[2024] SADC 156

Prosecution: R Counsel: MR R KANE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) First Accused: DAMIEN RICHARD EDWARDS Counsel: MS J ABBEY KC - Solicitor: DANNI STEPHENS LEGAL Second Accused: JULIE ANN PICCININ Counsel: MR A CULSHAW - Solicitor: OLIVIA FANTIS LEGAL Hearing Date/s: 02/09/2024, 03/09/2024, 04/09/2024, 05/09/2024, 06/09/2024, 09/09/2024, 10/09/2024 File No/s: DCCRM-20-1543 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 EDWARDS & PICCININ Criminal Trial by Judge Alone [2024] SADC 156 Reasons for the Verdicts of her Honour Judge Telfer 29 November 2024 CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – AGGRAVATED CAUSING HARM WITH INTENT TO CAUSE HARM – JOINT ENTERPRISE Each accused was charged jointly with the offence of Aggravated Causing Harm with Intent to Cause Harm. The alleged victim of the offence was Arif Haidari, a neighbour of Ms Piccinin. On 26 December 2018 an incident occurred which resulted in Mr Edwards and Mr Haidari being injured. Mr Haidari sustained stab wounds to his face chest and back. Mr Edwards sustained lacerations to his ear and neck. Mr Edwards gave evidence that the stab wounds to Mr Haidari were caused accidentally in the course of a struggle for possession of a knife that Mr Haidari produced during the incident. Mr Haidari gave evidence that he was the victim of an attack and he defended himself by striking Mr Edwards with a broken bottle. Ms Piccinin was alleged to be criminally liable for the actions of Mr Edwards through the principles of joint enterprise. HELD: The accused Mr Edwards is guilty of the offence of Aggravated Causing Harm with Intent to Cause Harm. The accused Ms Piccinin is not guilty of the offence of Aggravated Causing Harm with Intent to Cause Harm. Criminal Law Consolidation Act 1935 (SA) ss 15, 15C, 24(1), 25, referred to. R v Winner (1995) 79 A Crim R 530-531; R v Keyte (2000) 78 SASR 68; R v Bayden-Clay (2016) 258 CLR, considered. -- 1 of 28 -- -- 2 of 28 -- R v EDWARDS & PICCININ [2024] SADC 156 1 Damien Richard Edwards and Julie Ann Piccinin are jointly charged with the offence of Aggravated Causing Harm with Intent to Cause Harm, contrary to section 24(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that they committed that offence on 26 December 2018 and that the victim was Arif Haidari.1 It was alleged that both accused participated in an attack on Arif which involved the use of a knife, resulting in him sustaining a deep laceration to his face, and lacerations to his chest and back. He was left with scarring to his face and lip. On the prosecution case, the attack was the culmination of escalating tensions resulting from a neighbourhood dispute. 2 Both accused previously faced trial by jury. The matter was returned to this court for trial following a successful appeal.2 Both accused elected for trial by Judge alone. 3 At the relevant time, Ms Piccinin lived at number 24 Strathaird Boulevard Smithfield. Mr Edwards, her partner, lived elsewhere but spent time regularly at her address. Arif lived with his parents and siblings next-door at number 22. There was a brief history of animosity between Ms Piccinin and Arif’s parents relating to concerns she had about theft of water from her tap and use of her council rubbish bins. Arif was not a party to this brief history of animosity. 4 On Boxing Day 2018, Mr Edwards and Ms Piccinin were at their home. Mr Edwards decided to throw a number of glass bottles over the fence dividing number 22 and number 24. At least one of the bottles broke a large floor to ceiling glass window at the side of the Haidari’s house, causing broken glass to fly into the laundry and hall of their home. 5 When Arif became aware of what had happened, he retaliated by throwing some bottles back over the same fence into number 24. It is what followed this action that is the subject of dispute in this trial. Arif gave evidence of an attack on him that began with the attendance of both accused at his home. Mr Edwards gave evidence that it was Arif who came to his home in possession of a knife, and any injuries sustained were accidentally inflicted in the course of a struggle between he and Arif. Ms Piccinin’s counsel submitted, in summary, that there was no evidence on which I could safely conclude she was part of a joint enterprise to cause the harm alleged. 6 There are a number of issues which arise for determination in this trial which I propose to deal with under the following main topics: 1 I will refer to Arif Haidari as Arif in the course of these reasons to distinguish him from other members of the Haidari family who also gave evidence in the matter. 2 This observation is relevant only to inform my discussion of inconsistencies which arose in evidence given at this trial compared with the last. -- 3 of 28 -- [2024] SADC 156 2 1. The preliminary events. 2. Arif Haidari’s response to those events. 3. Arif Haidari’s evidence about the attack. 4. Medical evidence of Arif Haidari’s injuries. 5. Police attendance and the examination of the crime scene. 6. Mr Edwards’ version of events and evidence at trial. 7. The Audio Recording of the Incident. Preliminary Directions 7 In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:3 It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. ... The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. (References omitted) 8 With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter. Presumption of Innocence and Right to Silence 9 Both accused have the presumption of innocence in their favour. The elements of the offence must be proved beyond a reasonable doubt and neither accused need prove anything. The elements on any charge cannot be proved unless the relevant evidence proves the elements to the requisite standard. 10 Ms Piccinin did not give evidence in this matter. I draw no inference against her for that. 3 R v Winner (1995) 79 A Crim R 528 at 530-531, cited in R v Keyte (2000) 78 SASR 68 at [54]. -- 4 of 28 -- [2024] SADC 156 3 Elements of the Offence 11 The offence of aggravated causing harm with intent to cause harm has six elements and one circumstance of aggravation. 12 The elements are: 1. The accused performed an act. 2. The act was voluntary and deliberate. 3. A person suffered harm. 4. The accused’s voluntary act caused that harm. 5. The accused intended to cause harm. 6. The accused’s act was unlawful. 13 Here, two circumstances of aggravation were alleged. The first that an offensive weapon, namely a knife, was used to commit or when committing the offence; and/or that Mr Edwards and Ms Piccinin committed the offence while in company with one another. 14 The only element about which there appeared to be no dispute was that harm was caused to Arif. The Preliminary Events 15 The Haidari family who lived at number 22 Strathaird Boulevard consisted of Arif’s parents Asadullah Haidari and Latifa Haidari; his older brother Rauof Haidari and his brother’s wife Marzia Haidari, and their infant child; and his younger brother, Navid Haidari. 16 The family came to Australia from Afghanistan in 2007 when Arif was 14 years of age. Arif completed his schooling and a university degree in Adelaide and was more proficient in English than his parents. He described himself as “the responsible one” among his brothers and he often assisted his parents with day-to- day activities that they found difficult because of their limited English. Arif knew Ms Piccinin from number 24 as the lady who had lived next-door for no more than a few months. He did not know her name and had only communicated with her by saying ‘hi’ on one or two occasions. 17 Prior to Ms Piccinin moving into the house at number 24, two single men lived in the house. Those men were also from Afghanistan and the Haidari family were good friends with them. They often visited one another’s homes and shared their spaces and amenities such as their council rubbish bin.4 Asadullah Haidari 4 TS 205, Asadullah Haidari. -- 5 of 28 -- [2024] SADC 156 4 agreed that after their friends left and Ms Piccinin moved in, things were not as friendly as they had been before.5 18 Arif’s sister-in-law, Marzia Haidari, gave evidence of an occasion when Ms Piccinin came to the front door of their home. She said this was shortly before Boxing Day 2018.6 Marzia Haidari spoke limited English and only understood what Ms Piccinin said to her at a general level. She understood Ms Piccinin was accusing her father-in-law, Asadulla Haidari, of stealing her water and putting rubbish into her rubbish bin.7 Marzia Haidari told her father-in-law about the visit from Ms Piccinin.8 Arif said he became aware that Ms Piccinin had approached Marzia Hairdari, but he could not recall whether he became aware of this before or after the Boxing Day incident. 19 Arif was aware of some discord between Ms Piccinin and members of his family. His infant nephew had been prevented from riding his bike on the driveway in front of her home by Ms Piccinin’s placement of her rubbish bin. This disrupted a pattern established when the previous tenants had lived at number 24. Arif agreed overall that Ms Piccinin moving in, and her attitude towards the Haidari family had been disappointing for his parents, and he would have preferred a warm relationship with his neighbours as had previously existed. He agreed that prior to Boxing Day he was aware that the relationship between some members of his household and Ms Piccinin was unhappy.9 20 The accused, Mr Edwards, gave evidence about the events which led to bottles being thrown into number 22. He said that by Boxing Day 2018 he was aware that Ms Piccinin considered she was experiencing issues with the Haidari family. As he understood it, Ms Piccinin claimed there were issues with water being used from her tap and rubbish being put in her bin. He had witnessed Ms Piccinin asking Marzia Haidari not to permit the children to ride on her property.10 On Christmas Day 2018, he said Ms Piccinin told him that she had confronted Marzia Haidari about the use of water and the use of the bin, and Marzia had responded with the words “prove it”.11 Mr Edwards throws bottles and breaks a window at number 22. 21 The following day, Mr Edwards was watching the Boxing Day cricket game on television. He ate some Christmas leftovers and drank some beer, starting about 9.30 am.12 At about 2 pm he was in the rear yard with Ms Piccinin smoking a cigarette. He gave the following account of his actions: 5 TS 206, Asadullah Haidari. 6 TS 211-212, Marzia Haidari. 7 TS 211, Marzia Haidari. 8 TS 21,2 Marzia Haidari. 9 TS 52-53, Arif Haidari. 10 TS 282, Mr Edwards. 11 TS 283, Mr Edwards. 12 TS 285-287, Mr Edwards. -- 6 of 28 -- [2024] SADC 156 5 I threw some bottles over the neighbours fence…Julie was frustrated with the ongoing issues. It wasn’t really affecting me directly, but I was not happy that she was frustrated. So I guess it was a bit of a vent, sort of a stupid prank sort of thing to do, but not – I didn’t really put much thought into it to be honest.13 22 Mr Edwards said he threw more than one bottle. He heard the sound of glass breaking and was pretty sure a bottle hit a window. He denied that his intention in throwing the bottles had been to scare or intimidate anyone. In support of this proposition, he said he did not think anyone was at home next door as he did not see any cars in the driveway.14 23 The truth of the matter was that across the fence in number 22, a large laundry window had been smashed and glass had spread into the laundry and hallway of the home. Broken bottles were scattered in the side laneway. Asadullah Haidari, Arif’s Father, was sitting in the house with his wife when he heard a loud noise. He was very frightened and when he went to see what had happened, he saw glass and broken bottles.15 As a result he telephoned his son Arif. 24 Arif was at a soccer game with his cousin Omidallah Haidari when he received a telephone call from his Father telling him what had happened. He immediately left the soccer game with his cousin and was home within 20 minutes. He found both his parents quite shaken. He said he felt angry and he thought what had happened was very unfair.16 He believed that the bottles had been thrown from number 24, as there was no other explanation for the damage and its location. 25 As a result of what he saw and what he was told, Arif called the police. Police Officers Richards and Sribar attended at approximately 3.40 pm. They spoke with Arif who showed them the broken bottles and the broken laundry window. Constable Richards saw that a broken bottle had come inside the laundry area. He did not however examine the scene outside the house.17 Constable Richards went next door to number 24 to speak to the occupants. When he knocked and called out there was no response. He returned to number 22 and told Arif that because there were no eyewitnesses to the event, there was nothing more that the police could do. 26 In hindsight, it is regrettable that police did not show more interest in assisting the Haidari family in circumstances where there was strong circumstantial evidence from the scene that the damage had been done by the occupants of number 24, even if there had not been any eyewitnesses. The fact that a dispute between neighbours had bubbled over into such an attack on the Haidari home should have attracted a greater response on the part of the attending police. 13 TS 289, Mr Edwards. 14 TS 290, Mr Edwards. 15 TS 206-207, Asadullah Haidari. 16 TS 57, Arif Haidari. 17 TS 173, Constable Richards. -- 7 of 28 -- [2024] SADC 156 6 Did Mr Edwards and Ms Piccinin avoid the police? 27 Constable Richards was cross examined about how he notified the occupants of number 24 of his presence when he went to speak to them.18 He said he knocked and his usual practice would be to call out, although he had no specific recollection of doing so. In his evidence Mr Edwards denied that he was aware of police attendance at his home. He denied that he had the television turned up particularly loud.19 Although he did not hear the police attend, Mr Edwards said he did hear someone arrive home to number 22 at approximately 2.30 pm. He said he heard the noise of people arriving home. 28 Whether Mr Edwards heard the police and avoided them is not a fact that bears on proof elements of the offence charged. His avoidance of the police, if proved, is explicable because he had caused property damage at number 22. That fact cannot bear on his actions thereafter. 29 However, Mr Edward’s denial that he heard the police, if I reject it, is a lie that is relevant to credit only. If I conclude that Mr Edwards was dishonest in his claim that he did not become aware that police attended his home, that conclusion is relevant to credit. 30 I accept that Constable Richards knocked at the front door. I cannot be satisfied that he also called out. Number 24 is not a large house. I have had regard to the aerial image exhibit P4 and the exhibit photos P3 in this regard. From Mr Edwards’ position watching the cricket at the back of the house he was able to hear people returning home to the house at number 22. In my view, Mr Edwards had good reason to be alert to the possibility of police attendance. I would expect him to be highly attuned to the possibility that police would be called and would attend. In those circumstances, in the context of the proximity and layout of number 22, and the fact that there were two adults at home at the time police attended, I regard it as implausible that no-one noticed their arrival or heard them knocking. 31 I do not use that conclusion as positive evidence relevant to guilt, but it is relevant to my assessment of Mr Edwards’ credibility and the assessment of what weight I am prepared to give his evidence. Arif Haidari Responds 32 Once the police had left, Arif explained to his parents that police were not going to take any action. In cross examination he accepted that he felt angry and frustrated by what had happened and the lack of police action.20 Arif said everyone who was present including his cousin Omidallah was unhappy, but there was nothing that could be done. 18 TS 179, Constable Richards. 19 TS 291, Mr Edwards. 20 TS 60, Arif Haidari. -- 8 of 28 -- [2024] SADC 156 7 33 Arif and his cousin Omidallah began to clean up the broken glass inside the laundry and hallway. Arif was sweeping inside the laundry and picking up larger pieces of glass from inside. He had a dustpan and broom for this purpose. Omidallah was using a vacuum cleaner in the hallway.21 Arif agreed that by the time the police arrived for the second time some of the mess from the glass had been cleaned up.22 34 Arif remained angry and frustrated, and he threw two or three of the bottles that had been thrown into his property back over the fence into number 24. He threw them in the direction of what he acknowledged was the kitchen window.23 He acknowledged that his behaviour was motivated by anger. Arif Haidari’s Evidence of the Attack 35 Arif’s evidence was that almost immediately after he threw bottles back over the fence towards number 24, he heard a female voice speaking aggressively from that direction. There was a lot of swearing and calling him a coward. He heard the voice coming from the other side of the gate into his property.24 36 Omidallah, who had been using the vacuum, did not hear the female voice or witness the events which followed. The first he became aware of any issue was when he saw Arif outside the laundry with blood on his face, which must have been after the incident resulting in his injuries.25 Arif’s parents were inside the house in the salon and similarly did not witness the events. 37 Arif said he did nothing when he first heard the female voice, but he then heard the female voice continuing to swear and use the word coward from the direction of the outside gate to his home. The gate was a single swinging gate that opened to the yard which ran down the side of number 22 where it adjoined number 24. He could not see beyond the gate, but he could hear the abuse. 38 Arif went to open the gate and on his way, he reached down and picked up a bottle that had been thrown, but was not broken. He said he did that because he anticipated that someone from next-door had come to his house for “a fist fight or something”.26 He drew that conclusion because of the words being spoken, the aggressive tone, and the fact that the people from next-door had come to his side gate. Arif was candid about the fact that at this point he remained angry about what had happened.27 He agreed he anticipated violence when he opened the gate. 39 When he opened the gate he saw a man with the lady he recognised as being from next door. There is no contest that the man he described was Mr Edwards 21 TS 61-62, Arif Haidari. 22 TS 66, Arif Hairdari. 23 TS 69-70, Arif Haidari. 24 TS 40, Arif Haidari. 25 TS 221-222, Omidallah Haidari. 26 TS 40, Arif Haidari. 27 TS 78, Arif Haidari. -- 9 of 28 -- [2024] SADC 156 8 (although of course there was a dispute about what Mr Edwards did). The man was holding a kitchen knife. The blade was steel but he could not recall anything about the handle of the knife.28 The man said the words “you want this fucker?”. Arif threw the bottle he was holding to the ground and began to try and shut the gate. The man placed his body between the gate and the fence to prevent it closing. Arif was asked in cross examination why he threw the bottle he had armed himself with away at the point that he realised he was facing danger. He denied that he had thrown the bottle away, describing it more as “It wasn’t more of a throw, it was I smashed it on the ground and I said ‘fuck you’ or ‘fuck off’, something like that”.29 40 Arif backed away and the man lunged at him holding the kitchen knife in his hand. Arif demonstrated the motion used as a motion from the head level downwards. The knife did not make contact with Arif at that time, but the man repeated the same motion. This time the knife made contact with his lip. At this stage, the pair were inside the property line of number 22. Arif said that immediately after he was stabbed, he and the man were chest to chest just inside the perimeter of the driveway at number 22.30 41 Arif said he felt frightened when he saw the blood coming from his face and he grabbed the man’s arm. He described the pair ‘tackling’ which resulted in the man’s arm being twisted up behind Arif’s back. He and the man were “chest to chest” at that time.31 42 Arif saw a broken bottle on the ground in his location. He described the bottle as the bottom half of the bottle, the part that would sit on the table.32 He was able to reach down and pick it up. He did so because he was frightened that he would be stabbed again. He struck the man with the broken bottle twice to the side of his face.33 43 The woman was still standing alongside the man swearing. At that point, the man spoke to the woman saying “Help me bitch”. The woman then began to physically participate, kicking Arif’s leg and punching him to his side.34 In cross examination Arif was clear that these actions occurred after he had been stabbed to the face. He was not aware of when he sustained the wound to his chest or back so he could not say whether Ms Piccinin’s assault was before or after those injuries.35 44 Arif was still holding the broken bottle and the man was still holding the knife. They were both bleeding. Arif proposed to the man that they both drop 28 TS 41, Arif Haidari. 29 TS 118, Arif Haidari. 30 TS 81-82, Arif Haidari. 31 TS 42-43, Arif Haidari. 32 TS 86, Arif Haidari. 33 TS 43, Arif Haidari. 34 TS 43, Arif Haidari. 35 TS 107, Arif Haidari. -- 10 of 28 -- [2024] SADC 156 9 their weapons. The man agreed to do so and Arif dropped the broken bottle, and pushed the man away from him. The man said, “call for reinforcements”.36 Arif walked away, realising that he was bleeding and intending to get his cousin Omidallah to help him. He walked down the side of the house towards the laundry with his mobile phone in his hand.37 45 Arif made a call to 000 but he was uncertain how much the dispatcher understood because his speech was affected by his injury. That call was received at 4.26 pm. During the call Arif handed the phone to his brother Navid Haidari.38 An Ambulance arrived shortly after the call was made. 46 In cross examination some inconsistencies in the evidence given by Arif were exposed. Arif’s evidence at this trial was that the aggressive voice he heard on the other side of the gate to his house was a female voice. It was agreed that at a previous trial his evidence had been that he had heard a male and a woman’s voice swearing at the gate. Arif accepted that his memory of the voice that he heard at that time had been affected by listening to the audio recording now tendered as exhibit P18. I observe that the female voice is much more prominent in that recording than the male, although the male voice is audible at times. 47 Arif was also taken to an inconsistency between his evidence that the woman kicked and punched him, and a statement to the police where he said she kicked and pushed him.39 In his evidence Arif maintained that the female had touched him with her hands, although he now could not recall if it was a push or punch, and if the female had open or closed hands.40 In the circumstances, especially in light of the passage of time, I do not consider that inconsistency undermines the reliability and credibility of his evidence. 48 Arif agreed in cross examination that after he gave evidence at the first trial he had discussed the incident with others. He confirmed some details with others that he was not certain of himself. He confirmed however that there was no-one else who saw the events which resulted in him being stabbed.41 His recall of those events could not therefore have been contaminated by the direct recollections of others. Arif’s Injuries 49 At the time of the incident, Arif was only aware of the injury to his face. Later, he became aware that he had a cut to his back, a cut to his chest and an injury to his hand. He hypothesised that the injury to his back must have been caused 36 TS 43-44, Arif Haidari. 37 TS 91, Arif Haidari. 38 TS 265, Detective Brevet Sergeant McPhee. 39 TS 109-110, Arif Haidari. 40 TS 111, Arif Haidari. 41 TS 104, Arif Haidari. -- 11 of 28 -- [2024] SADC 156 10 when the man’s arm was twisted behind his back, although he did not realise that the knife was cutting him at the time.42 50 Agreed facts43 and photos were tendered which showed the nature of Arif’s injuries. The agreed facts reflected that Arif had a wound to his right chest wall, his left upper back and his right index finger. There were no injuries to any of his bones. Those wounds were all sutured in the Emergency Department. 51 Arif’s facial wounds were reviewed by a plastic surgery registrar who identified a full thickness laceration to his lower lip which extended to his chin and involved muscles and nerves. It required repair in the operating theatre. A scar to Arif’s lip and chin was still apparent when he gave evidence in this trial. 52 The photos depicted the deep wound to Arif’s bottom lip and chin, a laceration to the left side of his chest, a laceration to his index finger and a laceration to the back of his shoulder. 53 I consider Arif’s description of the movement of the knife from head level downwards would explain the laceration to his bottom lip, chin and chest in a single blow. His description of twisting the man’s hand behind his back during the struggle for the knife is a plausible explanation for the laceration to the back of his shoulder, although he was not aware of that injury being inflicted at that time. Police Attendance and the Scene 54 Brevet Sergeant Armstrong was one of the first police officers who arrived at the scene in response to the 000 call. He arrived at the same time as the Ambulance at about 4.40 pm. He observed Arif sitting in the side yard being assisted by various people standing in his vicinity. Officers Sribar and Richards (the two officers who had attended earlier and had taken no action) also attended. 55 The three officers then attended next-door at number 24 and made some observations of that scene. Ms Piccinin answered the door when the officers knocked and as Brevet Sergeant Armstrong moved through the house he noticed blood droplets in the hallway. There was blood around the sink in the kitchen and on and around the front door of the premises.44 56 Mr Edwards was in the back yard of the property smoking a cigarette. He had a bleeding injury to his ear. After police spoke with Mr Edwards he was examined by an ambulance officer and transported to hospital. 57 Detective Jankovic used his general search warrant to authorise a search of the premises at number 24. Police searched for a knife and located a silver handled kitchen knife in the kitchen. 42 TS 44, Arif Haidari. 43 TS 268-269. 44 Exhibit P3: Photos of 24 Strathaird Boulevard. -- 12 of 28 -- [2024] SADC 156 11 58 The knife was photographed and closely examined at Forensic Science SA. Blood staining on the knife was not visible although there was a positive reaction to a presumptive test for blood on the handle, and a cream-coloured stain also on the handle. Insufficient levels of DNA could be collected and no analysis was possible. There is nothing in the evidence that would enable me to conclude that the knife seized from number 24 was the knife used in the incident. 59 No comprehensive search for knives with blood staining was conducted at number 22. 60 There is simply no independent evidence about where the knife came from or where it ended up. Crime Scene Examination 61 Brevet Sergeant Spence attended the scene to conduct an examination and analysis of the scene. Due to the unavailability of Brevet Sergeant Spence to give evidence, Brevet Sergeant Callado gave evidence with the assistance of crime scene examination notes and photographs. No objection was taken by counsel for either accused to this course. 62 Various blood swabs were taken from number 24 Strathaird Boulevard. Relevant to the issues in this trial, a swab of a stain identified in the driveway of number 24 was taken. The stain was marked in the Exhibit photos with marker 11 (photo 6 P3). None of the swabs taken at that address were analysed for a DNA comparison at the Forensic Science Centre. A window at the side of number 24 had been broken and there was a glass bottle in the yard nearby.45 In the rear yard was a cardboard box containing a number of empty glass bottles. 63 Crime Scene Officer Spence began his investigation at number 22 at 5.50 pm. An examination of the side yard adjacent to number 22 revealed rubbish associated with medical treatment of Arif. The photos taken of the scene reveal a large floor to roof window to the laundry area of the home was smashed, with a large amount of small pieces of shattered glass immediately adjacent. Alongside that area was an area of heavy bloodstaining which corresponds with the area that Arif retreated to and was assisted by Ambulance Officers.46 Glass from broken bottles was also evident in the same area. 64 A number of shoes were identified at the scene. Two thongs appearing to be a pair were seized from the side laneway of number 22. The location of the two thongs is shown in exhibit P11on page 2 near a blue concrete mixer and on page 5 near a wheelbarrow.47 45 TS 22, Brevet Sergeant McPhee. 46 Arif Haidari recorded sitting in this area in Body Worn Footage of Brevet Sergeant Armstrong, Exhibit P16. 47 Exhibit P1. -- 13 of 28 -- [2024] SADC 156 12 65 Both the right and left thong were seized and analysed at Forensic Science SA. Blood like staining on the strap of the left thong returned a result favouring the inclusion of Arif or Mr Edwards (although the profile was single source). Blood like staining on the sole returned a result favouring the inclusion of Arif but not Mr Edwards. A tape-lift of the underside of the straps generated a mixed profile of three contributors, consistent with Arif and Mr Edwards being contributors to that mix. Blood like staining on the right thong strap returned a DNA profile consistent with having originated with Arif. 66 Neither Arif nor his brother Navid Haidari had any idea who the thongs belonged to.48 Mr Edwards said in his evidence that the thongs were consistent in appearance with the kind of thongs he owned at the time. He would, on occasion, wear socks inside the house and slip his thongs on over his socks if he went outside.49 67 The prosecution submitted that it could be inferred that Mr Edwards entered inside the Haidari’s property as far down as the cement mixer and wheelbarrow where the thong was located. 68 The area at the mouth of the laneway, where the side gate opens was marked with marker 6 during the crime scene examination. Marker 6 marks the area closest to the gate where Arif described the initial altercation occurring. Evidence was led that the crime scene officer identified a stain which had the appearance of blood on the concrete plinth where the side gate was positioned.50 A swab was taken which was not analysed at Forensic Science SA. 69 At a location between the entry gate and the broken window to the laundry (identified with marker 3 and 7) a number of pieces of broken glass were located and seized.51 Both brown and clear broken glass is evident in that location.52 In the same area a large number of blood-like drops were located on the paving. Testing of a swab from that location identified a profile with two contributors, one consistent with Arif at a weighting of 100 billion to one. The weighting for the other profile was against Mr Edwards being a contributor. 70 There was evidence that no broken glass with blood staining on it was located in the laneway. Brevet Sergeant Callado said that he would expect a crime scene officer to make a note of blood stained glass if he had identified it inside the scene.53 71 It is common ground that Arif struck Mr Edwards twice to the side of the head/face with the bottom of a broken bottle. According to Arif when he first opened the gate and became aware of the accused holding a knife on the other side he smashed the bottle he had been holding to the ground. Against this background, 48 TS 97, Arif Haidari, Exhibit P14: Statement of Navid Haidari. 49 TS 288, 293, Mr Edwards. 50 TS 133, Brevet Sergeant Callado. 51 TS 134, Brevet Sergeant Callado. 52 Exhibit P1: pages 9 and 10. 53 TS 149, Brevet Sergeant Callado. -- 14 of 28 -- [2024] SADC 156 13 broken glass would be expected to be located in the area around the laneway gate. There is no evidence of blood-stained glass inside the scene or pieces of broken bottle near to the entryway to the laneway. On the evidence, the first broken glass located in the laneway scene is adjacent to the wheelbarrow, a few metres into the laneway. Mr Edward’s version at the scene 72 Ms Piccinin made a call to 000 which was received at 4.28 pm.54 Ms Piccinin remained on the call until approximately 4.35 pm. 73 Police knocked on the door at number 24 and were let into the premises by Ms Piccinin shortly after that call ended. Mr Edwards was located in the rear yard smoking a cigarette. He had a bleeding wound to his neck area. Senior Constable Armstrong had the following conversation with him: “Q: (Armstrong) Whats that a? [referring to the bleeding wound]. A: Oh I got attacked by a neighbour so yer. Q: ……[irrelevant radio communication] A: I don’t think its that bad”.55 74 Later he told Senior Constable Armstrong “Its bleeding but not as bad as it was expecting that I was attacked by a knife” and then later “when you get attacked by a knife, I think I’m pretty lucky to be honest.”56 75 After the ambulance officer examined his wound Mr Edwards explained “he got me with the broken bottle after he failed to get me with the knife. Threw it at me pretty much like”.57 When he was asked “was it just a bottle that hit you” he responded “well he went for me with the knife, I’ve grabbed that off him and just pushed it against him and in his other hand it looked like he had this broken beer bottle”.58 Mr Edwards claimed that the man had come to his front door. When it was pointed out to him that there were a lot of broken bottles next door Mr Edwards said that the man had been throwing bottles for the last ten minutes. Mr Edwards was asked about what the knife looked like and he was able to give a limited description only. He said “I grabbed the knife off him just pushed it away [motioning pushing it to the side] and then fucken forced it back towards me. I wasn’t gonna get stabbed the only one that was going to get stabbed…”. When asked if he had stabbed the man Mr Edwards said, “Oh I pushed it towards him I reckon I did get him yer”.59 54 TS 266, Detective Brevet Sergeant McPhee. 55 Exhibit P16; TS MFI P17. 56 Exhibit P16, TS MFI P17. 57 Exhibit P16; TS MFI P17. 58 Exhibit P16; TS MFI P17. 59 Exhibit P16; TS MFI P17. -- 15 of 28 -- [2024] SADC 156 14 76 Mr Edwards appeared calm and rational in the immediate aftermath of the incident. He downplayed the seriousness of the injury he had sustained. He mentioned being attacked by a knife a number of times before he mentioned that in fact he had been injured with a beer bottle and not the knife. He was given the opportunity to explain the broken glass next door but instead of telling police the truth he avoided the issue by telling them that the man (Arif) had been throwing bottles for ten minutes. An examination of the limited number of bottles at number 24 reveals this allegation to be untrue. 77 Mr Edwards was arrested at the Royal Adelaide Hospital. During the recorded conversation when he was advised of his various rights on arrest, he told police that he was defending himself. When he was advised of the allegations that the incident occurred at number 22, he corrected the officer saying that he thought in fact it occurred at 24.60 Although the recorded statements were tendered on the defence case, and might be considered in those circumstances to be self-serving statements, I have taken the view that they should have been tendered on the prosecution case as they provide a complete picture of Mr Edward’s version of events when viewed compendiously with his statements to police prior to his transport to hospital. Although the evidence was received de bene esse I have determined to admit the evidence for that reason and for that purpose. Mr Edwards’ Evidence 78 Mr Edwards gave evidence in his own defence. He accepted that he had instigated the events on boxing day 2018 by throwing glass bottles over the fence to number 22. He said when he threw a bottle, he heard the sound of the bottle breaking, but also another noise which led him to believe that he had broken a window. He said he believed that no-one was at home, and he denied that his intention had been to scare or intimidate anyone. Immediately after throwing the bottles, he said he realised what he had done was stupid.61 79 He returned to watching the cricket on television and the next thing that caught his attention was the sound of smashing glass in the yard of number 24. He said he was expecting that kind of action, as payback. He said he did nothing about what he heard because he accepted it as payback for his actions.62 Ms Piccinin however got up and started heading down the corridor towards the front of the house. Mr Edwards remained on the couch at the back of the house. 80 Mr Edwards said he then heard a female voice, but he could not make out what words being said.63 He got up and headed towards the front door. As he moved in that direction Ms Piccinin came in through the front door moving in the opposite direction to him. 60 Exhibit D1.20. 61 TS 290, Mr Edwards. 62 TS 291, Mr Edwards. 63 TS 292, Mr Edwards. -- 16 of 28 -- [2024] SADC 156 15 81 Mr Edwards saw that the front door was open, and Arif was standing inside the door with a knife in his hand, holding it between his hip and his thigh. He grabbed Arif’s right wrist with his left hand and Arif stepped backwards to escape his grip. This caused him to move to the porch area of the house. Arif was backing away and Mr Edwards kept moving towards him, at one point moving his arm with the knife towards him.64 Both men were now outside. At that point Mr Edwards said Ms Piccinin called out “Damien, he has got a knife”.65 82 Mr Edwards said he then grabbed Arif’s hands with both of his hands to force the knife away from him. He saw the knife had a wooden handle with a blade approximately 200mm. The two men, he said, were moving backwards in the direction of number 22 at the same time as they were struggling. Mr Edwards said he continued to try and wrench the knife away. He said this about the possibility that Arif had been cut in the course of the struggle over the knife: I honestly can’t put an exact, precise point when it happened, but honestly, it did happen and I know when I was pushing towards him it would have got pretty close to him, so I’m not sure if it was two or three times where one of those times he would have been cut. I didn’t notice to start with any blood, so I wasn’t immediately aware that he was cut during that struggle.66 83 Mr Edwards said he pushed Arif back to the start of the driveway to number 22 where the side gate was. Mr Edwards took possession of the knife and held it in his right hand. He said Arif stepped back into his property a couple of steps and then hit Mr Edwards to the head with the broken bottle at the gate to his property. 84 Mr Edwards had been injured but he retained possession of the knife. On his evidence, at this point he saw that Arif was still holding the broken bottle, and he came in closer to him and put the hand that the knife was in behind Arif’s back.67 He described the position he moved to as a “half bear hug”.68 Mr Edwards said at this point it was he who told Arif to “drop it” referring to the bottle, and Arif responded “you drop it” referring to the knife. Mr Edwards’ evidence was that each man dropped their weapons at a point about two to three steps inside the opening of the gate, and Mr Edwards says he left and quickly returned to number 24. 85 He denied that at any time he said “help me bitch” to Ms Piccinin and denied that he would ever refer to her in such disrespectful terms. 86 In cross examination Mr Edwards maintained that the injury to Arif’s face had been caused accidentally. He said it was sustained when Arif still had possession of the knife, and he was holding onto Arif’s hand with both of his 64 TS 296, Mr Edwards. 65 TS 295-296, Mr Edwards. 66 TS 298, Mr Edwards. 67 TS 301, Mr Edwards. 68 TS 301, Mr Edwards. -- 17 of 28 -- [2024] SADC 156 16 hands.69 He said that the laceration to Arif’s chest must have been caused during the struggle he described. He claimed that the laceration to Arif’s back had been caused when he moved in close to him and put his hand which was holding the knife, behind his back. He said “the whole incident was a struggle and he was cut. There was no – I wasn’t trying to cut him, I was just trying to get the knife away from me and, if possible, get the knife off of him”.70 87 In cross examination Mr Edwards refused to concede that he threw bottles into the side yard at number 22 because he was angry.71 He would not acknowledge that it was a provocative or aggressive thing to do to Ms Piccinin’s neighbours.72 He disagreed that he had any personal tension with the Haidari family and maintained that his actions were motivated by Ms Piccinin’s frustration. He accepted he intended to cause damage to the Haidari’s property.73 He maintained he was not at all shocked when bottles were thrown back into his property as he expected retaliation. He did not even get up off the couch where he was watching the cricket when he heard the sound of glass smashing.74 He disagreed with the suggestion that he had thrown bottles hoping to provoke the neighbours into some escalation of the dispute, and he denied that when bottles were thrown back that he thought there might be some escalation of the situation.75 88 So unconcerned was Mr Edwards about what might be unfolding outside that he remained sitting in front of the cricket as Ms Piccinin headed towards the front of the house to go outside.76 Even after he heard Ms Piccinin screaming from outside, he remained on the couch.77 89 Mr Edwards was pressed in cross examination about the precise sequence of events that unfolded at the side gate to the Haidari property. His evidence was that he took possession of the knife from Arif at the top end of the driveway to number 22. He said the struggle for the knife ended at that driveway.78 From that point, Arif retreated back inside number 22. Mr Edwards used the word “retreated” to describe Arif’s actions. Mr Edwards said he took two steps forward to see where Arif had gone. He said although any physical altercation between the two men had ended, he wanted to see what Arif was going to do. As he walked through the gate Arif hit him with the broken bottle. 90 Mr Edwards was unable to describe with any precision how Arif’s face came to be lacerated during a struggle for the knife. He said: 69 TS 311, Mr Edwards. 70 TS 312, Mr Edwards. 71 TS 320, Mr Edwards. 72 TS 321, Mr Edwards. 73 TS 325, Mr Edwards. 74 TS 328, Mr Edwards. 75 TS 331, Mr Edwards. 76 TS 332, Mr Edwards. 77 TS 332, Mr Edwards. 78 TS 334, Mr Edwards. -- 18 of 28 -- [2024] SADC 156 17 I can’t be precisely sure exactly where it happened but we were pushing and pulling and arms were going left and right, up and down, so there is a possibility it could have happened not far from our house or it could have happened in the yard, I cant be precise of where it happened.79 91 Mr Edwards denied that Arif had been stabbed in his own yard, maintaining that he had sole possession of the knife by that time. He said at no time during the struggle did he notice any reaction or blood that would assist him as to when Arif was injured.80 92 Mr Edwards said that he heard a female voice screaming before he came out of the house but after he came out from the house there was no more screaming or yelling. The only thing he heard was Ms Piccinin’s exclamation “Damien he has a knife”.81 The CCTV Recording 93 At trial a recording captured by a CCTV camera at a nearby house was tendered. The CCTV footage captured both audio and video, but the house was not located sufficiently close to number 22 and 24 to capture any video of relevance. Both prosecution and defence placed reliance on what could be heard. 94 Submissions were made as to what words could be discerned from the audio recording, and the significance of banging and knocking which can also be heard. I have listened carefully to the audio and conclude that the following relevant words and sounds are audible on the recording:82 16.23.39 (Female voice) Fucking Cunt [banging and knocking sounds] 16.23.45 (Female voice) Come out you coward [banging and knocking sounds] 16.23.47 (Female voice) You fucking coward 16.23.58 [male and female voices overtalking] 79 TS 336-337, Mr Edwards. 80 TS 338, Mr Edwards. 81 TS 341, Mr Edwards. 82 Exhibit P18. On the defence case a USB was tendered as D2.9 as a cleaned version of the audio from Exhibit P18. Agreed fact D2.21 records that the recording has undergone “audio enhancement and noise removal by a technician named Tom Harrer”. No more detail about the nature of that process was provided although I infer from listening to it that the process involved the dulling of noise apart from the female voice at least. I have found the audio in the original recording Exhibit P18 more audible and helpful than the cleaned version. The audio was reviewed using high quality headphones. -- 19 of 28 -- [2024] SADC 156 18 [banging sounds] 16.24.11 Female scream 16.24.23 (Male voice)…(inaudible) got him…. (Female voice) Damian…(inaudible) a knife 16.25.04 [male and female voices inaudible] 16.25.19 Banging sound 95 It is clear that the female voice is Ms Piccinin, that she is agitated, aggressive and emotionally heightened. No male voice at an equivalent tone or volume is heard throughout the recording. 96 From the first expletive from Ms Piccinin to the last banging sounds a total of 1 minute and 40 seconds passes. The first expletive is closely followed by the sound of banging and the provocative words “come out you coward”. From the first expletive to the first sound of a male voice overtalking with the female voice is 19 seconds. From the first expletive to the female voice referencing a knife, 44 seconds pass. 97 I am satisfied that it is Ms Piccinin who is attempting to escalate the situation by shouting out expletives and inviting Arif to “come out you coward”. Banging and knocking sounds can be heard immediately after her first expletive and around the time of her invitation for him to “come out”. The sounds are consistent with banging noises that might be expected if she were close to the fence line or the gate to number 22, and consistent with her trying to provoke a confrontation of some kind. 98 The start of Ms Piccinin’s yelling is recorded at 16.23.39. On Mr Edwards’ evidence, at the time Ms Piccinin started to yell outside he thought something might be wrong and he got up off the couch and started walking towards the front door. He then saw Ms Piccinin coming down the hallway into the house as he was heading towards the front door. As he came close to the front door he saw Arif inside his house holding a knife. He said he grabbed Arif’s hand and the pair struggled and moved from the front of number 24 all the way to the side gate at number 22. On Mr Edwards’ evidence it was just inside the side gate to number 22 that Arif struck him with the broken bottle and the incident ended shortly thereafter. 99 The evidence of Mr Edwards does not account for the banging and knocking sounds are that can be heard during the recording immediately proximate to the beginning of the muffled male and female voices overtalking each other. I -- 20 of 28 -- [2024] SADC 156 19 conclude on the basis of all the evidence that I have heard that the muffled overtalking is the start of the altercation between Mr Edwards and Arif. Those sounds begin about 14 seconds after Ms Piccinin first shouts “come out you fucking coward”. That 14 seconds is enough time for Arif to pick up a bottle, move towards the gate and open it. During that time Ms Piccinin continues to goad him. 100 I consider that what is decipherable on that recording is consistent with the evidence of Arif about the sequence of the events and the nature of the attack on him. As noted earlier, I am unable to draw any comfortable conclusion about what Ms Piccinin says when she makes reference to a knife. There are various possibilities that would be consistent with the evidence of Arif about the events unfolding at that time. 101 Arif was asked what he thought was being said on that part of the recording. He believed what was said was “Damien, grab a knife”.83 His evidence was however that he did not hear those words being uttered during the incident. His evidence about what could be heard was based on an interpretation of the recorded sounds. He is therefore in no better position than I am to decipher the recorded words.84 In those circumstances I place no weight on his interpretation. 102 Counsel for both accused argued that the interpretation “Damien, grab a knife” makes no sense when viewed against the time frame. They pointed out that there was over 30 seconds between Ms Piccinin’s yelling beginning and her reference to the knife. They highlighted that there was simply no time in that interval for Mr Edwards to go back to the house, retrieve a knife and return to the altercation. That interpretation is not supported in terms of sequence and timing. 103 I agree that a conclusion that the words are “Damien grab a knife” does not make sense in terms of sequence and timing. In my view, by the time that those words are uttered the incident has begun and has been ongoing for some seconds. 104 Both prosecution and counsel for each accused placed weight on different interpretations of the audio. Prosecution submitted that the audio between the words “Damien” and “knife” at 16.24.23 was inaudible. Counsel for both accused however argued that it was at least reasonably possible that the words were “Damien, he’s got a knife”. If those were the words uttered, it was argued, that was entirely inconsistent with the evidence given by Arif, but consistent with the evidence of Mr Edwards, that it was Arif who introduced the knife into the altercation. 105 As noted above, I am unable to draw any conclusion about what words are spoken between “Damien” and “knife”. That does not mean that I am obliged to accept that the interpretation advanced by defence counsel is a reasonable possibility. The correct approach is to consider what I am able to conclude from 83 TS 102, Arif Haidari 84 TS 116, Arif Haidari. -- 21 of 28 -- [2024] SADC 156 20 that evidence, along with other evidence that I find acceptable to determine whether I am satisfied about the elements of the offence charged. Observations – the evidence of Mr Edwards 106 Mr Edwards was an unimpressive witness. He demonstrated an unwillingness to concede obvious propositions during cross examination and his inability to offer any explanation for how the stab wounds were accidentally inflicted lacked plausibility. 107 Mr Edwards refused to concede that he threw bottles into number 22 because he was angry. He steadfastly refused to acknowledge that it was a provocative or aggressive action on his part. He sought throughout his evidence to paint an implausible picture of emotional disinterest in the affairs between Ms Piccinin and her neighbours. His evidence that he was prepared to accept the bottles being thrown back to his yard, and a window being smashed as ‘payback’ defied common sense. 108 It was apparent that the relationship between the neighbours, for whatever reason, had escalated to a point where Mr Edwards was sufficiently emotionally escalated to throw bottles intending to cause property damage. I found Mr Edward’s attempts to minimise the level of emotional response that he had to those events unconvincing and dishonest. 109 I have earlier observed that I reject Mr Edwards’ evidence that he was not aware of police attendance in respect to the first episode of bottle throwing. I consider this as relevant to what weight I am prepared to give his evidence overall. 110 The injuries to Arif required at least two blows - at least one which penetrated his bottom lip, chin and chest, and a second which penetrated his back. If the two men were grappling with the knife, with Mr Edwards attempting to push it away from him, it is difficult to imagine how that resulted in a laceration to the face. The laceration to the face supports, in my view, the inference that it struck without warning. One would expect, if Arif also had hold of the knife and therefore had warning of the risk to his face, he would have taken action to protect that vulnerable area of his body. 111 The laceration to Arif’s back is consistent with being sustained when Mr Edwards’ arm was behind Arif’s back. Mr Edwards said he came to be positioned in that way after he took possession of the knife from Arif and after he was struck to the side of the head with the broken bottle. Mr Edward’s evidence was that in the aftermath of those events he came in close to Arif and placed his hand around him in a half bear hug, and there was then a conversation with each man telling the other to drop their weapon. 112 I reject Mr Edwards account of that stage for two reasons. The first is that on Mr Edwards evidence, at this point, he had possession of the knife and had already been struck once with a broken bottle. He has nothing to gain and -- 22 of 28 -- [2024] SADC 156 21 everything to lose by coming in close to Arif. If his actions were at all times defensive, designed only to defend himself and Ms Piccinin, that objective had been achieved. Reducing the distance between he and Arif carried with it only risk and very little reward. There is no reason for him, at that stage and in those circumstances, to place his arm behind Arif’s back, while coming in close to ‘bear hug’ him. 113 The second reason is that an accidental penetration of the skin in the back from the motion of a bear hug as described by Mr Edwards is unlikely. 114 I have also taken into account the version of events given by Mr Edwards in the immediate aftermath of the events and that at an early stage he told the police he had been attacked and referred to events beginning at number 24. The version he gave at that time was consistent with him acting for a defensive purpose. 115 Notwithstanding that evidence, for the reasons I have outlined, I am unable to accept that Mr Edwards was a truthful witness. I do not find that his version of events is reasonably possible, and I reject it as a reasonable possibility. 116 I reject his version on the basis that I found it implausible and unsatisfactory. I do not consider it was supported by the objective evidence of the audio recording. Failures in the Police Investigation 117 When police attended the premises at 22 and 24 following the incident, their search and analysis of the scenes was not thorough. The police investigation focussed on the allegation made by Arif and not the account provided by Mr Edwards that he was the victim of an attack. The Haidari family home at number 22 was not searched for a blood-stained knife. Detective Sergeant Braithwaite agreed that a garage at the end of the side laneway at number 22 was not searched. He could not recall searching the laneway on the other side of the house and could not recall whether he searched the household bins.85 On the evidence of Mr Asadullah Haidari, had the kitchen of number 22 been searched a wooden handled kitchen knife would have been located – the family had knives with wooden handles for cooking in the ordinary course.86 118 Although a knife was located in the kitchen of number 24, I disregard that evidence. There is no reliable evidence that it was bloodstained, and certainly not to the extent that would be expected had it been used to inflict the wounds to Arif. I conclude that the knife used to inflict the wounds was not located after the incident. 119 There was a lack of clear evidence as to whether a search was made for blood stained glass. None was noted as being located, but there was no evidence of the kind of search, if any, that was made. 85 TS 196, Detective Sergeant Braithwaite. 86 TS 210, Asadullah Haidari. -- 23 of 28 -- [2024] SADC 156 22 120 A single blood-like droplet located on the driveway of number 24, a few metres from the front door, was sampled.87 That sample was not analysed. Counsel for the accused argued that had that swab been analysed and found to be consistent with being Arif’s blood, that would have been very important evidence on the defence case. I accept that submission. Mr Edwards had told the police during his arrest that the incident had occurred at number 24 and not 22. Police were on notice of his version of events in that regard. 121 The investigation following police attendance was not perfect. It lacked an attention to detail and the failure to test some of the more relevant blood swabs has caused a potential forensic disadvantage. I cannot speculate about what the results of further searching or further testing might have yielded. I must decide the case on the evidence that was called at trial, recognising that an accused may be at a forensic disadvantage given some of the enquiries which were not made or not made thoroughly. I have had regard to those disadvantages. 122 Counsel for the accused submitted that the absence of the knife or blood- stained broken glass might suggest that there had been a clean-up of some kind prior to the arrival of the police. I am unable to draw any conclusion about that, except to observe that if there had been a clean-up I reject any suggestion that it had been done by Arif Haidari. Following the incident he was badly injured. I conclude that if he had moved around the area removing items from the scene, there would have been a great deal more blood deposited throughout the side laneway. 123 I note that the scene was compromised by the attendance of ambulance officers and potentially police officers and civilians prior to the examination by the crime scene officer. Although in hindsight much more could have been done by way of investigating the circumstances of the incident, and the location of the weapons involved, I do not consider the absence of the weapons is probative either way of the issues for resolution. The sound of breaking glass after the incident 124 Omidallah Haidari, Arif’s cousin, gave evidence about the aftermath of the incident. He said when he became aware that his cousin was injured, he went to the laneway to assist. As he assisted by applying pressure to the wounds, he heard the sound of glass breaking next-door at number 24. Some questions were asked to establish that a call was made to 000 during which time Navid Haidari spoke and said that that windows next door were smashing. The evidence supports the conclusion that was about 4.31 pm. At that time Ms Piccinin was also on the phone to 000 having made a call which began at 4.28 pm.88 It could not have been Ms Piccinin who was responsible for smashing the windows at number 24, as she was on the phone to emergency services. 87 Exhibit P3: Page 1, Marker 11. 88 TS 265-266, Detective Brevet Sergeant McPhee. -- 24 of 28 -- [2024] SADC 156 23 125 It was not put to Mr Edwards in cross examination that he was responsible for breaking his own window in an effort to stage the scene to his own advantage. In those circumstances it would be unfair for me to draw any such conclusion and I disregard as irrelevant the evidence about the sound of windows smashing after the relevant events. Factual Conclusions 126 I conclude that it was Mr Edwards and Ms Piccinin who were the aggressors prior to the incident in question. For whatever reason Mr Edwards engaged in provocative and aggressive behaviour when he threw bottles and damaged property belonging to the Haidari family. He knew he had damaged property. 127 When Arif responded, Ms Piccinin added insult to injury by going into the yard and yelling aggressively, accusing Arif of being a coward and bating him to come out. 128 There is no real contest about these events. It is a relevant circumstance that both accused were emotionally heightened, acting aggressively and provocatively. These circumstances are relevant when I come to consider what I find proved about what happened next. 129 I conclude that Arif was honest when he said what had happened made him angry. He was angry and frustrated, and after his attempt to seek help from the police failed, he retaliated by throwing no more than three bottles back to where they had come from. It is possible that a window to the house at number 24 was broken by a bottle at that time. 130 I accept that Arif then became aware of a person or persons at the gate to his side laneway, suspecting that people from next-door wanted an altercation of some kind. He armed himself with one of the bottles that had originated at number 24. I consider that Ms Piccinin was near the gate to number 22 and was yelling obscenities and bating Arif to come out, calling him a coward. 131 Arif opening the gate and/or arming himself with a bottle was not an act of aggression. I am satisfied on the basis of Arif’s evidence, the evidence of his injury, and the audio recording of the incident, that very soon after the gate was opened there was an altercation which resulted in his face and chest being lacerated. Arif was able to twist Mr Edwards hand behind his back and in the struggle which followed his back was lacerated, although I accept that he did not realise that at the time. 132 I accept on the same evidence that Arif was able to pick up a broken bottle, and while he and Mr Edwards were chest to chest, he moved it into the side of Mr Edward’s head twice. It was agreed that Mr Edwards sustained a full thickness laceration to his left ear and three smaller lacerations around the ear. Glass -- 25 of 28 -- [2024] SADC 156 24 fragments were removed from the area.89 Those injuries are consistent with being caused by the broken bottle as described by Arif. Ms Piccinin’s Part 133 I am satisfied that it was only after Mr Edwards had been injured by the broken bottle that Ms Piccinin joined in the attack on him by (at least) kicking him. I am satisfied that she was behaving in an aggressive way and was physically present when Mr Edwards attacked Arif. 134 The prosecution advanced their case against Ms Piccinin on the basis of joint enterprise. To prove the case against her, the prosecution must prove the following: 1. Ms Piccinin entered into an agreement with Mr Edwards to commit aggravated causing harm with intent to cause harm. 2. Ms Piccinin participated in the agreement. 3. While the agreement was on foot, Mr Edwards committed the acts necessary to commit that offence. 4. At the time of Ms Piccinin’s participation, she had the state of mind required to commit that offence. 135 The prosecution expressly disavowed any reliance on extended joint enterprise. They relied on the continuing assault against Arif which resulted in the three stab wounds (lip and chin, chest, back) as the basis for the charge. At the time when those injuries were inflicted Ms Piccinin had not participated physically in the events. Arif gave evidence of the female voice yelling abuse and obscenities prior to the side gate being opened but did not give any evidence about whether she continued to contribute verbally after the gate was open and the incident began. Arif gave very little evidence about the position or behaviour of Ms Piccinin after she was alongside Mr Edwards at the time the side gate was opened. 136 On Arif’s evidence she became physically involved only after Arif appeared to get the upper hand and had injured Mr Edwards with the broken bottle. She participated only after a specific request from Mr Edwards. I am satisfied that Ms Piccinin, before the gate was opened, yelled for Arif to “come out”. 137 There is however limited evidence of her contribution around the time of the knife attack by Mr Edwards which would enable me to infer she was necessarily part of a joint agreement to commit the offence of aggravated causing harm with intent to cause harm. I cannot exclude the possibility that she had in mind a confrontation of a different kind, not an assault with intent to cause harm using an offensive weapon. 89 Exhibit P19: Agreed Fact 2. -- 26 of 28 -- [2024] SADC 156 25 138 I cannot be satisfied beyond a reasonable doubt that Ms Piccinin entered into an agreement with Mr Edwards to commit Aggravated Causing Harm with Intent to Cause Harm. In the alternative, and for the same reason I am not satisfied beyond a reasonable doubt that she entered into an agreement with Mr Edwards to commit an offence of Causing Harm with Intent to Cause Harm. Section 25 of the Criminal Law Consolidation Act empowers a jury to consider a specified lesser offence if they are not satisfied of the guilt of an accused charged with an offence pursuant to Division 7A. The prosecution did not ask me to consider any lesser offence pursuant to this power and in those circumstances it is not appropriate that I do so. 139 I do not find the charge of Aggravated Causing Harm with Intent to Cause Harm proved against Ms Piccinin and I find her not guilty. Mr Edwards Part 140 For the reasons that I have given I am satisfied beyond a reasonable doubt of the following: 1. The accused performed an act, namely moving the knife into Arif Haidari’s face and back. 2. The act was voluntary and deliberate. I exclude as a reasonable possibility that the movement of the knife described above was accidental and occurred during a scuffle for possession of the knife. 3. A person suffered harm. Arif Haidari suffered lacerations to his face, chest and back. 4. The accused’s voluntary act caused that harm. The use of the knife caused the lacerations described. 5. The accused intended to cause harm. I find that as a matter of common sense the use of a knife evidences an intent to do harm. That the accused swung it repeatedly satisfies me to the requisite standard that he had that intent. 6. The accused’s act was unlawful. 141 During submissions I was referred to sections 15 and 15C of the Criminal Law Consolidation Act which govern the circumstances in which an otherwise unlawful act will be lawful because a person is acting to defend themselves. Submissions were made about the applicability of section 15C to the facts. Section 15C removes the requirement that the response to a genuinely perceived threat be objectively proportionate where the accused genuinely believes the victim to be committing, or to have just committed, a home invasion. 142 Self-defence does not arise on Mr Edwards’ version of events. His clear version was that the acts which caused harm to Arif were accidental and not -- 27 of 28 -- [2024] SADC 156 26 voluntary. Self-defence applies to deliberate acts which are committed in certain circumstances. 143 In R v Baden-Clay the High Court discussed the approach to be taken where evidence given by an accused person necessarily excludes a different reasonable hypothesis consistent with innocence.90 Counsel for Mr Edwards submitted that it was open to me to accept some parts of Mr Edward’s evidence and not other parts. I accept that I may accept as a reasonable possibility his evidence about the circumstances in which the altercation began, but reject his evidence on the topic of the accidental nature of the acts which caused the harm. If that is the conclusion I reached on my assessment of the evidence then self-defence would arise, and it would be necessary for me to consider whether the prosecution have excluded self- defence (pursuant to section 15 or section 15C) as a reasonable possibility. 144 For the reasons that I have outlined so far however, I have excluded the version of events given by Mr Edwards as reasonably possible. That includes his evidence that Arif produced a knife and came into the hallway of his home prior to the incident. 145 In those circumstances, self-defence or defence of another does not arise. I am satisfied that the acts were unlawful. 146 I turn to consider the two circumstances of aggravation alleged. I am satisfied beyond a reasonable doubt for the reasons that I have given that an offensive weapon, namely a knife, was used to commit or when committing the offence. I am not however satisfied that Mr Edwards acted in company with Ms Piccinin for the reasons I have outlined when considering joint enterprise in respect to Ms Piccinin. I do not find that circumstance of aggravation proved. 147 I find Mr Edwards guilty of the offence of Aggravated Causing Harm with Intent to Cause Harm. 90 R v Baden-Clay (2016) 258 CLR 308. -- 28 of 28 --