R v Josifovski & Ors [2006] ACTSC 30 (13 April 2006)

Last Updated: 22 May 2006

R v RATKO JOSIFOVSKI, GORAN JOSIFOVSKI and JOSEPH SHAFIK

[2006] ACTSC 30 (13 April 2006)

CRIMINAL LAW - Trial by judge alone - Burglary - Common purpose - Whether the accused arrived at the complainant's residence with an intention to commit an unlawful assault.

Supreme Court Act 1933 (ACT), s 68C

Criminal Code 2002 (ACT), ss 311, 312

Crimes Act 1900 (ACT), ss 23, 93, 94

Inclosed Lands Protection Act 1901 (NSW)

Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11

Crimes Act 1900 (NSW) ss49, 545E(1)

R v Tran [2003] ACTSC 53

R v Maher [2005] ACTSC 41

Lippl v Haines (1989) 18 NSWLR 620

R v Prasad (1979) 23 SASR 161; (1979) 2 A Crim R 45

Barns v Edwards (1993) 31 NSWLR 714

Carr v Sourlos (1994) 6 BPR 13,626

Cunningham v Yeomans (1868) 7 SCR (NSW) 149

R v Keith [1934] QSR 155

Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1

Mackay v Abrahams [1916] VLR 681

Munnings v Barrett [1987] TASSC 8; [1987] Tas R 80

Barker v R [1983] HCA 18; (1983) 153 CLR 338

Mark v Henshaw (1998) 85 FCR 555

R v Bacon [1977] 2 NSWLR 507

Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645

Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454

Osland v R [1998] HCA 75; (1998) 197 CLR 316

No SCC 226, 227 & 228 of 2004

Judge: Higgins CJ

Supreme Court of the ACT

Date: 13 April 2006

IN THE SUPREME COURT OF THE )

) No SCC 226 of 2004

AUSTRALIAN CAPITAL TERRITORY ) No SCC 227 of 2004

No SCC 228 of 2004

ORDER

Judge: Higgins CJ

Date: 13 April 2006

Place: Canberra

THE COURT ORDERS THAT:

1. Each accused be acquitted in respect of each count on the indictment.

1. On 15 December 2005, the Crown presented an indictment against the three accused. They had elected for trial by judge alone.

Trial by Judge alone

2. The legislative provision prescribing this procedure is set out in s 68C of the Supreme Court Act 1933 (ACT) -

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

General Directions

3. The general directions I must follow are as follows -

The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach the finding having been satisfied beyond reasonable doubt.

It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

(See R v Tran [2003] ACTSC 53 at [4]- [5]; R v Maher [2005] ACTSC 41 at [5])

4. The indictment to which each accused pleaded "not guilty" contained three counts:

...THAT on 20 December 2002 at Canberra in the Australian Capital Territory Ratko Josifoski (sic), Goran Josifoski (sic) and Joesph (sic) Shafik trespassed on premises namely, unit 1 of 18 Marou Place Ngunnawal with the intention to assault Grant Sandow and at the time of doing so had with them offensive weapons namely, a knife and metal bar.

AND FURTHER THAT on 20 December 2002 at Canberra aforesaid Ratko Josifoski (sic), Goran Josifoski (sic) and Joesph (sic) Shafik intentionally inflicted grievous bodily harm on Grant Sandow.

AND FURTHER THAT on the 20 December 2002 at Canberra aforesaid Ratko Josifoski (sic), Goran Josifoski (sic) and Joseph Shafik recklessly inflicted grievous bodily harm on Grant Sandow.

Count 3 was an alternative to Count 2.

5. It is necessary for the prosecution to prove, beyond reasonable doubt that -

As to Count 1:

1. The accused, together or individually, pursuant to an understanding or agreement between them or, if a third person, such other person, acted in furtherance of a common design that is, a common intention to assault Grant Sandow.

2. Assault, in that context, refers to an intention to use force upon Grant Sandow, otherwise than in self-defence or pursuant to some other legal justification.

3. At least one of the accused, to the knowledge of the other or others, had possession of a metal bar and/or knife, for the purpose of effecting the common purpose.

4. They, at the time of entry onto Grant Sandow's premises, or at some time thereafter, but before entry into the building on those premises -

(a) became trespassers

(b) had the common purpose referred to above.

(c) entered the building in those circumstances.

As to Count 2:

1. That the accused, if more than one of them, shared a common purpose to assault Grant Sandow or, as an individual, had such an intention.

2. That at least one of the accused, in furtherance of the common purposes of one or both of the other accused, or directly, used force upon Grant Sandow without lawful justification or excuse.

3. That the force so used caused grievous bodily harm and was intended to cause grievous bodily harm.

4. Grievous bodily harm simply means really serious bodily injury.

As to Count 3:

1. This is the same as for Count 2 save that the assault need not have been intended to produce grievous bodily harm but rather it suffices if the perpetrator of the harm was reckless as to that consequence.

2. "Recklessness" requires awareness of a substantial risk that the prescribed consequence will occur and proceeding notwithstanding that the circumstances known to the accused made it unjustifiable to take that risk.

3. To be complicit in that state of mind and knowledge each of the accused, to be culpable, must share that awareness and knowledge.

6. Some provisions of the Criminal Code were immediately applied on and from 20 December 2002, the date of the alleged offences.

7. That, relevantly, includes s 45 - 120431178">

45 Complicity and common purpose

(1) A person is taken to have committed an offence if the person aids, abets, counsels or procures the commission of the offence by someone else.

(2) However, the person commits the offence because of this section only if--

(a) the person's conduct in fact aids, abets, counsels or procures the commission of the offence by the other person; and

(b) when carrying out the conduct, the person either--

(i) intends the conduct to aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type committed by the other person; or

(ii) intends the conduct to aid, abet, counsel or procure the commission of an offence by the other person and is reckless about the commission of the offence (including its fault elements) in fact committed by the other person.

(3) To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.

(4) Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of the offence.

(5) A person must not be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person--

(a) ended his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.

(6) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the person who committed the offence is not prosecuted or found guilty.

(7) To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.

(8) If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.

(9) Subsection (8) applies only to a prosecution started after the commencement of the subsection.

(10) Subsection (9) is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(11) Subsections (9) and (10) and this subsection expire 1 year after they commence.

8. The offences alleged are otherwise governed by the Crimes Act 1900 (ACT) ss 93 and 94. In 2004 those provisions were relocated to s 311 and s 312 of the Criminal Code. However, the remaining provisions of the Criminal Code, not being those immediately applicable do not apply by virtue of their own force.

The Crown Case

9. The Case Statement filed by the Crown on 5 January 2005 read -

In the early evening of Wednesday 18 December 2002 the accused Goran Josifovski had an argument with the complainant, Grant Sandow, outside Mr Sandow's premises at Unit 1/18 Marou Place Ngunnawal.

After the argument Goran Josifovski returned to his home and spoke with his father Ratko Josifovski about the argument. On Friday 20 December 2002 Goran Josifovski telephoned Joseph Shafik and arranged for him to come and collect Goran and Ratko Josifovski from their home. Mr Shafik drove his red Holden Commodore to their place and together they drove to the complainant's house in Ngunnawal. Ratko Josifovski took with him a three foot long piece of metal pipe.

The three accused arrived at the complainant's home at about 6.45 pm and knocked on the door. The complainant Grant Sandow, who was at home with his partner Rachel Lambert watching television, opened the door. Ms Lambert stood a few feet behind the complainant as he did so.

Immediately the door was opened Ratko Josifovski struck the complainant on the head several times with the metal pipe. The three accused forced their way into the complainant's home, striking at the complainant as they did so. The complainant ran to his bedroom from where he retrieved a baseball bat and returned to the living area and attempted to force the three accused out of the house. The three accused continued to struggle with the complainant and one of the accused produced a knife and stabbed the complainant three times.

At about this time, Ms Lambert rang `000', requesting police assistance. She also called `000' for an ambulance.

The three accused continued to strike the complainant and one of the accused has taken the baseball but away from him. The three accused ran from the house, with Ratko Josifovski stopping to wash the complainant's blood from the metal pipe and baseball bat.

The three accused returned to the house of Ratko and Goran Josifovski and washed themselves and changed their clothes.

The complainant was taken to the Canberra Hospital and underwent surgery for the three stab wounds, one of which punctured his lung. He suffered a broken wrist and required stitches for the wounds to his head.

10. Mr Todd's oral opening varied from that Case Statement. He said -

Your Honour, in relation to this incident, between about 6.30 pm and 6.45 pm on 20 December 2002 Mr Sandow was in his home at 1/18 Marou Place Ngunnawal watching TV with his partner Ms Rachel Lambert.

There was a knock on the front door, Mr Sandow got up from where he was sitting and went to answer the door. When he opened the door he saw three men, the Crown case your Honour is that the three men were the three accused, that is Mr Ratko Josifovski, Mr Goran Josifovski and Mr Joseph Shafik.

One of those men, the Crown says, is Mr Goran Josifovski who had been involved in an argument with Mr Sandow in the evening of Wednesday 18 December 2002, that argument took place near Mr Sandow's unit.

In relation to the incident on the 20^th when he opened the door, your Honour, Mr Sandow saw the three men, which is the three accused, and he also saw, your Honour, knives and a metal pipe. Immediately the door was opened Mr Sandow was struck on the head several times with the metal pipe, the three accused forced their way into the complainant's unit striking at Mr Sandow as they did so.

Mr Sandow struggled with the three accused, your Honour, and during the struggle Mr Sandow was stabbed on three occasions on his left side, once in his back on the upper left-hand side, and once in the lower back on the lower left-hand side.

He managed to run to his bedroom and retrieve a baseball bat, he returned to the living area and attempted to force the three accused who had remained in the unit out of his home, the three accused and Mr Sandow struggled and the three accused continued to strike Mr Sandow, at one point one of the accused has disarmed Mr Sandow of the baseball bat. During the course of the struggle Ms Lambert has rung 000 requesting police assistance and also 000 requesting an ambulance.

Eventually the three accused ran from the house, one of them the Crown says being Mr Ratko Josifovski, taking the baseball bat and the metal pipe and stopping at a tap near the front door of the unit to wash blood from the baseball bat and the metal pipe.

From Mr Sandow's unit the three accused returned to the Josifovski home at Florey, Mr Sandow was taken to The Canberra Hospital and underwent surgery for the three stab wounds, he suffered a broken wrist and required stitches for wounds to his head, he remained in hospital for about 12 days.

11. I remind myself that not every variation between the case as opened and the case as presented will be of significance in the resolution of the matters in issue. The portion of the Case Statement describing the events following the striking of the complainant with the metal bar is, however, of significance. It places the stabbings after the complainant retrieved a baseball bat and states that only one of the accused produced and used a knife after that event.

Evidence of the Crown

12. The complainant Mr Grant Michael Sandow deposed that, at about 6.30 pm on 20 December 2002, whilst watching the news at his home at 1/18 Marou Place Ngunnawal with his then-partner and current wife, Rachel Lambert, there was a knock at the door.

13. He opened the door. He saw three men there. One he "recognised from two nights before". He was immediately hit over the head with an iron bar "by one of the other men".

14. The male he recognised he described as 5'8" to 5'10", black hair, "Mediterranean looks". Slighter than himself, he estimated that person's weight at 75 to 85 kilos.

15. There was an older male, aged about 45 years about 100 kilos and a third, slighter male, 70 to 75 kilos also of "Mediterranean" appearance but black hair with blond tips.

16. The iron bar, he said, came "across the older male's shoulder to hit me on the head and then the other two males were holding knives in their right hand". The male previously known to him seemed to be holding a 6" kitchen style knife. The other younger person had a slightly longer knife, about an 8" blade, like a fish paring knife.

17. As Mr Sandow jumped back the third male "jumped back through the door and put the knife just below my ribs". The male seen before then moved around and plunged his knife into "my upper back, the left hand side". He was also being struck by the metal pipe which he had seen in possession of the older man.

18. In panic Mr Sandow yelled to his wife to phone the police and ambulance. He then ran from the lounge room, through the kitchen, off into a passage to the right, then left to the main bedroom. The three men were then in the dining room. He ran to get his baseball bat. He jumped on the bed, breaking it as he lunged for the bat.

19. He ran back down the hallway into the dining room. Only two men were there in that room. They were the older male and "the one I previously hadn't seen".

20. Mr Sandow then claimed significantly -

I swung the bat at them, I don't recall if I yelled and screamed, then I swung the bat and hit the top - top of the architrave of the doorway.

21. He lost the bat, then, he said, "The older man jumped through the door and attempted to hit me several times again with the iron bar". He was hit on the head and both forearms. Each of the other men were in the house again.

22. The young male he had not seen before now had the bat. Mr Sandow got hold of both the bat and the metal pipe. The men yelled at each other in a language foreign to him. The older male said in English, "Let go, let go". Then as Mr Sandow let go of the bat and pipe, the young male he had seen before went to the kitchen/dining room door. The other two followed backing out towards the front door.

23. Then, Mr Sandow said, he ran to the garage that was down the same hallway but to the right. He then returned to the kitchen/lounge room area and, apparently, out to the back yard then to the front dining room where he lay down to await help.

24. He was treated by ambulance officers and taken to hospital for treatment. He remained there for eight days.

25. It was apparent from Mr Sandow's markings on the unit's floor plan, as well as from his oral description of losing control of his baseball bat, that, partly because of his serious stab wounds, the bat could only have struck the architrave of the door between the dining room and the kitchen. Indeed, the point at which he grabbed the bar and bat held by the older male and the unknown younger male was indicated by him to be near the commencement of the hallway between the kitchen and lounge room. It is hard to see how the bat, if swung by Mr Sandow before he lost control of it, could from there have impacted on the front door and its architrave.

26. Mr Sandow gave an account of meeting the second of the three males, one of the two younger men, apparently the accused, Goran Josifovski, shortly after he had arrived home from work on 18 December 2002. He said his wife was distressed. She complained of being "abused" by that person. He found that person in front of "Rob's" garage at Unit 8 in the same complex. That was Rob's unit. There was also "Daniel", tenant of Unit 2. Having taken the rubbish out, Mr Sandow approached Goran Josifovski. He said, "You've been abusing my partner". Goran Josifovski said, "No, I didn't". Mr Sandow said "... fucking liar". Goran Josifovski then said, "You're fucked. You don't know who you're fucking with". Goran Josifovski walked past him then and "went to shoulder me on the way past".

27. In response, Mr Sandow pushed Goran Josifovski's chest with his open hand repeating about five times, "Is that a threat?" Goran Josifovski walked on past but that conversation was repeated. Mr Sandow returned to his unit, got a camera and photographed the vehicle he believed belonged to Goran Josifovski.

28. Male 3, alleged by the Crown to have been Joseph Shafik, Mr Sandow described as taller than male 2 (allegedly Goran Josifovski) and thinner.

29. In cross-examination, Mr Sandow denied having, during the incident on the 18^th December 2002, uttered any threats to, or but for the push, assaulted this male person.

30. Specifically, it was suggested to Mr Sandow and denied by him that he had grabbed hold of Goran Josifovski with both hands to his jacket lapels, spun him around and pushed his chest with both hands and then struck him in the face.

31. Mr Sandow admitted that he had taken anabolic steroids in the past but said that he had not used them after the year 2000.

32. The knocking on the door of his unit on 20 December 2002 he recalled as "no louder or softer than I normally hear".

33. At the time of the incident, and, indeed, the trial, Mr Sandow, though of moderate height, (172 cms) was extremely powerfully built, weighing, he said, 110 kg. He certainly looked like the power lifter he claimed to be.

34. Significantly, Mr Sandow claimed that the first blow he was struck caused profuse bleeding. He felt it running down his face "a couple of seconds" after he exited the bedroom having obtained his bat. He accepted that he had, before exiting the bedroom, been bleeding. He agreed that it was his evidence that the three major stab wounds and not less than one blow with the iron bar causing the skin to open, occurred near to the front door.

35. He was asked by Mr Doig, for the accused Ratko Josifovski, why, after the attack on him had ceased, he had gone to the garage. Mr Sandow's initial response was "absolute panic, a fear for my life, I had no idea". He had, however, told police that he had gone there to look for another weapon.

36. He denied a suggestion that before any blow was struck, he had gone to the master bedroom to get his baseball bat after saying, "What do you want, you fucking wog?" or that Mr Ratko Josifovski had said, "Why did you do that to my son?" He denied that, having returned with the bat, he pulled Mr Goran Josifovski into the unit whilst waving the bat.

37. After he returned with the bat, which he claimed followed the major injuries, the three men were all in the dining room. Ms Lambert was in the kitchen/lounge room area.

38. To Mr Salmon QC, for Goran Josifovski, Mr Sandow expressly agreed that after he exited the garage the third man had gone. He did not recall first going to the back yard and then to the front room to lie down. But he agreed that those movements were marked by a trail of blood.

39. He agreed that he was in conflict with other occupants in the complex, particularly those in Unit 2. He claimed that he lost the bat at the front door when Mr Salmon QC pointed out that the damage to the front door and architrave was consistent with him swinging the bat.

40. Mr Sandow could not explain why all his previous references had been to "a knife" not "knives" as being a weapon or weapons present and used by his attackers.

41. He was asked if he was an aggressive sort of a person. His answer was "not most of the time, sir". He agreed, however, that, at the time of the incident he was facing a charge of common assault. He was convicted of that offence on 9 May 2003. That involved residents of Unit 2.

42. Mr Sandow denied that he struck Goran Josifovski in the eye as well as pushing him in the incident of 18 December 2002.

43. He also stated that, on his return from the bedroom with the bat, only two men were there in the dining room. On losing the bat, he was pushed back into the living room/kitchen area where "all the blood stains are". I take it, from the photographs, he was referring to the heavier concentration of blood.

44. Mr Sandow declined to acknowledge that no blood had been deposited in the bedroom despite his leaping on the bed so violently that it broke. Nevertheless, that was the fact.

45. Mr Sandow's credit was also attacked by reference to prior convictions in 1980 and 1982, for stealing. He was convicted on 10 counts of uttering forged documents in 1991.

46. The two men who left after he lost control of the bat, he identified as the older man and the younger man he had not seen before. On his account Goran Josifovski had exited the unit first.

47. Mr Sandow denied that the altercation on the Wednesday evening had commenced with him saying to Goran Josifovski, "If you look at my girlfriend again you'll get what's coming to you". Nor that Goran Josifovski replied -

If you're willing to talk to me properly I'll talk to you, you don't know me and you're abusing me. If you're willing to talk to me as a man and not abuse me I'm willing to talk to you.

48. Nor did Mr Sandow agree that he then manhandled Mr Goran Josifovski, punched his left eye and letting him go saying, "You fucking wog. Don't look at my girlfriend again". He did, however, agree that he "may have" called Mr Goran Josifovski a "wog".

49. He denied telling ambulance officers that only one of his attackers had a knife.

50. He also agreed that he had further prior convictions, for wilful destruction of property (1985) and assault (1988) in Brisbane and for an assault occasioning actual bodily harm (1988) in Canberra.

51. Mr Archer, for Joseph Shafik, also cross-examined Mr Sandow.

52. The latter agreed that, after he was bleeding, he had contact with the other men present. He agreed that the photographs depicted blood spatter quite high at the place where he described the struggle over the bat and pipe. That was in the kitchen/lounge room area. That evidence seemed somewhat inconsistent with his initial description of leaving the bedroom and swinging the bat in the dining room.

53. Mr Sandow asserted that the three men communicated with each other in a foreign tongue but recalled only the first (older) and second (younger man seen before) man talking to each other. However, that contradicted evidence Mr Sandow had given the previous day where, he had said that "all three of them" had been yelling in a foreign language. Further, he had, at committal, deposed that the older man and the younger man he had not seen before, the two he asserted had the pipe and, after he lost control of it, the bat, had yelled between themselves in a foreign language. Mr Sandow then asserted, though not convincingly, that the foreign language was only exchanged between the two now identified as father and son.

54. It was apparent to me that Mr Sandow's change of evidence, despite his attempt to conceal it, was due to his realisation that Mr Shafik did not share a common foreign language with the other two.

55. Ms Rachel Lambert, Mr Sandow's wife, next gave evidence.

56. Her account of the incident on 20 December 2002 differed somewhat from his.

57. The knocks on the door she said, were "three really loud knocks ... like banging". Next, she said, she went with Mr Sandow to the door and stood "right next to him".

58. She described all three of the men at the door as "barging in". Two of them, the younger two, one of whom she had seen before, each had a knife in the right hand. The older male held an iron bar and struck Mr Sandow "about five times" with it. There was "lots of blood".

59. The younger man she had seen before then stabbed Mr Sandow in the stomach on the left side of it. After that both the younger men stabbed Mr Sandow in the back, the first of them on the left side.

60. She went to call the police. Mr Sandow broke away from them and went into the hallway heading to the master bedroom and the garage. She heard the garage door open and Mr Sandow reappeared with the baseball bat. Her account of what he did with it was -

He was just trying to swing it, then he had his hand on his wound, and the three sort of came back into the family room.

61. She had described them, before that, as being "in the hallway".

62. At that stage, as they retreated back into the family room (that is, the lounge/kitchen area) the first young man had a knife, the older man both a knife and the "pole".

63. All three of them began to kick at Mr Sandow and the two younger men to punch at him.

64. They were "all yelling in their own language".

65. The men then started to leave the house, from the family room.

66. On that account, Mr Sandow could not have swung the bat onto the front door and architrave.

67. She next noticed Mr Sandow had gone into the backyard. She first checked to make sure the men had gone. She then attended to Mr Sandow, getting him to lay down in the front room, that is, the dining room.

68. Her account of the incident of 18 December 2002 was that she saw the RAV4, later photographed, park in the area. The male person now identified as Goran Josifovski and "Amy" got out and "started to yell at me". Goran Josifovski said to her -

You guys are dead. My mates are going to fuck you over.

69. Given this was, she said, her account of the matter to Mr Sandow, it is surprising that he did not recall it despite the similarity of it to the "threat" Mr Sandow recounted as being directed to him.

70. She observed Mr Sandow approach the male person she had described. She heard him say "Leave my girlfriend alone, she's done nothing to you".

71. She deposed that then -

I could hear some shouting and yelling, there was a car in the driveway of unit 8 so I couldn't always see everyone but I just saw arms moving around from [the young male person] and I heard him saying to Grant, "You guys are dead, me and my mates are going to come and fuck you over".

Did you hear Grant say anything?

Grant was just telling them to piss off and stop playing their music late into the night and show some respect and leave us alone.

72. When Ms Lambert heard the banging on the door on 20 December 2002, she told Mr Doig in cross-examination, she thought it might be the police. She said she did not know why she thought that but it seemed to me she was conscious that the event she witnessed on 18 December involving Mr Goran Josifovski, contrary to her account of it, was such as might have led to a complaint by him to police about Mr Sandow.

73. Significantly, she asserted that when Mr Sandow saw the three men and was trying to shut them out, he said, "Get me a bat, get me a bat".

74. Mr Sandow had expressly denied making such a statement. She agreed in cross-examination that the words used were, "Rachel, get me my bat, get me my bat".

75. However, significantly, she was unaware whether the bat was in the bedroom or the garage.

76. It was interesting that neither she nor Mr Sandow suggested that he had any interest in baseball.

77. She expressly denied that Mr Sandow, during this incident, ever had the bat at the front door -

Do I understand your evidence to be from yesterday that the only time on that occasion that you saw Mr Sandow with the bat was in the corridor area off the lounge/kitchen? "Correct, in the hallway and in the area of the kitchen/dining room, kitchen/family room area".

78. The conflict between this evidence and that of Mr Sandow could not have been more stark. On her account of it, he lost possession of the bat at the kitchen/dining room area. He never got with the bat to the vicinity of the front door. Indeed, Mr Sandow's evidence of that was confused and contradictory.

79. She confirmed, as the photographs disclosed, that there was blood throughout the house.

80. Obviously, those would be the places Mr Sandow had been after he was hit and stabbed. There were blood trails into the garage and on the back patio as photographs confirmed.

81. She, however, had the older man also with a knife, stabbing Mr Sandow in the back, as she was on the phone. The men all had blood on them, "enough to notice".

82. She also rejected the scenario that Mr Sandow had, upon seeing the men at the front door, got his bat and dragged the young man she had seen previously into the unit as the prelude to the mêlée inside it.

83. Ms Lambert reiterated that Mr Sandow had never had the baseball bat in his possession in the dining room.

84. This made it crystal clear that, on her evidence, the marks on the top of the front door and architrave could not have occurred unless Mr Sandow had the bat with him at the front door and before he was attacked. This is confirmed by the fact that Ms Lambert acknowledged only one entry by Mr Sandow down the hallway, that is, when he entered the garage, she thought, to get the bat.

85. She denied that her comment about expecting police to be knocking on 20 December 2002 had been prompted by any concern that Mr Sandow might have been violent towards Mr Goran Josifovski.

86. I have to say I do not believe that denial.

87. It is also significant that, though she became aware that the bed had broken some time after the incident, she did not realise that it had been as a result of Mr Sandow retrieving his bat.

88. I consider she was concealing an awareness that Mr Sandow had obtained the bat before he was injured, not after. I think she was aware of the blood trail in the garage and that there was none leading to or in the bedroom and took the view that to say that the bat was obtained from the garage would be supportive of Mr Sandow's version of events.

89. She claimed that, before she spoke to 000, she had seen Mr Sandow hit and stabbed. She agreed, however, that she had not mentioned that when talking to the 000 operator. Rather she said -

Hello, our neighbours have just broken into our house and they're bashing up my boyfriend.

90. She explained that reference as indicating that Mr Goran Josifovski had previously been seen by her with Unit 2 residents. Clearly, she assumed that this was a kind of retaliatory visit inspired by the ongoing dispute with Unit 2 residents and the incident with Mr Goran Josifovski.

91. However, on the next 000 call when the ambulance was requested Ms Lambert said -

M'mm our neighbours just broke into our house and they've stabbed my boyfriend and there's blood everywhere. I've called the police but I need an ambulance. They've stabbed him in the chest.

92. This indicates to me that it was only after the first (contemporaneous with the struggle) 000 call and after the three men had left that Ms Lambert was aware that a knife or knives had been used.

93. Obviously, at least one knife was used in the course of the mêlée by at least one attacker in order to produce Mr Sandow's injuries but I am unpersuaded by Ms Lambert's evidence as to which of the accused or that more than one of them wielded a knife.

94. She had, in fact, told Constable Strachan that Mr Goran Josifovski had, clenched in his right hand, "something that looked like a knife". This was a much less positive affirmation than her evidence had indicated. Her evidence was contradictory as to whether the older man had a knife at all. Her statement to Constable Stachan was clearly at odds with her own evidence as well as that of Mr Sandow.

95. Dr Peter Barry provided two reports. He confirmed the nature and position of wounds and confirmed that the head wounds particularly would have bled profusely.

96. Constable Donaldson and Acting Sergeant Downton, following the first report of the incident of 20 December 2002, were assigned to observe the Josifovski house. That followed from the photograph of Goran Josifovski's vehicle taken on 18 December 2002 and given to police on their attendance at Unit 1.

97. They saw a red Commodore arrive and three men alight from it. It is now apparent that those men were the accused. One of the men, apparently Joseph Shafik, returned to the vehicle. He was identified as having been the driver. He leant through the front passenger window for some reason. Police approached and arrested him. The other two then emerged from the driveway. They were also subdued and arrested.

98. The Commodore, when searched, had a baseball bat and a piece of metal piping beneath it on the passenger side of the front compartment. There is no doubt that these were two of the weapons used in Mr Sandow's unit on 20 December 2002.

99. Mr Thomas Ross, a resident of Unit 11/18 Marou Place deposed that, on 20 December 2002, about 6.30 pm he heard raised voices. Going outside he noticed a person run from Unit 1. The dress of that person was consistent with that of the person Mr Sandow and Ms Lambert described as being the younger male person they had not previously seen. Mr Ross did not recognise the person.

100. After that person had run up the driveway of the complex towards the street some distance, he stopped and turned. Another person came out of Unit 1. This person's description was consistent with that of Goran Josifovski. He also ran up the driveway towards the first person (that is, 10 to 15 metres).

101. A third man, of appearance consistent with Mr Ratko Josifovski, then emerged. His  t-shirt was ripped up one side. He stopped at the tap outside Unit 1 and washed two items. One appeared to be a length of rusty coloured metal. The second man came back to him to assist. After about 30 seconds they took off towards the entrance.

102. Mr Ross then went to Unit 1. He saw a lot of blood in the dining room. He also attempted to phone police. He observed Mr Sandow's injuries. He had observed blood on the shirt of the second man he had seen though not on the others.

103. Another resident of the Marou Place units was Mr Robert Morrison. He resided at Unit 8. He observed the incident of 18 December 2002 between Mr Goran Josifovski and Mr Sandow. He was also present in his unit on 20 December 2002 at 6.30 pm.

104. On his account of the events of 18 December 2002, Mr Sandow went past him, "Daniel" and "Goran" (Daniel was the brother of "Amy", a resident of Unit 2).

105. Mr Morrison's account of the confrontation differed from that of Mr Sandow and, by inference, from that of Ms Lambert.

106. First, he said that Mr Sandow, in walking past, made a comment to the effect of "you pack of fuckwits". On his return from the bin he said, apparently to Goran Josifovski -

What the fuck are you looking at? What's the go with looking at my wife? What did you say to her?

Goran Josifovski replied -

I don't know what you're talking about mate. I don't have anything to do with what's going on around here.

107. Following a repetition to similar effect, Mr Sandow grabbed hold of Goran Josifovski's lapels, pulled them and spun him around. The latter said -

Look, don't fucking touch me. You have no right to touch me.

108. Mr Sandow then pushed him in the chest. On this point there was agreement with Mr Sandow's evidence.

109. There was further abuse from Mr Sandow with him referring to Goran Josifovski as a "woggy boy".

110. After he photographed Mr Josifovski's car he yelled out a threat about it "burning". He did not, however, depose to a blow struck by Mr Sandow. He did, nevertheless, concede that he was not in a position to have seen a single blow if struck as was suggested.

111. Mr Morrison, it should be added had adopted a neutral stance on the dispute between the Unit 2 residents and Mr Sandow.

112. The differences between this account and that suggested on behalf of Goran Josifovski were not, to my mind, substantial.

113. Ms Amy Symons had also been present outside Unit 2 when the confrontation between Mr Sandow and Mr Goran Josifovski occurred. I bear in mind that she was a resident of Unit 2 and there was a history of hostility between the residents of that unit and Mr Sandow.

114. Her attention was drawn by raised voices. She did not purport to say that Goran Josifovski was assaulted by Mr Sandow. She could easily have done so had she been an unreliable witness. I consider that she was truthful and accurate. She did say that, after Goran's graduation ceremony at University of Canberra, they had gone to a night club. There someone had punched Goran Josifovski in the eye.

115. In cross-examination previous to these events she described an incident in which Mr Sandow had threatened a former boyfriend of hers with a baseball bat.

116. Again, had she been unreliable as a witness, she could have denied that Goran Josifovski had been struck in the eye at the night club.

117. Constable Hatch assisted with the timing of the incident of 20 December 2002. He received a call to attend Marou Place at 6.44 pm and arrived about 10 minutes later. Mr Salmon QC referred him to the note of the original complaint which was recorded as "two males have just smashed their way in and are currently bashing up her boyfriend". The statement from Ms Lambert at the scene was "her partner and she stated that the two offenders have driven off in the vehicle".

118. However, there was also reference to a third person, "maybe a brother", as being "with" the two offenders. The initial statements taken referred to a metal bar and a knife. There was also evidence that Mr Sandow was adversely known to police. The admissible evidence, referring to him, was -

Known to be violent and aggressive ... He's on bail conditions. Has got criminal history for assault ...

119. That assessment was consistent with the facts elicited in cross-examination and supports the version of the events of 18 December 2002 given by Mr Morrison and to a lesser extent, given her lesser opportunity to observe, Ms Symons. Unlawful violence and dishonesty were clearly character traits attributable to Mr Sandow.

120. Constables Downton and Donaldson attended the Josifovski home in Florey. That venue was suggested by a vehicle check from the photograph taken by Mr Sandow on 18 December 2002.

121. A red Commodore, being Mr Shafik's vehicle, arrived with three male persons on board. They entered the house. One of the younger males, apparently Mr Shafik, returned to the vehicle looked into it and reached into the Commodore on the passenger side. He was then arrested. The other two males, being the other two accused, then emerged from the premises and were arrested.

122. Constable Harris, also in attendance, confirmed that Joseph Shafik had leaned into the passenger side of the red Commodore before being arrested. Constable Harris then inspected the vehicle and found a baseball bat and a metal "rod or shaft" on the floor.

123. A statement he had taken on the night from Ms Lambert cast further doubt on her veracity. First, she had told him that she believed one of the offenders was the boyfriend of her female next door neighbour and, apparently, a few nights ago her boyfriend (the victim) had asked the people next door to turn their music down and these people (the offenders) had threatened her boyfriend at the time. This clearly was a fantasy and certainly inconsistent with her account of being abused and conveying that information to Mr Sandow on 18 December 2002. Constable Harris also confirmed that the weapons used by the assailants were said to have been "a metal bar and a knife" (emphasis added).

124. The police photographer confirmed that whilst there were blood trails, spatters and smears in the dining room, kitchen/lounge room area, the hallway and garage there were none in the main bedroom. This clearly was inconsistent with Mr Sandow's claim that he was beaten and stabbed before he went for his baseball bat. Ms Lambert, as I have noted, made a somewhat clumsy attempt to support that scenario by purporting to recall that Mr Sandow had got the bat from the garage.

125. In an interview with police, Mr Ratko Josifovski denied being aware of a stabbing. He told them that he had gone to see Mr Sandow to find out why Mr Sandow had attacked Goran. He had been told by Goran that the "blue eye" he had had been inflicted by Mr Sandow. That was a reference to a black eye. Mr Ratko Josifovski was offended that the black eye spoiled Goran's graduation photographs. Incidentally, those photographs were taken before the incident in the night club and following the graduation ceremony which preceded the visit to the night club. He said he took the metal pipe with him because of Mr Sandow's behaviour and appearance as it was conveyed to him. The pipe was ordinarily used to stir paint, as was obvious from its appearance. Asked why he took it, he said -

I protect myself because he [Goran] told me that a big guy very hard man and might do something.

126. They went to Ngunnawal with a friend of Goran's he did not know, but it is apparent that it was Mr Shafik.

127. He stated that when they knocked on the door, Mr Sandow went and quickly returned with the baseball bat yelling "Fuck off, fuck off".

128. Goran was just in front of him. The friend (Joseph Shafik) was not then present. Mr Sandow said, on returning with the bat, "Fucking what do you want, fucking wog?"

129. Ratko Josifovski said, "Why you do that to my son?"

130. The man, he said, then grabbed Goran and he tried, he said, to break them apart. He did not see any knife (or any third person). Finally after a struggle, he broke Goran away and they fled. He agreed he did use the metal bar on Mr Sandow and he grabbed at the bat that the latter was holding.

131. Now Mr Ratko Josifovski may well not have told the whole truth about the use of the metal bar. Nor may he have been truthful about not seeing a third intruder present. That does not mean that the essential truth of the proposition that Mr Sandow, on seeing Goran and his father, realising that there would be trouble by reason of his assault upon Goran on the Wednesday, raced for his bat to make a pre-emptive strike. No doubt Mr Ratko Josifovski was, understandably, minimising his responsibility for Mr Sandow's injuries. That does not mean that the incident did not commence and proceed essentially as he described it.

132. Detective Sergeant Craig Palmer interviewed Goran Josifovski. The latter's command of English was not compromised, as was that of his father. Goran's account of the events leading to the confrontation was that he had, on 18 December 2002, gone to pick up Amy Symons to take her to the UC graduation ball as his partner. Mr Sandow had approached him aggressively saying, "Why are you looking at my wife, you wog bastard?" After a further exchange Mr Sandow struck Goran a single blow landing on his lip and eye.

133. His father was upset about his appearance, as a result of this assault, in the graduation photographs. That again supports the view that the night club assault was not relevant. They went to Mr Sandow's unit on the Friday to confront him. Mr Sandow on opening the door immediately yelled for, and then got, his baseball bat. He swung it at them. Mr Ratko Josifovski stopped him.

134. That was, no doubt, aided by the fact that Mr Sandow obviously hit the door and architrave at the top of it rather than the persons confronting him.

135. He and his father went into the unit in the course of the struggle but not Joseph Shafik. Goran conceded that, during the struggle, he used the "pole" as did his father. He denied, however, that he had seen or used a knife.

136. Sergeant Palmer readily conceded that Mr Sandow's account of jumping on the bed to get his baseball bat after he had been both struck with the metal pipe and stabbed three times was inconsistent with the crime scene examination. Indeed, Sergeant Palmer described that story as "bizarre".

137. I have to say that I am satisfied that Mr Sandow's story of being beaten and stabbed and then fleeing to obtain his bat was a deliberately false statement, falsely but ineptly corroborated by Ms Lambert. In short, they lied.

138. The reason for that lie could only have been to conceal the fact that Mr Sandow, consistently with his behaviour on 18 December 2002 and his past record for violence, was the aggressor when Ratko and Goran Josifovski appeared on his doorstep on 20 December 2002. That is not to say that, having seen that Mr Ratko Josifovski had a length of pipe with him, Mr Sandow was not entitled to assume that they intended to attack him in retaliation for his vicious and cowardly assault upon Goran Josifovski on 18 December 2002. However, whether they had in fact entertained such an intention is doubtful. It is more likely that their intentions were as Mr Ratko Josifovski asserted in his record of interview.

139. There was evidence of DNA analysis of blood and other traces performed by Ms Wilson-Wilde, a suitably qualified expert. She found some mixed DNA of Mr Sandow and of Ratko and Goran Josifovski confirming the participation of those persons in the events occurring at 18 Marou Place. There was some blood of Joseph Shafik on a shirt belonging to him. That did not place however, him at the "crime scene".

140. Closer to supporting such a conclusion was the result of the examination of the baseball bat. Despite it having allegedly been seen being washed at the scene under a tap, it revealed "a weak mixed DNA profile ... Sandow and Shafik could not be excluded as having contributed to this mixture". The metal pipe revealed blood containing Mr Sandow's DNA only. The residue found on the bat revealed only a 1:82 probability of the DNA found on it (from spittle or blood) being contributed to by Mr Sandow and/or Mr Shafik. Mr Shafik's profile or, at least, a profile consistent with it, was only weakly represented.

141. At the end of the Crown case, Mr Archer submitted there was insufficient evidence to link Mr Shafik to the events in Unit 1, 18 Marou Place on 20 December 2002.

142. Certainly, there was evidence that Mr Shafik had driven the Josifovskis from the vicinity of the crime scene. That could be inferred from the arrival at Florey. The only evidence that he drove to the crime scene, however, was that of Goran Josifovski in his police interview and, even if that had been admissible against Mr Shafik, it would not prove his participation in the events in Unit 1. He had not been identified by any eyewitness as a participant and his weakly represented DNA on the bat was consistent with him handling it after the event, possibly when he returned to his vehicle after arrival at the Josifovski home.

143. There was no attempt to identify him as the third male person emerging from Mr Sandow's unit, prior to the Josifovskis emerging. Nor, indeed, was there any evidence of Mr Shafik's car leaving the scene. How far away it was, even if present at Marou Place, or whether he exited or re-entered the car after the events there occurring before arriving at Florey was simply unknown.

144. There were other people in the vicinity of Marou Place, known to Goran Josifovski and in dispute with Mr Sandow. The description of the second younger man, so far as it was given by Mr Sandow and Ms Lambert, was at odds with the appearance of Mr Shafik on that night. The hair colour was different. The clothing was different from that described by Ms Lambert and Mr Sandow. A smaller point which also either belies the accuracy of the observations of Mr Sandow and Ms Lambert or the hypothesis that Mr Shafik was the third intruder was the apparent communication in a foreign tongue between the three intruders. It was common ground that the accuseds' only common language was English.

145. Accordingly on 13 December 2005, I ruled that the evidence at that point was insufficient to prove beyond reasonable doubt that the third man was the accused Joseph Shafik (see for example, R v Prasad (1979) 23 SASR 161; (1979) 2 A Crim R 45). I recorded a verdict of acquittal accordingly.

146. In response to the Crown evidence only Mr Goran Josifovski gave evidence.

147. I remind myself that Mr Ratko Josifovski was not obliged to give evidence and no adverse inference can be drawn from the fact that he did not. I further bear in mind that each accused had put his character in issue, at least so far as violence and honesty was concerned. The Crown adduced no evidence adverse to the character of either of those accused. I must accept that this lessens the likelihood of violent conduct on their part and strengthens the likelihood of them having been truthful either in speaking to police or in giving evidence. That is so, even if the statement of Mr Ratko Josifovski to police, his only version of the events of 20 December 2002, was unsworn.

148. In relation to Mr Goran Josifovski, he was not obliged to give evidence. In doing so he exposed his character to direct challenge and his testimony to cross-examination, made the more likely to be effective as he had already provided an interview to police. The latter provided greater scope for the cross-examiner to test his veracity. Indeed, it later emerged that he had also provided a proof of his evidence to the prosecution.

149. His evidence of the encounter with Mr Sandow on 18 December 2002 was largely consistent with that of Mr Morrison, and, so far as she saw or heard of it, that of Ms Symons as well. The conversation, he said, was to the effect -

Sandow: What are you looking at, you wog prick? If you look at my girlfriend again, you'll get what's coming to you.

G. Josifovski: Look, I don't know you or your girlfriend, I'm just here to go to a ball. ...Look, if you're willing to talk to me as a normal human being, I'm willing to talk to you but I don't know you or [your girlfriend].

150. Mr Sandow then grabbed Goran Josifovski and swung him around striking him in the area of the eye.

151. On 20 December 2002, Joseph Shafik came to visit Goran Josifovski. The latter then told his father about the altercation with Mr Sandow by way of explanation of the black eye he had had at graduation. Ratko Josifovski was most concerned to "straighten things out and talk to Mr Sandow". On arrival at Marou Place, Goran and Ratko Josifovski approached Unit 1. Joseph Shafik was told to stay in his car (the red Commodore). Goran Josifovski knocked on the door. Mr Sandow opened it. The latter immediately yelled, "Get my fucking bat". He left and quickly reappeared wielding a baseball bat. Mr Sandow swung the bat but missed hitting the top of the front door.

152. That version of events is confirmed for me by the forensic evidence which confirm beyond doubt that the bat, swung from the inside, hit the door and architrave.

153. Then, he said, Mr Sandow grabbed him and pulled him into the unit. He saw nothing of Joseph Shafik at that point and had not observed his father to be carrying anything. His father then attempted to intervene. At that point Goran Josifovski became aware that his father had the "pole".

154. As the fight moved to the kitchen area of the unit, each of the bat and pipe was grabbed hold of by both Mr Sandow and Ratko Josifovski. There was a lot of blood around.

155. At that point, Goran Josifovski said to Mr Sandow, "just let go, so we can leave". He was then trying to pull Mr Sandow off his father. He repeated words to that effect several times. They were then near the hallway. Mr Sandow said, "Is that it, is that it?" The bat was then taken from Mr Sandow by Goran Josifovski. He, and his father, then backed out of the unit. He then observed Mr Shafik outside the unit and 8 to 10 metres away. Ratko Josifovski went to the tap. Goran went over to him and said, "let's go". He did not however, put the bat, which he still had hold of, under the water. When they got to the car, Joseph Shafik was in the driver's seat.

156. On the way back to the Josifovski house, Joseph Shafik admitted to them that he had stabbed "the guy" because the other two were losing the fight. Mr Shafik gave the knife (folded) to Goran Josifovski who surrendered it to his father on their arrival at the house. The latter threw it away over the back fence towards the next door premises at Florey.

157. They changed out of such of their clothing as was bloodied and torn. Joseph Shafik went outside for a cigarette. Hearing a commotion, they followed and were arrested.

158. Goran Josifovski elaborated upon his character. Mr Doig, in cross-examination, elicited that the "pole" was ordinarily used by his father, a painter, to stir paint. Goran Josifovski asserted that he had not seen Joseph Shafik's knife until after the event had concluded. He did not believe his father had seen it before that time either.

159. Apart from the somewhat confused and less than credible testimony of Mr Sandow and Ms Lambert, there was no evidence that more than one knife was used on Mr Sandow. His three stab wounds could well have been inflicted by the one knife.

160. There is no doubt that the whole incident was very brief. It is apparent from Goran Josifovski's evidence, as well as that of Mr Thomas Ross that Joseph Shafik emerged from Unit 1, possibly about half a minute before the other two. That supports, in general terms, Goran Josifovski's assertion that Mr Shafik had, in effect, intervened in the struggle he and his father were having with Mr Sandow, stabbed the latter three times and then fled.

161. Now, it is difficult to accept that neither of the two Josifovskis noticed Mr Shafik's intervention. Given the confusion, noise and terror of the situation, however, it is not impossible. Clearly, Goran Josifovski, at least, knew of it when he spoke to Sergeant Palmer. He claimed, however, he spoke "off the record" to Sergeant Palmer and told him of the knife and its disposal.

162. He said that he had mentioned to Sergeant Palmer being dragged into the unit by Mr Sandow.

163. It is, to my mind, unlikely that Mr Ratko Josifovski would have brought the metal pipe with him unless he foresaw that it would or might be used against Mr Sandow. I accept that the latter could have been expected to have become violent and aggressive rather than engage in rational discussion. However, the sensible solution to that problem would have been to complain to police, not to attempt to discuss the matter with Mr Sandow. Nevertheless, by the time the Josifovskis had entered the building Mr Sandow had pre-empted the situation by abducting and detaining Goran Josifovski and threatening violence by means of an offensive weapon.

164. There was character evidence called on behalf of the two accused. Mr Louis Skepev, George Lemon (for Goran only), Kathryn Porritt (Goran), Guy Glendenning (Ratko), Bill Dojcinoski (Ratko), Adam Gray (Ratko), Dr Alan D Shroot, Giovanni Cerundolo (Ratko), Gary Chipperfield (Ratko) John Nikolovski (Ratko). The evidence was clearly favourable to the two accused.

165. It was also then revealed by Mr Salmon QC that, on 4 May 2005, Goran Josifovski's solicitor had forwarded a proof of his evidence to the DPP. That proof included a statement that the knife Joseph Shafik had said that he had used had been thrown away from the Florey premises.

166. Sergeant Palmer, recalled, fairly conceded that information concerning the incident was possibly given to him by Goran Josifovski in breaks in the interview with him but denied that it concerned "the knife and Mr Shafik". Nevertheless, on 23 December 2002, a police search was conducted of the area of Fielder Place, Florey. Under cross-examination Sergeant Palmer revealed that he had received "some information" from Joseph Shafik relating to the knife on 23 December 2002. That, he said, was to the effect that the latter "may have touched a knife". It was that information which prompted the search. Sergeant Palmer, however he came by it, had in fact operated on the theory that the knife had been thrown away, as it had been according to Goran Josifovski's statement, from the backyard of the Josifovski home. He agreed, also, that had he recorded Joseph Shafik's admission that he had "touched a knife" it could have provided some evidence of the latter's complicity in the stabbing. He conceded that it was an error for him not to have done so.

167. In the end, little turns on whether Sergeant Palmer may have got some oblique reference from Mr Goran Josifovski about a knife and Mr Shafik or whether he got it from Mr Shafik. I did not get the impression that Sergeant Palmer was giving anything other than his honest recollection of unrecorded conversations three years before.

Addresses of Counsel

168. Mr Todd noted that the suffering of grievous bodily harm by Mr Sandow was clearly established. He conceded that, if Mr Shafik had intervened with a knife as Goran Josifovski had deposed then the second and third counts would not be supportable although the statutory alternatives of assault occasioning actual bodily harm would be available (Crimes Act 1900 s 49).

169. In either case, a trespassory entry into Unit 1 with intent to commit any assault would constitute burglary and if that intent was common to more than one person and/or the person entering with that intent had an offensive weapon with him, it would constitute aggravated burglary (Criminal Code 2002 s 312).

170. Indeed, on the state of the evidence at the conclusion of the case, Mr Todd did not dispute that the hypothesis that Mr Shafik acted alone in stabbing Mr Sandow was a reasonable one which could not be rejected. Of course, as a matter of fact, a judgment would need to be made whether he had acted in reasonable self-defence, in the sense of protecting the other two accused. I make no finding about that issue as it does not arise.

171. It is also obvious that, given the lack of credibility of Mr Sandow and Ms Lambert, I cannot act on any other hypothesis than that, on seeing them, perhaps with Mr Shafik lurking in the background, Mr Sandow immediately went on the attack, obtaining and wielding his bat and pulling Goran Josifovski, who clearly he must have perceived to be unarmed to have risked doing so, into the unit to use as a shield whilst he attacked Mr Ratko Josifovski and, perhaps, Mr Shafik. It is not necessary so to decide, but I do not disregard the likelihood that Mr Sandow, fearing this was retaliation for his assault on Goran was, in obtaining and wielding his bat, acting in self-defence. That does not however, exclude the hypothesis that those he so attacked were entitled to act in self-defence to free themselves and safely flee.

172. Mr Todd submitted, quite properly, that given the events of 18 December as Mr Goran Josifovski described them, the proper course for him and his father would have been to consult the police. I agree. It could not have been rejected as a reasonable hypothesis that the Josifovskis had in mind some retaliation in going to see Mr Sandow.

173. However, that suspicion does not establish beyond reasonable doubt that it was an intent to wreak revenge on Mr Sandow that led to their presence on the latter's premises on 20 December 2002.

174. As Mr Todd urged, the issue on the first count is whether either or both of the Josifovskis entered the unit at Marou Place with the intent to assault Mr Sandow, I would need to be satisfied beyond reasonable doubt that such a conclusion must be drawn.

175. Even if that was their intent, on the remaining counts, given that the intent to inflict grievous bodily harm or to inflict that harm recklessly was not made out, as Mr Todd conceded the question is whether, if they had the intent to inflict some bodily harm upon Mr Sandow, their actions were in fact done in self-defence.

176. Mr Todd urged the view that, given Mr Ratko Josifovski had armed himself with the metal pipe, and, at least before he knocked on Mr Sandow's door, Mr Goran Josifovski was admittedly, by then, aware of it, a shared intent to commit, at the least, common assault should be inferred. That would suffice, he contended, for a verdict of guilty of aggravated burglary.

177. Mr Salmon QC, for Goran Josifovski, submitted that if, as was obvious, Mr Sandow and Ms Lambert had given a deliberately false account of how the incident commenced, the version of events excluding his client's knowledge of a knife being used could not be dismissed. Mr Todd had not disagreed that such a hypothesis could not be rejected. He pointed out that Goran Josifovski had concluded that the metal pipe was taken by his father simply in case Mr Sandow got violent, a not unreasonable expectation given the latter's conduct on 18 December. He had not, it was contended, been shown to have shared an intent to unlawfully assault Mr Sandow.

178. I agree with Mr Salmon QC that the version of events given by Mr Goran Josifovski in his evidence, fully tested as it was, could not be rejected. I have to accept it as a credible version of events. It is only necessary that it be a reasonably possible version of events.

179. Mr Doig, for Ratko Josifovski, pointed out that, of course, neither the interview with and statement, being the proof of evidence of Mr Goran Josifovski was evidence against his client. However, the evidence given by Mr Goran Josifovski was evidence in both cases. The differences between the three versions, so far as they referred to Mr Ratko Josifovski, were not significant. Nevertheless, I make it clear that I rely only on what Mr Ratko Josifovski told police in interview and what Goran Josifovski asserted in his oral evidence as evidence admissible in respect of Mr Ratko Josifovski.

180. Mr Doig conceded that the major adverse factor facing Mr Ratko Josifovski was the fact that he chose to bring a metal pipe, clearly for use as a weapon, to Mr Sandow's door, as if anticipating a confrontation. On the other hand, he submitted that Mr Ratko Josifovski's contention, as expressed to police and to his son, that he had brought the pipe with him merely to defend himself if, as was not unlikely, Mr Sandow had become physically aggressive, could not be rejected as certainly false.

181. There are two preliminary issues I should address before considering the cases of each of the two accused.

182. First is the issue of trespass. Any unauthorised entry onto the premises of another is a trespass (see for example Lippl v Haines (1989) 18 NSWLR 620). "Premises", of course, refers to the land and buildings thereon. The charge of burglary, of course, does not criminalise trespassory entries on to premises but rather such an entry to a "building". This is narrower than the law relating to inclosed lands (see for example Inclosed Lands Protection Act 1901 (NSW) though the notion of lawful excuse for an otherwise trespassory entry is relevant to all such cases (see for example Barns v Edwards (1993) 31 NSWLR 714).

183. There is authority that an otherwise trespassory entry may be excused if for the purpose of preventing imminent injury or damage (see Carr v Sourlos (1994) 6 BPR 13,626 at 13,632).

184. It is well established that entry to retake possession of goods wrongfully detained is not necessarily a trespass (see Cunningham v Yeomans (1868) 7 SCR (NSW) 149; R v Keith [1934] QSR 155).

185. Generally, a member of the public has an implied licence to enter for a legitimate purpose ordinary suburban residential premises by an unobstructed path or driveway (see Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1). Such a licence is revocable at the will of the occupier (see Mackay v Abrahams [1916] VLR 681; Munnings v Barrett [1987] TASSC 8; [1987] Tas R 80. Entry to steal or, indeed, to commit assault, would plainly not be "legitimate" (see Barker v R [1983] HCA 18; (1983) 153 CLR 338).

186. Some guidance may be deduced from Mark v Henshaw (1998) 85 FCR 555. The appellants had been charged with offences against s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth). Entry on premises was claimed to be justified (that is, reasonably excused) by the need to protect chickens allegedly being cruelly treated. A Full Court (Gallop, O'Loughlin and Finn JJ) rejected that contention, as had by Miles CJ on the initial appeal, though the Magistrate at first instance had accepted it.

187. It was, however, recognised that the law permitted self-help in some circumstances to assert legal rights, such as retrieval of stolen goods or in self-defence. With approval, their Honours cited Street CJ in R v Bacon [1977] 2 NSWLR 507 at 513 -

The circumstances in which an individual can be permitted to take the law into his own hands are limited. There is to be observed, moreover, a developing tendency to limit yet further what might be described as self-help by physical assertion of legal rights. Repossession of premises by a lessor provides a highly topical case in point. Recognised fields such as abatement of nuisance and removal of trespassers have not been seen to be extended in recent years. It is a clear policy of the law that legal rights should ordinarily be enforced and protected by due process, and not by taking a physical initiative. To accept it as reasonable that every individual can intervene physically to hinder or prevent a breach or to procure observance of civil law would involve dangerous overtones capable of leading to oppression and coercion, it not to actual disorder. The law enforcement agencies of the community, both civil and criminal, have the responsibility on its behalf of seeing to the observance of the law.

188. I conclude that, even to retake goods, the law now is that trespass would be excused only if an otherwise trespassory entry was the only reasonable method available to effect repossession. In the present circumstances, a desire to seek redress for the assault upon Mr Goran Josifovski would not justify a trespassory entry. Complaint to police or a civil suit for damages (or both) were available alternatives reasonably open. It would not have been a trespass to approach Mr Sandow's front door to enter into a non-violent discussion about the grievance entertained by Mr Goran Josifovski. The Josifovskis would, however, have had to be prepared to vacate the premises as soon as Mr Sandow expressly or implicitly requested it.

189. However, it was not lawful for Mr Sandow to attack visitors, even unwelcome ones, at his door without first giving them an opportunity to leave. I accept, of course, that if he had entertained, on reasonable grounds, a fear of physical attack, he was not obliged to await its commencement. He was not necessarily guilty of assault in so acting.

190. However, I have to judge these charges from the perspective of the accused. Mr Sandow does not stand charged with assaulting them. That raises for decision whether I am satisfied beyond reasonable doubt that the accused not only attended upon Mr Sandow's residence as trespassers but retained that status upon entry into the building, having, at that latter point, whether present earlier or not, the intent to assault Mr Sandow, that is, to use force otherwise than in self-defence.

The Role of Self Defence

191. If the accused entered Mr Sandow's residence intending to inflict physical violence upon Mr Sandow but in the belief that the action so taken was reasonably necessary to defend themselves or the other of them from unlawful physical violence, then their acts in striking Mr Sandow are excused as being in self defence and they have not committed unlawful assault. Nor in intending so to act are they, or either of them, entering the building with the purpose in mind of committing unlawful assault. The alternative offences to the second and third counts, "intentionally or recklessly inflicts actual bodily harm" (Crimes Act s 23) are equally excused if done in self-defence.

192. That test is consistent with Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645.

193. I note that in Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454 the intention to use a canister of pressurised formaldehyde only in self defence did not make lawful (that is, it was not a "reasonable excuse" for) the possession of that canister which was otherwise contrary to s 545E(1) of the Crimes Act 1900 (NSW).

194. However, that consideration would not have had any bearing on whether, if used, such a canister was used in self-defence so as to excuse what otherwise would be an assault. In so far as relevant to the possession by Mr Ratko Josifovski of a metal pipe, I note it was not per se unlawful for him to possess such a pipe. It would only be unlawful for him to use the pipe as a weapon otherwise than in self-defence.

195. Nor, as in Osland v R [1998] HCA 75; (1998) 197 CLR 316, would it have been reasonable self-defence for the accused to resolve to attack Mr Sandow immediately upon him answering the door, as he falsely asserted they did.

196. However, that is not the case for the accused. It is accepted by them that, even if their purpose in visiting Mr Sandow had been to defer future acts of violence by him, that would provide no defence to acts otherwise constituting an assault if, indeed, that is what they intended to do.

The decision relating to Mr Goran Josifovski

197. I am of the opinion that it was neither unreasonable nor unlawful for Mr Goran Josifovski to attend upon Mr Sandow to demand an explanation of his violent conduct towards him on 18 December 2002. It may have been unwise but I am not persuaded it was an intent that made his entry onto the premises (that is, including the land surrounding Mr Sandow's residence and leased to him and Ms Lambert) trespassory. Nor am I persuaded that he intended to pre-emptively strike Mr Sandow or that, though he knew of the pipe, intended or knew his father would pre-emptively strike Mr Sandow. I certainly cannot conclude beyond reasonable doubt that he had or shared such an intent.

198. I am further satisfied, though I need only be unable to exclude this as a reasonable hypothesis, that Mr Sandow on seeing the persons at his door, pre-emptively obtained his bat. I am also satisfied, though I need only have a reasonable doubt about it, that Mr Ratko Josifovski had the pipe at his side, not over his shoulder at that time further casting doubt on the hypothesis that he intended to use it pre-emptively as a weapon.

199. I am positively satisfied that, having shocked the accused by the violence and rapidity of his response, Mr Sandow grabbed Goran Josifovski and drew him into the unit, probably to use as a human shield. I cannot exclude the possibility that he had seen the pipe and feared that it would be used. Nor can I exclude the possibility that he had seen Mr Shafik lurking in the background with a knife.

200. Neither of those considerations, I am satisfied (though I need only be unable reasonably to exclude them) was apparent to Goran Josifovski.

201. He, I am satisfied, did strike Mr Sandow. I am not satisfied, however, that he did so with any weapon that caused actual bodily harm to Mr Sandow. He concedes striking Mr Sandow with the latter's own bat but it is not clear to me that any particular injury could be attributed to that. Mr Sandow's actual injuries, apart from the knife wounds, could be attributed to the metal pipe alone. In any event, I am positively satisfied (though I need not be) that Mr Goran Josifovski acted in reasonable self-defence. The onus is on the Crown to exclude such an hypothesis beyond reasonable doubt. I need only be unable to exclude it in order to be obliged to accept it.

202. It follows that Mr Goran Josifovski must be acquitted on each of the three counts in the indictment and, so far as the second and third counts are concerned, the alternative offence under s 23 (intentionally or recklessly inflicting actual bodily harm).

The decision relating to Ratko Josifovski

203. I am satisfied that Mr Ratko Josifovski wished genuinely to remonstrate orally with Mr Sandow when he approached the latter's residence. He was perfectly entitled to assume that Mr Sandow was a violently irrational individual of great size and strength who might not be amenable to rational discussion. He could not expect, even with his son present, to defend himself against such a man without a weapon. The pipe was not such a weapon as to bespeak an intent to go beyond the bounds of reasonable self-defence. In any event, I am not satisfied beyond reasonable doubt Mr Ratko Josifovski intended pre-emptively to inflict violence upon Mr Sandow.

204. His original entry on to Mr Sandow's premises, even with the weapon, absent the intent pre-emptively to use it on Mr Sandow, was not, therefore, trespassory. He was entitled to attend upon Mr Sandow to remonstrate non-violently with him, at least until requested to vacate the premises.

205. Mr Sandow, of course, pre-empted that by rushing for his bat, swinging it and pulling Mr Goran Josifovski into the unit. I need only, of course, be satisfied that that sequence of events was reasonably possible. In fact, the evidence supporting it is overwhelming.

206. I am satisfied that Mr Ratko Josifovski then and only then (beyond reasonable doubt if need be) entered the unit and swung his pipe at Mr Sandow, striking him (at that time) at least twice on the top of the head, causing it to bleed profusely. I accept he did so to free his son from Mr Sandow and to enable both of them to safely flee.

207. I accept he was not aware that then or shortly after, Mr Shafik darted in and stabbed Mr Sandow. He may or may not have seen Mr Shafik in the unit. Mr Shafik clearly bolted before the fight between Mr Sandow and the Josifovskis, which I am satisfied lasted a very short time, concluded with Mr Sandow being disarmed. That result might not have occurred but for Mr Shafik's intervention, though I do not express any view as to whether it was justified.

208. In any event, I am satisfied that Mr Ratko Josifovski in fact only struck Mr Sandow to achieve the purpose of releasing his son and enabling them both to depart the unit.

209. In my opinion, though clearly Mr Sandow was not consenting to Mr Ratko Josifovski's entry into the building as he by implication did with Goran Josifovski, he justified it by seizing the latter and pulling him into the building.

210. Whilst an entry to preserve the well being of chickens, as in Mark v Henshaw (supra), might well not be justified, nor, perhaps, an entry, even for a legitimate purpose, such as to retrieve one's property unless such entry is reasonable and necessary in the circumstances including the process of its execution, that consideration does not arise in the present circumstances.

211. There is no doubt in my mind that Mr Ratko Josifovski's entry satisfied that criteria. Nor was it unreasonable for him to strike Mr Sandow as he did to effect the release of his son and their safe withdrawal.

212. As I have already indicated, I express no opinion about the actions of Mr Shafik. They are irrelevant as I am not satisfied Mr Ratko Josifovski was aware of them at the time. Neither of the accused acted in concert with Mr Shafik in his use of a knife in the struggle with Mr Sandow, though again, the onus was on the prosecution to prove beyond reasonable doubt that they were so aware.

213. It follows that, as Mr Ratko Josifovski, in so far as he caused actual bodily harm to Mr Sandow, did so within the bounds of self defence (though I need only have a reasonable doubt as to whether or not he so acted) he must also be acquitted on all counts and on the alternative available under s 23 of the Crimes Act 1900 (ACT).

214. Verdicts of not guilty are to be entered accordingly.

I certify that the preceding two hundred and fourteen (214) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 13 April 2006

Counsel for the prosecution: Mr C Todd

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the first accused, Mr Ratko Josifovski: Mr A Doig

Solicitor for the first accused: S & T Lawyers

Counsel for the second accused, Mr Goran Josifovski: Mr B J Salmon QC

Solicitor for the second accused: Mr J Tallarita

Counsel for the third accused, Mr Joseph Shafik: Mr K Archer

Solicitor for the third accused: Darryl Perkins Solicitors

Date of hearing: 5, 6, 7, 8, 12, 13, 14 December 2005

Date of judgment: 13 April 2006