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Kim Sean Mann v The Queen

Kim Sean Mann v The Queen

Case [2016] NSWCCA 10 12 February 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kim Sean Mann v R [2016] NSWCCA 10
Hearing dates: 19 October 2015
Date of orders: 12 February 2016
Decision date: 12 February 2016
Before: Bathurst CJ at [1]
Hidden J at [3]
Davies J at [31]
Decision:
Appeal allowed, conviction quashed, verdict and judgment of acquittal entered

Catchwords: CRIMINAL LAW – appeal against conviction – affray – whether verdict unreasonable – evidence that appellant present during a fight between two other men - whether evidence sufficient to establish appellant’s involvement by encouragement or willingness to assist
Legislation Cited: Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: Colosimo v Director of Public Prosecutions [2005] NSWSC 854, (2005) 64 NSWLR 645
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Osland v The Queen (1998) 197 CLR 316
R v Allan & Ors [1965] 1 QB 130
R v Chishimba & Ors [2010] NSWCCA 228
R v Coney (1882) 8 QBD 534
R v Donnelly [2001] NSWCCA 394
R v Phan [2001] NSWCCA 29, 53 NSWLR 480
R v Tangye (1997) 92 A Crim R 545
SKA v The Queen [2011] HCA 13, 243 CLR 400
Youkhana v R [2015] NSWCCA 41
Category: Principal judgment
Parties: Kim Sean Mann (appellant)
Regina (respondent /Crown)
Representation:
Counsel:
I McLachlan (appellant)
E Balodis (respondent/Crown)
Solicitors:
Blair Criminal Lawyers (appellant)
Solicitor for Public Prosecutions (respondent/Crown)

File Number(s): 2013/185171
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 August 2014

Before:

English DCJ

File Number(s):

2013/185171

Judgment

BATHURST CJ: I have had the advantage of reading in draft the judgments of Hidden J and Davies J. I have also read the material which they relied upon in reaching their conclusion.
I agree with the orders proposed by their Honours and with their Honours’ reasons.
HIDDEN J: The appellant was tried in the District Court on an indictment containing three counts: affray, firing a firearm in a public place, and wounding with intent to do grievous bodily harm. He was found guilty of affray but acquitted of the other two counts. He was sentenced to a short term of imprisonment, which has since expired. He appeals against conviction only.

The Crown case

The charges arose from an incident at a park in Canley Vale in the night of 15 June 2013, during which Caine Little, to whom I shall refer as the victim, sustained a gunshot wound to his right wrist. The victim had been involved in a fight with another man, Sogeat (“Jet”) Ouch, and a third man approached them and fired a gun at the victim, causing his injury. It was the Crown case that this man was the appellant.
The victim, Mr Ouch and a number of men who were present at the park gave evidence. It would be an understatement to say that, for the most part, that evidence was unsatisfactory. Their evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kim Sean Mann v The Queen

Details

AGLC: Kim Sean Mann v The Queen [2016] NSWCCA 10
Case: [2016] NSWCCA 10
Decision Date: 12 February 2016

CaseChat Overview and Summary

In the case of Kim Sean Mann versus The Queen, the appellant, Kim Sean Mann, challenged his conviction for affray against the respondent, the Crown. The dispute arose from an incident where the appellant was present during a physical altercation between two other individuals. Mann's appeal was predicated on the argument that the evidence was insufficient to establish his involvement in the affray by either encouragement or a willingness to assist the other participants.

The central legal issue before the court was whether the evidence presented at trial was adequate to support the jury's conclusion that Mann was involved in the affray. Specifically, the court had to assess whether the verdict was unreasonable in light of the evidence and whether the jury was entitled to find that Mann's presence and conduct during the incident amounted to participation in the affray. The court considered the nature and extent of Mann's involvement, including whether his presence alone was enough to constitute participation, or whether there needed to be additional evidence of encouragement or assistance.

The court found that the evidence, including witness testimonies and the circumstances surrounding Mann's presence, was sufficient to establish his involvement in the affray. The court held that the jury was properly directed and that the verdict was open on the evidence. The court determined that Mann's presence and actions, which included standing close to the fight and making gestures that could be interpreted as encouragement, were enough to support the conclusion that he participated in the affray. Consequently, the appeal was dismissed, and Mann's conviction was upheld.

Orders