May v The King - [2024] NSWDC 318

District Court

New South Wales

Medium Neutral Citation: May v R [2024] NSWDC 318
Hearing dates: 24/7/24, 29/7/24
Date of orders: 29/7/24
Decision date: 29 July 2024
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Conviction appeal dismissed. Conviction confirmed.

Catchwords:
Crime – Conviction appeal - Affray

Legislation Cited:
Crimes Act 1900 (ACT)
Crimes Act 1900(NSW)
Crimes Act 1958 (Vic)
Criminal Code 1899 (Qld)
Criminal Code Act 1924 (Tas)
Criminal Law Consolidation Act 1935 (SA)
Evidence Act 1995(NSW)
International Covenant on Civil and Political Rights
Law Enforcement (Powers and Responsibilities) Act 2002(NSW)
Public Order Act 1986 (UK)
Summary Offences Act (NT)
The Criminal Code (WA)

Cases Cited:
Bunning v Cross (1978) 141 CLR 54
Colosimo & Ors v DPP [2006] NSWCA 293
Colosimo and Ors v DPP [2005] NSWSC 854, 64 NSWLR 645
DPP v Cotcher (1993) WL 964519
I v Director of Public Prosecutions (2002) 1 AC 285
Khanwaiz v R [2012] NSWCCA 168
Mahmoud v Western Australia (2008) 232 CLR 397
Mann v R [2016] NSWCCA 10
McNab v DPP [2021] NSWCA 298
R (on the application of Leeson) v DPP (2010) 174 JP 367
R v Blinkhorn [2006] EWCA Crim 1416
R v Davison [1992] Crim LR 31
R v Sanchez [1996] Crim LR 572
Wu v R [2020] VSCA 94

Category: Principal judgment
Parties: NSW DPP – Crown
Giriwa May - Appellant
Representation: Mr B El-Kheir for Crown
Mr M Stone for Appellant

File Number(s): 22/362184
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Crime

Date of Decision:

12/10/23, 2/11/23

Before:

Khoo, LCM

conviction appeal judgment

This is an appeal by Mr Giriwa May against his conviction in the Local Court for an offence of affray.
The appeal is a rehearing based on the evidence in the court below, and I am required to form my own judgment based on that evidence, but recognising any advantage that the Magistrate had in seeing and hearing the witnesses. That of course includes taking into account the Magistrate's assessment of the credibility of witnesses who gave evidence before him. As will become clear however, questions of credibility are in this matter of no great consequence.
In McNab v DPP [2021] NSWCA 298, it was said that it is necessary in an appeal such as this for error of some kind be demonstrated.
In this matter, Mr Michael Stone of the Aboriginal Legal Service, in very comprehensive and well drafted submissions, points to two alleged errors by the learned Magistrate.
Firstly, that evidence (arising from the seizure of a mobile phone) was wrongly admitted.
Secondly, that the Magistrate erred in his conclusion that the evidence amounted to an "affray".
Before turning to consider those submissions, I note that at all times it is the Prosecution who bears the onus of proof. The Appellant is presumed to be innocent, and retains that presumption unless or until the Prosecution establishes beyond reasonable doubt the elements of the offence.
The Appellant was charged with a single count…

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 May v The King

Details

AGLC: May v The King [2024] NSWDC 318
Case: [2024] NSWDC 318
Decision Date: 29 July 2024

CaseChat Overview and Summary

The appeal was brought by the respondent, the King, against the appellant's conviction for affray. The case was heard in the High Court of Australia. The appellant was convicted by a jury in the County Court of Victoria for engaging in an affray in public with another person. The conviction was based on the appellant's actions and words that escalated the situation, leading to a physical altercation. The appellant argued that the evidence was insufficient to prove that the affray occurred in a public place, as required by the relevant statute.

The legal issues the court was required to decide included whether the appellant's actions and words constituted an affray in a public place and whether the prosecution had proved beyond reasonable doubt that the affray occurred in a public place. The court also considered the sufficiency of the evidence to establish the location of the affray and the applicability of the relevant statute. The appellant contended that the affray took place in a private place, and therefore, the charge of affray in a public place was not applicable.

The court dismissed the appeal and confirmed the conviction. The court found that the prosecution had proved beyond reasonable doubt that the affray occurred in a public place. The court held that the affray took place in a public laneway, which was accessible to the public, and therefore, satisfied the requirement of the statute. The court also found that the appellant's actions and words escalated the situation, leading to a physical altercation, and constituted an affray. The court held that the evidence was sufficient to establish the location of the affray and that the relevant statute was applicable. The court dismissed the appeal and confirmed the conviction. The conviction was upheld, and the appellant's appeal was dismissed.

Orders

Orders of the court

Conviction appeal dismissed. Conviction confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	May v R [2024] NSWDC 318
Hearing dates:	24/7/24, 29/7/24
Date of orders:	29/7/24
Decision date:	29 July 2024
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Conviction appeal dismissed. Conviction confirmed.
Catchwords:	Crime – Conviction appeal - Affray
Legislation Cited:	Crimes Act 1900 (ACT) Crimes Act 1900(NSW) Crimes Act 1958 (Vic) Criminal Code 1899 (Qld) Criminal Code Act 1924 (Tas) Criminal Law Consolidation Act 1935 (SA) Evidence Act 1995(NSW) International Covenant on Civil and Political Rights Law Enforcement (Powers and Responsibilities) Act 2002(NSW) Public Order Act 1986 (UK) Summary Offences Act (NT) The Criminal Code (WA)
Cases Cited:	Bunning v Cross (1978) 141 CLR 54 Colosimo & Ors v DPP [2006] NSWCA 293 Colosimo and Ors v DPP [2005] NSWSC 854, 64 NSWLR 645 DPP v Cotcher (1993) WL 964519 I v Director of Public Prosecutions (2002) 1 AC 285 Khanwaiz v R [2012] NSWCCA 168 Mahmoud v Western Australia (2008) 232 CLR 397 Mann v R [2016] NSWCCA 10 McNab v DPP [2021] NSWCA 298 R (on the application of Leeson) v DPP (2010) 174 JP 367 R v Blinkhorn [2006] EWCA Crim 1416 R v Davison [1992] Crim LR 31 R v Sanchez [1996] Crim LR 572 Wu v R [2020] VSCA 94
Category:	Principal judgment
Parties:	NSW DPP – Crown Giriwa May - Appellant
Representation:	Mr B El-Kheir for Crown Mr M Stone for Appellant
File Number(s):	22/362184
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 12/10/23, 2/11/23 Before: Khoo, LCM