[2024] SADC 86

Prosecution: R Counsel: MR R WILLIAMS SC - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: MATHIANG MALOK Counsel: MR R WALKER - Solicitor: BRIAN DEEGAN LAWYERS Hearing Date/s: 02/04/2024 to 05/04/2024 File No/s: DCCRM-23-004398 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v MALOK Criminal Trial by Judge Alone [2024] SADC 86 Reasons for the Verdicts of her Honour Judge Tracey 11 July 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - AFFRAY, RIOT, UNLAWFUL ASSEMBLY AND LIKE OFFENCES – AFFRAY The accused is charged with one count of aggravated affray contrary to s 83C(1) of the Criminal Law Consolidation Act 1935 (SA) and two counts of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). The accused is alleged to have stabbed the complainants at a night club during the event in question. Questions of identification are raised. Held: guilty of all counts. Criminal Law Consolidation Act 1935 (SA) ss 24(1), 83C(1); Evidence Act 1929 (SA) s 34AB, referred to. R v Quist [2021] SASCA 106; Dent v R [2021] SASCFC 4; R v Baden-Clay (2016) 258 CLR 308; R v Hillier (2007) 228 CLR 618; Dansie v R [2020] SASCFC 103, applied. -- 1 of 40 -- -- 2 of 40 -- R v MALOK [2024] SADC 86 1 Mathiang Malok (the accused) is charged as follows: Second Count Statement of Offence Aggravated Affray. (Section 83C(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence Mathiang Malok on the 13th day of March 2022 at Adelaide, used or threatened unlawful violence towards another, such conduct being as to cause a person of reasonable firmness present at the scene to fear his or her personal safety. Circumstances of Aggravation Mathiang Malok used or threatened to use an offensive weapon, namely a knife, to commit or when committing the offence. Fourth Count Statement of Offence Aggravated Causing Harm with Intent to Cause Harm (Section 24(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence Mathiang Malok on the 13th day of March 2022 at Adelaide, caused harm to Ngeth Agany, intending to cause him harm. Circumstances of Aggravation Mathiang Malok used or threatened to use an offensive weapon, namely a knife, to commit or when committing the offence. Fifth Count Statement of Offence Aggravated Causing Harm with Intent to Cause Harm (Section 24(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence Mathiang Malok on the 13th day of March 2022 at Adelaide, caused harm to Yeni Vasili, intending to cause him harm. Circumstances of Aggravation -- 3 of 40 -- [2024] SADC 86 2 Mathiang Malok used or threatened to use an offensive weapon, namely a knife, to commit or when committing the offence. Elements of the offences Aggravated affray 2 The offence of aggravated affray contrary to s 83C(1) of the Criminal Law Consolidation Act 1934 (SA) has four elements and one aggravating feature. 1. The accused used or threatened to use violence. 2. The use or threatened use of violence was intentional or the accused was aware his conduct may be violent or threatening. 3. The violence was unlawful. 4. The conduct of the accused would cause a person of reasonable firmness at the scene to fear for their safety. 3 The aggravating feature is the use or threatened use of an offensive weapon, namely a knife. Counts 4 and 5 Aggravated cause harm with intent to cause harm 4 The offence of aggravated cause harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) has four elements and one aggravating feature. 1. The accused caused harm to another. 2. The act causing harm was conscious and voluntary, so not accidental. 3. The conduct was unlawful, excluding self-defence or defence of another for example. 4. The accused intended to cause harm at the time of the act. 5 The aggravating feature is again the use of a weapon, namely a knife. Prosecution case 6 On the night of 12 March 2022, a DJ event was being held at the Nairobi Affair Lounge (‘the Venue’) where the accused was present. At about 1:06am on 13 March 2022, a fight broke out in the Venue, involving many males, which was captured on CCTV footage. 7 The prosecution tendered the affidavit of Dr Matthew Sorell who analysed the CCTV footage (Exhibit P3) and identified three individuals on the footage, namely the accused (S1), the complainant in count 4, Mr Ngeth Agany (V1) and -- 4 of 40 -- [2024] SADC 86 3 the complainant in count 5, Mr Yeni Vasili (V2). A compilation of the relevant footage was produced by Dr Sorrell. 8 Body-worn footage taken at the Venue by police who had attended showed interactions between the person prosecution alleges is the accused and police (Exhibit P4). 9 The prosecution alleges that the footage shows the accused’s involvement in the fight and stabbing the complainants. A security guard, Mr John Gourdis, who is alleged to have spoken with the accused, participated in a photographic identification procedure on 19 June 2022, nominating the accused as the man with whom he had spoken and who he observed had a knife in his hand. 10 On the prosecution case, the footage depicts the accused discarding a knife behind the counter in the foyer of the Venue. 11 Crime scene examiner, Senior Constable Adam Gates, seized a light blue plastic handled knife which was located lodged in the timber skirting of a counter at the Venue, which the prosecution alleges was the weapon used by the accused. DNA swabs taken from the knife showed extremely strong support for the complainants having contributed to the profiles obtained, with any potential contribution by the accused, described as neutral or favouring exclusion. Accordingly, the DNA results provided no link to the accused. 12 To prove the identification of the accused as the offender, the prosecution relied on the accused’s travel from Victoria to Adelaide between 10 March and 16 March 2022, the CCTV footage, and the evidence of Chief Inspector Devey, who interacted with the person who prosecution allege to be the accused. 13 Affidavits of civilian witnesses were tendered by consent. 14 I conducted a view of the Venue on 2 April 2024. The layout was consistent with the ground floor plan of the Venue (Exhibit P1) which showed an area leading from the foyer described as ‘ATM’ which led to a ‘Cocktail Bar’ and ‘Lounge’ area, flowing out through the hallway into a ‘Beer Garden’. The prosecution called the following witnesses: • Senior Constable Adam Gates • Security guards Mr Patrick Devries and Mr John Gourdis • Senior Constable Hayley Milligan • Damien Turci • Yeni Vasili • Michael Klose -- 5 of 40 -- [2024] SADC 86 4 • Jack Wilhelm • James Tregenza • Jane Favaloro • Rebecca Windram • Benjamin Philps • Cameron Devey • Benjamin Wilkes Agreed Facts 15 The following facts were agreed: Video Footage The Nairobi Affair Lounge 1. The CCTV footage composite video, Exhibit P5, contains video recorded from the cameras at the Nairobi Affair Lounge on the night of 12-13 March 2022. The timestamps are accurate. 2. As Dr Sorrell explains at [20] of P3, the original footage was in higher resolution than the ‘scaled down’ footage used in his composite. The original footage from the four relevant cameras, at the relevant times, is Exhibit P24. Body-worn video 3. The video footage contained on Exhibit P4 is an extract from police worn video recorded on 13 March 2022. The timestamp embedded in the video is accurate. Other locations 4. CCTV footage was obtained from various other locations on the same night and early morning, showing many individuals and other violent interactions. 5. The still images (stills) contained in Exhibit P14 were extracted from CCTV footage recorded from cameras at the Royal Adelaide Hospital in the early morning of 13 March 2022, depicting the persons described in the captions to those stills. Henry Laduma 6. Henry Laduma received paramedic medical treatment in the carpark proximate to the Nairobi Affair Lounge at approximately 2:00am on 13 March 2022, and was conveyed to the Royal Adelaide Hospital by ambulance, where he was admitted and received further medical treatment. -- 6 of 40 -- [2024] SADC 86 5 7. On 14 March 2022 at 1:12am, photographs were taken of him, showing his injuries. Those photographs are contained in the first booklet of Exhibit P15 (AB3). Yeni Vasili 8. Yeni Vasili was assessed by paramedics proximate to the Nairobi Affair Lounge in the early morning of 13 March 2022, and conveyed to hospital by ambulance at 1:34am, where he was admitted. 9. On 14 March 2022, photographs were taken of his body, though his chest injury was not clearly photographed. Those photographs are contained in the second booklet of Exhibit P15. A bandage reflecting the approximate location of his chest injury can be seen in photograph 4 of his torso. Photographic identification procedures John Gourdis 10. The photograph at position number 4 in Exhibit P6 is a photograph of the accused. Friday Juma 11. On 19 June 2022, Friday JUMA was shown a number of photographic arrays, one of which was marked ‘PPMM1’ and is Exhibit P26. That photographic array contained a photograph of the accused (at position No 6) and photographs of six other males not suspected of having had any involvement in the incident at the Nairobi Affair Lounge. Mr Juma was invited to view the photographs for the purpose of identifying any person he had seen at about 1:10am on 13 March 2022 when an offence of aggravated affray occurred in the vicinity of the Nairobi Affair Lounge. Mr Juma identified the photograph of the person at position No 2 (not the accused) as being the person he had seen during the incident, next to the ATM machine and walking around after the fight, but did not see him do anything. DNA and chain of evidence 12. The various exhibits (including forensic samples) submitted to Forensic Science SA as scene samples, the subject of Rebecca Windram’s reports (Exhibit P18 and P19), were those obtained during the course of the investigation into the incident at the Nairobi Affair Lounge on 13 March 2022, noting that: a. Item 1 (machete) is not relevant to this trial. b. Item 114 (black handled knife) was a kitchen knife seized on 16 March 2022 from Henry Laduma’s bedroom. c. Item 149 (blue and black handled knife) was a fishing style knife seized on 25 March 2022 from Kual Bolo’s bedroom. -- 7 of 40 -- [2024] SADC 86 6 d. Item 167 (black handled knife) was a kitchen knife sized on 25 March 2023 from Blaise Serugo’s bedroom. 13. All exhibits in this matter were packaged, labelled and handled in accordance with standard police practice, in order to guard against the risk of contamination and ensure the integrity of the exhibits. Bank Records 14. In respect of relevant entries in the bank records, Exhibit P21, ‘value date’ is the date when the actual transaction occurred, and ‘date’ on the statement is the date when the transaction was posted to the statement. Matthew James Sorrell Exhibit P3 16 In his affidavit sworn on 16 September 2022, Dr Sorell said he is a Senior Lecturer in the School of Electrical and Electronic Engineering at the University of Adelaide, specialising in telecommunications and multimedia systems. 17 On 29 April 2022 Dr Sorell met with DS Rob Beattie to review and receive footage relating to the incident at the Venue. 18 A total of 1067 video files, together with 1067 metadata files were supplied, sourced from 30 cameras covering the time interval between midnight to 3:00am on 13 March 2022. Dr Sorell processed the video to track persons of interest during the incident, identify and extract still frames showing key identification features of suspects and the clearest available facial features of suspects, and explain particulars of the footage, including matters of resolution, colour behaviour under different lighting and camera conditions and timing. Daniella Drewett Exhibit P8 19 In her affidavit sworn on 17 June 2022, Ms Drewett said that she had been the head security guard at the Venue for about 11 months. She confirmed that the Venue was made up of four sections, that is, the front bar, a cocktail bar, the warehouse, and a beer garden. 20 On 12 March 2022, Ms Drewett started work at about 8pm. There was an event on in the warehouse that night, which started at about 9pm. Ms Drewett said that the Sudanese people at the event were not regulars, and recalled people on the night saying that they were from Sydney and Melbourne. 21 At first, there did not seem to be any trouble, however, sometime between 9pm and 10pm, Ms Drewett had a conversation with the owner, Friday Juma, who expressed concerns about the crowd. He was worried that something might happen with the group but raised no specific concern at the time. -- 8 of 40 -- [2024] SADC 86 7 22 At about 12:30am to 12:45am, Ms Drewett was at the stage in the warehouse when she was called to the front of the Venue. Once she arrived at the main doors, she heard males yelling in the main foyer and called other security guards for help. 23 Ms Drewett saw ten to fifteen Sudanese males fighting with each other in the foyer, with some covered in blood. She recalled seeing a man with a white shirt with blood all over his back, screaming at others across the room. According to Ms Drewett, there were two clear groups in the room, screaming at each other. She described some who ‘had a bloke bailed up in a corner and were beating into him’. 24 Ms Drewett said that she and the owner, Mr Friday Juma stood between the two groups. She and the other security guards attempted to close the doors to keep the two groups apart. From there, everyone began to run outside. 25 Once the police arrived, Ms Drewett shut the event down and directed everyone to leave. She recalled either Patrick Devries or John Gourdis coming up to her and saying that someone had been stabbed. 26 Ms Drewett saw part of a metal stool in the beer garden, and a knife in the cocktail area near a pillar. She described it as a little kitchen knife and told police about it. When the incident was happening, Ms Drewett said it was ‘chaos’. She described walking into a ‘shit-fest’ in the main foyer and said that it seemed to be pre-meditated between the two groups. Howard Chao Exhibit P9 27 In his affidavit sworn on 17 June 2022, Mr Chao said that he was a bartender at the Venue and had worked there since around February 2021. On 12 March 2022, he started work at either 7pm or 8pm. He was in the front bar until about 10pm and then moved to the middle bar, situated between the front bar and the warehouse. 28 The crowd that night was a mixture of mainly African people. There was a DJ from Melbourne playing in the warehouse bar. At about 1am, Mr Chao saw another bartender, Rachel, arguing with a customer about alcohol that had not been purchased from the Venue. 29 Whilst he was talking with Rachel, a fight started in front of the bar near the sofa section. He saw a man come from behind him and punch another man who was standing near the sofas. According to Mr Chao, it was ‘pretty dark and happened really fast’ so he did not see their faces. Both men were African and probably aged in their early 20’s. Mr Chao recalled seeing the first man throw a punch with a closed fist and then the whole room started fighting. 30 Mr Chao could not recall whether it was a separate group who entered the middle bar and started fighting or if it was the people who had already been there. -- 9 of 40 -- [2024] SADC 86 8 He said that he saw people trying to grab bottles from behind the bar while others started pulling apart a metal table. 31 Mr Chao took a table leg from one man’s hand and a bottle from another. He then met with one of the security guards and Mr Juma and went back to the middle bar to push people out, towards the entrance of the Venue. He recalled people still yelling and pushing each other at the time, but they were ‘not really’ fighting. 32 They got most people out of the middle bar and then went upstairs to check if anyone had gone up there. Mr Chao saw a knife on the upstairs floor, about one metre from the stairs. It looked like one of the knives they had used to cut lemons behind the bar. It had a blue handle and a cover over the blade. Mr Chao picked it up and looked at it, then put it on the floor next to a wall. 33 Mr Chao went back downstairs, where it had calmed down. At the middle bar, he saw an African man come out of the warehouse. He was shirtless and had blood on his chest and stomach. Mr Chao recalled him being skinny, about 170 cm tall and wearing glasses. 34 After about 15 to 20 minutes, Mr Chao opened the door to the beer garden and allowed the people there to evacuate the Venue. Police had arrived by then, and he saw them speaking to Mr Juma. According to Mr Chao, the fight happened ‘pretty quickly’ and lasted about 15 minutes. He did not see anybody get stabbed or anyone holding a knife. Benjamin Muna Exhibit P10 35 In his affidavit sworn on 2 April 2022, Mr Muna said that he was a bartender employed at the Venue and had been working there for about three to four weeks. 36 He started work on 12 March 2022 at either 7pm or 9pm at the front bar, then moved to the warehouse between 11pm and midnight. Mr Muna said that there were ‘pretty much young people’ in the warehouse, aged in their 20’s, maybe average 22 years. He said that they were not their normal crowd but were there for an event called Riddim. 37 Mr Muna said that it was pretty ‘smooth sailing’ until security came and said there had been fighting and everything was shutting down. He did not see any fighting in the Venue, or anybody with a weapon. He was very busy behind the bar. Alyssa Stevens Exhibit P11 38 Ms Stevens in her affidavit sworn on 1 April 2022, said that she was employed at the Venue as a bartender and had worked there since August 2021. -- 10 of 40 -- [2024] SADC 86 9 39 On 12 March 2022, Ms Stevens started work at about 7pm. She was working in the warehouse bar and said that the whole place was ‘really busy’. There was a special event on called Riddim, and the crowd was different to the normal crowd they have. Between 11pm and 12:00am when Ms Stevens was in the warehouse bar, the lights were turned on and the music switched off as a fight had started. The police were there about five minutes after. 40 Ms Stevens did not see the fight but said that everyone inside was hostile and there was some pushing and shoving after the lights came on. She said that when the fight happened in the main room, the rest of the people were crammed in the cocktail bar and the warehouse bar, so tensions were ‘a bit high’. Affidavit of Dr Cea-Cea Moller Exhibit P17 41 Dr Moller said in her affidavit sworn on 6 July 2022, that she is a Legally Qualified Medical Practitioner, employed at the Royal Adelaide Hospital. 42 At about 2:00am on Sunday 13 March 2022, Dr Moller was on duty at the emergency department of the Royal Adelaide Hospital when she attended to Yeni Vasili. The history provided was that the injuries occurred as a result of a stabbing to Mr Vasili’s right chest. He was brought in by ambulance. 43 Upon examination, Dr Moller noted a 3x2 cm wound on the right lower side of the chest. A CAT scan showed an active bleeding vessel between the ribs and some blood around the right lung. Treatment of the injuries was in the form of monitoring the chest for ongoing bleeding, pain relief, and chest physiotherapy. A drain was inserted around the lung under a small local anaesthetic procedure four days after admission to remove blood. The drain was removed three days later. 44 There were no permanent or lasting effects noted or any protracted impairment of Mr Vasili’s function or capacity. In Dr Moller’s opinion, the injuries were consistent with the history given and the injury was not considered life threatening. Justin Phearak Samreth Exhibit P21 45 In his affidavit, sworn on 21 November 2023, Mr Samreth said that he was employed in the capacity of a Law Enforcement Agency Request Specialist within the Regulatory and Control Operations Team of the Commonwealth Bank of Australia (‘the Bank’). 46 Mr Samreth made enquiries and sought to access the Bank’s systems and locations including CommSee, the Bank’s customer management database, which he said is the primary source of customer and account information. Following these searches, Mr Samreth requested that the relevant banking records of Mr Malok be produced by the Bank. These were annexed to his affidavit. -- 11 of 40 -- [2024] SADC 86 10 Friday Tobias Juma Exhibit P25 47 In his affidavit sworn on 22 March 2022, Mr Juma confirmed that he was the owner of the Venue and took over the business in about March 2020. 48 On 12 March 2022, Mr Juma hired the Venue out to a promoter from Melbourne. The company was called Riddim. Riddim sold tickets for their event online and a ticket was required to be able to enter the Venue. Mr Juma did not know how many tickets were sold. 49 At around 12:30am, Mr Juma became aware that the promoter was selling tickets at the door. Mr Juma informed the promoter that they still had to ensure that capacity in the warehouse remained at 350 people, as he did not have enough security for that number to be exceeded. 50 Mr Juma was outside when he saw a boy get pushed down to the ground, he was drunk, and security were not letting him inside. The boy was punched and kicked. There was a group of about six males who did this, all of whom, bar one, were of African descent. They were all wearing hoodies, and Mr Juma did not see their faces clearly. He recalled one of the security guards trying to pull the boy up. At this time, the group that were fighting went inside, along with some of those who were waiting in the line to get inside the Venue. 51 The only fighting Mr Juma saw was in the ATM room and staircase. One person was kicking a boy by the staircase, he was ‘maybe 20 plus, skinny and tall, maybe 5 foot 10 inches’. He was Sudanese, wearing a black long-sleeved top, and had black or blue pants on. Mr Juma said that he had seen that male before when he was on Hindley Street. 52 According to Mr Juma, there was a lot of noise and swearing but he was not sure who it was coming from. 53 According to Mr Juma, the descriptions he had given to police are what he remembers from the night and not from the CCTV footage he looked at. He did not see any of the involved boys change their clothes, and the descriptions he gave are what they were wearing during the fights. 54 The following day, police came back and took the CCTV hard drive after they were unable to download it. Mr Juma had reviewed the whole of the CCTV as he was told there was a machete and he wanted to know how it got into the Venue. He could not find it in the CCTV; however, he did see some people with small knives. Evidence of SC Gates 55 SC Gates is a crime scene examiner. He arrived at the Venue at 5:30am on 13 March 2022, taking the photographs that comprise Exhibit P2. He confirmed that the plan Exhibit P1 accorded with the layout of the Venue. He described what -- 12 of 40 -- [2024] SADC 86 11 was depicted in the photographs. Photographs 54 and 55 showed a cabinet in the foyer ATM area.1 A close up of the area in photograph 56 showed a knife, described as the ‘bloodied knife’ stuck into the skirting board behind a cabinet, which was subsequently submitted for analysis.2 56 Another knife was located on a table in the bar area of the Venue and shown in photograph 51.3 Photographs 66 and 67 showed a knife, described as a ‘tradesman knife’, that was in the laneway in a recessed doorway of the building next to the Venue.4 Photographs 68 and 69 showed the location where another knife was found in the laneway next to the Venue, which was placed on the bar service counter and described as the ‘green sheathed’ knife.5 A blue sheathed knife located behind the western side exit/entry door to the Venue was shown in photograph 73.6 57 SC Gates said that the ‘blue sheathed’ knife found behind the western doors and the ‘bloodied knife’ found in the skirting board were very similar in design and colour.7 Evidence of Patrick Devries 58 Mr Devries confirmed that he was a security guard working at the Venue on the night of the offending. From what he could recall, there was a function on that night where an interstate DJ was playing.8 59 Mr Devries said he had witnessed several fights take place, and on his account, they started at around midnight out on the footpath. All the fights occurred within a period of 10 to15 minutes.9 60 Mr Devries recalled seeing one man with puncture marks on his back but did not see any weapons.10 61 When the fight started, he was in the ATM foyer. Once the fight calmed down, he moved to the disco area and noticed the man with the puncture marks. He grabbed tea towels to assist the man and stop the bleeding.11 62 After watching the CCTV footage, Mr Devries confirmed that he was shown in the footage.12 He said he could not recognise anyone in the footage apart from 1 T34. 2 Ibid. 3 Ibid. 4 T36-37. 5 T38. 6 T39. 7 Ibid. 8 T48. 9 T50. 10 Ibid. 11 T50-51. 12 T53. -- 13 of 40 -- [2024] SADC 86 12 other security guards. He could not say for certain whether any other person shown on the footage was a regular at the Venue. Evidence of John Gourdis 63 Mr Gourdis was a security guard working at the Venue on 12 and 13 March 2022.13 64 He had started his shift before midnight and worked into the early hours of the Sunday.14 He recalled a discussion with another man at the front of the Venue, who I will describe as Patron X, who was in the line to enter and from whom he took a knife, which was between 7 and 15 cm in length.15 Mr Gourdis said that Patron X loitered out the front for a while and then took off. After about 30 minutes he swapped with another security guard at the door so was unable to say whether Patron X returned.16 65 Mr Gourdis said that when he was in the bar area, near the entrance to the beer garden, he witnessed people involved in a verbal disagreement. He saw what he described as a ‘coward punch’, some glasses being thrown and a fight erupting.17 66 When asked whether he saw any knives, Mr Gourdis gave the following evidence:18 The first knife I saw was – somebody swung one, like, I kind of saw a hand with a bit of a knife. And I didn’t quite under – I was like ‘Shit, what’s that?’ and then the second one, a person – a gentleman’s, like, walking through the crowd or through the people with it in his hand, so I grabbed his wrist, I’m like ‘This is ridiculous what you’re doing’. 67 Then when asked what he remembered about what was said between himself and the person with the knife in his hand he said:19 So he walked past, I grabbed his wrist like with the knife and I said ‘Dude, this is ridiculous. What are youse doing?’ and then he looked at me, grabbed the knife and he was – he was just like stood back and he like lifted his shirt and there was a couple of knives there which spun me out. I went, ‘Yeah, see you later’, I just walked back and made sure anyone that was around me was back in the lounge room, lounge area. If you guys are going to bring all these knives in man, I’m not – I’m not going to interact with that. 68 He could not say how many knives were there but recalled there being more than one, which looked the same.20 13 T57. 14 Ibid. 15 T58. 16 T59. 17 T59-60. 18 T 62, line 18-24. 19 T62, line 28-37. 20 T63. -- 14 of 40 -- [2024] SADC 86 13 69 Mr Gourdis said that he was ‘pretty sure’ that he saw a knife with a wooden handle. It was not serrated, and about 7 to 15 cm long. He could see a couple of handles.21 The blade of the knife had a plastic covering.22 70 The knife that the man had in his hand was very similar to the knife he had taken earlier from Patron X. He said he was ‘pretty sure’ the knife in the man’s hand had a wooden handle. The man was not aggressive towards him or threatening. The man had looked at him and lifted his shirt as if to say, ‘You can have this one if you want but I’ve got more, what’s the point’.23 71 Mr Gourdis said that he got a good view of the man whose wrist he had grabbed. The lighting in the bar area was better than in some other areas and was ‘pretty well lit’.24 72 Mr Gourdis said that he saw knives on people and the punch. Other than that, he saw pushing, arguing and a couple of punches being thrown. It wasn’t until everyone had gone out of the premises that he found out what had happened.25 73 He participated in a photograph identification procedure on 19 June 2022, after he was contacted by police ‘out of the blue.’26 74 Mr Gourdis was shown the video recording of the procedure (Exhibit P7) and he agreed that he had signed the photograph array (Exhibit P6) under the photograph at position 4. He said the person depicted in that photograph was the man who he had grabbed by the wrist with the knife, who had a couple of knives in his belt.27 75 Mr Gourdis was shown the CCTV footage, Exhibit P3. He identified himself in the footage and agreed that it recorded what he recalled of grabbing the hand of the man with the knife and dragging him from where there was a group of people.28 76 In cross-examination, Mr Gourdis confirmed that he had worked at the Venue for a few months before and after the incident. A lot of people from African descent attended the Venue every week and many were in their late teens, early 20’s.29 Many of the young men in attendance had dreadlocks and were tall and slim.30 77 Mr Gourdis said that there were many ways to get a weapon into the Venue despite the use of metal detectors by security guards.31 He agreed that when the 21 Ibid. 22 Ibid. 23 T64. 24 T65. 25 T66. 26 Ibid. 27 T67. 28 T71. 29 T73. 30 Ibid. 31 T74. -- 15 of 40 -- [2024] SADC 86 14 violence erupted he had a heightened sense of trying to keep everyone secure, and that it was frightening. Mr Gourdis said that his interaction with the man whose wrist he had grabbed was in the main passageway towards the beer garden. He could not say whether the lighting in that area was worse the closer you went towards the beer garden. However, he said that there was lighting in the beer garden, kitchen, keg room and toilets, so it was ‘lit up’.32 78 Mr Gourdis agreed that the man with whom he interacted was young, and about 170 cm tall, but conceded that he was not good at ‘that stuff’.33 With respect to Patron X, Mr Gourdis was referred to his affidavit dated 19 June 2022, wherein he had described Patron X as being 170 cm tall and the man inside as being 170 cm tall.34 Mr Gourdis went on to say that Patron X was shorter than himself, but not as short as the man inside. Mr Gourdis said:35 A Oh, the man similar at the front door, he was taller and skinny, like I shouldn’t say skinny he was like my frame and maybe my height. So it wasn’t, like, it was two different people. The person at the very front door who I was talking about who I didn’t see afterwards, cause once the other guards came through, I said to them like ‘He’s not to come in’ and after he’s then, like, lunged forward, I’ve got the knife off him, there was no way he was getting back in, but I wasn’t on the door then. Like I went inside, but I didn’t see him for the rest of the night. It was two different people. Q I understand that. But they had similar physical description, didn’t they. A Except for the height and I would say the description, it’s similar but different, in the sense that where the guy at the front was taller, like tall like kind of like my build. Q How tall – sorry, I interrupted. You said your build. A Yeah, he was like my build and, like, my height, the guy at the front. Q How tall do you say you are. A I’m – I think I’m 182, 184. Q Do you say the man from the first interaction outside was not about 170 cm tall. A I don’t think so. I think he was more towards me a bit. But his body frame was different. 79 Mr Gourdis agreed that the two men were very similar in terms of their youth and ethnicity. They were within 10 cm of each other in height, but there was a difference in body shape between the two. Mr Gourdis described his observation of his interaction with the man whose wrist he had grabbed as follows:36 Once I grabbed his wrist and dragged him to the door, I had the knife up here, it was eye to eye contact because (INDICATES) like this is ridiculous, like, that’s what I said to him, 32 T74-75. 33 T76. 34 T77. 35 T76, line 13-38. 36 T79, line 29-38 to T80, line 7-8. -- 16 of 40 -- [2024] SADC 86 15 and the reason it was – what got me about it was because although he was, like, trying to get away – trying to get away from me with the knife in the hand and he even, like, he was like showed me he’s got more, he wasn’t threatening to me. That’s what I remember about him. Because it wasn’t like he was like trying to hit me or punch me, nothing like that, he was just like get away from me, it’s nothing to do with you and something which is kind of why I remembered the face because it was like okay, normally if you grab somebody anywhere, they try to remonstrate with you but he just wanted to get away and get back to, I don’t know if he wanted to leave, I can’t speculate what he wanted to do, but, you know, he might have just wanted to run out the door, but I don’t know, yeah, it was eye to eye contact. 80 Mr Gourdis agreed that he had signed an affidavit wherein he had said that a short time after dealing with the man whose wrist he held, he had observed two men in possession of knives in the ATM room. He said:37 A Evidently I’ve signed it, so obviously I’ve said it, so it’s obviously what I’ve seen but like I said – Q You don’t remember it. A I don’t – honestly, after the knife, trying to clear people, shutting the door, it’s kind of a bit it’s a bit chaotic with other stuff that was going on as well. So it’s not fresh in my mind anymore. 81 Mr Gourdis described his interaction with Patron X as follows:38 A …yeah, that was not – before he, like, barged through with the knife, we – I was talking to him and I was even got his friends saying ‘Mate, you’ve got to calm your mate down and tell him to give me what’s in his ankle’. Like, that went on for a little bit, not like five minutes, but he was out there for, I would say, at least 20 minutes and we were talking to each other the whole time. There’s nothing – I’m there going ‘Mate, like, I can see there’s something in your ankle, chuck it to us or leave’ and depending on what it is, depends if he gets in. if he pulls out a flask, ‘Mate, we’ll empty it out, grab it, you leave. You pull out a weapon, you’re not coming in’. 82 Mr Gourdis said he could not remember the sequence of signing his affidavit and participating in the identification procedure but thought that he had signed his affidavit first. Before the identification procedure he had been confident he would recognise Patron X, because he had dealt with him for probably about 20 minutes. He agreed he had been less confident that he would identify the man whose wrist he had held. 83 Mr Gourdis said he knew exactly who it was because he looked ‘very, very young’ and Patron X did not look young. The man inside had a baby face whereas Patron X, although he was young, didn’t quite have a baby face.39 37 T81, line 15-21. 38 T82, line 8-20. 39 T83. -- 17 of 40 -- [2024] SADC 86 16 84 Mr Gourdis said Patron X was taller, and a bit skinnier, whereas the guy inside looked younger and shorter. Mr Gourdis denied he had made a mistake in identifying the man in the photographs as being the man whose wrist he held.40 85 In re-examination Mr Gourdis said that he was estimating his own height as being around six foot.41 SC Milligan 86 SC Milligan confirmed that she had compiled the photographs that were included in Exhibit P6. She had reviewed the persons who were involved in the matter at the Venue. Contained in the photo pack was only the one person of interest, with the addition of other persons of similar appearance who were not suspected of having any involvement.42 SC Turci 87 SC Turci conducted the photographic identification procedure with Mr Gourdis. SC Turci said that at the time that the procedure was conducted, he was not aware that the primary person of interest was the individual shown at position four.43 88 In cross examination, SC Turci said that Exhibit P6 was the only photo array shown to Mr Gourdis and he had signed his affidavit before the identification procedure.44 Yeni Vasili 89 Mr Vasili gave his evidence via Webex, in Melbourne. 90 In March 2022, he had a night out with friends and had a few beers at his house at around 8:00pm. They went to Hindley Street just before midnight. He had three or four alcoholic drinks and was not ‘really intoxicated’.45 He went to an event called Riddim, on Pirie Street at the East End of Adelaide. He confirmed that he knew Ngeth Agany, as he was his cousin.46 91 He saw Mr Agany when he got to the Venue, but he could not remember exactly where.47 He did not know his cousin well but recognised him. Somewhere inside the Venue he saw ‘commotion’ and sensed some commotion was about to happen.48 He did not see anything happen to Ngeth Agany or see anyone get hit. 40 T83-84. 41 T84. 42 T85. 43 T87. 44 Ibid. 45 T94. 46 T94-95. 47 T95. 48 T36. -- 18 of 40 -- [2024] SADC 86 17 He had wanted to make sure Ngeth Agany wasn’t involved in the commotion, and when got to him, everything erupted, and he was in the midst of the commotion.49 92 Mr Vasili confirmed that he was injured and felt something ripping on his chest. When he lifted his shirt, he saw blood, so it seemed like he had been punctured by an object. After he noticed the injuries, he sought out friends to tell them that he was injured and bleeding.50 93 When prosecution attempted to show Mr Vasili the body-worn footage (Exhibit P4) he said he did not want to watch it, as it made him feel sick. He said he recognised himself in the first clip of the video, before it was played.51 94 Mr Vasili was shown two still shots labelled ‘Cam 10’ (Exhibit P12). He said that he and Mr Agany may be pictured and one of the persons shown looked like it could be him and another looked like his cousin.52 95 Mr Vasili was shown two still shots labelled ‘Cam 25’ (Exhibit P13). Mr Vasili confirmed that he was pictured in the first photo behind the other person shown. He did not recognise himself in the second shot and in the third, recognised himself as the person standing. 96 In cross-examination, Mr Vasili said he did not know who stabbed him or his cousin.53 SC Klose 97 SC Klose confirmed that he attended the Venue on the night of the offending.54 98 On viewing the CCTV footage Exhibit P5, SC Klose confirmed that he was shown in the footage, dealing with a man who was extremely tall, around 6’7”, quite slender and 20, 25 years of age, who he arrested.55 SC Klose ascertained that the man he arrested was named Banok Banok. Former Chief Inspector Devey was restraining another shorter man at the time.56 Constable Wilhelm 99 Constable Wilhelm said he arrived at the Venue just after 1:00am.57 100 He was acting in the role of scene guard. At approximately 1:20am, he noticed a blue handled knife in some of the skirting, behind a cupboard in the ATM 49 T98. 50 T99. 51 T100-101. 52 T101. 53 T103. 54 T104. 55 T105. 56 T109-107. 57 T108. -- 19 of 40 -- [2024] SADC 86 18 area shown in Exhibit P1.58 He described the knife as blue handled with a steel blade, approximately 20 to 30 cm in length.59 101 Mr Wilhelm recognised the knife in photograph 55 of Exhibit P2.60 SC Tregenza 102 SC Tregenza said he was directed to attend at the Royal Adelaide Hospital on 13 March 2022, and arrived just before 4:00am. He was informed that six individuals had attended the hospital with injuries consistent with edged weapons.61 Still shots of some of those individuals arriving at the hospital were tendered and marked Exhibit P14.62 103 Photographs of a Mr Laduma and Mr Vasili were taken at the hospital and were tendered and marked Exhibit P15.63 BS Favaloro 104 BS Favaloro confirmed that she took photographs of Mr Agany on 15 March 2022 at the Elizabeth Police Station (Exhibit P16). She agreed that Mr Agany had presented with injuries that had not been treated but were bandaged.64 Ms Rebecca Windram 105 Ms Windram is a Forensic Scientist, employed at the Forensic Science Centre.65 Ms Windram had prepared two reports dated 4 July and 14 July 2022 (Exhibit P18 and P19).66 106 Ms Windram confirmed that the blue handled knife had blood-like staining detected on the blade.67 107 Prosecution tendered an extract from the forensic case file pages 139 to 140 (Exhibit P20).68 108 Ms Windram confirmed that the DNA results from samples taken from the knife at one location provided extremely strong support for the proposition that Mr Vasili and Mr Agany contributed to the blood profiles.69 Testing in relation to other individuals revealed results in favour of their exclusion from contribution.70 58 T109. 59 Ibid. 60 T109.110. 61 T111-112. 62 T112. 63 T113. 64 T115-116. 65 T117. 66 Ibid. 67 T120. 68 T121. 69 T125. 70 Ibid. -- 20 of 40 -- [2024] SADC 86 19 109 The results in relation to the accused were found to be neutral and uninformative. Testing at a location closer to the handle of the blade showed Mr Vasili as positively excluded.71 The results in relation to Mr Agany showed extremely strong support for the proposition that he had contributed DNA to that sample.72 The accused was also excluded in relation to that sample. Swabs from the serrated edge of the blade showed extremely strong support for Mr Vasili’s contribution and very strong support for Mr Agany’s contribution.73 110 There was extremely strong support for the proposition that the accused was not a contributor to the profile.74 111 In relation to the swabs 1.01 to 04, the handle of the knife, the profile was found to be too complex for analysis.75 112 With respect to the blue handled knife with a blue sheath, results excluded Mr Vasili and showed extremely strong support for a Mr Wei and Mr Agany to be contributors. The accused was excluded.76 113 Profiles from other knives found at the Venue did not reveal results relevant to the complainants or the accused. 114 In cross-examination, Ms Windram confirmed that there is no definitive test to establish that a ‘blood-like stain’ is blood. She said that a visual analysis was undertaken and there was an appearance of a blood-like stain.77 Ms Windram confirmed that the tests are not confirmatory, and that the likelihood ratio cannot provide any indication as to the cell type of the DNA that was obtained or the date or means by which the DNA was deposited.78 BS Philps 115 BS Philps provided evidence via phone link. He had participated in the accused’s arrest in Melbourne, travelling to Melbourne and returning to Adelaide with the accused on 8 April 2022.79 116 He conducted enquiries in relation to the accused’s bank records. He noted transactions in Epping, a suburb in Melbourne, and entries in relation to Firefly Express, a trans-state bus company.80 As at March 2022, Firefly Express were advertising one-way tickets between Adelaide and Melbourne for $65.00.81 He 71 T124-125. 72 T125. 73 T124-125. 74 T126. 75 T127. 76 T128-129. 77 T134. 78 Ibid. 79 T137. 80 Ibid. 81 T138. -- 21 of 40 -- [2024] SADC 86 20 noted on the records one entry in relation to a purchase at Hungry Jacks of $1.00 and was aware of a Hungry Jacks in Rundle Mall, approximately 750 m from the Venue.82 Chief Inspector Devey 117 Former Chief Inspector Devey confirmed that he was present at the Nairobi Affair Lounge on the night of the alleged offending, having first attended when there was fighting between multiple patrons.83 118 Mr Devey said that he was currently employed by the Country Fire Service as Assistant Chief Officer and his role is that of Executive Director of Operations. He was formerly Chief Inspector of Police. The notes he had made when he attended the Venue on 13 March 2022, could not be located.84 119 He said that he was dealing with a person who was very aggressive, who he recalled being around 170 cm tall, shorter than himself at 189 to 190 cm, of African appearance, with braided or dreadlocked hair which was quite short.85 The man was wearing a dark or black top, black pants, and bright white sneakers.86 120 Mr Devey took hold of the man, who wanted to continue to fight and was resisting restraint.87 The man was swearing and yelling.88 121 At the time of his restraint, Mr Devey did not obtain the man’s details, as he was not being cooperative.89 However, the man did provide him with his name after being restrained and before they reached the bus stop. Mr Devey recalled asking for his name and being told that he wouldn’t be able to spell it. The man provided his name, saying that it was ‘Mathang Molok’,90 which he spelt out as M-A-T-H- A-N-G, M-O-L-O-K.91 122 Mr Devey recalled walking the man away from the Venue, towards a bus shelter and leaving him in the care of another police officer.92 123 He confirmed that the footage in Exhibit P5 depicted the events he recalled.93 82 Ibid. 83 T143. 84 T142. 85 T143-144. 86 T144. 87 Ibid. 88 T145. 89 Ibid. 90 T146. 91 Ibid. 92 T146-147. 93 T148. -- 22 of 40 -- [2024] SADC 86 21 124 Mr Devey confirmed that it was likely to be himself in the video speaking with the man at the front of the Venue. He was the officer who patted down the man at the bus stop, which was the man he had been speaking to throughout.94 125 In cross-examination, Mr Devey confirmed that he searched the man and had not found him in possession of any weapon.95 126 Mr Devey recalled the man being around 170 cm, however confirmed that he may have said 175 to 180 cm at a previous time.96 He did not take any identification from the man, who was uncooperative with him to begin with.97 127 He agreed that the man was initially speaking indistinctly, however, this only continued for the period when he was restrained against the wall. He later relaxed and was able to be reasoned with and became much calmer.98 128 Mr Devey agreed that he spoke to several patrons that night but not ‘huge numbers’. He said his focus was more on his staff who he was coordinating and managing.99 129 Mr Devey denied that he had made a mistake about the name that the man gave him.100 DS Wilkes 130 DS Wilkes is the Investigating Officer and participated in the extradition of the accused from Victoria.101 He confirmed that the still images in Exhibit P22, were extracted from footage freely available on the internet concerning the accused’s extradition and arrest.102 131 In cross-examination, Mr Wilkes said that from speaking with the proprietor of the Venue, the event that took place on 12 and 13 March 2022 was ticketed.103 Prosecution address 132 With respect to count 2, the aggravated affray, the prosecution submitted that leaving aside the question of identity, the individual circled in the CCTV footage and labelled S1 is plainly guilty of the offence. The conduct the subject of count 2 occurred between 1:06am in the cocktail area of the Venue and involved a number of males through to a little after 1:07am. 94 T149. 95 T149-150. 96 T150. 97 Ibid. 98 Ibid. 99 T152. 100 Ibid. 101 T153. 102 Ibid. 103 T154. -- 23 of 40 -- [2024] SADC 86 22 133 The CCTV shows the first punch which was thrown at 1:06:45 on the cocktail bar footage ‘Channel 23’. This, the prosecution argued, is almost certainly the punch that Mr Gourdis described as the coward punch which ignited the melee. The offender S1 can be seen at 1:07:02 emerging from that area through to the beer garden on the far right of the scene and becoming physically involved in the fight in the cocktail bar. 134 At 1:07:12 he is seen striking someone on the lounge while others are engaged in the fighting. He struck repeatedly, apparently targeting some person on the lounge. That occurred over the course of about 13 to 15 seconds. 135 At multiple points in that short period, he can be seen on Camera 23 and less clearly on the opposite angle, Camera 2, with what appears to be a small knife in his right hand. One example is at 1:07:19. Based on viewing of that footage alone, this conduct of S1 easily proves beyond reasonable doubt the elements of the offence, subject to the question of identification. 136 While threatened use of the knife would be enough, in the prosecution submissions, the conduct of S1 was not only threatening but involved the use of violence and the conduct involved the use of an offensive weapon. I was urged to draw the natural inferences from the manner of the repeated striking of the knife in S1’s hand. 137 There can be no suggestion that this was anything other than unlawful conduct. Self-defence and defence of another do not apply in the case of aggravated affray, but in any event, the prosecution argued, on viewing the CCTV, this was in no way defensive conduct even as a reasonable possibility. The offender S1 is not acting in any way fearful. 138 At around 1:07:46 S1 is then seen on the footage moving from the cocktail bar to the beer garden, through to the ATM foyer. He went from Camera 23 to Camera 2 and appears on the screen of Camera 2 at 1:07:53. That footage corresponds with the still annexed to Dr Sorrell’s affidavit, Exhibit P3 at pages six and seven. 139 As to count 4, the motion made out on the ATM foyer CCTV footage is at 1:08:03. S1 can be seen performing the stabbing motion with his right hand as Mr Agany, V1, is lying motionless at the foot of the stairwell at the ATM foyer. 140 As to count 5, at 1:08:07 the same man, S1, performs a second stabbing motion targeting and apparently striking the right side of Mr Vasili’s chest. 141 There can be no reasonable doubt that harm was caused. Mr Agany, as seen in photographs Exhibit P16, sustained a number of lacerations to his torso. He also had lacerations to his forearm. In the prosecutor’s submission, I can conclude that harm was caused by that stabbing motion at that time. -- 24 of 40 -- [2024] SADC 86 23 142 With respect to Mr Vasili’s evidence and the evidence of Dr Moller (Exhibit P17), he received a single laceration to his chest, in a position which is entirely consistent with the stab that can be made out in the CCTV footage to that area of his body, that is, the right side of his chest. 143 The prosecution submitted that the evidence of the knife found in the skirting and the blood at the foot of the stairs, fortifies the conclusions available to be drawn from the CCTV evidence alone. 144 It is apparent that perhaps S1 is intoxicated as he is uneasy on his feet and bounding about and stumbling however, his actions are clearly quite deliberate and targeted. There should be no reasonable doubt therefore about the elements of voluntariness and the specific intent to cause harm when the acts were committed. 145 The prosecution urge me to find that identification has been proved beyond reasonable doubt. S1 is the same man throughout what is captured on the composite CCTV footage Exhibit P5, labelled as S1. Dr Sorrell has isolated and tracked that individual. While it is a matter for me, the prosecutor submits that there is no real challenge to that finding. S1 is the same man shown on the body cam footage being led by former Chief Inspector Devey to the bus stop. 146 As Dr Sorrell explained at paragraph 43 of his affidavit Exhibit P3, identifying features of the shoes, the black hoodie with the boxer insignia on the front, ear studs in both ears and the white shirt untucked at the back that can be seen emerging from beneath the hoodie, can be noted. In the infrared camera footage, Cameras 2 and 25, while the dark grey pants appear dark grey, the hoodie appears light. 147 I am invited to make equivalent findings in relation to V1, Mr Agany and V3. 148 With respect to the submission that S1 is the same man seen on the body cam footage being led by former Chief Inspector Devey to the bus stop, this is not only a finding available beyond reasonable doubt on Mr Devey’s evidence but is plain by viewing the body cam footage in combination with the CCTV footage from Camera 10 outside the hotel. There is little gap between the two and all that is missed is the conversation about the name which Chief Inspector Devey said occurred probably towards the last of the benches that sit underneath the veranda at the Venue. 149 The prosecution urges me to find that S1 and the man led to the bus stop are one and the same person. 150 The prosecution detailed four categories of evidence that lead to a finding that S1 is the accused. That is, the CCTV footage and body-worn footage viewed together, the evidence of Mr Gourdis, who positively identified the accused as the man with whom he dealt, the evidence of former Chief Inspector Devey about the name he was given, and finally the bank records. That involves a comparison of the man shown in that footage with the accused. I can conduct my own comparison -- 25 of 40 -- [2024] SADC 86 24 with how the accused now appears, assisted also by the stills from closer in time to the incident, from the time of his extradition where his hair was shorter than it now appears. 151 The prosecution describes Mr Gourdis as a very impressive witness, who was clear about the man he identified. He said that the person with the knife inside the Venue had a baby face whereas Patron X, although younger, did not have quite the baby face. His evidence was that he tried to get the knife off the man inside but backed away when he realised he had more knives. 152 The prosecution conceded that positive, honest, confident, and impressive witnesses can be mistaken, and that identification evidence is vulnerable to suggestion, and I must take into account distance, lighting, time, distractions and the mental impact of the event and the period between the event and the identification, which I note was some months after. 153 The prosecutor argues that the photograph identification is however not relied upon in isolation. It is supported by various pieces of circumstantial evidence. 154 The man gave his name to Chief Inspector Devey as Mathang Molok. While I am not lead this evidence as an admission, the prosecutor submits that it is to be treated as another piece of circumstantial evidence. I am entitled to reason that it is highly unlikely that someone other than a man going by the name of Mathiang Malok would give his name as that or anything sounding so similar. 155 As to what to make of the fact that the name of the accused was given but when spelt, was spelt other than as the accused’s name is spelt, the prosecutor suggested there are three possibilities. Mr Devey may have heard it incorrectly and the accused correctly spelt his name. 156 Mr Devey may have heard it correctly, but it was deliberately misspelt by the accused. 157 The third possibility is that S1 gave his name correctly and it was just some other person with a name that sounds very similar but is spelt slightly differently. Prosecution suggest that I can readily exclude the idea that there is really a Mathang Molok out there who looks so remarkably similar to this accused to the point that they must be doppelgangers as fanciful. 158 With respect to the bank records, in March 2022 the accused spent the majority of his time in Victoria. There can be little doubt the accused came to Adelaide on the night of the event and must have travelled from Victoria and then returned between 10 March and 16 March. He was in Victoria until 10 March because his bank records evidence transactions in Epping. Also, on 10 March his card is used to make a $65.00 purchase from Firefly Express. This is a trans state bus company and at the time their website was advertising one way tickets between Adelaide and Melbourne for $65.00. It is not known precisely when the accused -- 26 of 40 -- [2024] SADC 86 25 arrived in Adelaide, but it must have been on or prior to 12 March. At some stage on 12 March his bank card was used to make a purchase at On The Run Greenacres at Hillcrest northeast of Adelaide, and on 13 March it was used to make a $1.00 purchase at Hungry Jacks Adelaide. 159 On 13 March the accused’s bank records indicate his card was again used to make another $65.00 purchase from Firefly. The natural inference is that this is the return journey. He was then back in Melbourne by 16 March as there is a purchase at Melbourne Hungry Jacks on that date. 160 Mr Gourdis had not seen the CCTV footage prior to giving his evidence. His description of the events, where they occurred and what occurred lined up perfectly with what is seen in the CCTV footage, providing a firm foundation for a finding that he was a reliable witness. His interaction with the man whom he later identified as the accused concerned him observing a man walking through the crowd of people with a knife in his hand. He grabbed that man’s wrist, the man lifted his shirt and there were a couple of knives which he said, ‘spun me out’. He threw up his hands and walked away. He said the knives were in the area of the man’s belt but could not say exactly how many there were. 161 While this event where the shirt was lifted cannot be made out on the CCTV, there is opportunity for it to have occurred. The interaction was not seen particularly clearly. The two went off the screen for just a moment because of the doorway that leads out into the beer garden and for much of the time, although it is happening for a short period, S1 had his back to the camera, which is Camera 23. Mr Gourdis said he recalled the man lifting up his shirt and seeing that he had more than one knife, but he also described the knife in the man’s hand. That can be seen on the footage. It is plainly a knife. 162 Mr Gourdis’ description of the knife was that it had a wooden handle and that it was not serrated like a steak knife in a restaurant but one that you would see in a knife block. He said it was about 7 to 15 cm long but that all of the knives that this man had looked the same. He only saw it for a couple of seconds but could see a couple of handles and he was in disbelief. He saw a plastic covering but couldn’t say whether the plastic covering over the metal was on more than one knife. He said that Patron X who had the knife in his ankle and the man with a knife in his hand, had wooden handled knives. He said he was pretty sure that the one in the man’s hand inside was wooden but acknowledged that it was two years ago. There were multiple knives as he said, and it was a real, real bad place at the time. It is entirely possible he is mistaken about the handle of the knife having been wooden. While the prosecutor suggested that perhaps at some stage there was a change in the knife and the accused had perhaps taken one of the knives out of his belt and switched it for the one in his hand, it is more likely that it is the same knife throughout and that Mr Gourdis has misdescribed it. -- 27 of 40 -- [2024] SADC 86 26 163 The prosecution submits that it is really a matter of no consequence because the knife can be seen being held in the man’s hand throughout the relevant parts of the incident and the knife that the man is holding ends up stuck in the skirting. 164 Mr Gourdis was concentrating on dealing with this man who had a knife, not so much what the knife looked like or what the man looked like. He said he only saw the knives for a few seconds. As for the man, he said that he got a good view, as the lighting was a bit better than in other areas. The man was not threatening or aggressive towards him. 165 In cross-examination, Mr Gourdis agreed that he had seen many similar men on that night and on prior occasions. It was a shocking and frightening incident, he conceded, and the lighting was suboptimal. He accepted that he only saw the man’s face for approximately five seconds. He was not the best at estimating heights including his own, but it was clear that the man who had the knife was a different man to Patron X outside and while the interaction with the man inside was very short, the image of his face stuck with him. As to Mr Vasili, the prosecutor submitted that he was genuinely and understandably affected by the events of that night. He became nauseous to see the video of himself at the bus stop. He did identify himself from the first frame. From Exhibit P12, Mr Vasili said the first person pictured ‘looks like it could be me’ and the shirtless man looked like his cousin, Mr Agany. 166 On viewing the CCTV footage from the ATM foyer, once Mr Agany came to his feet, he took off his shirt, walked around for a period and then exited. Although Mr Vasili did not make a positive identification of himself or Mr Agany, there does not appear to be any dispute about it in any event. 167 By reference to the stills in Exhibit P13, Mr Vasili said he could recognise himself as being the man behind the other in the photo but could not recognise the man in front of him who was pushing Mr Agany. He recognised himself again as the man standing in the third of the stills once both he and Mr Agany had been stabbed. Mr Vasili confirmed under cross-examination that he did not know who had stabbed him or his cousin. While viewing the CCTV footage that would not be surprising. 168 The prosecutor submitted that the evidence of former Chief Inspector Devey was important. He was an experienced police officer. 169 The man S1 was described as having short dreadlocks, which are confirmed in the stills from the time of the accused’s arrest. He described his conversation with S1. The spelling that the man gave was only different because of the ‘A’ not having an ‘I’ preceding it but, vowels can run into each other, including the vowel ‘O’ as opposed to ‘A’ in Malok. He identified himself in the external footage at 1:12:14, walking off camera heading west at around the point where the conversation must be about to occur at 1:13:28. Although no one could be expected to identify the people under the veranda from the view on the CCTV, Mr Devey -- 28 of 40 -- [2024] SADC 86 27 did recognise his own voice and identified the man with whom he had been dealing as the person who sat down at the bus stop at the far right and was patted down. 170 In cross-examination Mr Devey said there was nothing on the man consistent with any weapons. As to the man not being found with any weapon, the prosecution submits that takes us nowhere because of the evidence of knives having been discarded. 171 As to the relevance of the still images taken from the news footage on 7 April 2023, the accused is seen to have short dreadlocks, slightly different from how he appears now and was wearing a mask on account of COVID, meaning there can be no suggestion of a displacement effect in this case. That was footage that was aired in the media and although it was prior to Mr Gourdis’ photo ID, which was not until 19 June 2022, there has not been any suggestion of a displacement effect on account of the media footage. 172 Finally, the prosecution argued, when I look at all of the evidence in this case, the only rational inference of all the circumstances is that the accused is the man S1 on the CCTV and that he is the man who committed the offences with which he is charged. While defence may be able to point to some minor deficiencies in strands of the evidence viewed in isolation, in the prosecution submission when viewed together, ultimately any reasonable hypothesis consistent with innocence is excluded beyond reasonable doubt. Defence address 173 Defence counsel submitted that while the evidence is consistent with identifying Mr Malok as a perpetrator it does not exclude a reasonable possibility that another unknown man committed the offences. 174 The CCTV and body-worn footage on its own are not capable of identifying the accused. Defence counsel emphasises that I must look at the whole of the case, not individual strands of it. At each of the crucial points in the footage when the man depicted is engaged in the conduct which founds the charges, his identity is far from clear. Tracing back to the man with his hood up, in defence counsels’ submission, at best shows a man whose appearance is similar to Mr Malok’s at the time. Making a comparison between the footage and the accused’s appearance in court, is of less assistance than it would have been to be able to compare the footage at the time with Mr Malok’s appearance at the time. For that there was scant, independent evidence. The footage from the airport where Mr Malok’s face is concealed does not assist to make the most helpful comparison. Perhaps the only striking thing that can be said about the man in the CCTV is the hairstyle, which was common that night. For the rest of that man’s appearance, the best that can be said according to defence counsel is that the man has a similar appearance to Mr Malok. 175 While the body-worn footage is clearer and provides a greater opportunity to observe the man, there is nothing that rises above the terms of perhaps close -- 29 of 40 -- [2024] SADC 86 28 similarity. One would struggle in defence counsel’s submission, to articulate what it is about the face of the man depicted that means that it can only be Mr Malok as opposed to someone that looks like him. In articulating what it is that is similar, one is reduced to fairly broad categories of facial expressions. 176 It is not for Mr Malok to demonstrate that there is someone else in the community who looks like him and ordinary human experience would say that it is not uncommon to find two people who are unrelated that look alike or even two people who are related that look alike. There is no evidence on the prosecution case, for example as to the makeup of Mr Malok’s family. Whether there are others in the family who also live in Adelaide would be merely speculating and to the extent to which the evidence does not assist with that it leaves open the possibility that there is another man in Adelaide who looks like Mr Malok. 177 While the prosecution has described Mr Gourdis as an impressive witness, defence counsel says they would not go as far. Even if he were impressive, that does not move the dial when his evidence is of a notoriously unreliable kind. 178 The circumstances in which Mr Gourdis made the identification are less than ideal for a reliable identification and there are aspects of his account where he is merely wrong, mistaken, and unreliable. If I were to find him unreliable or mistaken on various aspects of the evidence that he gave about that night, it can only undermine the identification of the man he saw. 179 Although the prosecution submit that there is no possibility of displacement from news images, there does appear to be a reasonable possibility that Mr Gourdis has conflated or substituted the face of another man he encountered, whether that night or previously, with the man he ultimately identified in the identification procedure. It is plain he had very little time in which to observe the man. He placed it as a period of about five seconds. While it might be more than five seconds, it is a very limited window within which to observe the man. Furthermore, perhaps the video footage does not entirely convey what appeared to the naked eye to be someone in the room. The area in which Mr Gourdis and this man were standing was a shaded part of the cocktail bar and it has to have been less than ideal lighting for an identification. 180 The witness Howard Chao said the room was fairly dark in the area of the couches. That might well be a more accurate description of how the room appeared to those who were there. While not of great weight, it is relevant that Mr Gourdis was interacting with and identifying a man from a different racial background. 181 Mr Gourdis conceded that the events of that night came entirely as a shock to him and were frightening. He had to worry about his own safety and about the knives that the man had in his hand. He had the visual distraction of the events that were taking place in the background, of which he had to be aware. All of that in defence counsel’s submission, compromises the identification that he made. -- 30 of 40 -- [2024] SADC 86 29 182 There is no doubt that Mr Gourdis had been working at this lounge, which had been frequented by many members of the African community for months leading up to this night. He had interacted with African men with a similar physical build who were holding knives at the time he saw them. He interacted with Patron X who had a knife, and it is easy in defence counsel’s submission, given the issues that are the focus of the trial, to say that Mr Gourdis must have been focused on the face of the man whose wrist he held inside the premises. That, in defence counsel’s submission is not how it would have appeared to Mr Gourdis at the time. There would have been no reason for him to place any greater emphasis on that interaction compared to the one with Patron X. There is no reason to think that he placed any greater reliance or lesser focus on the face and the features of the Patron X versus the one who was inside. 183 In the affidavits that Mr Gourdis made immediately before he was called on to identify anyone, he said that he was more confident that he would identify the man outside and less confident that he would identify the man from inside. While he clearly said that the man identified was from inside, it is a relevant factor that before he did that, his confidence was towards identifying the man outside. That undermines his description of the baby-faced man who was eerily calm in the midst of this melee. His evidence that he had been less confident about the man inside also undermines the confidence with which he presented in his evidence in this trial. 184 There is some scope for confusion about the man inside and outside. Mr Gourdis was confused in the witness box about their relative heights. He gave evidence that Patron X was taller and the man inside was shorter, when in fact two years ago he described both men as being the same age or thereabouts, same build and same height down to the last centimetre. 185 Chief Inspector Devey gave evidence that the man with whom he interacted was about 170 cm but admitted that he had previously described him as 175 to 180 cm. There is some scope for Mr Gourdis at the very least to be talking about a different man when he talks about the shorter man inside versus the taller man outside. There is more opportunity for displacement or conflation or something else that undermines the identification given. Mr Gourdis observed other African people after the interaction with the man whose wrist he held, who also had knives. 186 Mr Gourdis said that he was quite shocked that he was going to be asked to identify someone. This is relevant as is the fact that he was asked to do it three months after he had engaged with this man for a matter of seconds. 187 As to the description of the baby-faced man, at first that might seem compelling when looking at the booklet. The difficulty with this, is that if indeed Mr Gourdis had seen a baby-faced man that night, then the array that was presented to him left him with really only one opportunity to choose one male. There was only one man in that array that could be described as having a baby face and it had to be the accused. -- 31 of 40 -- [2024] SADC 86 30 188 An alternative explanation suggested by defence counsel was that in having identified that man, Mr Gourdis quite understandably now sees that face from the photograph when he thinks about and reflects back on the incident. So when he says the man had a baby face he is describing the photograph rather than the impression that he was left with in 2022. 189 There were other aspects of Mr Gourdis’ evidence that demonstrate his unreliability. He was clear that the knife he observed had a wooden handle. One could readily excuse that in the circumstances in which he made that observation except those circumstances are the very same in which he identifies the man’s face. He got the serration of the knife wrong. Nobody would criticise him for that were it not for the fact that he has a memory that the knife he saw was not serrated and the opportunity he had to observe it was the same as the opportunity he had to observe the man’s face. 190 Defence counsel agree with the prosecutor’s submission that it’s difficult to tell from the CCTV footage whether in fact the man lifted his shirt and showed knives under his belt. Leaving that to one side, Mr Devey gave evidence that he searched the man with whom he spoke and he had no knives. There is no evidence for the disposal of more than one knife which too, undermines the evidence of Mr Gourdis. 191 The last matter about which he was wrong was taking the knife versus taking the man’s wrist but leaving the knife there. While not of the same significance as the observational problems, it would still cause me to approach Mr Gourdis’ identification with the caution that it deserves. 192 There are agreed facts that the proprietor of the Venue was presented with an ID pack from which he identified someone other than the accused. 193 With respect to the evidence of Mr Devey, defence counsel submitted that most likely, someone falsely used Mr Malok’s name in interacting with a police officer. That man knew he had just stabbed someone and knew he had been criminally involved in a violent disorder that night. In speaking with a police officer he was belligerent, uncooperative and despite that, gave his appropriate name to the police officer to whom he was speaking. 194 The alternative in defence counsel’s submission, is that knowing that he is guilty of some wrongdoing, knowing that he was speaking to a police officer, the man falsely used the name of someone from the African community. There is added support for that in the fact that the man’s name is misspelled. The obvious explanation for that is that someone else knew of Mr Malok’s name, but not the precise spelling and spelt it phonetically rather than as it is truly spelt. Mr Devey did not take any identification from the man. 195 Even taking all of those matters on their face, in combination with the rest of the evidence, there remains a doubt that there is another man in the African -- 32 of 40 -- [2024] SADC 86 31 community who looks similar to the accused and knows his name. That would not be unusual in a fairly small, expatriate community. 196 Defence counsel submits that the rest of the evidence does not assist in resolving the doubt that exists on the prosecution case. There is no support for the hypothesis that the accused was in contact with the knife. At best it is neutral. While it does not exclude a possibility that the accused touched it as the swab is too complex for analysis, there is no support that there is his DNA. Police never seized clothes consistent with the clothing that the stabber wore from Mr Malok or indeed from anyone. There is no evidence of fingerprints on any object or any building that would be relevant in this matter. 197 Plainly from the footage, the man holding the knife was not wearing gloves and was capable not only of leaving behind DNA but also fingerprints. 198 There is the absence of evidence that places the accused at or near the Nairobi Lounge. The bank statements do not say when the accused arrived in Adelaide although it appears that he did. 199 With respect to the transaction at Hungry Jacks on proper analysis it takes the accused well out of the city for about 12 hours around the time that is crucial. 200 Beyond that there is very little in the way of transactions that would assist. There is no phone tower evidence or purchase of taxis or Ubers as a means of transport that might account for the accused’s presence in the East of the city. There is no evidence as to where he was staying or whether he had travelled or not. There are no withdrawals from ATM’s or purchases at the Venue or in businesses in the east of the city in the early hours of 13 March 2022. The evidence is absent on what would be crucial to support the inference that the accused was the stabber or place him anywhere near the Venue that night. The only person who perhaps could have identified the stabber, Mr Vasili, was unable to do so. 201 The hypothesis that exists that there is someone who looks like the accused, who is known to members of the African community and who is responsible for those offences has not been excluded. There is an absence of any relevant evidence that would assist. Analysis 202 There has been no dispute as to the opinions expressed by Dr Sorrell as to the person he has identified as S1 on the CCTV footage, being the person guilty of the offences alleged against the accused or his opinions that the persons he has marked V1 and V2 on the footage are the complainants. I accept his opinions. 203 The issue in dispute is of course whether the person Dr Sorrell has identified as S1 is the accused. -- 33 of 40 -- [2024] SADC 86 32 204 Dr Sorrell has isolated and tracked S1 throughout the footage and taken at the Venue. In his affidavit Exhibit P3, Dr Sorrell identifies S1’s features to include features of his shoes, the clothing he wears, namely the black hoodie with the boxer insignia on the front, ear studs in both ears and a white shirt untucked at the back. In the infrared camera footage from cameras two and 25, the dark grey appears dark grey, and the hoodie appears to be light. 205 In relation to count 2, the offence of aggravated affray, the CCTV shows S1 involved in a fight in the cocktail bar area. The footage shows him striking another person repeatedly and he is in the company of others. S1 is in possession of what appears to be a small knife. The object is held in his right hand. It can be inferred from the way S1 was repeatedly striking another person and the use of the knife in a stabbing motion, that his actions were intentional. There is no suggestion that S1 was acting in self-defence or in defence of another and I accept that anyone in the vicinity, would, from S1’s conduct, be fearful for their safety. The circumstance of aggravation is made out by the use of the knife. 206 With respect to count 4, the CCTV footage shows S1 stabbing with his right hand as V1 is lying motionless on the floor in the ATM foyer. While there is no evidence from Mr Agany, it is plain that harm was caused to him, having regard to Exhibit P16, which shows lacerations to his torso and forearm. 207 With respect to count 5, the CCTV footage shows S1 using a stabbing motion to the right side of Mr Vasili’s chest. Harm was caused to Mr Vasili. His injury as described by Dr Moller in Exhibit P17 to the right side of his chest, is consistent with S1’s stabbing motion. 208 Neither assault can be said to be accidental or voluntary. The actions of S1 are clearly deliberate and focused. S1’s actions were plainly intended to cause harm and the offences are aggravated by the use of the knife. 209 I am satisfied beyond reasonable doubt that the man labelled S1 on the CCTV footage is the same man identified by Dr Sorrell throughout is guilty of each of the offences charged against the accused. 210 I am further satisfied beyond reasonable doubt that the man labelled S1 is guilty of each of the offences charged against the accused. Is the person identified as S1 the same person seen on Mr Devey’s body-worn footage? 211 The CCTV footage in Exhibit P4, taken from the entrance of the Venue shows Mr Devey engaging with S1 up against the front wall of the Venue. 212 While the body-worn footage in Exhibit P4 does not identify any person as S1, it is clear to me from the features and clothing of the person with whom Mr Devey was interacting at the entrance, and moving with that individual in a westerly direction along Pirie Street and then at the bus stop, is S1. -- 34 of 40 -- [2024] SADC 86 33 Is S1 the accused? 213 The prosecution has relied on four categories of evidence in support of the allegation that S1 is the accused. The first relates to the CCTV footage and the body-worn footage, the second relates to the identification by Mr Gourdis, the third relates to the bank records and finally the evidence of Mr Devey. 214 The evidence is circumstantial in nature. I remind myself that I must consider each item of circumstantial evidence the prosecution relies upon and decide which factors I accept are established by that evidence. I must then assess the totality of that evidence, bearing in mind that evidence which considered alone may only have slight probative value, can achieve greater significance when seen in combination with other circumstantial evidence. 215 A conclusion of guilt beyond reasonable doubt where the prosecution case rests substantially on circumstantial evidence may only be reached if guilt is the only rational inference to be drawn from the evidence. If a rational inference consistent with innocence is open on the evidence, then the prosecution has failed to prove its case beyond reasonable doubt and the appropriate verdict is not guilty. Mere speculation does not constitute a reasonable inference. 216 As discussed in R v Quist,104 it is critical not to fall into a trap of simply considering each piece of circumstantial evidence in isolation as Kelly J noted in Dent v R:105 [i]t has been emphasised often enough that this is an inappropriate way to evaluate the strength of a prosecution case based on circumstantial evidence. 217 The High Court has reiterated this caution on a number of occasions. It is sufficient to note its recent affidavit in R v Baden-Clay:106 For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. (Emphasis in original, citations omitted) 218 The CCTV footage in this matter is of very good quality in that facial features and certain features of clothing worn by those shown in the footage can easily be made out. In this trial I have been able to make a comparison between the individual marked S1 in the footage and the accused sitting in the dock in court. 104 [2021] SASCA 106 at [111-112]. 105 Dent v The Queen [2021] SASCFC 4 at [101]. 106 (2016) 258 CLR 308 at [47]. See further, R v Hillier (2007) 228 CLR 618 at [48]; Dansie v The Queen [2020] SASCFC 103 at [443] (Livesey J, Parker J agreeing). -- 35 of 40 -- [2024] SADC 86 34 While such comparison evidence may not carry the same dangers as identification evidence given there is no reliance on the fallible evidence of a witness, it is appropriate to exercise caution. 219 In my view, the facial features of the accused are distinctive. He appeared in court as a strikingly ‘baby-faced’ young man, clearly of African heritage with short dreadlocked hair that fell in a particular way on his forehead. I have had no difficulty in accepting that the person identified as S1 by Dr Sorrell is the accused. My assessment of the accused as S1 has been assisted by other pieces of circumstantial evidence. In particular, the evidence of Mr Gourdis, Mr Devey and, to a lesser extent the bank records. 220 The admissibility of identification evidence and the directions that must be given to a jury concerning the evidence is governed by a combination of the common law and s 34AB of the Evidence Act 1929 (SA), which provides: 34AB—Identification evidence (1) In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line-up of persons. (2) In a criminal trial, evidence of the identity of a person alleged to have committed an offence obtained by means of an identity parade is to be excluded unless— (a) — (i) an audio visual record of the identity parade is made and kept in accordance with the regulations; and (ii) if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or (b) the judge is satisfied that the interests of justice require the admission of the evidence despite the failure to comply with paragraph (a). (3) In a criminal trial where the identity of a person alleged to have committed an offence is in issue, the judge must, if evidence of the identity of the person is admitted, inform the jury— (a) of the need for caution before accepting identification evidence; and (b) of the reasons for the need for caution, both generally and in the circumstances of the case. (4) In giving any such information, the judge is not required to use any form of words but may not suggest that identification evidence obtained from an identity parade by any means other than by a physical line-up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means. -- 36 of 40 -- [2024] SADC 86 35 (5) To avoid doubt, this section does not— (a) make evidence admissible that would otherwise be inadmissible; or (b) affect the court's discretion to exclude evidence. (6) In this section— identity parade means a contemporaneous presentation (whether by a physical line-up or by means of images) of a number of persons to a witness for the purpose of identifying a person. 221 A jury sitting in a matter where identification of an accused is in issue must, pursuant to s 34AB(3), be informed both of the need for caution before accepting identification evidence and the reasons for such caution.107 222 I remind myself that I must approach identification evidence with caution given that the experience of the courts is that evidence of a witness identifying another person can be unreliable. Honest witnesses can be mistaken. The experience of the courts is that a witness being confident about his or her identification is a poor guide as to whether the witness is accurate. 223 I must assess the circumstances in which Mr Gourdis saw the offender; assess issues relating to Mr Gourdis’ memory such as the time interval between the event and the identification and any events which might have contaminated his memory during that time, such as the displacement effect; the circumstances of the identification and any factors that may have effect on the reliability of the identification at that stage such as the size of the identification parade, whether other parade members looked like the accused and a comparison between parade members and the witness description. Furthermore, whether there was any subconscious pressure to select someone and whether the witness expressed any reservations. 224 I must take all these matters into account when deciding whether to accept Mr Gourdis’ evidence and the weight that I give that evidence. If, after carefully examining his evidence and considering the warnings about the dangers of identification evidence, I consider Mr Gourdis’ evidence as reliable, then I may act upon his evidence. 225 Mr Gourdis had not seen the CCTV footage prior to giving his evidence and his description of the events aligned with what is seen in the footage. This as the prosecutor submits, provided a firm foundation for a finding that he is a reliable witness. 226 Mr Gourdis described the knife as having a wooden handle which was not serrated like a steak knife. He described it as between 7 and 15 cm long and said that all of the knives that this man had on him looked the same. He said he only 107 Evidence Act 1929 (SA), s 34AB(3). -- 37 of 40 -- [2024] SADC 86 36 saw it for a couple of seconds but could see a couple of handles and he was in disbelief. 227 I accept that it is entirely possible that it is mistaken about the handle of the knife having been wooden and in any event is of little consequence as the knife can be seen held in S1’s hand throughout the relevant parts of the incident. The knife S1 is holding ends up stuck in the skirting. Mr Gourdis was no doubt concentrating on dealing with the man who had a knife, rather than what the knife looked like. He said that he got a good view of the man and that the lighting was a bit better than in other areas. The man was not threatening or aggressive towards him. 228 In cross-examination Mr Gourdis agreed that he had seen many similar men on that night and many similar men on prior occasions. He described it as a shocking and frightening incident and conceded that the lighting was sub-optimal. He saw the man’s face for only a few seconds. He described the man’s face as a baby face. 229 While Mr Vasili and Mr Agany have made no positive identification, there does not appear to by any dispute about them having been stabbed by S1. Mr Vasili confirmed under cross-examination that he did not know who had stabbed him and did not know who had stabbed his cousin. Given the CCTV footage, that would not be surprising. 230 Mr Gourdis impressed me as a careful witness. He gave a logical account of the reasons why he had identified the accused as the individual with whom he had contact inside the Venue as opposed to the interaction he had with Patron X. The identification procedure was videoed, and no prompt or suggestion was made to him. Mr Gourdis nominated the accused as the person with whom he had interacted inside the Venue who was holding a knife and showed him other knifes in his belt, without any hesitation. 231 I have considered the circumstances surrounding the opportunity Mr Gourdis had to have regard to the man with whom he dealt with inside the Venue. I accept that he had a limited opportunity to assess him, the lighting was not optimal, and Mr Gourdis was no doubt in a highly charged and stressful environment at the time of his assessment. I also have regard to the defence criticism of the package of photographs put together for Mr Gourdis’ consideration. As I have said, the physical characteristics of the accused are very distinct. Although initially confident that he would be able to identify Patron X more readily than the man inside the Venue and there had been a delay of some months between the event and the identification procedure, in my view, his selection of the accused’s photograph and the certainty with which he chose the accused’s photograph, can be accounted for by reason of the striking features of the accused’s physical appearance. -- 38 of 40 -- [2024] SADC 86 37 232 While I accept that the television footage on 7 April 2023 where the accused is wearing a mask on account of COVID means that the risk of displacement is somewhat lessened, from the still photographs of that footage in Exhibit P22, the distinctive hairstyle of the accused and the way it falls is still apparent. The shape of his face is less apparent, and his facial features below his eyes are not visible. The still photographs make any assessment of the accused’s eyes difficult, although I imagine that moving video footage might well have been clearer. While the footage was aired prior to Mr Gourdis’ photo identification on 19 June 2022, the photographs that make up the identification booklet show men with a relatively similar hairstyle to the accused. There was in my view, a fair selection of appearances for Mr Gourdis’ to select from. In assessing Mr Gourdis’ evidence, however, I would not be prepared to accept his identification of S1 in isolation, I accept his identification of the accused as part of the circumstantial case. 233 I accept that it is highly unlikely that someone other than a man going by the name of Mathiang Malok would give his name as that or anything that sounded so similar. I find that it most likely that Mr Devey misheard the accused spelling his name or the accused had mispronounced it. I accept that the body cam footage from the bus stop shows his speech appears to be affected, as if by alcohol and he appears to have a strong accent where vowels blend into one another. While the prosecutor suggests that it is entirely plausible that the accused chose to misspell his name slightly as perhaps to avoid police attention, I find that less likely. 234 Mr Devey was very clear that he had not mistaken one of the names he had been supplied at a later point for the man with whom he dealt with. He said he heard that name and heard what he believes to be the spelling. Mr Devey was an impressive witness who gave his evidence without the use of whatever notes he had made at the relevant time. 235 I reject any suggestion that S1 gave his name correctly and it was just some other person with a name that sounded very similar that’s spelt slightly differently. As the prosecutor submitted, the idea that there is really a Mathang Molok out there who looks so remarkably like the accused, to the point that they must be doppelgangers is fanciful. 236 The evidence with respect to the bank records is in my view relevant to the extent that it is of use as to whether the accused was in South Australia and Adelaide at the time of the offending. The bank records clearly show the accused made a purchase from Firefly Express on 10 and 13 March in the sum of $65.00 each and were at a time when that company were advertising one-way tickets between Adelaide and Melbourne for that price. On 12 March the accused’s bank card was used to make a purchase at Hillcrest in Adelaide. 237 Mr Devey was an experienced police officer and an impressive witness. The importance of his evidence lies in the interaction he had with the man S1. Mr Devey recognised his own voice and identified the man with whom he had been dealing as the person who had sat down at the bus stop at the far right and patted -- 39 of 40 -- [2024] SADC 86 38 down. It is of little significance that the accused when patted down was not found to have any weapons given the evidence of knives having been discarded. The person with whom Mr Devey is interacting outside the front of the Venue and at the bus stop is the accused. 238 In my view, the prosecution case was overwhelming. Although the DNA evidence is neutral as to the accused’s involvement, having carefully considered the totality of the evidence and the addresses from both counsel, I am satisfied beyond reasonable doubt that: • The person identified as S1 is the same person throughout the CCTV footage and the same person shown on the body-worn footage. • The persons identified by Dr Sorrell as V1 and V2 are Ngeth Agany and Yeni Vasili respectively. • That S1 is guilty of the charged offences. • That the accused is S1. • I am satisfied that the circumstantial evidence excludes all reasonable hypotheses consistent with the accused’s innocence. 239 I find the accused guilty of counts 2, 4 and 5. -- 40 of 40 --