Ben Batterham was 'aggressive and frenzied' when he attacked burglar Ricky Slater in Hamilton, court told

Witness Darryl Sharpe told a Newcastle Supreme Court jury on Tuesday apprentice chef Benjamin Batterham had been "extremely angry" with burglar Ricky Slater in early 2016.

"He (Batterham) was still screaming obscenities (at Slater) as he went (home)," Mr Sharpe said. "Batterham was screaming out 'You motherf***er.'''

Mr Sharpe said Mr Batterham called out at one stage in an aggressive and frenzied voice: "Give me two minutes with him. I'll kill him."

Paramedics managed to revive Mr Slater after he suffered a cardiac arrest following the attack, but the 34-year-old had another two cardiac arrests before dying the following day.

Mr Sharpe told the jury Mr Batterham was yelling "I'm going to kill you" as he had Slater in a choke-hold and punched him repeatedly in the head near the driveway outside his Hamilton home.

But when questioned by defence barrister Winston Terracini SC, Mr Sharpe could not explain why he failed to mention in two previous statements to police that Mr Batterham had allegedly threatened to kill Mr Slater.

The 35-year-old has pleaded not guilty to murdering Mr Slater after chasing the burglar from his home.

He had been drinking with a friend, Paul O'Keefe, when he saw Mr Slater in a bedroom about 3.20am on March 26 in 2016. Mr Slater was carrying a blue shoulder bag containing three knives, cannabis and ice.

Mr Batterham's partner and seven-month-old daughter were not home.

Mr Sharpe, who lived up the road from Mr Batterham, told the jury he heard a thud about 3.25am before seeing Mr Slater lying face down on the ground and the chef on top of him with his left arm around his throat.

The neighbour said Mr Batterham repeatedly punched Mr Slater to the side of the head behind the ear while saying: "I'll kill you ... You come into my house, my baby's room."

Mr Sharpe said Slater was calling out: "I can't breathe. Get off me."

The Crown argues Mr Batterham had a legal right to pursue Mr Slater and restrain him until police arrived but no right to attack him the way he did and exact revenge.

Prosecutor Wayne Creasey SC said Mr Slater was going to suffer more than normal when being restrained and assaulted because the 178-centimetre tall man was obese at 118 kilograms.

He was also high on ice at the time, had scarring to his heart because of regular drug use and suffered liver disease.

The defence insists Mr Batterham was entitled to defend his home and family and chase the burglar.

Defence barrister Winston Terracini SC said Mr Batterham never intended to kill Mr Slater or cause him serious harm and the chef was not doing anything unlawful or dangerous given the circumstances of the case.

The trial, before Justice Desmond Fagan, continues.

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