223 Address Number Network Ex Mr E Federation Way Andrews Farm SA 5114 04xx xxx 206 Telstra P16 Jonathan Walker (Robbie Thaller) Ridley Road Elizabeth South SA 5112 04xx xxx 259 Telstra P18 Renee Cocks (Sam Perkins) N/A 04xx xxx 285 Telstra P20 Christopher Wheatley Cawrse St Davoren Park SA 5113 04xx xxx 683 Telstra P22 223 The person the prosecution submitted was using the phone is specified in brackets. -- 104 of 129 -- [2024] SASC 58 Stein J 103 Name223 Address Number Network Ex Toby Sahlstorfer Albert Street Clarence Gardens SA 5039 04xx xxx 350 Vodafone P35 Joshua Grant Hale Street Elizabeth Grove SA 5112 04xx xxx 307 Optus P45 Ms H (Joshua Grant) Stebonheath Road Andrews Farm SA 5114 4xx xxx 221 Optus P47 509 I will refer to each such phone by the last three digits of the phone number with the name of the person to whom each phone is subscribed in brackets to assist ease of understanding. In so doing I do not assume that the person to whom the phone is subscribed was necessarily the person using the phone. Was Mr Perkins using Ms Renee Cocks’ phone? 510 It is an agreed fact that a IMEI number of the handset seized from Mr Perkins on his arrest on 30 January 2017 was reflected in the call charge records for the service ending 285, the phone subscribed in the name Renee Cocks. Mr Perkins can be seen on the CCTV footage using a mobile phone on 30 January 2017. I accept that Mr Perkins was using the service number ending 285. Was the 350 phone Mr Sahlstorfer’s phone? 511 The phone subscribed in the name Ms Toby Sahlstorfer was subscribed to an address on Albert Street, Clarence Gardens SA 5039. It is an agreed fact that from at least 3 August 2008 until 2015, the clubhouse of the Adelaide Chapter of the Hells Angels Motorcycle Club was on Albert Street, Clarence Gardens. It is an agreed fact that Mr Sahlstorfer was a full member of the Adelaide Chapter of the Hells Angels from June 2012. I also note Mr Sahlstorfer’s recorded address of Albert Street, Clarence Gardens.224 512 Given the name and the address used, the association between Mr Sahlstorfer and the address, and that the date of birth on the telephone subscription details matches that of Mr Sahlstorfer, I find beyond reasonable doubt that the 350 number was used by a phone subscribed to Mr Sahlstorfer. Was Mr Thaller using the Jonathan Walker phone service? 513 Prosecution relies entirely on the coincidence between the CCTV footage showing Mr Thaller being seen on CCTV footage using a phone and the call records for the 259 number (Mr Walker). All the location data for the calls on the 259 number are Elizabeth South shops. The subscriber address for the Mr Walker phone is an address in Elizabeth South. 514 The details of contact between the 250 number (Mr Walker) and other relevant individuals are set out below. 224 Exhibit P76. -- 105 of 129 -- [2024] SASC 58 Stein J 104 Call charge records of Jonathan Walker on 30 January 2017 # 225 Time Party A Party B Location A Location B Event EX PG 1* 7:11:47 PM (Walker) Thaller Perkins Elizabeth South Shops Elizabeth South Shops SMS P19 61 2 8:59:37 PM Perkins (Walker) Thaller Elizabeth South Shops Elizabeth 41 P21 198 3 9:29:37 PM Perkins (Walker) Thaller 41 P21 198 4 9:51:05 PM (Walker) Thaller Wheatley Elizabeth South Shops 102 P19 P24 62 17 5 9:59:42 PM (Walker) Thaller Wheatley Elizabeth South Shops 22 P19 P24 62 17 6 10:21:05 PM (Walker) Thaller Wheatley 101 P19 P24 62 17 7 10:24:30 PM Perkins (Walker) Thaller Elizabeth South Shops Elizabeth South Shops 19 P21 199 8* 10:27:01 PM Wheatley (Walker) Thaller Elizabeth Vale Elizabeth South Shops SMS P23 115 9 10:27:26 PM (Walker) Thaller Wheatley Elizabeth South Shops Elizabeth Vale SMS P19 P24 62 17 10* 10:29:32 PM (Walker) Thaller Perkins Elizabeth South Shops Elizabeth South Shops SMS P19 62 11 10:29:42 PM (Walker) Thaller Wheatley 22 P19 P24 62 17 12 10:32:23 PM Perkins (Walker) Thaller Elizabeth South Shops Elizabeth South Shops 26 P21 199 13 10:38:45 PM (Walker) Thaller Perkins Elizabeth South Shops Elizabeth South Shops 17 P19 62 14 10:39:56 PM (Walker) Thaller Wheatley Elizabeth South Shops 2 P19 P24 62 18 15 10:39:58 PM (Walker) Thaller Wheatley Elizabeth South Shops SMS P19 P24 63 18 16 10:40:54 PM Wheatley (Walker) Thaller Elizabeth South Shops 9 P23 115 17 10:44:52 PM Wheatley (Walker) Thaller Elizabeth South Shops 40 P23 116 18 10:46:37 PM (Walker) Thaller Perkins Elizabeth South Shops 3 P19 63 19 10:46:41 PM (Walker) Thaller Perkins Elizabeth South Shops SMS P19 63 20 10:47:45 PM (Walker) Thaller Wheatley Elizabeth South Shops 2 P19 P24 63 18 225 An (*) indicates an entry that has been combined with the entry or entries that immediately follows it in the call charge records based on evidence given regarding duplication of entries (T249.35-37, 263.1-5). -- 106 of 129 -- [2024] SASC 58 Stein J 105 # 225 Time Party A Party B Location A Location B Event EX PG 21 10:47:47 PM (Walker) Thaller Wheatley Elizabeth South Shops SMS P19 P24 63 18 22 10:53:34 PM (Walker) Thaller Perkins Elizabeth South Shops Elizabeth South Shops 103 P19 63 23 10:54:30 PM Perkins (Walker) Thaller 19 P21 200 24 11:02:23 PM Perkins (Walker) Thaller 26 P21 200 25 11:07:44 PM (Walker) Thaller Perkins Elizabeth South Shops 3 P19 63 26 11:07:49 PM (Walker) Thaller Perkins Elizabeth South Shops SMS P19 63 27 11:08:45 PM (Walker) Thaller Perkins 17 P19 63 28 11:09:38 PM (Walker) Thaller Perkins Elizabeth South Shops 5 P19 63 29 11:09:47 PM (Walker) Thaller Perkins Elizabeth South Shops SMS P19 63 30* 11:09:55 PM (Walker) Thaller Wheatley 3 P19 P24 63 18 31 11:10:54 PM Wheatley (Walker) Thaller 9 P23 116 32 11:14:52 PM Wheatley (Walker) Thaller 40 P23 116 33 11:16:37 PM (Walker) Thaller Perkins 3 P19 63 34 11:17:45 PM (Walker) Thaller Wheatley 2 P19 P24 63 18 35 11:23:34 PM (Walker) Thaller Perkins 103 P19 63 36 11:37:44 PM (Walker) Thaller Perkins 3 P19 64 37 11:39:38 PM (Walker) Thaller Perkins 5 P19 64 38 12:01:16 AM Wheatley (Walker) Thaller Elizabeth South Shops 130 P23 116 39 12:31:16 AM Wheatley (Walker) Thaller 130 P23 116 40 12:44:59 AM (Walker) Thaller Perkins Elizabeth South Shops Elizabeth South Shops SMS P19 64 -- 107 of 129 -- [2024] SASC 58 Stein J 106 515 I have compared the CCTV footage compilation226 with the call charge records to see whether there is a correlation between every instance where there is CCTV footage in which Mr Thaller can be seen on the phone. For some of the calls, such as a call record at 9:51 pm, Mr Thaller is not visible on the CCTV footage and it is not possible to determine any correlation. At 9:59 pm, the 259 number (Mr Walker) call charge records record a call of approximately 22 seconds. In the CCTV footage at 9.59 pm,227 Mr Thaller lifted his phone to his ear. He held his phone at his ear for approximately 30 seconds. At 10:38 pm, the 259 number (Mr Walker) call charge records show a 17 second call followed by a two second call at 10:39 pm and an SMS at 10:39 pm. Mr Thaller stepped out the front door at 10:38:38 and lifted his phone to his ear at approximately 10:38:42 and held his phone to his ear until approximately 10:38:54 when he then removed the phone from his ear to look at it and then at 10:39:08 he moved the phone up to his ear again. He held the phone to his ear until 10:39:17 and then lifted the phone to his ear again at 10:39:21 and held the phone to his ear while he opened the door for Ms Bourke who had arrived. He continued to hold the phone to his ear and dropped his hand to look at the phone at 10:39:51 and then went into the house. It is not possible to see whether Mr Thaller was speaking to anyone after he went inside. 516 It is thus apparent that while the CCTV footage and the phone records do not correlate precisely, there is a general correlation between the phone records and Mr Thaller’s interactions with the phone while visible on the CCTV footage. 517 Mr Thaller gave evidence that he called Mr Wheatley to arrange a lift for Mr Perkins. This must have occurred after about 9:00 pm in light of the agreed fact that at about 9:00 pm on 31 January 2017 Ms Withers and Ms Surman were pulled over in Thompson Street. There are further interactions between the 259 number (Mr Walker) and the 683 number (Mr Wheatley) which also support the proposition that Mr Thaller was using the Walker phone. 518 Mr Wheatley pulled into the driveway of 20 Hill Street at about 10:29 pm. He left 20 Hill Street and drove to 11B Hill Street at 10:35 pm. There is a two second call from the 259 number (Mr Walker) to the 683 number (Mr Wheatley) at 10:39 pm when Mr Wheatley was parked in front of 11B Hill Street, followed by an SMS at the time Mr Thaller can be seen on the CCTV footage holding his phone. These phone interactions are shortly before the attack. At 10:47 pm there is a further two second call from the 259 number (Mr Walker) to the 683 number (Mr Wheatley) followed by an SMS. This demonstrates phone interaction between the 259 number (Mr Walker) and the 683 number (Mr Wheatley) at times which are significant on the prosecution case. 519 There is also a 19 second call between the 285 number (Mr Perkins) and the 259 number (Mr Walker) at 10:24 pm at which time Mr Perkins had left 20 Hill Street and was at 11B Hill Street. At 10:29 pm the 259 number (Mr Walker) sent 226 Exhibit P9. 227 Exhibit P9 at 1:30:26. -- 108 of 129 -- [2024] SASC 58 Stein J 107 an SMS to the 285 number (Mr Perkins) followed at 10:32 pm by a 26 second call from the 285 number (Mr Perkins) to the 259 number (Mr Walker). At that time, Mr Perkins was waiting at 11B Hill Street for Mr Wheatley to arrive. At 10:38 pm there was a further 17 second call from the 259 number (Mr Walker) to the 285 number (Mr Perkins). These interactions at these times are consistent with interactions between Mr Thaller and Mr Perkins concerning the lift Mr Thaller said he arranged. 520 At 10:46 pm, the 259 number (Mr Walker) made a short call and then sent an SMS to the 285 number (Mr Perkins) followed by a call and SMS to the 683 number (Mr Wheatley) at 10:47 pm and then a 103 second call to the 285 number (Mr Perkins) at 10:53 pm. There are further 19 and 26 second calls from the 285 number (Mr Perkins) to the 259 number (Mr Walker) at 10:54 pm and 11:02 pm. By this time Mr Boyce had been attacked and the assailants had departed. There follows a series of phone calls and SMSs from the 259 number (Mr Walker) to the 285 number (Mr Perkins) between 11:07 pm and 11:23 pm and then calls from the 683 number (Mr Wheatley) to the 259 number (Mr Walker) at 00:01 am and 00:31 am and a further SMS from the 259 number (Mr Walker) to the 285 number (Mr Perkins) at 00:44 am. These interactions are consistent with the men engaging with each other after the attack. 521 There are no direct interactions between the 683 number (Mr Wheatley) and the 285 number (Mr Perkins), consistent with the lift for Mr Perkins being arranged via Mr Thaller. 522 While the evidence is not sufficient for me to conclude beyond reasonable doubt that the 259 number subscribed in the name of Mr Walker was being used by Mr Thaller, the coincidence of calls made by Mr Thaller and the call charge records together with the calls to the 285 number (Mr Perkins) and the 683 number (Mr Wheatley) at significant times is sufficient for me to conclude that it is likely Mr Thaller was using the 259 number. 523 Mr Thaller’s evidence enables me to find that Mr Thaller arranged a lift for Mr Perkins by calling Mr Wheatley to ask him to give Mr Perkins a lift. 524 I find beyond reasonable doubt that the other call charge records related to phones subscribed in the names of each of the holders of those phones. Was there contact between the phones subscribed to Mr Sahlstorfer, Mr Grant, Mr E and Mr Wheatley on 30 January 2017? 525 I return to an analysis of relevant phone records. 526 The phone charge records evidence various interactions between the phones subscribed to Mr Grant, Mr Sahlstorfer and Mr E during the day and between Mr Sahlstorfer, Mr Grant, Mr E and Mr Wheatley in the evening on 30 January 2017. -- 109 of 129 -- [2024] SASC 58 Stein J 108 527 As can be seen from the following summary of the interactions between those phones, in the morning on 30 January 2017, between 11:25 am and 11:51 am there were a series of calls involving the 206 number (Mr E), the 350 number (Mr Sahlstorfer) and the 307 number (Mr Grant). The phone calls ranged in duration from three seconds to 105 seconds. There were also a number of interactions in the evening both before, proximate to and after the attack on Mr Boyce between the 206 number (Mr E), the 350 number (Mr Sahlstorfer), the 307 number (Mr Grant), the 683 number (Mr Wheatley) and the 221 number (Ms H). #228 Time Party A Party B Location A Location B Event Ex Pg 1* 11:25:37 AM E Sahlstorfer Davoren Park South 3 P17 8 2 11:30:37 AM Sahlstorfer E Valley View 105 P36 11 3 11:46:03 AM E Grant Davoren Park South 63 P17 8 4 11:51:00 AM Grant E 32 P46 14 5* 11:55:36 AM E Sahlstorfer 2 P17 8 6* 2:51:32 PM E Sahlstorfer Elizabeth Downs 38 P17 9 7* 3:21:31 PM E Sahlstorfer 37 P17 9 8 10:04:00 PM Grant Sahlstorfer 15 P46 14 9 10:12:13 PM H Wheatley 45 24 17 10 10:13:50 PM Sahlstorfer E Unknown 4 P36 11 11 10:14:17 PM Sahlstorfer E Pooraka 16 P36 11 12 10:39:09 PM Sahlstorfer Wheatley Elizabeth Vale 43 P36 P24 11 18 13 11:05:18 PM Sahlstorfer Grant SMS P36 11 Where were the calls from the 350 number connecting? 528 I have set out above a summary of the base station locations. 228 An (*) indicates an entry that has been combined with the entry or entries that immediately follows it in the call charge records based on evidence given regarding duplication of entries (T249.35-37, 263.1-5). -- 110 of 129 -- [2024] SASC 58 Stein J 109 529 The 350 number229 (Mr Sahlstorfer) on 30 January 2017 made calls at 9:51 pm and at 9:52 pm which were received by the “Valley View” base station, a short distance from Mr Sahlstorfer’s then residence.230 530 At 10:14 pm the 350 number (Mr Sahlstorfer) made a call to the 206 number (Mr E) received by the Vodafone base station at Pooraka.231 531 At 10:39 pm, the 350 number (Mr Sahlstorfer) made a 43 second call to the 683 number (Mr Wheatley) received by the Vodafone base station at 100 Philip Highway, 360 metres from Hill Street.232 The reverse call charge records for the 683 number (Mr Wheatley) show a 44 second call from the 350 number (Mr Sahlstorfer) to the 683 number (Mr Wheatley) at 10:39 pm. The CCTV footage shows that at 10:39 pm Mr Wheatley was parked out the front of 11B Hill Street. 532 The call charge records are consistent with the 350 number before 10:00 pm connecting with the base station close to Mr Sahlstorfer’s home, connecting at 10:14 pm with a base station at Pooraka (which is between Valley View and Elizabeth South)233 and connecting at 10:39 pm with the base station 360 metres from Hill Street. 533 I accept the evidence that a phone will connect to a base station with the greatest signal strength and while the signal strength will be stronger the nearer the base station, it is not necessarily the case that a call will connect to the nearest base station. Factors such as topography, buildings, network congestion and weather may result in calls connecting to a base station further away. I accept the evidence that there are no hills or large buildings between the Elizabeth Vale base station at 100 Philip Highway and Hill Street. No evidence was led about other factors which may be relevant, such as weather. 534 The 350 phone (Mr Sahlstorfer) did not make any further calls or send any SMS on 30 January after 11:05 pm. I do not place any reliance on the internet use records given the evidence that the location information associated with data usage references in the call charge records cannot reliably be used in assessing location. 535 While it is not necessarily the case that the phone will connect to the nearest base station, the call charge records for the 350 number (Mr Sahlstorfer) are consistent with the phone moving between Valley View at 9:51 pm to Pooraka at 10:14 pm and Elizabeth Vale at 10:39 pm. 536 Mr Sahlstorfer lived in the northern suburbs and may have had unrelated reasons to travel further north on the evening of 30 January 2017. However, while it cannot be established beyond reasonable doubt that the phone using the 350 229 Exhibit P36; Exhibit P75. 230 Exhibit P74. 231 Exhibit P36; Exhibit P74. 232 Exhibit P75. 233 Exhibit P74. -- 111 of 129 -- [2024] SASC 58 Stein J 110 number (Mr Sahlstorfer) was in Hill Street at 10:39 pm, the location data and the phone call charge records remain circumstantial evidence relevant to the prosecution case to which I return below. Inferences 537 I am able to make the following findings, reach intermediate conclusions and draw the following inferences from all of the evidence in its totality. 538 As at 30 January 2017, Mr Sahlstorfer, Mr E and Mr Grant were associated with each other in the manner I have accepted. 539 During the day of 30 January 2017, there were interactions between phones subscribed in the names of the three men which enable an inference that the three men were communicating with each other. 540 Mr Grant was a friend of Mr Thaller as was Mr Wheatley. Mr Grant visited 20 Hill Street on 24 and 27 January and several times on 30 January 2017. Mr Grant interacted with Mr Wheatley at least on 30 January at 4:58 pm when he apparently handed something to Mr Wheatley. 541 Mr Grant had a plaster cast on his right arm as at 30 January 2017. 542 Mr Perkins was at 20 Hill Street on 30 January 2017. 543 As at 30 January 2017, Mr Sahlstorfer had registered in his name a blue Toyota Echo with a faded roof and a modified “hotdog” muffler which made the exhaust loud. 544 As at 30 January 2017, Mr E had access to a silver Toyota RAV4 registered in his father’s name. That vehicle was observed at Mr E’s house. The Northpoint Toyota service records record Mr E’s girlfriend dropping off the Toyota RAV4 for servicing. 545 In the evening of 30 January, Mr Perkins arranged a lift with Ms Withers and Ms Surman so he could leave Hill Street. At about 9:00 pm, when en route to collect him, Ms Withers and Ms Surman were pulled over by police in Thompson Street, a short distance from Hill Street. Mr Perkins became aware the two women had been pulled over. Mr Perkins spoke to Mr Thaller and Mr Thaller arranged another lift for Mr Perkins. Mr Thaller did so by speaking to Mr Wheatley. 546 At about 10:02 pm, Mr Perkins left 20 Hill Street and moved up the road to 11B Hill Street. 547 The telephone call charge records enable an inference that the phone associated with the 350 number (Mr Sahlstorfer) moved from the vicinity of Mr Sahlstorfer’s home address after about 10:00 pm to the vicinity of Hill Street, Elizabeth South at 10:39 pm. -- 112 of 129 -- [2024] SASC 58 Stein J 111 548 At about 10:29 pm, Mr Wheatley arrived at 20 Hill Street and let himself in to the house. 549 While Mr Wheatley was inside, at about 10:33 pm two vehicles drove up Hill Street from Thompson Street. The first vehicle was the small dark vehicle and the second vehicle was the larger silver vehicle. As the larger vehicle passed 11B Hill Street, the brake lights lit up briefly. I infer that the driver of the larger vehicle paused to look towards 11B Hill Street in a manner consistent with some interest in 11B Hill Street. 550 At 10:34 pm, Mr Sicari arrived home and parked his car outside 20 Hill Street. Mr Sicari crossed paths with the two vehicles at the Fairfield Road, Hill Street intersection. Mr Sicari had the opportunity to observe the vehicles as he passed them and as he parked and got out to move to the house. 551 At the time Mr Sicari arrived, Mr Wheatley was inside 20 Hill Street. He emerged carrying a backpack at 10:34 pm. I infer that this was Mr Perkins’ backpack given Mr Perkins’ evidence that he left his backpack at 20 Hill Street, which I accept. 552 At 10:35 pm, Mr Wheatley drove from 20 Hill Street to 11B Hill Street and parked on the wrong side of the road facing north. Mr Sicari was still manoeuvring his vehicle. At 10:35 pm, a figure emerged from 11B Hill Street and walked to Mr Wheatley’s car. About one minute later the figure walked back towards 11B Hill Street. I accept Mr Perkin’s evidence and infer the figure was Mr Perkins. 553 At about the time Mr Perkins walked back to the house, two vehicles drove down Hill Street from a northerly direction. I accept Mr Perkins’ evidence that he saw the vehicles, left Mr Wheatley’s car to return to the house because he was concerned at the appearance of those vehicles and observed them from the front door. 554 I accept Mr Perkins evidence that once inside the house at 11B Hill Street, he spoke to Mr Boyce and climbed on to the roof of 11B Hill Street. The evidence of Mr Rozenboom and Mr Crampton generally supports Mr Perkins’ account. 555 The two vehicles stopped approximately alongside Mr Wheatley’s car at about 10:36 pm for about 10 seconds and then continued down Hill Street towards Thompson Street. Both vehicles passed 20 Hill Street while Mr Sicari was still outside. Mr Wheatley remained parked alongside 11B Hill Street. I infer that the drivers stopped alongside Mr Wheatley in a manner consistent with interest in 11B Hill Street. 556 At 10:38 pm, the small dark vehicle drove from Thompson Street in a northerly direction along Hill Street. The brake lights of the small dark vehicle lit up in the vicinity of 11B Hill Street. The larger vehicle followed the smaller vehicle and its brake lights also lit up in the vicinity of 11B Hill Street. I infer this -- 113 of 129 -- [2024] SASC 58 Stein J 112 braking was consistent with interest in 11B Hill Street. Both vehicles passed Mr Wheatley’s car and proceeded up Hill Street. 557 At 10.38 pm a call from the 259 number (Mr Walker) was made to the 285 number (Mr Perkins). At this time, Mr Perkins was in 11B Hill Street and the two vehicles were in Hill Street. Mr Thaller had walked out of the front door of 20 Hill Street, was holding his phone up to his ear and was looking down Hill Street in the direction of 11B Hill Street. I infer Mr Thaller called Mr Perkins at this time. Mr Sicari also walked out of the house. At 10:38 pm, Ms Bourke drove down Hill Street and parked in the driveway. Mr Thaller’s attention remained on the street, looking in a northerly direction, and he did not immediately turn to interact with Ms Bourke. I infer that Mr Thaller’s presence in the driveway and interest in the street was not a result of Ms Bourke’s return. 558 At 10:39 pm, a call from the 350 number (Mr Sahlstorfer) was made to the 683 number (Mr Wheatley) for 43 seconds. As is evident from the CCTV footage, this call was made at the time when Mr Wheatley was parked in front of 11B Hill Street and the two vehicles had proceeded up Hill Street and passed Mr Wheatley’s car. 559 At 10:41 pm, a figure emerged from 11B Hill Street and walked towards Mr Wheatley’s car. I infer that the figure was Mr Boyce given Mr Perkins’ account, the CCTV footage showing the movements of that person and the fact Mr Boyce was the person subsequently attacked. 560 At 10:42 pm, two vehicles appeared at the northern end of Hill Street and stopped alongside Mr Wheatley’s car. From the CCTV footage, I infer that the two vehicles were the same two vehicles which previously drove up and down Hill Street. At 10:42 pm two figures ran down the pavement towards 20 Hill Street and then crossed the road. One figure took hold of the other. I infer the restrained man was Mr Boyce. 561 At the time the two figures started running down the pavement, a figure ran back from the pavement alongside 11B Hill Street to the stationary vehicles. The two vehicles were then driven down Hill Street and stopped alongside 18 Hill Street where Mr Boyce was restrained. At 10:43 pm the drivers got out. The driver of the small dark vehicle, wearing a pale T-shirt, immediately struck out at Mr Boyce in a series of kicks and punches. The driver of the larger vehicle joined in and struck at Mr Boyce. The passenger by then had released his hold on Mr Boyce. All three men then kicked at Mr Boyce. At 10:43 pm, the three men returned to their vehicles, got in and drove off. 562 Mr Perkins’ evidence about the words spoken by the driver were accepted by defence. I infer from the words spoken by the driver, that is, “where the fuck’s Sam”, that the men were looking for Mr Perkins. That inference is consistent with the men’s interest in 11B Hill Street which can be inferred from the repeated drive- bys on Hill Street and the drivers of the vehicles applying their brakes briefly when -- 114 of 129 -- [2024] SASC 58 Stein J 113 driving past 11B Hill Street and then pausing alongside Mr Wheatley’s car on the third occasion. I infer from the words spoken and Mr Perkins’ evidence about the tone (which I accept) that the purpose of seeking out Mr Perkins was not friendly. 563 I find beyond reasonable doubt that the passenger in the small dark vehicle was Mr Grant. The passenger of the small dark car had a cast on his right arm, visible as he ran through the headlights. The agreed facts and the CCTV footage evidence Mr Grant having such a cast as at 30 January 2017. I accept the DNA evidence which provides extremely strong support for the proposition that Mr Grant’s DNA was located on parts of the black T-shirt Mr Boyce was wearing at the time of the attack. I infer that Mr Grant’s DNA was transferred to the T- shirt when Mr Grant restrained Mr Boyce. 564 As set out above, I accept the opinion of Mr Greer that the large silver vehicle is a Toyota RAV4 model 2012 or 2013. I accept the evidence that Mr E’s father had registered in his name a vehicle of that description and that vehicle was available to Mr E. There were relevant telephone interactions between the 206 number (Mr E) and the 350 number (Mr Sahlstorfer) and the 307 number (Mr Grant) that day. 565 As set out above, I accept Mr Greer’s opinion that the small dark vehicle seen in the CCTV footage is a Toyota Echo three door 2000 model. 566 Mr Perkins gave evidence that the car had a faded roof with an exhaust like a sports exhaust. Mr Sicari described the car as having a detectably loud exhaust which he heard when it moved forward after he beeped his horn to get the small dark car to move to allow him to move south on Hill Street. Mr Sicari estimated the model as a 2000 model. No submission was put to me why Mr Sicari’s observation and/or Mr Perkin’s observation about the loud exhaust would not be reliable or should not be accepted and I accept their evidence on that issue. Both were in locations which would have enabled them to hear the exhaust of the small dark vehicle. 567 No specific submission was put to me to challenge Mr Perkins’ description of the roof as faded other than to point to the forensic disadvantage in the inability to cross-examine. I have not overlooked that disadvantage. 568 While I accept defence’s contention that it is possible Mr Perkins was “doing his best to help”, which may have resulted in him mistakenly stretching his recollection of events, that does not necessarily detract from the credibility or reliability of his descriptions of the vehicles or the voice he heard. Mr Perkins conceded certain matters including that it was dark, the car headlights obscured his view during a drive by, he did not recall if Mr Wheatley's headlights were switched on or off and the larger car may not have been a RAV4, he just used that as a general description for a small four-wheel drive. He qualified some aspects of his evidence with “probably” in contrast with other evidence in respect of which he -- 115 of 129 -- [2024] SASC 58 Stein J 114 gave definite evidence accompanied by detailed descriptions, which included the description of the car roof and exhaust and the voice. 569 Mr Perkins was positioned on the roof of 11B Hill Street and the photographs taken by Detective Britton demonstrate that Mr Perkins would have been able to see the roof of the vehicle. The position of the street light on Hill Street on the western side of Hill Street in the vicinity of 11B Hill Street would be expected to cast light on the roof of the vehicle. Accordingly, I accept Mr Perkins’ description of the roof as faded. 570 The consistent descriptions of the exhaust by both Mr Sicari and Mr Perkins enable an inference to be drawn that the small dark vehicle had some form of modified exhaust which would result in the sports exhaust sound. 571 The combination of Mr Greer’s opinion leading to a likelihood that the small dark vehicle was a Toyota Echo and the evidence about the modified exhaust and the faded roof enable an inference to be drawn that the small dark vehicle in Hill Street was a Toyota Echo vehicle with characteristics consistent with Mr Sahlstorfer’s Toyota Echo. In drawing that inference I have not overlooked the reference to different colours of the vehicles observed by witnesses, as set out above. I have discounted the possibility that the small car was red. For the reasons above, I have concluded that the red vehicle referred to by Ms Taylor and Ms Blake must have been a different vehicle from the small dark vehicle involved in the attack. Mr Sicari thought the vehicle was dark, possibly green. Mr Perkins said the car was a bluey colour. I have also not overlooked the fact Mr Sicari said the windows were tinted when Mr Sahlstorfer’s Echo did not have tinted windows and Mr Perkins described the car as a blue Holden Barina (a small hatch). There could be a number of explanations for those observations given it was dark. These matters do not cause me to doubt my ability to draw the inference. 572 On 2 March 2017, police issued a media release and a request for public assistance in identifying the two vehicles seen in the CCTV footage that was aired on free to air TV. 573 Mr Sahlstorfer’s Toyota Echo was not re-registered after 30 March 2017. I accept it was not detected by police as a consequence of infractions or detected by Safe-T-Cam cameras after 26 February 2017. 574 While the evidence establishes that Safe-T-Cams are only 90 to 95 percent accurate and there is a prospect of misreading certain numbers and letters, the Toyota Echo had a standard South Australian number plate which the character recognition software of the Safe-T-Cam was trained to recognise. I accept the evidence that in the case of unregistered vehicles detected travelling through Safe- T-Cams, the number plates are individually verified for accuracy. After 31 March 2017 when the Toyota Echo became unregistered, if it had travelled through a Safe-T-Cam and its registration plate had been accurately read, it would have been manually checked and thus detected as a result of the verification process -- 116 of 129 -- [2024] SASC 58 Stein J 115 employed for unregistered vehicles. However, there remains a chance an unregistered plate could be wrongly detected as a registered plate and thus not manually checked. 575 I accept the Toyota RAV4 registered in the name of Mr E’s father and accessible to Mr E has not been located by police. The last Safe-T-Cam entry for the Toyota RAV4 was on 14 March 2017. Prior to that date the Safe-T-Cam records show multiple entries for a number plate matching that of the Toyota RAV4. I accept Mr E’s father’s Toyota RAV4 was not re-registered after 17 December 2017 and has not been detected in any road traffic infractions. The same observations set out above in relation to the Toyota Echo apply to the likelihood of detection by the Safe T Cam system. 576 I infer from the matters above that while it cannot be conclusively established, it is likely the Toyota Echo ceased travel on South Australian roads at some time after 26 February 2017 and it is likely the Toyota RAV4 ceased travel on South Australian roads at some time after 14 March 2017. 577 The short period of time after the media release within which the Toyota Echo and the Toyota RAV4 ceased to be detected by Safe-T-Cams gives rise to an inference that the use of the vehicles ceased after the issue of the media release and at a time proximate to that media release. 578 Prosecution did not expressly submit that the Toyota Echo was disposed of by Mr Sahlstorfer out of a consciousness of guilt. However, the prosecution case relied, among other things, on the disappearance of the Toyota Echo after the police media release seeking information about the two vehicles of interest. Defence submitted that the discovery of the vehicle does not indicate who disposed of it or why and that even if Mr Sahlstorfer disposed of it, it does not necessarily follow it was disposed of as a result of a consciousness of guilt. 579 As set out above, I find beyond reasonable doubt that the Toyota Echo discovered at Ponde in September 2019 buried under about four metres of sand was Mr Sahlstorfer’s Toyota Echo. I accept the evidence of Brevet Sergeant Strange and Mr Munn that the Toyota Echo had been damaged by fire, had various parts removed and the VIN number and the compliance plate were not present. I accept that cut marks on the chassis were consistent with use of a hand tool such as an angle grinder, the chassis was dismantled using hand tools and the state of dismantling was inconsistent with any intention to restore the vehicle to use. I accept that the engine remained in place most likely by the drive shafts which require special tools for removal. 580 The chassis remains do not support an inference that the dismantling was performed merely for removal of items for spare parts. For example, cuts in the plenum are not consistent with dismantling for spare parts. -- 117 of 129 -- [2024] SASC 58 Stein J 116 581 The chassis remains do not support an inference only of relevant flammable parts having been consumed in the fire. I accept the evidence of Mr Munn and Brevet Sergeant Strange that the mounting bolts and nuts on the cylinder head had been removed and would be expected to remain in place had the plastic intake manifold melted in the fire. The chassis remains do not fully support an inference that the compliance plate melted in a fire. While I accept Mr Munn’s evidence that he could not see drilling marks in the photos consistent with the rivets having been removed, I also accept his evidence that blue paint remained in the region of the missing compliance plate and rivet hole areas and the fire intensity was likely not that hot given Mr Munn observed lighter aluminium components still present. 582 I accept Mr Munn’s evidence that the area where the VIN number should have been stamped onto the centre of the truss at the top in the plenum area was missing with a section removed and that he could not think of any reason for its removal. 583 The depth under the soil at which the Toyota Echo was located, the destruction in part of the vehicle by fire, the absence of the VIN number and the compliance plate and the partial dismantling of the chassis with hand tools supports an inference that the Toyota Echo was deliberately burned, partly dismantled and buried. I draw that inference and I also infer that those steps were conducted with a view to ensuring the Toyota Echo would not be located. 584 In drawing these inferences, I have not overlooked the defence submissions including to the effect the Toyota Echo was used in burnouts at Ponde and that the appearance of the vehicle at Ponde in its wrecked condition does not mean much in the context of the condition and value of the vehicle. I have drawn the inferences above based on all of the evidence including the location in which the Toyota Echo was discovered and the state of its remains. 585 I cannot form any conclusion about which individuals were involved in the partial destruction and burying of the Toyota Echo and I do not use those matters to suggest consciousness of guilt. However, I infer that those steps could not have occurred on Ponde without the knowledge and involvement of Hells Angels members given the evidence, which I accept, about the ownership, use, location and layout of Ponde and the limited ability for members of the public to obtain access. 586 Only limited observations can be made from the CCTV footage about the driver of the small dark vehicle, primarily that he was wearing a pale T-shirt. Mr Perkins gave evidence that the driver, after getting out of the vehicle, yelled “where the fuck’s Sam” three times in an aggressive tone and with a bit of an accent, which “was not Aussie”. I accept Mr Perkins was located in a position where he could hear the driver. I accept Mr Perkins’ evidence that he heard the driver of the small dark vehicle speak with an accent which was not Australian. -- 118 of 129 -- [2024] SASC 58 Stein J 117 587 Mr Perkins said the driver of the small dark car had a light coloured T-shirt and a hat on and the passenger was a fit build and wearing a T-shirt, not a jacket or jumper. In his evidence Mr Perkins described the driver of the Toyota RAV4 as taller and skinnier than the driver and passenger of the small dark vehicle who he thought were about the same height. Mr Grant and Mr Sahlstorfer are roughly similar heights while Mr E is taller.234 588 Earlier in his evidence, Mr Perkins was asked if he knew Mr Sahlstorfer and responded that he did. Defence relies on that evidence together with Constable West’s notes and Mr Crampton’s evidence that Mr Perkins was muttering about Serge the Russian when he got off the roof. Constable West’s notes of his discussion with Mr Perkins at 2.30 am on 31 January 2017 record Mr Perkins referring to “Serge the Russian” and a description which includes “Caucasian, Russian, short sandy hair, no facial hair, no tattoos, driving a blue Holden Barina with a faded roof” and included a location where Mr Perkins thought Serge the Russian lived. I accept Mr Perkins gave that description to Constable West. 589 Given the inability to cross-examine Mr Perkins, it is not possible to assess matters such as whether Mr Perkins thought he was describing to Constable West the man he saw from the roof or whether it was possible he was describing the man he knew as Serge the Russian because he thought it was Serge and if so, why. 590 At this point I turn to address my observations of Mr Zaporoshenko given defence’s reliance on the references to “Serge the Russian”. 591 Mr Zaporoshenko leaned back in his chair while giving evidence but did not appear ill at ease. He answered questions shortly and directly. He acknowledged getting into a fight with Mr Perkins and hitting him. He was very firm in his denials in cross-examination concerning the vehicles which may have been in his workshop premises and that he did not know about the vehicles in the car park area. When prompted whether he was sure about his answers in cross- examination, he maintained his denials. While recognising it is not likely Mr Zaporoshenko would make admissions if he had been involved in the offending, he appeared willing to give his evidence. His demeanour and his evidence did not give rise to doubts about his reliability and credibility. In accepting his evidence, I take into account all of the other evidence including the telecommunications evidence and the evidence about the types of cars seen in the CCTV footage which support the veracity of Mr Zaporoshenko’s evidence. 592 I accept that Mr Perkins described the driver of the small dark vehicle to Constable West as not having tattoos. Defence place reliance on Mr Perkins’ reference to no tattoos, given Mr Sahlstorfer’s obvious tattoos. Mr Perkins also described the passenger and his description referred to that man as Caucasian, late 20s, with a hat, possibly black. No other details were provided. Mr Perkins did not describe the passenger of the small dark vehicle by reference to having tattoos 234 Exhibits P68; Exhibit P69; Exhibit P70. -- 119 of 129 -- [2024] SASC 58 Stein J 118 or not having tattoos. Mr Grant has visible tattoos on his left arm (those on his right arm would have been obscured by the cast).235 Mr Perkins gave evidence the passenger was wearing a T-shirt. Given the extent of tattoos on Mr Grant’s left arm, which was not covered by clothing, the absence of any reference by Mr Perkins at the time of speaking to Constable West to the passenger of the small dark car having tattoos gives rise to doubt about the reliability of the reference to no tattoos. Mr Perkins did not identify the passenger as Mr Grant, despite recognising him in the CCTV footage, or refer to the cast, which also gives rise to the possibility his descriptions of the features of the individuals involved may have been flawed. 593 I turn to consider whether the prosecution has proved beyond reasonable doubt that Mr Sahlstorfer was the driver of the small dark vehicle and that Mr Sahlstorfer was one of the three assailants in the attack on Mr Boyce in light of all of the evidence. I have avoided addressing the evidence piecemeal. I have carefully reviewed the totality of the evidence to consider whether I am able to exclude all reasonable hypotheses consistent with Mr Sahlstorfer’s innocence and whether the matters pressed upon me by the defence rest upon any more than mere conjecture.236 In particular, I must consider whether the totality of the evidence excludes any reasonable hypothesis consistent with Mr Sahlstorfer’s innocence in Mr Sahlstorfer not being present and involved in the attack. I must then consider whether the prosecution has proved beyond reasonable doubt that Mr Sahlstorfer is guilty of murder or the alternative of manslaughter. Does the totality of the evidence exclude all reasonable hypotheses consistent with Mr Sahlstorfer being the driver of the small dark car? 594 I have concluded that the totality of the evidence excludes all reasonable hypotheses consistent with Mr Sahlstorfer not being the driver of the small dark vehicle, or put differently, with someone other than Mr Sahlstorfer being the driver. Without referring again to all of the evidence, the following matters are significant in my conclusion: the association between Mr Sahlstorfer, Mr E and Mr Grant; the association between Mr Thaller and Mr Wheatley, Mr Thaller and Mr Grant and Mr Grant and Mr Wheatley; Mr Perkins’ presence at 20 Hill Street and then 11B Hill Street; the fact Mr Thaller arranged a ride for Mr Perkins with Mr Wheatley; the characteristics of Mr Sahlstorfer’s Toyota Echo, in particular the faded roof and the “hotdog” muffler; the evidence of Mr Perkins concerning the faded roof and the evidence of Mr Perkins and Mr Sicari concerning the sports exhaust on the small dark car; Mr Greer’s opinion the small dark vehicle was a Toyota Echo and the larger silver vehicle was a Toyota RAV4; the consistency of the larger silver vehicle with the Toyota RAV4 available to Mr E; the lack of sighting of both the Toyota RAV4 available to Mr E and Mr Sahlstorfer’s Toyota Echo after the police media release; the location and state of Mr Sahlstorfer’s Toyota Echo when found at Ponde; the conclusion Mr Grant was the passenger of 235 Exhibit P72. 236 R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [47]. -- 120 of 129 -- [2024] SASC 58 Stein J 119 the small dark vehicle; the call charge records supporting the inference the phone subscribed to Mr Sahlstorfer moved from Valley View to Pooraka to Elizabeth Vale in about the half hour leading up to the attack; the repeated drive-bys in Hill Street; the interest in the occupants of the vehicles in 11B Hill Street when Mr Perkins was at 11B Hill Street; the phone call from the phone subscribed to Mr Grant’s girlfriend to Mr Wheatley at 10:12 pm; the phone call from the phone subscribed in the name of Mr Sahlstorfer to the phone subscribed in the name of Mr Wheatley at precisely the time Mr Wheatley was parked in front of 11B Hill Street and the two vehicles were driving down Hill Street; the call from the phone subscribed in the name of Mr Sahlstorfer to the phone subscribed in the name of Mr Grant at 11:05 pm after the attack; Mr Perkins’ reference to the driver of the small dark vehicle having an accent; and the evidence that Mr Sahlstorfer has a slight accent when angry. 595 In my view, the evidence in its totality is compelling in excluding any reasonable hypothesis consistent with Mr Sahlstorfer not being the driver of the small dark vehicle and one of the three attackers. In reaching that conclusion I have not overlooked the evidence which is inconsistent or potentially inconsistent with the prosecution case and the defence submissions. This includes, but is not limited to, the reference by Mr Perkins to Serge the Russian and the description given to Constable West, including no tattoos; the references by Mr Sicari to tinted windows, the car possibly being green; and the defence hypotheses concerning the state of the Toyota Echo at Ponde and the absence of an ability to prove precisely the position of the phone subscribed to Mr Sahlstorfer. In my view those matters do not preclude that conclusion because the totality of the evidence leads to the overwhelming inference that Mr Sahlstorfer was the driver of the small dark vehicle. On all of the evidence I do not consider there is a reasonably open inference that Mr Zaporoshenko was one of the three men. I infer that Mr Perkins’ reference to “Serge the Russian” must have been mistaken. I have not overlooked the inability to cross-examine Mr Perkins or defence’s submission that Mr Zaporoshenko would not admit to involvement. Even without Mr Zaporoshenko’s testimony, and taking into account Mr Perkins’ account to Constable West and the other evidence about “Serge the Russian”, the evidence in its totality is sufficiently compelling to prove Mr Sahlstorfer’s presence and involvement in the attack. 596 I consider it inherently implausible that the telephone services subscribed in the names of Mr Grant, Mr E, Mr Wheatley and Mr Sahlstorfer were not being used by those men on 30 January 2017. I infer the interactions between them related to finding Mr Perkins for a purpose that was not friendly. I do not consider there is a reasonably open inference consistent with the phone calls between them being unrelated or, of particular importance, that the phone call at 10:39 pm from the 350 number (Mr Sahlstorfer) to the 683 number (Mr Wheatley) was unrelated or coincidental at the crucial time in the drive-by sequences. I also consider inherently implausible and dismiss as far-fetched the possibility that all of the matters to which I have referred above would have coincidentally occurred if -- 121 of 129 -- [2024] SASC 58 Stein J 120 Mr Sahlstorfer was not the driver of the small dark car and thus the principal assailant in the attack on Mr Boyce. Those combined, related occurrences are not capable of explanation consistent with a reasonable hypothesis of innocence. Mr Sahlstorfer’s involvement is the only rational inference or conclusion that the circumstances I find proved enable me to draw. Has prosecution proved Mr Sahlstorfer guilty of murder? Murder - Joint enterprise 597 Given I have concluded Mr Sahlstorfer was the driver of the small dark vehicle observed in the CCTV footage, the question remains whether the prosecution has proved beyond reasonable doubt that Mr Sahlstorfer committed the offence of murder and, in particular, whether the totality of the evidence excludes any reasonable hypothesis consistent with Mr Sahlstorfer’s innocence of that charge. 598 In order to find Mr Sahlstorfer guilty of murder on the basis of joint criminal enterprise, I must find beyond reasonable doubt that Mr Sahlstorfer entered into an agreement with one or more of Mr Grant and the driver of the other vehicle to kill or cause grievous bodily harm to Mr Boyce, and while that agreement was on foot, Mr Boyce was murdered in the presence of Mr Sahlstorfer. 599 While I accept defence’s submission that any joint enterprise prior to the start of the chase must have related to Mr Perkins, that does not preclude the formation of an agreement in relation to Mr Boyce at the time Mr Grant started to chase Mr Boyce and the other two men followed and the three men attacked Mr Boyce together. The absence of words also does not preclude such an agreement. When Mr Perkins was not located, the men in combination chased down and attacked Mr Boyce without apparent motive given their interest in Mr Perkins. I infer that the men chased Mr Boyce after they failed to locate Mr Perkins. I infer from the CCTV footage that the men acted together, in unison, once Mr Grant started chasing Mr Boyce. The CCTV footage shows that the driver immediately ran back to his car as Mr Grant started chasing Mr Boyce. Both drivers followed the two men running down the road without any delay. On getting out of the small dark car, the driver (Mr Sahlstorfer) immediately inflicted blows in the manner I have described above while the passenger (Mr Grant) restrained Mr Boyce. The driver of the other vehicle joined in, and all three men delivered blows. 600 I infer from the behaviour of the three men observed on the CCTV footage that all three acted consistently with each other and with a common purpose of inflicting blows on Mr Boyce. It is readily apparent from the CCTV footage that the three men acted together by tacit agreement moving immediately to follow Mr Grant when he started the chase. I find beyond reasonable doubt that Mr Sahlstorfer entered into an agreement with one or more of Mr Grant and the driver of the larger vehicle to attack Mr Boyce and participated in that agreement. -- 122 of 129 -- [2024] SASC 58 Stein J 121 Intention 601 I turn to consider whether the agreement was an agreement to inflict grievous bodily harm or whether it was an agreement to do something less. I consider that question together with the question whether the blows which were the cause of death were delivered with an intention to cause grievous bodily harm or some lesser intention. The same evidence is relevant to both issues. 602 Defence submitted that the disposal of the Toyota Echo does not speak to the intention with which the attack was committed. I agree that the partial destruction and disposal of the Toyota Echo does not necessarily lead to an inference of a state of mind consistent with murder. 603 I have considered the evidence in its entirety in assessing what inferences can be drawn concerning state of mind as to the nature of the joint enterprise and the intention with which the blows were delivered.237 604 The men acted simultaneously and immediately upon Mr Boyce fleeing in the way I have set out above. 605 Based upon my close consideration of the CCTV footage, I find that the driver of the small dark vehicle, Mr Sahlstorfer, delivered a number of the kicks and punches. He moved rapidly from his car to Mr Boyce and commenced attacking him immediately. I find that after delivering a number of blows, Mr Sahlstorfer stepped back and then moved forward in a motion consistent with a forceful kick. He moved aside to allow the driver of the larger vehicle to join in the attack. Mr Grant then stopped holding Mr Boyce. Mr Sahlstorfer and the other men continued to kick Mr Boyce while he was lying down. I find that Mr Sahlstorfer and the other men continued to attack Mr Boyce after Mr Grant had stopped restraining Mr Boyce and he was lying on the pavement. I infer that Mr Boyce did not fight back. 606 I find that the blows were delivered with force and to Mr Boyce’s head. This is consistent with Dr Charlwood’s evidence concerning the location of the injuries and the degree of force to which I have referred above. 607 While I cannot determine which precise blow or blows were the substantial cause of death, the CCTV footage demonstrates consistency in the observable force with which blows were delivered by the men during the attack and I infer that the blows were delivered with the same intention. 608 I conclude the prosecution has proved beyond reasonable doubt that the joint enterprise into which Mr Sahlstorfer entered and participated was an agreement to cause grievous bodily harm and the blows which were a substantial cause of death 237 R v Quist [2017] SASCFC 37; (2017) 127 SASR 471 at [121]-[122] (Peek J), quoting Brooks v The Queen [2012] VSCA 197; (2012) 36 VR 26 84 at [50]-[58], [61]-[67] (Weinberg JA; Bongiorno JA and Forest AJA agreeing). -- 123 of 129 -- [2024] SASC 58 Stein J 122 were delivered with that intention. In my view that is the only inference available from the conduct of the men as seen in the CCTV footage. 609 While the attack was short, which may be thought to militate against an intention to commit grievous bodily harm, it was violent and frenzied. The attack was sufficient to result in fatal injuries in a very short time. Blows were directed at Mr Boyce’s head, which is a vulnerable location. Mr Boyce was rendered quickly unconscious and he never regained consciousness. 610 The rapidity of the blows, the direction of the blows, the observable force and, significantly, the continued kicking of Mr Boyce after he was lying on the pavement belies any lesser intention. The CCTV footage does not support an inference that the men ceased the attack once Mr Boyce was on the ground. 611 The absence of a weapon or any uncertainty about precisely how many blows were delivered does not cause me to doubt my conclusion. While the men did not utilise a weapon, they employed their fists and feet as weapons in the delivery of a series of punches and kicks including blows directed at Mr Boyce’s head. 612 I do not consider there is reasonably open an inference consistent with an intention only to cause harm or serious injury in view of the ferocity and nature of the attack generally, blows aimed at Mr Boyce’s head and the continued kicking when Mr Boyce was prostrate. 613 It follows that prosecution has proved beyond reasonable doubt that there was an agreement between the three men to cause Mr Boyce grievous bodily harm, Mr Sahlstorfer participated in the agreement and, while that agreement was on foot, Mr Boyce was murdered in the presence of Mr Sahlstorfer. 614 There is no reasonably open hypothesis consistent with Mr Sahlstorfer’s innocence on the charge of murder. Conclusion 615 I find Mr Sahlstorfer guilty of murder. -- 124 of 129 -- [2024] SASC 58 Stein J 123 APPENDIX A Agreed Facts – Exhibit P84 Digital Video Recorder 1. On 31 January 2017 at 12:22am Detective Brevet Sergeant of Police Benjamin Horley, seized a Digital Video Recorder (DVR) from the inside of 20 Hill Street Elizabeth South. The DVR appeared to be connected to a monitor and camera system at the house. The DVR was seized and booked in the South Australia Police secure property storage system with the identifying number 17/B47685-7. 2. The time that appears on the face of that CCTV footage is half an hour behind the actual time at the location shown, with a margin of error of plus or minus one minute. Medical Treatment of Mr Grant 3. On Friday 27 January 2017, Joshua Roy Grant attended at the Lyell McEwin Emergency Department. 4. He received medical treatment for an injury to his right hand. 5. X-Rays revealed a fracture at the base of his right little finger. 6. A backslab plaster was applied to his right hand, which covered the right back and outside of the forearm up to the elbow. 7. Mr Grant attended the Lyell McEwin Hospital on 3 February 2017 where the injury was reassessed and a new backslab plaster was applied. 8. He reattended the hospital on 7 February 2017 when the plaster was removed. 9. Whilst at the hospital, Mr Grant provided a telephone number on which he could be contacted. The number was 04XX XXX 307.238 South Australian Ambulance Services 10. Paramedics Anastasia Bougesis and Hannah Andia were talked to attend Hill Street, Elizabeth South on 30 January 2017 at 10:47pm. They arrived at the front of 18 Hill Street at 10:54pm. They were the first Ambulance on scene. 11. Mr Boyce was unconscious and unresponsive. He was incontinent to urine. He was observed to be sweating profusely, breathing loudly and snoring. No large blood loss was observed. His t-shirt was cut off him and placed on the fence of 18 Hill Street, to enable medical treatment to be provided. 12. Ms Bougesis observed a scrape mark to Mr Boyce’s right knee and scrape marks to both feet. Ms Andia felt a lump approximately 1.5cm in diameter to the left side of the base of Mr Boyce’s skull (along the occiput). 13. Paramedics attempted to support his airway and they applied a collar to protect his neck. 238 Telephone numbers have been partially redacted. -- 125 of 129 -- [2024] SASC 58 Stein J 124 14. At 10:56pm a second Ambulance arrived, with Paramedics James Kosmala and Alexandra Penn. 15. At 11:08pm Mr Boyce left the scene in the Ambulance with Paramedics Bourgesis and Andia. He arrived at the Lyell McEwin Hospital at 11:12pm where he was handed over to a resuscitation team. Lyell McEwin Hospital 16. On arrival at the Lyell McEwin Hospital Mr Boyce was in a poor condition. He was unresponsive and his blood pressure was high. He was sweating profusely. 17. Mr Boyce was noted to have bruising and swelling to both ears, around his left eye and the left side of his cheek. There were abrasions to his face. 18. There was blood in his mouth that required suctioning and the right side of his nose appeared as though it had been bleeding. Abrasions and deformities to both knees were noted. 19. On 31 January 2017 at about 1:00am Mr Boyce was transferred to the Royal Adelaide Hospital for further treatment. 20. On 8 February 2017 Mr Boyce died in the Royal Adelaide Hospital. 21. Shortly after the admission of Mr Boyce to hospital, blood was taken from him and forwarded to SA Pathology. The blood sample was subsequently seized by South Australian Police and delivered to Forensic Science SA for toxicology analysis. 22. The blood was analysed by Christine Nash, a forensic scientist qualified to examine blood for the presence of drugs and other chemicals. 23. No alcohol was detected. 24. The following drugs were detected in the blood: a. Approximately .26 mg methylamphetamine per L b. Approximately .04 mg amphetamine per L 25. The presence of amphetamine in the blood is likely to be from the metabolism of methylamphetamine by the body. 26. No other prescription drugs or drug of abuse were detected. Police Attendance in Thompson Street, Elizabeth South 27. At approximately 9:00pm on 30 January 2017, members of the South Australian Police force pulled over a vehicle in Thompson Street, Elizabeth South. They remained at the location for long enough to search the vehicle and arrest the driver on a warrant. The occupants of that car were Erin Withers and Brook Surman. Forensic Science South Australia 28. DNA samples were obtained from the following persons in the course of the investigation: -- 126 of 129 -- [2024] SASC 58 Stein J 125 a. Mark Robert Boyce (the deceased) b. Mr Grant c. Tobias Sahlstorfer 29. Each of these samples were appropriately stored before being delivered to Forensic Science SA for the purposes of DNA analysis and comparison. 30. The following exhibits were delivered to Forensic Science SA for DNA analysis and comparison: a. A pair of black shorts removed from the deceased on his admission to the Lyell McEwin Hospital (17/B47685-3) b. A blood swab taken from the scene by CSI officer Adam Dennis at scene marker 1 (17/B47685-4) c. A black T-shirt bearing a design with the words “The Doctor 46 Valentino Rossi” seized from a fence at the front of 18 Hill Street Elizabeth South (17/B47685-5) Perkin’s Phone 31. On 31 January 2017 at about 1:50am, Brevet Sergeant Trent West attended at 11B Hill Street, Elizabeth South. 32. Samuel Perkins was located in the premises and a phone was seized from his person and booked into the South Australia Police secure property storage system with the identifying number 17/B47685-8. 33. Item 17/B47685-8 was extracted by Yi-Chi Lin of the South Australian Police Electronic Crime Section. 34. The extraction was reviewed and the international mobile equipment identity (IMEI) number on that handset was 86390702472561. 35. The IMEI is reflected in the call charge records for the service number 04XX XXX 285.239 Media Release 36. On 2 March 2017, the South Australian Police media unit published a media release regarding the investigation into the death of Mark Boyce. 37. A text of that media release is produced and now marked as exhibit P83. 38. The media release was dated 2 March 2017. 39. On that same date, police also released CCTV footage recorded by the CCTV unit at 20 Hill Street, Elizabeth South. The footage shows the bashing of Mr Boyce, and the two cars used by the perpetrators of that bashing. The footage was subsequently 239 Telephone numbers have been partially redacted. -- 127 of 129 -- [2024] SASC 58 Stein J 126 aired on free to air television. This was the first public release of the footage showing the two vehicles. Residential Address 40. At as 30 January 2017, Tobias Sahlstofer and [Ms R]240 resided at XX The Circuit, Walkley Heights, South Australia.241 Beachwood Court, Gulfview Heights 41. On 25 October 2017, Senior Constable Michael Randells attended XX Beachwood Court, Gulfview Heights.242 He was the allocated exhibits officer. He was handed registration papers regarding a Toyota Echo, registration WSL073 by Brevet Sergeant Andrew Jervis. 42. This item was seized and booked into the South Australia Police secure property storage system with the identifying number 17/B47685-70. Hells Angels Memberships and Clubhouse 43. As of 30 January 2017, Tobias Sahlstorfer was a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club. 44. Tobias Sahlstorfer became a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club in June 2012. 45. As of 30 January 2017, Mr E was a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club. 46. Mr E became a full member of the Adelaide Chapter of the Hells Angels Motorcycle Club in June 2012. 47. Mr Grant was a hang around for the Adelaide Chapter of the Hells Angels Motorcycle Club as of 30 January 2017. He became a prospect for the Adelaide Chapter of the Hells Angels Motorcycle Club prior to 26 October 2017 and most likely on 11 August 2017. 48. From at least 3 August 2008 until 2015 the clubhouse of the Adelaide Chapter of the Hells Angels Motorcycle Club was at XX Albert Street, Clarence Gardens.243 49. As of 30 January 2017, the clubhouse was no longer in use. Agreed Facts – Exhibit D90 1. At about 14:30 (2:30 pm) on 31 January 2017, Officer Tiller attended a two-story workshop at premises, XX Beafield Road Para Hills West.244 Outside of this premises Tiller observed a blue Ford Laser motor vehicle with a faded roof. 240 The name of Mr Sahlstorfer’s partner has been redacted. 241 Address details have been partially redacted. 242 Address details have been partially redacted. 243 Address details have been partially redacted. 244 Address details have been partially redacted. -- 128 of 129 -- [2024] SASC 58 Stein J 127 2. At about 2:30 am on 31 January 2017 Officer Trent West conducted a debrief with Mr Perkins in the cells at Elizabeth Police Station. He obtained from Mr Perkins, a description of the three men said to have been involved in the attack on Mr Boyce. Officer West recorded the descriptions provided by Mr Perkins in his notebook. D89 records the description of the males as provided by Mr Perkins. -- 129 of 129 --