The Trial DPP v Hopper and Lush - Courts · The Trial DPP v Hopper and Lush John Hopper and Wendy Lush have been charged with Aggravated Serious Criminal Trespass in a ... this is

Resolution of a Criminal Case

[29 April 2003]

The Trial DPP v Hopper and Lush

John Hopper and Wendy Lush have been charged with Aggravated Serious Criminal Trespass in a Place of Residence under Section 170 of the Criminal Law Consolidation Act, 1935. They were found to have a case to answer at a preliminary hearing held at the Adelaide Magistrates Court and they have elected trial by jury. The trial is conducted in the District Court before Judge Boomer.

Participants

1 The Narrator (Optional) 2 Judge Boomer 3 Co-accused - John Hopper 4 Co-accused – Wendy Lush 5 Judge’s Associate 6 Prosecution - Ms Sleep 7 Defence Counsel - Ms Lee for Hopper 8 Defence Counsel - Ms McDonald for Lush 9 Prosecution Witness #1-Sgt Jay Dibble 10 Prosecution Witness #2-Chris Noble 11 Defence Witness - #1 John Hopper 12 Defence Witness - #2 Wendy Lush 13 Court Reporter –

2002 Peter Cavouras Courts Education Officer President. LETASA Legal Education Teachers Association of South Australia

Geof Bailey Teacher, Marryatville High School

Editor, Legal Brief, LETASA Legal Education Teachers Association of South

Australia

DPP v Hopper & Lush 2

This is the trial of John Hopper and Wendy Lush, who have both been charged with breaking the criminal law by committing the offence of Aggravated Serious Criminal Trespass in a Place of Residence. The South Australian Parliament passed a law creating this offence. It has been alleged that they committed the offence together some time ago and a number of stages have already occurred to prepare the case for trial. A preliminary hearing was conducted in the Adelaide Magistrates Court to determine whether there was a case to answer. They both pleaded not guilty and after the Magistrate found that a prima facie case did exist, they both elected for a trial by jury (in preference to a trial by Judge alone) in the District Court. The District Court is now assembled ready for the trial to commence. A section of the jury pool, known as the jury panel, is in the public gallery waiting to be empanelled. Before we start, let's quickly go around the court and meet some of the players. Judge's Associate: I am the Judge's Associate - a law graduate who assists the judge in court with the empanelling of a jury, collection and recording of tendered evidence and research for writing of judgments. Prosecution: I represent the Crown or Director of Public Prosecutions and am a highly-skilled lawyer trained in the art of establishing beyond reasonable doubt that those two over there are guilty of the charge. I will call witnesses who will give evidence as to facts that help prove the elements of the crime. Defence: I am the defence counsel for Hooper and my esteemed and learned colleague here is representing Lush. I do not have to say anything if I choose not to, especially given the tenuous case that the prosecution has. In acting for my client, I will establish that the prosecution is unable to prove beyond reasonable doubt the guilt of my client. Court Stenographer: I am the court stenographer. It is my job to record verbatim what is said in the courtroom. I am trained in the use of a steno-machine. This enables me to key in at around 200 words per minute. While I am doing so, a computer linked to my machine is translating the coded messages to text. Another stenographer sits at the computer and scopes the text, making corrections etc as it appears. We rotate every 40 minutes or so. The transcript is then available, usually the same day, for use during the trial. Sheriff’s Officer: I am a Sheriff’s Officer. I am generally responsible for the


(Court Orderly) flow of people in and out of the court, and I look after the jury. I can exercise police powers within the precinct of the building and may assist with security in the court. Sheriff’s Officer: I am also a Sheriff’s Officer. Amongst other duties, I am (Security Guard) responsible for the security of the accused, bringing them to and from the dock and supervising their movements. Accused: We are the accused and we are not guilty!

Judge’s Associate Silence. All stand. In the District Court of South Australia, commencing in the trial of The Queen against John Hopper and Wendy Lush.

Everyone in the courtroom stands when the Judge enters. The Judge bows to the court and those in Court bow to the Judge. The Judge sits, followed by everyone else in the court. Prosecutor Sleep If it please the court, my name is Sleep and I appear

for the prosecution. Counsel Lee May it please the court, my name is Lee and I appear

for Hopper. Judge Boomer Mr/Ms Lee. Counsel McDonald If it please the court, my name is McDonald and I

appear for Lush Judge Boomer Thank you, Mr/Ms McDonald. (To associate) Please arraign the accused.

The co-accused, John Hopper and Wendy Lush, stand in the dock and face the Bench. Judge’s Associate John Hopper and Wendy Lush, you and each of you

are charged with the offence of Aggravated Serious Criminal Trespass in a Place of Residence. It is alleged that on the 25th of February 2000 at Blaxton, you entered or remained in a place of residence of Chris Noble as trespassers with the intention of assaulting him. It is further alleged that you and each of you aggravated the offence by committing it while having in your possession an offensive weapon, namely, a baseball bat; by committing the trespass in the company of another person, namely, each other; and by committing the trespass well knowing of the presence of another person in the place of residence, namely, Chris Noble. John Hopper, do you plead guilty or not guilty to that


charge? John Hopper Not guilty. Associate Wendy Lush, do you plead guilty or not guilty to that

charge? Wendy Lush Not guilty.

The co-accused sit down.

The accused are entitled to trial by an impartial jury. To achieve this, normally a jury of 12 adults must be empanelled at the start of the trial. This can be increased to 15 persons for special cases. A judge may excuse a potential juror, based on a number of criteria, such as knowing parties or witnesses in the case. At the commencement of the trial the judge will instruct the potential jury members as to the charge and whether or not there are reasons why they could be excused from consideration for the trial.

Judge Boomer Good morning, ladies and gentlemen. I am Judge

Boomer. The accused are John Hopper and Wendy Lush, whom you see sitting in the dock, and they are charged with the offence of Serious Criminal Trespass in a Place of Residence. Shortly, the prosecution will read the names of the witnesses they will be calling in this case. Please listen carefully to those names. If you have any association with those persons or, indeed, counsel, myself or either of the accused, then please stand and if, for any reason, you feel that you would be unable to bring an impartial and unbiased mind to bear on this case, would you please indicate by standing; for instance, if you yourself have been the victim of a home invasion. I will then ask you to come forward, and you can tell me privately why you feel you are unable to act as a juror in this case.

Prosecutor Sleep Ladies and gentlemen, the prosecution will be calling Police Sergeant Jay Dibble and the victim, Chris Noble.

Judge Boomer Does anyone for any reason feel unable to sit on this

case?

The prospective juror stands up. Judge Boomer Please come forward.

The prospective juror moves to the bench and talks quietly to the Judge, saying she went to school with Lush, and moves back to the public gallery.

Judge Boomer What is your jury number? Thank you. Juror number

56 is excused.


Does anyone else know someone in the courtroom or

have any other reason why they feel they cannot sit in this matter? Pause. Very well, we can empanel the jury.

Associate John Hopper and Wendy Lush, the numbers of the

persons to be jurors in your trial are about to be drawn from the ballot box. If you object to any of them, you, or your counsel must say “challenge” when that person’s number is called and before he or she sits down in the jury box.

Members of the jury, please answer to your number as they are called and step into the jury box. If you are challenged, you will resume your seat in the body of the courtroom.

There is a card for each prospective juror. The cards are shuffled and placed in a ballot box in view of everyone in court, so the court can witness the process. Normally, this is done by the Jury Manager. After the cards are placed in the box, one card is randomly drawn out by the Judge’s Associate and the prospective juror’s number is called out. This continues until the required number are seated in the jury box.

Judge’s Associate Juror Number 43

The juror stands and immediately starts to move towards the jury box.

Juror Here. Defence Counsel Challenge.

The juror resumes his/her seat.

Prospective jurors may be challenged by either party, to give them some say in the composition of the jury to ensure that a fair trial occurs. The Defence Counsel and Prosecutor can each challenge three jurors without giving a reason. After that, there must be a valid reason put forward for any further challenge to be successful. Once the jurors have been successfully empanelled the trial can commence.

Associate (to Judge) Shall I put the accused in the charge of the jury? (to Jury)

Members of the jury, Wendy Lush and John Hopper have pleaded not guilty to the offence of Aggravated Serious Criminal Trespass in a Place of Residence. As members of the community and as a jury, it is your task to consider the evidence to be given in this trial, to apply the law as will be explained to you by the judge, and to decide whether or not it has been proved beyond reasonable doubt that the accused is guilty of that charge. The accused is now in your charge.


Judge Boomer Ladies and gentlemen, I would like to thank you for

contributing your valuable time to this important community service. I will ask you to remain seated throughout the trial and listen carefully to all of the evidence given by the witnesses. Your role is to determine a verdict of guilty or not guilty as to the co-accused, Mr Hopper and Ms Lush, based solely on what occurs in this trial. You must not let any other factors cloud your judgment or your deliberations. You may discuss the case amongst yourselves, but please refrain from discussing the case with others, such as members of your family. If you have any questions, then please write them down and hand them to the Sheriff’s Officer, and I will endeavour to answer them. Before we commence, shall we give an order as to witnesses?

Prosecutor Sleep Thank you, Your Honour. Associate All witnesses in this case must now leave the

courtroom but remain within call.

The order as to witnesses is made because no witness (except the accused) is allowed to be in the court until he or she is called to give evidence. This procedure is designed to prevent witnesses changing their evidence to suit what has already occurred at the trial.

The actual presentation of the competing cases commences with the prosecution giving an opening address to the jury. Mr/Ms Sleep will outline the nature of the offence, the legal elements necessary to establish guilt and an overview of the evidence the prosecution witnesses will give. This presents the jury members with a clear overview of the case and what is expected of them at the trial.

Judge Boomer Ms/Mr Sleep, you may now commence your case. Prosecutor Sleep Thank you, Your Honour.

It is the prosecution’s duty to prove that the co-accused, Mr John Hopper and Ms Wendy Lush, committed the offence of aggravated serious criminal trespass in a place of residence that they are charged with. This burden must be met to a very strict standard of proof. You, ladies and gentlemen of the jury, must decide the facts and you must be satisfied that the co-accused are guilty beyond reasonable doubt. If an element of doubt exists, you must find the co-accused not guilty. You may also decide that one accused is guilty of the crime and the other one is not.


John Hopper and Wendy Lush are accused of serious criminal trespass in a place of residence. A person commits this offence by being on the residential premises of another person as a trespasser and with the intention of committing an offence there. A person commits an aggravated form of that offence if he or she then has an offensive weapon in his or her possession; or is in the company of another person while committing the offence; or enters or remains, knowing that there is a person lawfully present in the premises at the time. In this case John Hopper and Wendy Lush are charged with serious criminal trespass on the premises of Chris Noble, of 23 Green Street, Blaxton. The prosecution will prove that John Hopper and Wendy Lush were not invited to Chris Noble’s premises on Monday evening at around 7 pm, 25 February, 2000, yet they entered there and remained without his permission. They thus became trespassers. Next, it will prove that they did so with the intention of assaulting Chris Noble. That intention is demonstrated by the fact they acted together and were carrying a baseball bat, which they threatened him with. It will also prove that their offending was aggravated by having an offensive weapon in their possession, namely, the baseball bat; by acting together; and by knowing that Chris Noble was at home at the time. The prosecution will call Sergeant Jay Dibble as its first witness. She/he will testify that she/he was called to Chris Noble’s premises on the night of the alleged offence and found the co-accused there armed with a baseball bat. The victim, Chris Noble, will be the prosecution’s second witness. She/he will testify that the co-accused were not invited to his premises and that they forced entry to his premises and threatened him with a baseball bat. I call Sergeant Dibble.

A court orderly calls Sergeant Dibble from outside the court. Sergeant Dibble walks into the courtroom and is shown to the witness box by the orderly, who then walks back to his/her desk. The witness stands in the witness box. Judge’s Associate Please take the Bible in your hand.

Witness takes the Bible that is in front of him/her. Judge’s Associate Do you swear that you will tell the truth, the whole


truth and nothing but the truth, so help you God? Say, “I swear”.

Witness Sgt Dibble I swear. Judge’s Associate Please state your full name. Witness Sgt Dibble Jay Dibble. Judge’s Associate Thank you. Please sit down.

The Prosecutor will now conduct the examination-in-chief to elicit the evidence. Very strict rules of evidence apply in the adversarial system as to how witnesses are examined. Witnesses can only answer questions put to them by Counsel. When the Prosecutor has finished, the Defence Counsel are allowed to cross-examine the witness to cast doubt on the veracity of the evidence.

Prosecutor Sleep You are a police officer? Witness Sgt Dibble I am. Prosecutor Sleep Can you please inform the court of your role in the

Police Department. Witness Sgt Dibble I am an investigating Sergeant of Police in the Home

Invasion Unit at the Adelaide Police Station. I have been in this unit ever since it was created in 1997.

Prosecutor Sleep Do you know the co-accused, Mr Hopper and Ms

Lush? Witness Sgt Dibble Yes, I do. Prosecutor Sleep Can you please tell the court how your association with

the co-accused commenced? Witness Sgt Dibble I was involved in investigations at the premises of

Chris Noble at 23 Green Street, Blaxton, on Monday evening, 25 February, 2000.

Prosecutor Sleep And what form did these investigations take? Witness Sgt Dibble At about 7 pm on that night, I received an urgent

telephone call from headquarters to attend a disturbance at Chris Noble’s premises.

Prosecutor Sleep And what did you do then? Witness Sgt Dibble I drove quickly to 23 Green Street, Blaxton, using the

police siren. When I arrived at the residence I found all of the people there in a state of anxiety.


Prosecutor Sleep What do you mean by a state of anxiety?

Witness Sgt Dibble The accused, John Hopper, was in the lounge room holding a baseball bat in a threatening manner and yelling at Chris Noble. Ms Lush had her hands over her ears and was screaming. Mr Noble was shaking and looked very frightened.

Prosecutor Sleep What did you do? Witness Sgt Dibble I immediately ordered Mr Hopper to hand over the

baseball bat to me. Prosecutor Sleep Did he do that? Witness Sgt Dibble Yes, he did, but he kept yelling at Mr Noble. Prosecutor Sleep And what did you do then? Witness Sgt Dibble Once I was happy that any potential violence had been

averted and that no one was hurt, I asked Mr Noble to go into his kitchen and wait for me.

Prosecutor Sleep And then what happened? Witness Sgt Dibble I interviewed the co-accused about the incident and

took notes. John Hopper said he had been invited to Mr Noble’s house to collect some items that belonged to him, namely, a 5AA CD of the 1997 AFL Grand Final that his team, The Crows, had won.

Prosecutor Sleep Did he say why he had a baseball bat in his

possession? Witness Sgt Dibble He claimed that Chris Noble could get violent and he

feared for his safety and that of his girlfriend, Wendy Lush

Prosecutor Sleep And what did Wendy Lush say when questioned? Witness Sgt Dibble She said that she accompanied her boyfriend, John

Hopper, to Chris Noble’s house to collect some of his possessions.

Prosecutor Sleep And did you interview Mr Noble? Witness Sgt Dibble Yes. I told John Hopper and Wendy Lush to remain in

the lounge room and then went into the kitchen to interview Mr Noble. He was adamant that he did not invite Hopper and Lush over and that the moment he answered the door they became threatening and pushed their way into his house, despite his protests


for them to go away. Prosecutor Sleep And what did you do then? Witness Sgt Dibble I called other officers from my unit to attend the scene.

When they arrived I arrested John Hopper and Wendy Lush and took them to the Adelaide Police Station for questioning. They were subsequently charged with the offence of aggravated serious criminal trespass in a place of residence.

Prosecutor Sleep Could the witness be shown this, please?

The Associate collects the baseball bat from Prosecutor Sleep and hands it to the witness.

Prosecutor Sleep Is this the baseball bat that John Hopper had on the

night in question? Witness Sgt Dibble Yes, that is the bat. I confiscated it at the scene of the

crime. Judge Boomer Do you wish to tender that, Mr/Ms Sleep?

Prosecutor Sleep Yes, Your Honour. Judge Boomer Do Counsel have any objections? Counsel Lee No, Your Honour. Counsel McDonald No, Your Honour.

Judge Boomer The baseball bat will become Exhibit P1. Prosecutor Sleep That concludes my examination-in-chief, Your Honour.

Prosecutor Sleep resumes his/her seat Judge Boomer Counsel, do you wish to cross-examine? Counsel Lee If Your Honour pleases, I would like to ask the witness

a few questions. Were you the first police officer to go to Mr Noble’s residence on the night in question?

Witness Sgt Dibble Yes. I was the first officer, initially, but I did call for

back-up later. Counsel Lee Would it be normal practice for only one officer to

respond to a call of this nature?


Witness Sgt Dibble Yes. The unit gets a lot of calls from distressed house-holders, often neighbours, and many of them do not result in criminal charges. We simply cannot send more than one officer to every call we receive.

Counsel Lee Did John Hopper threaten Mr Noble with the baseball

bat or was he defending himself? Witness Sgt Dibble He was acting in a threatening manner when I first

arrived. Mr Noble was not in any state of mind, or physical state, to threaten Mr Hopper.

Counsel Lee But that is only your point of view. Witness Sgt Dibble Yes, it is. Counsel Lee No more questions, Your Honour.

Counsel Lee sits down. Counsel McDonald stands. Counsel McDonald Did Ms Lush have a baseball bat or any other offensive

weapon when you arrived? Witness Sgt Dibble No, she had no weapon at all. Counsel McDonald What was she doing when you arrived?

Witness Sgt Dibble She had her hands over her ears and was screaming. Counsel McDonald Didn’t she tell you at the police station that she was

frightened and just wanted to go home. Witness Sgt Dibble Yes, but that was when things went bad and she

regretted getting involved in the matter. Counsel McDonald I put it to you that Wendy Lush accompanied her

boyfriend to Mr Noble’s home, believing that no law would be broken and that she became distressed when Mr Noble got irrational and started to shout and get violent.

Prosecutor Sleep Objection, Your Honour. Sergeant Dibble simply

cannot be expected to answer this question. He/she wasn’t at the home when these alleged events occurred.

Judge Boomer Yes, I tend to agree. Counsel McDonald If Your Honour pleases, I will withdraw the question. I

have no more questions.


Counsel McDonald resumes his/her seat. Judge Boomer Mr/Ms Sleep, do you wish to re-examine the witness? Prosecutor Sleep Only a few questions, Your Honour.

Sergeant Dibble, what statement did Mr Noble make with respect to the visit by Hopper and Lush?

Witness Sgt Dibble He made a clear and unambiguous statement that he

did not invite Hopper and Lush to his home, nor did he invite them in when they knocked.

Prosecutor Sleep And did Ms Lush say she voluntarily went to Noble’s

residence with Hopper? Witness Sgt Dibble Yes, she did. Prosecutor Sleep Thank you. No more questions, Your Honour. Judge Boomer Thank you, Sergeant Dibble. You are free to go. Prosecutor Sleep

If Your Honour pleases, I would like to call my second witness, Mr Chris Noble.

Judge’s Associate Please take the Bible in your hand. Do you swear that

you will tell the truth, the whole truth and nothing but the truth, so help me God? Say, "I swear".

Witness Noble I swear.

Prosecutor Sleep Where do you normally live, Mr Noble?

Witness Noble At 23 Green Street, Blaxton. Prosecutor Sleep Where were you on the night of Monday, 25 February,

2000 at about 7 pm? Witness Noble I was at home watching television when I heard a

knock at the door. Prosecutor Sleep Who was knocking at the door? Witness Noble John Hopper and his girlfriend, Wendy Lush. Prosecutor Sleep Can you identify those two people as being in the

courtroom now? Witness Noble Yes. It’s those two over there.

Judge Boomer Please have the court record note that the witness


pointed to the two accused persons in the dock. Prosecutor Sleep Did you invite them to you home that evening? Witness Noble No, I did not. Prosecutor Sleep What happened when you answered the door? Witness Noble John Hopper got very agitated and pushed his way into

my house before I had a chance to say anything. Prosecutor Sleep What did you say? Witness Noble I asked them to leave, to get out of my house. They

had no right to barge in like that. Prosecutor Sleep Who entered your house?

Witness Noble John Hopper first, closely followed by Wendy. Prosecutor Sleep Was John Hopper carrying a baseball bat? Counsel Lee Objection, Your Honour. Counsel is leading the

witness. Judge Boomer I must agree. Perhaps you could rephrase the question. Prosecutor Sleep If Your Honour pleases. Was either of the accused

holding anything when they entered your home? Witness Noble Yes, John Hopper had a baseball bat. He threatened

me with it. Prosecutor Sleep How did he threaten you? Witness Noble He said something like, “If you don’t give me back me

footy CD, I’m going to knock your block off”, and then he waved the baseball bat at me as he brushed past me.

Prosecutor Sleep And then what did you do? Witness Noble I told him to leave, as he had no right to come into my

home without permission. Prosecutor Sleep And did he leave? Witness Noble No. He kept on ranting and raving about his CD and

waving the baseball bat around. Prosecutor Sleep And what was Ms Lush doing at the time?


Witness Noble She didn’t seem to do much, but I can’t be sure, as I was scared and was more concerned with what John was going to do with the bat.

Prosecutor Sleep And why did John Hopper say he came to your house? Witness Noble He said he wanted his 5AA football tape of the 1997

grand final broadcast when the Crows won the premiership.

Prosecutor Sleep Who does the CD tape belong to? Witness Noble It’s mine. I won it in a raffle. Prosecutor Sleep How was the matter resolved? Witness Noble It wasn’t, but John quietened down when the police

came. Prosecutor Sleep Did you call the police? Witness Noble No, I believe a neighbour heard the ruckus and called

them. Prosecutor Sleep Are you glad the police came? Witness Noble Yes, I am. I don’t know what John Hopper would have

done if they hadn’t arrived. Prosecutor Sleep That concludes my examination, Your Honour.

Prosecutor Sleep resumes his seat. Judge Boomer Mr/Ms Lee, do you wish to cross-examine the witness? Counsel Lee If it please Your Honour. Is John Hopper a friend of

yours, Mr Noble? Witness Noble Not any more. Counsel Lee So he was a friend at some time? Witness Noble Yes, but not since he got violent ..... Counsel Lee Could you please just answer the questions. Judge Boomer Mr Noble, you should direct your answers solely to the

questions asked by counsel, please.

In the adversarial system, examination of witnesses is conducted orally by question and answer. Witnesses should only speak in direct response to a question, irrespective of how relevant they may believe other information to be.


Counsel Lee I put it to you that you didn’t invite John Hopper to

your house on Friday, 25 February, 2000, because he came as a your friend.

Witness Noble He’s not a friend of mine. Counsel Lee But he thought you were a friend of his. Witness Noble I don’t think so. I’ve told him in no uncertain terms he

is not invited to me home again and I don’t want to see him.

Counsel Lee Did you enter into a raffle with John Hopper after the

1997 grand final? Witness Noble No, I did not. Counsel Lee I suggest to you that you and Mr Hopper entered a

raffle as partners, and you won. What do you say about that?

Witness Noble I entered alone and I won. Counsel Lee Then why did you share the winnings with Mr Hopper,

including a Crows’ hat, scarf and a poster of the 1997 Crows’ premiership team?

Witness Noble I did give him those things, but I gave them to him as a

friend then, not because we entered the raffle as partners.

Counsel Lee I suggest to you that Ms Lush was present when you

and Mr Hopper entered the raffle as partners. Witness Noble Well, that’s not true. Counsel Lee And did you agree that Mr Hopper could have the

football CD replay of the 1997 grand final? Witness Noble No, I did not. He demanded it, but I said it was a

collector’s item and I wasn’t going to part with it. Counsel Lee No more questions, Your Honour. Judge Boomer Mr/Ms McDonald, do you wish to cross examine the

witness? Counsel McDonald I do have a few questions. Mr Noble, do you know

Ms Lush? Witness Noble Yes, I do.


Counsel McDonald How long have you known her? Witness Noble About five years, I suppose. Counsel McDonald How did you meet her? Witness Noble She was a girlfriend of John’s, so naturally I got to

know her when John and I hung around together. Counsel McDonald Do you like her? Witness Noble What do you mean? Counsel McDonald Would you call her a friend? Witness Noble No, more of an acquaintance. Counsel McDonald Do you have any personal quarrel with Ms Lush? Witness Noble No, I do not. Counsel McDonald Would Ms Lush be welcomed to your house if she

called unannounced? Witness Noble It would be unusual, but I wouldn’t be rude to her. Counsel McDonald Did she argue with you or threaten you on the night of

Friday, 25 February, 2000? Witness Noble No, John was the aggressive one. Counsel McDonald I put it to you that she was an innocent party in all of

this and only went to your place that evening because John was her boyfriend. Would you agree?

Witness Noble That would seem okay to me. Counsel McDonald No more questions, Your Honour.

Counsel McDonald resumes his seat.

Judge Boomer Do you wish to re-examine the witness, Mr/Ms Sleep? Prosecutor Sleep Thank you, Your Honour.

Mr Noble, is Mr Hopper your friend? Witness Noble No. Prosecutor Sleep Did you enter into the 1997 raffle in partnership with

Mr Hopper? Witness Noble No.


Prosecutor Sleep Whose name was the raffle ticket in? Witness Noble Mine. Prosecutor Sleep Did you ever promise the football CD tape to Mr

Hopper? Witness Noble No, never. John Hopper (yelling from the dock) You’re a bloody liar! Judge Boomer I will not have that sort of language in may court.

Mr/Ms Lee, your client is not doing his cause any favours. Will you please tell him to direct his comments to counsel. Counsel walks over to the dock and speaks to the accused

Please continue Ms Sleep. Prosecutor Sleep How did you respond to Mr Hopper on the night of

Friday, 25 February, 2000? Witness Noble Very scared. He turned up unannounced brandishing a

baseball bat in a very threatening manner.

Prosecutor Sleep No more questions, Your Honour. Judge Boomer That completes your evidence, Mr Noble. Prosecutor Sleep That concludes the case for the prosecution.

Prosecutor Sleep resumes his seat.

In South Australia, defence counsel is not compelled to give an opening address, or even to call any witnesses. The defence case may rely entirely on rigorous cross-examination of the prosecution witnesses. In this trial, defence counsel are going to call the two accused persons, John Hopper and Wendy Lush. They cannot be forced to give evidence, but they have chosen to do so. They will each be examined by their respective counsel, be open to cross-examination by the prosecution and, if necessary, re-examination by their counsel.

Judge Boomer Mr/Ms Lee? Counsel Lee If it please the court, I will call John Hopper.

Mr Hopper has indicated he would like to make an affirmation.

A Sheriff’s Officer escorts Mr Hopper from the dock to the witness box.


All witnesses must make an oath or affirmation before giving evidence at a trial. Sergeant Dibble and Mr Noble gave an oath. That is a pronouncement made by the witness swearing that he or she will tell the truth by making an appeal to God to attest to the truth of the statements that will be made. An oath can be made in accordance with a broad range of religions. John Hopper has chosen to make an affirmation, promising to tell the truth when answering questions. Both an oath and an affirmation have the same legal effect. A person who intentionally gives false evidence can be prosecuted for perjury.

Judge’s Associate Do you solemnly and truly affirm that you will tell the

truth, the whole truth and nothing but the truth? Say I do solemnly and truly affirm.

Witness Hopper I do solemnly and truly affirm. Judge’s Associate Please repeat your full name. Witness Hopper John Hopper. Counsel Lee Is Chris Noble your friend?

Witness Hopper I thought he was. Counsel Lee What do you mean? Witness Hopper Well, a true friend wouldn’t testify against you at a trial

about lies and things. Counsel Lee Where did you go on the evening of Friday, 25

February, 2000? Witness Hopper I went to Chris Noble’s house in Green Street, Blaxton. Counsel Lee Did anyone accompany you? Witness Hopper Yes, Wendy Lush, my girlfriend. Counsel Lee Why did you go there? Witness Hopper To get my footy CD which Chris had. Counsel Lee And what CD is that? Witness Hopper It’s the 5AA CD of the 1997 grand final when the

Crows won the grand final. Counsel Lee Why did you go to Chris’ house to get it?


Witness Hopper Because it was mine and Chris had been

procrastinating in giving it to me. Counsel Lee How can you claim ownership of it? Witness Hopper We entered into a raffle together in 1997, sold by the

Adelaide Football Club after the grand final. We agreed to split the prizes. One of mine was the 5AA CD.

Counsel Lee Whose name was on the raffle ticket? Witness Hopper Chris’. It only had provision for one name so we

agreed to put his on it. I thought he was a mate and could be trusted.

Counsel Lee Did you win the raffle? Witness Hopper Yes, we did. Counsel Lee Have you received your share? Witness Hopper Part of it. I got the hat, scarf and poster, but not the

CD. Counsel Lee Did Chris Noble ever acknowledge that the CD was

yours? Witness Hopper Yes, he did, but every time I asked for it, he had an

excuse. Counsel Lee Why did Wendy accompany you to Chris’ house on that

Friday night? Witness Hopper I wanted a witness because Chris can twist things

round a lot. Counsel Lee Can the witness please be shown the baseball bat?

Associate shows the witness the bat. Is that the baseball bat you took with you?

Witness Hopper Yes, I did. Well, as a matter of good faith I was

returning it to him. It was his and I wanted to make a clean swap – his bat for my CD.

Counsel Lee Did you have it for any other purpose? Witness Hopper No. What do you mean? Counsel Lee The charge alleges you were using it as a weapon to

threaten Mr Noble. What do you say to that?


Witness Hopper It’s not true. Yes, I did take it into his house with me,

but not to threaten him or anything. Counsel Lee Mr Noble has given evidence that you threatened him

with it. Witness Hopper That’s not true. He got very aggressive shortly after we

had arrived and I used it to ward him off. Counsel Lee The neighbours reported that someone was yelling at

Mr Noble that night. Were you yelling? Witness Hopper Yes, but only to tell Chris to settle down and discuss

the issue sensibly. I had to yell as he was yelling at me.

Counsel Lee Did you get your CD? Witness Hopper No, the police came shortly after we arrived. I was glad

they did and was shocked when they said I was being charged with serious criminal trespass.

Counsel Lee Did you tell the police your version of events? Witness Hopper I did, but they didn’t believe me. Counsel Lee That concludes my examination, Your Honour. Judge Boomer Mr/Ms Sleep? Prosecutor Sleep Mr Hopper, do you really believe Mr Noble is your

friend? Witness Hopper Yes, well, he was. Prosecutor Sleep A friend on the Friday night, 25 February, 2000? Witness Hopper Yes. Prosecutor Sleep Do friends carry baseball bats to their mates’ places? Counsel Lee Objection, Your Honour. That is speculation. Judge Boomer I agree. Prosecutor Sleep I’ll withdraw the question. Did you carry a baseball

bat to his house that evening? Witness Hopper Yes. Prosecutor Sleep And you expect the court to believe it was Mr Noble’s


and you were returning it to him? Witness Hopper That’s the truth. Prosecutor Sleep No more questions, Your Honour. Judge Boomer Mr/Ms Lee, do you wish to re-examine the witness? Counsel Lee No, there will be no re-examination. That is the case

for Mr Hopper. The accused Hopper is escorted back to the dock by the Sheriff’s Officer. Judge Boomer Mr/Ms McDonald? Counsel McDonald I call Wendy Lush.

The Sheriff’s Officer escorts Ms Lush from the dock to the witness box.

Judge’s Associate Please take the Bible in your hand. Do you swear that

you will tell the truth, the whole truth and nothing but the truth, so help you God? Say "I swear".

Witness Lush I swear.

Judge’s Associate Please state your full name. Witness Lush Wendy Lush. Counsel McDonald What relationship do you have with John Hopper? Witness Lush He is my boyfriend. Counsel McDonald How long have you had this relationship? Witness Lush About five years. Counsel McDonald And what was your relationship with Chris Noble? Witness Lush A sort of friend. He was a friend of John’s, so I

suppose he was a friend of mine. Counsel McDonald Where were you at about 7 pm on Friday, 25 February,

2000? Witness Lush I went with John to Chris Noble’s house in Blaxton. Counsel McDonald Why did John go there? Witness Lush He told me he was going to pick up a footy CD that was

his.


Counsel McDonald Did you feel uneasy about the visit? Witness Lush What do you mean? Counsel McDonald Did you think the visit could turn nasty? Witness Lush No, I thought they were still friends, even though they

don’t hang out with each other any more. Counsel McDonald Who did you believe the footy CD belonged to? Witness Lush I thought it was John’s. Well, he told me it was and I

believed him. Counsel McDonald Do you know anything about a raffle in 1997 that

involved John and Chris? Witness Lush I was present when Chris purchased a Crows’ raffle

ticket after the grand final in 1997. I believe they agreed to split the prizes if Chris won.

Counsel McDonald Whose name was the raffle ticket in? Witness Lush Chris’. Counsel McDonald Was it a joint venture? Witness Lush Kind of - Chris promised to give John some Crows’

stuff if he won. Counsel McDonald Was a CD mentioned? Witness Lush Yes, I think they agreed to let John have it if he won.

Counsel McDonald How were you greeted by Chris? Witness Lush Not warmly at all. He got very agitated and started

yelling and I got a bit scared. Counsel McDonald Well, why did you go inside the house? Witness Lush I don’t know, I just got behind John and followed him

in. Counsel McDonald What did John do with the bat? Witness Lush What do you mean? Counsel McDonald In what manner was it used? Witness Lush John held it up as a shield to keep some distance

between Chris and him.


Counsel McDonald What was the atmosphere like at the time? Witness Lush It wasn’t very good. They were both yelling at each

other and I was glad when the police arrived. Counsel McDonald Did you believe you were being involved in anything

unlawful? Witness Lush No, but I wished we hadn’t gone there. Things just got

out of hand. Counsel McDonald That completes my examination, Your Honour

Counsel McDonald resumes his seat.

Judge Boomer Mr/Ms Sleep? Prosecutor Sleep If it please Your Honour. Ms Lush, you really don’t

know what was arranged about the raffle ticket, do you?

Witness Lush Yes, I do. It happened as I said. Prosecutor Sleep I put it to you that you told the court about some loose

agreement to protect the interests of your boyfriend, John Hopper.

Witness Lush That’s not true. Prosecutor Sleep And I put it to you that when John got the baseball bat

from the car before he went into Chris Noble’s house, you knew something nasty, and probably unlawful, could occur. What do you say to that?

Witness Lush That’s not true, either. It happened as I said. Prosecutor Sleep How many people visit other people’s houses, people

with whom they are no longer friends, holding baseball bats? Don’t answer that question. I withdraw it. No more questions, Your Honour.

Judge Boomer Any re-examination? Counsel McDonald Ms Lush, did you enter the residence of Chris Noble on

the night of Friday, 25 February 2000, with a clear conscience that what you were doing was lawful?

Witness Lush Yes, I did. Counsel McDonald Thank you, no more questions.

That concludes the case for Ms Lush, Your Honour.


Counsel sits down.

All counsel will now present their closing addresses to the jury. They will sum up their cases in law and put their respective versions of the facts to the jury. After the closing addresses, the Judge will sum up to the jury by explaining the applicable law and summarising some of the features of the prosecution and defence cases. The Judge will then ask the jury to retire to consider its verdict.

Judge Boomer Are you ready to give your closing address, Mr Sleep? Prosecutor Sleep (to the jury)

Yes, Your Honour. As I have already pointed out, the prosecution has the burden to prove guilt beyond reasonable doubt. To do this it must prove the co-accused had the intent to commit the crime of serious criminal trespass in a private residence, in the aggravating circumstances alleged, and that they physically committed the crime. The prosecutions says that the elements of the offence have been proved with respect to both accused. First, Chris Noble’s evidence that the co-accused were not invited to his residence and entered his premises without his permission when he answered the door, is evidence of the trespass. As to its being a place of residence, it is obvious from Chris Noble’s evidence that he lived there. You can infer that there was an intention to commit a crime from all the circumstances. The ownership of the football CD was in dispute. Mr Noble said that Mr Hooper was trying to get Mr Noble to hand it over to him and was brandishing a baseball bat. Sergeant Dibble testified that he witnessed Mr Hopper and Ms Lush acting in an aggressive and threatening manner towards Mr Noble inside his home on the night of Friday, 25 February 2000. Furthermore, I say to you that the prosecution has established beyond reasonable doubt that this offence was aggravated by three factors: first, that the accused were in possession of a baseball bat and were using it in a threatening manner is evidence of possession of an offensive weapon. Secondly, it is not disputed that the accused were both in the house on that date and at the time in question.


Thirdly, Chris Noble has given evidence that they knew he was present in the house as soon as he opened the door, and that they barged in without his permission. The defence failed to dent the credibility of the prosecution’s witnesses, and the evidence given by their witnesses was vague, opinionated and unconvincing. As the jury, you have no choice but to find the co-accused guilty as charged. That concludes my closing address, Your Honour.

Prosecutor sits down. Judge Boomer Mr/Ms Lee, are you ready? Counsel Lee (to the jury)

If it please the court. I take pleasure in pointing out the weaknesses in the prosecution case.

Let me commence by reminding you, ladies and gentlemen, that the prosecution has the burden of proving guilt beyond reasonable doubt. It there is any element of reasonable doubt regarding Mr Hopper’s guilt, he must be given the benefit of that doubt and you have an obligation to bring down a verdict of not guilty. The prosecution has been unable to prove the elements of the offence. While Mr Hopper and Ms Lush were not invited to the residence of Mr Noble, they did not enter his premises unlawfully. They came there upon a genuine enquiry. All witnesses seem to agree that there was some degree of confusion at the start of the visit. Matters got off to a bad start about the ownership of the footy CD and the yelling between Mr Hopper and Mr Noble clouded the main issue. There was no explicit or implicit refusal by Chris Noble for John Hopper and Wendy Lush to enter the house. There was, however, a significant difference of opinion over the ownership of the CD. That is what led to the yelling and, ultimately, the intervention of the police. Had a neighbour not called the police, this matter have may have been resolved privately and amicably between Mr Hopper and Mr Noble and we all wouldn’t be here now. John Hopper had no intention to commit the offence of


serious criminal trespass and the prosecution has clearly not proven its case beyond a reasonable doubt, because you cannot be satisfied that he went into the house or stayed there as a trespasser, or that he went in with the intention of assaulting Mr Noble. He was there merely to retrieve his CD, but a fight broke out and he used the baseball bat in self-defence. Ladies and gentlemen of the jury, you have no alternative but to find Mr Hopper not guilty. That concludes my closing address, Your Honour.

Judge Boomer Mr/Ms McDonald? Counsel McDonald Thank you, your Honour.

Members of the jury, I commend my friend’s remarks to you. However, I wish to stress that, in the event that you do find Mr Hopper guilty, there is no evidence on which you may safely convict Ms Lush. As you heard her say, she was simply accompanying her boyfriend on what she understood to be a simple exercise of returning the baseball bat to its rightful owner and collecting a CD which belonged to Mr Hopper. When things got heated, she just covered her ears and screamed, trying to blot out what was happening. She had no intention of ever trespassing or assaulting anybody. She was simply caught up in a dispute between Chris Noble and John Hopper, and took no part in it herself. The prosecution has not established that she had the intention to commit serious criminal trespass, nor, indeed, that she actually committed the offence.

Judge Boomer Ladies and gentlemen, you have heard the addresses of

the prosecution and defence. I now intend to explain the law to you with respect to the offence charged and draw your attention to the evidence relating to the elements of that offence. It is most important that you understand that the burden on the prosecution is to prove each element of the offence beyond reasonable doubt. If you have a reasonable doubt about any element of the offence, you must return a verdict of not guilty. Serious criminal trespass in a place of residence requires that a person enters or remains in that place as a trespasser with the intention of committing a specified offence. Here, the alleged offence is assault.


For a person to be a trespasser, he or she cannot have consent to enter or be in that place. Evidence has been given by Mr Hopper and Ms Lush that they entered with consent. Mr Noble said he had not given consent at all. For you to find the co-accused guilty, you must be satisfied beyond reasonable doubt that consent was not given. It is also necessary that they entered with intent to commit an offence. The prosecution has suggested that Mr Hopper and Ms Lush intended to commit an assault against Mr Noble. Mr Hopper and Ms Lush denied intending to commit an assault, stating Mr Hopper was returning the bat to Mr Noble, to whom it belonged, and ended up using it for self-protection. To convict, you must be satisfied beyond reasonable doubt that Mr Hopper and Ms Lush did intend to commit an assault. It must also be proved that the place was a place of residence. Mr Noble has told you he lives there, so you may not have much trouble with that element. If you are satisfied those three elements are proved, you must then consider whether any of the following aggravating factors were present. First, the prosecution contended that the accused had in their possession an offensive weapon in the form of a baseball bat. As a matter of law, I direct you that a baseball bat can be an offensive weapon, but you must then consider whether it was held by Mr Hooper in circumstances where Mr Noble reasonably apprehended it was for the purpose of injuring him. Secondly, the prosecution contended that the trespass was committed in the company of another person. It was not contested that Mr Hopper and Ms Lush were both in the premises. Thirdly, the prosecution contended that they knew Mr Noble was at home. Mr Noble gave evidence that he answered the door and they then pushed their way in. The prosecution says that is evidence that they knew he was there before they trespassed. That, ladies and gentlemen, is a matter for you. You must weigh up the conflicting evidence presented by the witnesses and bring down a verdict of guilty or not guilty based solely on the evidence presented at this trial, as well as the legal principles I have explained.


I must warn you that when it comes to returning your verdict, you will be asked, in relation to Mr Hopper, whether you find him guilty or not guilty of the charge. You will then be asked the same question in relation to Ms Lush. It does not follow that because you find one accused guilty, you must necessarily find the other guilty. Conversely, just because you may find one accused not guilty, you must find the other accused not guilty. I will now ask you to retire to reach a verdict.

The members of the jury retire to the jury room.

The jury retires to a special jury room where the jurors must immediately discuss the case and reach a verdict. For a verdict to be taken within four hours, it must be unanimous. After four hours, the verdict can be either unanimous or by a majority of 10 to 2 or 11 to 1. If no agreement can be reached, the jury is a “hung jury” and the judge will discharge it. The Director of Public Prosecutions will decide whether a new trial is warranted. If the accused are found guilty, they are convicted and Judge Boomer will make a decision about immediate custody. If a custodial sentence is likely, Judge Boomer will probably refuse or revoke bail and order the co-accused to be held in the Remand Centre to await sentencing. If a gaol sentence is unlikely, both prisoners may be granted continued bail to appear for a sentence hearing. If the co-accused are found not guilty, they will be discharged by Judge Boomer. They can walk free from the courtroom, and the principle of double jeopardy will apply. This means Hopper and Lush cannot be tried for the same offence again. For the purpose of this exercise we will assume the jury has been deliberating for more than 4 hours.

After five minutes, the jury returns.to the court room to deliver their verdict The Judge nods to the Associate to seek the verdict from the jury. Associate then stands and takes the verdict from the jury. Associate: Would the foreperson of the Jury please stand Foreperson stands Associate: Members of the Jury, in relation to the accused John Hopper, have

you reached a unanimous verdict? [Note this needs to be repeated for Lush]

Foreperson: Answers either “yes” or “no” (If YES) Do you find the accused John Hopper guilty or not guilty?


Foreperson: Answers either “guilty” or “not guilty” Associate: And is that the verdict of you all? Foreperson: Answers “yes” or “no”. (If NO) Associate: Are 10 or more of you agreed for a majority verdict? Foreperson: Answers “yes” or “no” (If YES) Associate: Do you find the accused guilty or not guilty? Foreperson: Answers either “guilty” or “not guilty” Associate: And is that the verdict of 10 or more of you? Foreperson: Answers “yes” or “no” (If the verdict is not guilty the judge releases the prisoner(s) and thanks the jury) Judge: The accused is to be released. Thankyou ladies and gentlemen for

your careful deliberations, you are now dismissed. * * * * * * * * * * * * * OPTIONAL ENDING (If the verdict is guilty (either unanimous or majority) the Associate delivers the Allocutus- the point of conviction) Associate: John Hopper, you have been found guilty of the offence of

Aggravated Serious Criminal Trespass in a Place of Residence. The court will now hear any evidence and submissions about sentence.

Judge: I will hear submissions from counsel for sentence at a date to be

fixed. Thank you ladies and gentlemen of the jury for your careful deliberations. You are free to go. Please adjourn the court

Associate: This court is adjourned (If NO) Judge Thank you ladies and gentlemen, as you have not been able to

reach a unanimous or majority verdict this is a hung jury. Please adjourn the court.


Associate: This court is adjourned

Documents

The Trial DPP v Hopper and Lush - Courts · The Trial DPP v Hopper and Lush John Hopper and Wendy Lush have been charged with Aggravated Serious Criminal Trespass in a ... this is