Medium Neutral Citation: Parhizkar v R [2014] NSWCCA 240
Hearing dates: 16 July 2014
Decision date: 30 October 2014
Before: Basten JA at [1];
Price J at [73];
McCallum J at [95]
Decision:
(1)   Leave granted to the applicant to appeal against his conviction for the offence of riot.

(2)   The appeal is dismissed.

(3)   Leave granted to the applicant to appeal against the sentence on the conviction for riot.
(4)   The appeal is dismissed.
Catchwords:
CRIMINAL LAW – riot – twelve persons or more “present together” using or threatening unlawful violence – applicant used unlawful violence when protesting on the roof of a building – prosecution alleged persons on roof were “present together” with persons on the ground using or threatening unlawful violence – trial judge directed jury that “present together” meant being in the same place – whether trial judge misdirected jury as to the meaning of “present together” – whether “present together” requires physical proximity between persons – relationship between “present together” and other elements of the offence – whether persons found not guilty of riot could be amongst the 12 persons “present together” – Crimes Act 1900 (NSW), s 93B

CRIMINAL LAW – procedure – whether trial judge erred in not allowing cross-examination of a witness as to whether he had viewed footage of the events on the internet.

CRIMINAL LAW – procedure – juries – whether trial judge erred in not discharging the jury following publication of a prejudicial article – whether trial judge erred in failing to give the jury access to transcripts of counsels’ addresses and the judge’s summing up.
CRIMINAL LAW – appeal against sentence – greater restrictions involved in immigration detention while awaiting trial – whether trial judge should have accounted for this in sentencing – whether trial judge was aware of the nature of the applicant’s detention while awaiting trial
Legislation Cited: Crimes Act 1900 (NSW), s 93A, 93B, 93C, 93D, 93E; Sch 3, cl 3
Jury Act 1977 (NSW), s 55C
Public Order Act 1986 (UK), ss 1, 2, 3
Summary Offences Act 1988 (NSW), s 11A
Cases Cited: Anderson v Attorney General for New South Wales (1987) 10 NSWLR 198
Colosimo v Director of Public Prosecutions [2005] NSWSC 854; 64 NSWLR 645
Jones (1974) 59 Cr App R 120
Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
Regina v W(N) [2010] 1 WLR 1426
R v Bartle [2003] NSWCCA 329; 181 FLR 1
R v Kisacanin [2012] NSWSC 91
R v Taousanis [1999] NSWSC 107; 146 A Crim R 303
Regina v Sukkar [2005] NSWCCA 54
Summers (1972) 56 Cr App R 604
Woodrow (1959) 43 Cr App R 105
Texts Cited:
ATH Smith, Offences against Public Order – including the Public Order Act 1986 (Sweet & Maxwell, 1987)

Explanatory Note, Crimes (Amendment) Bill 1988, Sch 1(2)

Halsbury’s Laws of England (4th ed, 1976), Vol 11, pp 506-7, par…

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 Parhizkar v R

Details

AGLC: Parhizkar v The Queen [2014] NSWCCA 240
Case: [2014] NSWCCA 240
Decision Date: 30 October 2014

CaseChat Overview and Summary

In the case of Parhizkar v R, the appellant challenged his conviction for riot, arguing that the trial judge misdirected the jury regarding the definition of "present together" under the Crimes Act 1900 (NSW). The appellant claimed he used unlawful violence on the roof of a building during a protest, while others were on the ground. The prosecution contended that the individuals on the roof were "present together" with those on the ground, using or threatening unlawful violence. The trial judge directed the jury that "present together" meant being in the same place, which the appellant argued was incorrect, as he believed it required physical proximity between the persons.

The court considered whether the trial judge correctly interpreted the phrase "present together" and if it mandated physical proximity. Additionally, the court examined whether the definition of "present together" was distinct from the other elements of the offence. Another issue was whether individuals found not guilty of riot could still be among the twelve persons "present together." The court also assessed procedural matters, including whether the trial judge erred by not allowing cross-examination of a witness about viewing internet footage and by not discharging the jury after the publication of a prejudicial article. Furthermore, the court examined if the trial judge should have considered the greater restrictions of immigration detention in sentencing.

The court found that the trial judge's direction to the jury was not an error, as "present together" did not require physical proximity. The court held that the trial judge did not err in not discharging the jury or in failing to provide transcripts to the jury. The court also concluded that the trial judge was not required to account for the nature of the appellant's detention while awaiting trial in the sentencing decision. The appeal against the sentence was dismissed, and the conviction was upheld.

Orders