Police v Curcio
[2013] QMC 2
•15 January 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Curcio & Ors [2013] QMC 2
PARTIES:
POLICE
(prosecution)
v
JOSON ROYCE CURCIO
(defendant)
DELON CURCIO
(defendant)
MATTHEW JAMES KERR
(defendant)
FILE NO/S:
MAG182714/11(9); MAG182723/11(8); MAG182730/11(4)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Summary hearing
ORIGINATING COURT:
Magistrates Court at Atherton
DELIVERED ON:
15 January 2013
DELIVERED AT:
Atherton
HEARING DATE:
15 March 2012, 16 March 2012, 3 May 2012, 5 October 2012
MAGISTRATE:
Braes TJ
ORDER:
All three defendants: Guilty
CATCHWORDS:
CRIMINAL LAW – ASSAULT – assault occasioning bodily harm - in company – consent – mistake of fact
Criminal Code s 7, s 24, s 273
R v Sherrington & Kuchler [2001] QCA 105
R v Fowler & Aplin (2012) QCA 258
R v Button [2002] NSWCCA 159
COUNSEL:
Marcum (sergeant) for prosecution
Sheridan for defendant
SOLICITOR:
Prosecution on own behalf
David Anthony Solicitors for defendant
Introduction
Delon Curcio is charged that on the 5 October 2011 he assaulted Manual Nylen. Joson Royce Curcio and Matthew James Kerr are both charged with Assault occasioning Bodily Harm to Mr Nylen, while in company.
On Wednesday, 5 October 2011 the complainant Manuel Jose Nylen had been dropped off by his father at the Atherton Skate Park in Vernon Street. He was there most of the afternoon skating with his mates, Daniel Zanatta, James Marwick and Josiah Lewinson, aka Vandervyver. Karris Peebles, who had not previously met Mr Nylen, was also there.
At about 6 pm the defendants Joson Royce Curcio, Delon Curcio and Matthew James Kerr arrived at the skate park in company with Vernon Curcio, Reo Curcio, Koria Tachari and Bodie Pearcie. Koria Tachari remained at the gateway to the skate park while the other six approached Mr Nylen and the others.
An incident occurred where it is alleged Delon Curcio assaulted Mr Nylen by pushing him in the chest. As the group of six approached Mr Nylen they were yelling at him. Mr Nylen, believing he had no option but to fight, tried to limit the fight to one person, being Joson Curcio. A fight ensued between Mr Nylen and Joson Curcio during which it is alleged Mr Kerr kicked Mr Nylen to the back and ribs and back of the head while he was on the ground and then as Mr Nylen stood up it is further alleged Mr Kerr struck him to the head with considerable force.
The only defendant to give evidence was Mr Kerr. He said Joson Curcio and Mr Nylen just started fighting, he said they were rolling around on the ground and he heard Mr Nylen say he had had enough. He said as he moved in to break up the fight he slipped over but he did not touch anyone.
Delon Curcio denies pushing Mr Nylen in the chest. Delon Curcio did not give evidence.
Joson Curcio says the fight with Mr Nylen was by consent. He did not give evidence.
Matthew Kerr says he did not hit Mr Nylen.
The defendants raised the issue of consent, mistake of fact (s 24 Criminal Code) and aiding in self defence (s 273 Criminal Code).
The prosecution relies on the provisions of s 7(1)(a) and 7(1)(c) as implicating Joson Curcio and Matthew Kerr in the offence.
What is not in dispute
There were no factual admissions.
What the prosecution must establish
The prosecution must satisfy me that all of the elements of the charges have been proved beyond reasonable doubt. In satisfying that onus of proof, it must negate any defence or excuse raised. Should the prosecution fail to prove those elements to the standard required and negate any defence or excuse raised then I must acquit the defendants of the charges against them.
The prosecution must prove –
Delon Curcio -
(1) That Delon Curcio assaulted Mr Nylen. What this means is that any person who strikes, touches or moves or otherwise applies force of any kind to the person or another, either directly or indirectly, without that person’s consent is said to assault that other person;
(2) That the assault was unlawful, that is, it was not authorised, justified or excused by law.
Joson Curcio –
(1) That Joson Curcio assaulted Mr Nylen. What this means is that any person who strikes, touches or moves or otherwise applies force of any kind to the person or another, either directly or indirectly, without that person’s consent is said to assault that other person;
(2) That the assault was unlawful, that is, it was not authorised, justified or excused by law;
(3) That in assaulting Mr Nylen, Joson Curcio caused him bodily harm; that is any bodily injury which interferes with health or comfort;
(4) That Joson Curcio was in company at the time.
Matthew Kerr –
(1) That Matthew Kerr assaulted Mr Nylen. What this means is that any person who strikes, touches or moves or otherwise applies force of any kind to the person or another, either directly or indirectly, without that person’s consent is said to assault that other person;
(2) That the assault was unlawful, that is, it was not authorised, justified or excused by law;
(3) That in assaulting Mr Nylen, Matthew Kerr caused him bodily harm; that is any bodily injury which interferes with health or comfort;
(4) That Matthew Kerr was in company at the time.
The issues to be determined
I must determine whether Delon Curcio pushed Mr Nylen and if so whether that push amounted to an assault, that is did Mr Nylen consent to being pushed, and whether the assault if it happened was unlawful.
I must determine whether Mr Nylen consented to fight Joson Curcio, and if not, whether Joson Curcio had a mistaken belief as to that consent. I must decide whether Joson Curcio was in company and whether as a result of any unlawful assault on Mr Nylen, he suffered bodily harm.
I must decide whether Mr Kerr assaulted Mr Nylen and if so, whether Mr Nylen had consented to being assaulted by Mr Kerr. I must decide whether Mr Kerr had a mistaken belief about consent being given to fight Delon Curcio or indeed himself and I must determine whether Mr Kerr was in company, and whether as a result of any unlawful assault on Mr Nylen he suffered bodily harm.
I must consider how sections 7, 24, 245, 239 and 273 apply to the facts of the matter.
The evidence
The matter proceeded to evidence on 15 and 16 March 2012. Mr Anthony, Solicitor, appeared for the defendants. As the matter was not concluded it was adjourned to 3 May 2012 when, for a number of reasons, no evidence was taken. Mr Sheridan of Counsel appeared for the defendants on 3 May. The evidence was finalised on 5 October 2012, Mr Sheridan appearing for the defendants. Mr Nylen was recalled to adopt his s 93A statement and the defendant Matthew Kerr gave evidence.
Senior Constable Parise
Snr Const Parise gave evidence that she arranged for photographs of the scene to be taken and she conducted the interview with Mr Nylen.
Sergeant Harris
Sgt Harris was on duty at the Atherton Police Station on 5 October 2011 and as a result of information received attended at the skate park in Vernon Street. Upon arrival he was immediately approached by Mr Nylen who he described as distressed and complaining of having a sore jaw and sore nose. Sgt Harris said Mr Nylen had obvious signs of injuries. He had blood around his mouth and around his nose area and he observed his nose was crooked. He also observed redness around Mr Nylen’s chest and right shoulder. He observed grazes around his left elbow.
Manuel Jose Nylen
Mr Nylen was born on 12 February 1996. He was 15 years of age at the time of the incident on 5 October 2011.
Mr Nylen’s evidence was received by way of a statement tendered to the Court. On 5 October 2011 Mr Nylen was at the Atherton Skate Park with friends. He said:
“We were standing on this little flat part of that cement where you got that picture, there’s a little wedge thing there and me and my mate were just seeing who could get the first flip over that wedge. I went back to the flat to get my run up and do the trick. I looked over my shoulder and kind of noticed a ute that looked similar to Joson’s family’s pulling up. I sort of had a fairly good idea it was them but didn’t want to make it look like I was staring at them so I wasn’t starting anything. So I put my board down, tried to do the trick and picked it up and kept my head down and just said to Dan Zan or someone if they were there. And then they just said yeah and then all walked over. There were three cars that pulled up. Venro was driving. There was just Venro driving a little green, I’m really bad with colours but it was just Venro driving the green one. Matt was driving his ute, I’m not sure if he took anyone else in the car. But then about four people got out of the car that Joson was in. Then they all just started walking towards the skate park. There were seven of them in all together. They all started walking towards the skate park and then as they entered into the skate, before they had even entered the skate park Josiah had already dialled triple zero to call the police. They walked through the gate of the skate park and walked up towards us and then mate Dan Zan said ‘Oh yeah, what are you boys here for then?’ The 21 year old Delon kind of just pointed at me and Josiah. He walked up to me and then just gave me a shove and walked over to Josiah. Josiah kicked up his skate, like kicked up his skate board into his hand and held it up and just told them then cos, they were, in a very threatening manner, coming towards him. So he picked it up and then just told them, like ‘back up, chill out, chill the fuck out. Just seriously chill the fuck out.’ Me and Josiah were kind of standing next to each other so they were kind of coming for both of us, so I picked my board up as well. Josiah, and they were going towards him kind of split off more towards the right and I went kind of more left. So when he stood off more towards the right they kind of left him alone and started coming more towards me. This is where my memory starts getting really hazy about the whole incident. But I can remember the retarded 23 year old Rio telling me to put my board, put my board down mate. And then I was just telling them to back up and chill the fuck out. Matt Kerr then picked up Dan Zan’s board and then came at me holding it above his head just screaming at me, ‘come on then cunt’. I was just freaked out and told them all to chill out again. I don’t exactly know how it got to the point of just me and Joson fighting but it was negotiated between us and the rest of them that just me and Joson fight. I said hold on for one second, so it’s going to be just me and Joson fighting here, right here and right now and none of you are going to jump in. They said, yep none of us will jump in. I put my board down and went to take my phone and wallet out of my pocket. Joson started walking up really close toward me. I sort of started to back away a little bit. By this time we were down on the oval obviously after all the backing away. I was trying to take my phone and wallet out and had just gotten them out and thrown them down on the ground and then he hit me. Then we both kind of went at it. I know he kneed me, I know he got a knee in at some point. And then it kind of went to the ground, I got him to the ground. I got him to the ground and sort of started to get the upper hand in the fight and then the minute I kind of got the upper hand, I just felt a big kick in my ribs and another kick in the head. I looked over and saw Matt Kerr kicking me. Joson was on top of me just trying to punch me and stuff. I managed to get back on my feet and then went to go with Joson again and then Matt Kerr, just took a big swing in from kind of the side, just out of my peripheral vision and that’s what caused that one. I know that because that was a big hit. [In the video recording of the interview Mr Nylen indicates to his left chin area which is also shown in the photographs Exhibit 5] So then they both got me back on the ground and then were kicking me a little bit more. I thought to myself I just got to get off this ground, I can’t do anything on this ground so I got back up off the ground and then just looked at them. And like it was 2 on 1, I couldn’t do anything, they were so much bigger than me. So I took about, yeah I ran about 5 to 10 metres back and then just jumped the skate park fence and then just stood on the other side of it telling them to fuck off and whatever, and if they’d had enough. I just told them to fuck off, and then as they were, yeah they were saying ‘yeah you run you little pussy’ and whatever and then as they were leaving Matt Kerr yelled out to me, ‘do you get the point about not hanging out with my brother now?’ and I mean Tom Kerr, he’s like he’s more of a mate of Josiah’s than mine really. And when I was living with Josiah he would just rock up at like, he’s a mate, I don’t want to tell your mate to piss off cause his brother’s being a dick. It’s a dog act to me. So I yelled back out to Matt, ‘what am I supposed to do when he rocks up at my house’. And then Matt just said was, ‘just tell him to piss off’ and they all just walked away and left. And then after that about five minutes after that Sgt Harris showed up and took down a brief statement from all of us, he took a look at me and told me ‘yeah just go straight up to the hospital, your nose is definitely broken.’”
In his statement he clarified that the six people who walked into the skate park were Matt Kerr, Joson Curcio, Bodie Pearcie, Delon Curcio, Reo Curcio and Venro Curcio. A seventh person Koria didn’t actually enter the park but got out of the car and stood near to the entrance of the skate park.
In his statement he clarified that after Mr Zanatta had asked the group of six what they were there for Delon Curcio had given him a decent shove which forced his body backwards a step or two but he did not fall over. He said that at the time the whole group of six were coming towards him. He again said that after they started coming after him he somehow negotiated that just he and Joson would fight and that none of them would jump in. He said that it was “either just me or Joson fight or me and six people fight so I clarified that with them that none of them were going to jump in and they said yes none of them would jump in for Joson.” He said that he felt that he had no other choice at all, it was either do that or they were all going to fight him, there was no backing out of it. Snr Const Parise asked him if he thought there were any other options that he could have taken at the time. He said that the one other option would have been to drop his skate board and run quick and jump the skate park fence and just run his arse off but they had cars and so he really didn’t like that idea.
He was unable to confirm which injuries were caused by which blow.
When questioned again about being kicked he said “we were on the ground and I’m not sure exactly what position he was in, I can remember having his whole body kind of a bit behind me on my side with his body just there and I think we kind of moved from that position, I was kind of more he was on his back and I was on the side of him and I just felt a big blow to the ribs and then I felt another blow kind of to the back of the side of the head. I looked over and I saw Matt Kerr trying to kick me while I was on the ground and Joson was trying to punch me and whatever while I was on the ground.” He went on “I felt a blow to the back of the head and I looked over and I saw him trying to kick me and Joson was just trying to punch me on the ground so I got back onto my feet and then me and Joson were sort of shaping up towards each other and then I sort of looked to my left a little bit and just saw a big swing coming in from Matt, he took a big swing and I know that was with his right hand and he hit me right there across my chin.”
Sgt Marcum further clarified Mr Nylen’s evidence. He again confirmed that Delon had pushed him and was advancing towards Josiah. Sgt Marcum asked Mr Nylen specifically about the negotiation that he only fight Joson. He said “It’s all quite hazy honestly but I know they were advancing towards me and that it was - looked like the whole group kind of thing, so I just basically put forward the idea of ‘Well, what about if you’re going to fight me, do it yourself’. It was either going to be me jumped by six people or me just trying to fight one.”
Mr Nylen was cross-examined by Mr Anthony on behalf of the three defendants. He was asked about why he would have been concerned when he noticed the three vehicles pulling up. Mr Anthony said “and then as soon as they pulled up you were thinking to yourself, ‘oh God’?” Mr Nylen replied “that’s right”. Mr Anthony ventured “why?” to which Mr Nylen replied “well, there had been previous incidents in the past, two to three weeks with those – that group of boys showing up and then letting every kid at the skate park know they were looking for me so I knew it had to happen at some point, I just didn’t want it to. But there wasn’t much I could do about it at the same time.”
Under cross-examination Mr Nylen confirmed he did ask Josiah to ring the police because the police had told him from previous incidents that if he was ever to see those boys around town and they were looking like they were causing trouble or if they ever turned up to the skate park and he was there to contact police immediately.
Mr Anthony put to Mr Nylen that Mr Kerr did not kick him at all and that Mr Kerr fell over when he was approaching him. Mr Nylen said that this was incorrect. It was further put to Mr Nylen that Mr Kerr didn’t throw a punch at all and that Mr Nylen was making it up or that he was otherwise mistaken. Again Mr Nylen said that suggestion was incorrect.
Mr Anthony did not put to Mr Nylen that Delon Curcio did not push him in the chest.
Daniel Joel Zanatta
Mr Zanatta gave evidence that on 5 October 2011 he was at the Atherton Skate Park with James Marwick, Mr Nylen, Karris Peebles and Josiah Lewinson. He said they were skate boarding when a group of young males pulled up at the skate park and all piled out of the cars and approached them. He said from the get go Mr Nylen was backing up out of defence. He said Mr Nylen knew he was in trouble, and that he put his skate board down and said “well, if you’re here to fight, make it one on one, fair”.
He said Mr Nylen “definitely didn’t want anything to do with it. From the start, he said he didn’t want anything to do with it, and told them to go away, back off, and he was just always backing up, but didn’t want to run, I suppose cause turn your back, you never know what’s going to happen.” He said Mr Nylen put his board down and Joson ran in and hit him straight in the face, there was a bit of a scuffle and they ended up on the ground. He said Mr Nylen had Joson Curcio in a headlock and was holding him on the ground when Mr Kerr came in and kicked Mr Nylen in the ribs region on the side. He said Mr Nylen got to his feet and Mr Kerr proceeded to punch him straight in the face while they stood up. He said then Mr Nylen ran and jumped the fence to the skate park onto the roadside to get away.
In answer to a question from Sgt Marcum Mr Zanatta said “I think he realised that if he – he was there, he was going to get either beaten up by eight of them or try to get one on one, cause they were obviously there for one reason, and everyone knew it. Everyone knew why they were there, and Manuel was just scared.” He confirmed that he too felt threatened and scared.
He said when Mr Kerr kicked Mr Nylen he heard a thump and although he was standing back 10 metres he heard a big thump over everything else. He said it did not appear that Mr Nylen had any other options at all. He said, “They were there, they were going to do what they did regardless of who was there, what anyone did.” Mr Zanatta said he was told by Delon Curcio to “Back up or you’re next cunt”. Mr Anthony put to Mr Zanatta in cross-examination he was mistaken and there wasn’t a kick to which he replied “I don’t think so, no. Seen it with my own eyes. Heard it with my ears.”
Mr Anthony put to Mr Zanatta that the evidence which he had given to the Court was inconsistent with the statement he had given to police on 10 October 2011 in that he said in his statement Mr Kerr was pressing Mr Nylen’s head into the ground with a sort of stomping like motion. Mr Zanatta said he had said that but he did not remember it now. He agreed that statement may have been possibly incorrect and the evidence he was giving in Court was what he could now remember of the incident.
Mr Zanatta said he had not seen Mr Kerr slip over and reconfirmed that he did kick Mr Nylen. He did not recall Delon Curcio striking Mr Nylen.
It is clear that there is some inconsistency between the evidence given by Mr Zanatta at trial under oath and the statement made by him to police five days after the event. There is also inconsistency between his evidence and that of Mr Nylen in that he said that he did not recall Delon Curcio striking Mr Nylen.
James Robert Marwick
James Robert Marwick gave evidence that on 5 October 2011 he was at the skate park hanging around with friends Daniel Zanatta, Karris Peebles, Mr Nylen and Mr Lewinson. He said three cars pulled up and straight away Mr Lewinson asked Mr Zanatta for a phone and was calling 000. He said Mr Zanatta approached the group and asked them what they were doing there and they pointed towards Mr Nylen. He said the group consisted of Delon Curcio, Joson Curcio, Matt Kerr and two others. He said he heard Mr Nylen say “if you’re here to fight, fight me one on one”. At that time he said the group was moving towards Mr Nylen in an aggressive manner. He said he and his group were constantly backing away as they felt threatened. He said on one occasion Venro Curcio walked up towards him and said “Are you trying to have a go at me?” to which he replied “No”. He said Venro Curcio said that if any of them tried to help Mr Nylen they would have to deal with “him”, and indicated by pointing towards the Maori bloke-Mr Tachari.
He said he felt as though Mr Nylen had no other options, “It was either turn your back against seven, or if he was going to run they threatened all of us, and if we were going to help it was also a threat.” He said Joson Curcio had walked up to Mr Nylen and they started having a brawl, then they were both on the ground, punches being thrown back and forth between both of them and Matt Kerr ran in and kicked Mr Nylen in the side of the ribs. He said Mr Nylen stood up after that and Matt Kerr hit him again in the jaw.
Again Mr Marwick confirmed his observation that he didn’t think Mr Nylen had a free choice as to whether to fight or run away.
Under cross-examination Mr Anthony put to Mr Marwick that the evidence which he had given to the court was different to the statement given to police on 11 October 2011 in that he said in the statement Matt Kerr had run in and kneed Mr Nylen in the side of the ribs and also that Mr Nylen was on his back on the ground when Matt Kerr punched him in the face. Although Mr Marwick did appear a little confused about the matter when it was put to him that Mr Kerr had slipped over, that Mr Kerr did not kick Mr Nylen and that Mr Kerr did not punch Mr Nylen, he categorically disagreed with each of those proposals. Mr Anthony also put to Mr Marwick it was an option for Mr Nylen not to have to fight to which Mr Marwick replied “No I don’t think so”. Mr Marwick confirmed that the group had Mr Nylen surrounded in a semi circle and said the group was putting pressure on them all. He denied he and the other prosecution witnesses had discussed the evidence to fabricate a story.
Dr Stacey King
Dr King was on duty on 5 October 2011 at the Emergency Department of the Atherton District Hospital when Mr Nylen was seen by Dr Hopton and a number of injuries recorded. These injuries were primarily about the upper torso and face and included a large swelling and bruises over the right eye and some bruising to both the right cheek and left cheek. His nose was quite swollen and slightly deviated from the midline. The nasal septum which is the part of the nose between the two nostrils was also swollen. There was some tenderness to touch over the zygoma on the left hand side. There were minor abrasions and minor wounds to the left shoulder. Mr Nylen also complained of pain in the abdomen and around the ribs.
Mr Nylen was given pain relief, his wounds were cleaned and he was discharged with a form to come back for a repeat X-ray. Mr Nylen represented on 6 October for a repeat X-ray of the facial bones. Dr King was unable to identify any fractures. His nose was still deviated and still remained swollen. Mr Nylen re-presented on 10 October when he was seen by Dr Conway. Mr Nylen was reviewed again, there was no septal haematoma and there was at this stage minimum swelling. At this stage Mr Nylen did not have any difficulty breathing, he was discharged home with a view that if he should develop any breathing difficulties he should return for referral to a specialist.
Dr King confirmed that the injuries sustained would amount to bodily harm as that term is defined in the Criminal Code.
Josiah Lewinson aka Vandervyver
On 5 October Mr Lewinson was at the Atherton Skate Park with Karris Peebles, Daniel Zanatta, James Marwick and Manuel Nylen. Mr Lewinson had some difficulty relating his story. This difficulty was evidenced early in his evidence when it was necessary for me to assist him by telling him that all he had to do was to tell the Court what he saw and heard to which he replied “I was at the skate park and they came to the skate park and beat the shit out of my friend”.
Mr Lewinson described the group as Matt, Joson, Delon, Venro, Reo and Koria whom he described as a massive Kiwi guy. Mr Lewinson explained that after the cars pulled up they all walked out in a group and Mr Tachari stood at the entrance and Joson Curcio came up. He said Mr Zanatta asked “Why are you here?” Mr Lewinson then became somewhat elusive after saying that Delon Curcio had pointed. Mr Lewinson explained that he did not wish to say anything that was not 100 percent correct. He then confirmed however that Delon Curcio had pointed at Mr Nylen in response to Daniela Zanatta’s question. He also said that the other people coming at him were saying things like “don’t even try to help him because then you’re next”. He thought that Venro Curcio had made that comment. He said that at the time he was simply trying not to be hit himself and that Mr Nylen was backing up. Mr Lewinson said “Manuel said, like, “If youse are all going to come at me at once”, like “don’t be cheap”, he said, like “one on one” or whatever. Like I mean – it’s either, like, seven – you versus all seven, or – I mean – so, like – and he just said “if you’re going to do it yourself” – and, like, “just do it yourself”. You’re going to rock up”. This segment of his evidence is a little unintelligible however the general gist is corroborative of the other versions given to the court.
He said again that the Curcio group was saying things like “if youse try and help him, then youse are all fucked yourselves”. He said that the demeanour of the other group was that they weren’t happy at all. He said that he telephoned the police.
Mr Lewinson said he was trying not to get smacked and then he saw Mr Nylen get hit and at the same time Reo Curcio was telling him to fuck off or he was going to be next. He said that Joson Curcio had hit Mr Nylen in the jaw with his fist and that they had a little wrestle. He said that Mr Nylen ended up getting Joson Curcio to the ground and then Mr Nylen copped a couple of kicks. He said Matt Kerr had kicked Mr Nylen in the rib cage and chin. He said “as soon as I saw this shit going on I ran down there and Manuel jumped the fence and Reo was just telling me that if anyone tries to help, that they’re fucked as well.”
Under cross-examination Mr Anthony asked Mr Lewinson “And why do you think from your observations and being there, why do you think Manuel agreed to fight, or saying “one on one”?” to which Mr Lewinson answered “Because either he has the shit beat out of him by like seven people, or he tries to get a one on one, he runs away; like he’s leaving all his friends behind, they’ve got cars for one, there’s seven of them versus – he went to school with them at the time, he’s not going to run very far.”
Under cross-examination Mr Anthony was asking Mr Lewinson to recall the two kicks which he said had been delivered by Matt Kerr to Mr Nylen. Mr Lewinson then said that there were two kicks and a punch. Mr Lewinson had not given any evidence in chief about a punch. Mr Anthony attempted to take Mr Lewinson to task about this as it appeared that there was no mention of a punch in the statement given to police either. Mr Lewinson said he hadn’t initially wanted to make a statement that he hadn’t written it out himself he had spoken it and it had been written for him. It appeared Mr Lewinson did not wish to be in the witness box giving evidence in respect of the matter. When Mr Anthony told him that he did not have to make a statement he said; “My friend just had the shit beat out of him and he asked me”. When pressed he again confirmed Matt Kerr had punched Mr Nylen. He said this occurred when Mr Nylen was getting up off the ground and that he had been punched to the jaw. Mr Anthony asked Mr Lewinson whether he had seen Delon Curcio touch anybody to which he replied “No Sir”. Mr Anthony also put to Mr Lewinson that Matt Kerr had slipped over and fell to which Mr Lewinson responded quite enthusiastically “bullshit”.
It was apparent that Mr Lewinson was a difficult witness and that he would have preferred not to be involved in the matter. He was somewhat fidgety and scatty however there was nothing in his demeanour or mannerisms which indicated to me that his evidence was fabricated. In fact it would have been quite difficult given the very broken nature of his evidence to maintain a lie.
Karris Jane Peebles
Ms Peebles had driven to the Atherton Skate Park at about 5 o’clock on 5 October 2011 where she met up with Josiah Lewinson, James Marwick, Daniel Zanatta and Manuel Nylen. Although she had known the first three before she had never met Mr Nylen. Ms Peebles is a 21 year old Honours student 4th year psychology. She said “We had been skating around for around about 45 minutes and three cars showed up. At that point in time Josiah had said to the group, ‘can I please have someone’s phone? Need to ring the cops, there’s going to be a fight.’ so James gave Josiah his phone, he proceeded to ring the police. At that time the six of them had gotten out of the car and began to walk through the skate park gate. The leader of them, which I think was walking towards us first, was Joson and he pointed past us. Daniel said to him, ‘what are you guys here for?’ approached them and walked out in front of us, and Joson said – pointed at Manuel and said, ‘him’, and then continued to walk past us. At that time Josiah was still on the phone to the police.”
She said she had never seen any of the boys from the car before.
She said Mr Nylen picked up his skate board and proceeded to walk backwards. She said she felt like he didn’t want to take his eyes off them because he wasn’t sure what they were going to do.
She said Matt Kerr then picked up one of the skate boards, which was Daniel’s, and proceeded to walk towards Manuel.
She said, “The group then proceeded to walk over to Manuel, following him down the hill as he was walking backwards, and he knew that he had absolutely no option from, like, but to face these people cause it was obvious that they were coming towards him.” She said; “As he was protecting himself holding the skate board, he said – almost as a resignation, he said, “If it’s going” – “if it’s going to happen, let’s at least make fair, one on one.” “Then he put down his skate board, and so did Matt.”
She said the next thing she recalled was Mr Nylen and Joson Curcio were on the ground hitting each other. She said that after that happened for a few seconds Mr Kerr ran up fairly fast and forcefully kicked Mr Nylen in the side of his ribs more than once, and she said it was definitely hard because she could hear the kick. She thought that it was possibly as many as three times.
Sgt Marcum asked Ms Peebles whether or not Mr Nylen did anything when he was kicked. She answered “Apart from quince (sic) in pain not really”. She said they both got up and Mr Kerr hit Mr Nylen in the face.
She said she felt threatened. She said five of the boys had walked through the gate, and the sixth, which was fairly in his 30s, extremely large intimidating Kiwi who she had never seen before, stood against the gate towards the skate park but he didn’t enter. She said “they walked in with a clear – what was to me an absolute clear purpose of why they had come to the skate park, could see it in the way they were walking, their stance, their vocal, their verbal language.” She said their body language was indicative that they were there for either Mr Lewinson or Mr Nylen. She said the first thing that she had heard was when Joson Curcio said “him” and pointed to Mr Nylen when Mr Zanatta had gone forward and asked what they were there for. She said after Joson Curcio had said “him” they walked past where she was standing on the concrete at the top of the skate park to Mr Nylen who was backing away. She said that she didn’t see how anyone could possibly have gotten a different impression about why the group was there. She said that the group were angry and she had felt threatened herself. She said they had “a group pack mentality, as in they were there to accomplish something.”
Ms Peebles said after the event she observed Mr Nylen had a graze on his hip, his shoulder, his arm, his mouth and nose were bleeding, his stretcher was missing, and he had other various bruises. His nose was really out of shape and bruised. In response to Mr Anthony’s enquiry about Mr Tachari, the large Maori guy, she said he did not say anything, “he was just there – again, clearly there as if, anyone steps in, he is there to take care of them. I didn’t see why else he would be there. A grown man watching a bunch of kids go and bash someone up. He was there as a threat.” Ms Peebles also clarified under cross-examination that when Joson Curcio had pointed in response to Mr Zanatta’s remark he had pointed towards Mr Nylen.
Mr Anthony asked her whether Mr Nylen had said anything to which Ms Peebles replied “Not that I can recall. Apart from when he – what I said just before about him saying that when – when he basically resigned to them saying that, ‘come on guys, let’s be fair, one on one.’ was the next thing I recall him saying before they were on the ground. It was what seemed to me like a plead from Manuel for some sort of decency from these people not to just get gang bashed.”
Mr Anthony put to Ms Peebles “did you get the impression he was willing to take on more than one?” to which Ms Peebles replied “no, I got the impression that he just had some sort of hope that it was going to not be unfair.”
Mr Anthony put to Ms Peebles that she had not mentioned anything about Mr Kerr punching Mr Nylen in the statement given to police on 12 October 2011. Ms Peebles responded that she had replayed the incident in her mind and that she had remembered little bits more every time.
Mr Anthony further pressed Ms Peebles and said “You said your memory in your statement is different, some of your points of your statement are different to your testimony today and that’s because you are remembering some things better”. “Yeah”. “And not remembering other things”. “Yeah”.
Mr Anthony put to Ms Peebles “Did you think it was an option that Manuel could have run away?” to which Ms Peebles replied “Most certainly not”. Mr Anthony said “At no stage could he have vacated the premises?” Ms Peebles replied “Absolutely not. A few reasons were, 1. Fear, he was obviously extremely scared. I doubt his ability to actually run away; and 2. There were six of them and chances of him getting hunted down were out numbered, and he knew that; and thirdly, they had cars, so wherever he ran, they would have got there faster.” She again confirmed that to run away was absolutely not an option and said “if he’d turned his back for a split second they would have been behind him, grabbed him. It was not feasible in any way that I could see for him to run safely and get away with it. And that to me was further exemplified by the fact that he had chosen to stay and say ‘let’s at least fight fair’. To me it was a resignation. He had thought of running, I’m sure, and he had realised that it was not possible. His only option was to stay there.”
Mr Anthony put to Ms Peebles that Mr Kerr had slipped prior to the kick. Ms Peebles responded “No, it was definitely a full run and kick in the stomach, 100 percent certain about that”.
The prosecution witnesses may be criticised for the inconsistencies which appear between the evidence given at the hearing and the statements given to police shortly after the event. They were all very young people not accustomed to giving detailed statements to police or of Court processes.
Evidence was given on oath and the witnesses were subjected to cross-examination. The witness statements were not put into evidence and I do not have the benefit of reading them. I doubt that at the time when the witnesses gave their statements to police they contemplated the prospect of giving evidence in a formal Court setting. I have had the benefit of observing each of the witnesses, their demeanour and idiosyncrasies. It has not been suggested or shown that the witnesses had any incentive to conceal or misrepresent the facts.
It is possible there has been some exaggeration by Mr Zanatta when he gave his police statement and some inaccuracies generally in respect of events.
The inconsistencies which I have observed in the evidence of the prosecution witnesses are not such as to persuade me that the evidence is unreliable or that there has been collusion between the witnesses to fabricate a version of events. The inconsistencies are consistent with an event constituted by a number of players developing over a short period of time without the benefit of a 360 degree fish eye recording. In such circumstances it is accepted that different people will see and hear different things and different people will have different recollections of the event and be able to verbalise those recollections with differing degrees of accuracy.
Matthew Kerr
I find Mr Kerr’s version of events highly improbable. He says he and his friends went to the park to play soccer yet they left the soccer ball in the ute. One of the number, Koria, described as the big Maori guy, stayed at the gate to the entrance of the park. Instead of walking past the skate ramp to get to the soccer field all 6 of the group went up onto the skate ramp where Mr Nylen and his mates were. Although Mr Kerr said he heard Mr Lewinson calling the police he left the area with the others instead of waiting for the police to explain his version of events.
Mr Kerr denied that he picked up Mr Zanatta’s skate board. Mr Nylen, Mr Zanatta, Mr Marwick, Mr Lewinson, Ms Peebles all said he picked up Mr Zanatta’s skateboard.
I do not accept Mr Kerr’s evidence that he did not assault Mr Nylen as alleged or that he slipped on the grass. I find that he deliberately kicked Mr Nylen when he was on the ground fighting with Joson Curcio and that he punched him to the head when he stood up.
Summary of the evidence
I accept the evidence of the prosecution witnesses and find that at approximately 6 pm on 5 October 2011 the defendants Joson Curcio, Delon Curcio and Matthew Kerr attended the Atherton Skate Park in Vernon Street, Atherton in company with Vernon Curcio, Reo Curcio, Bodie Pearcie and Koria Tachari.
Mr Tachari remained at the entrance to the skate park while the other six walked towards the skate mound and Mr Nylen, Daniel Zanatta, James Marwick, Josiah Lewinson and Karris Peebles.
Acting on advice given by police because of previous incidents Mr Lewinson used Mr Zanatta’s telephone to call 000 and speak to police. As the defendants approached the skate mound Mr Zanatta went forward and asked Delon Curcio what they were there for whereupon Mr Curcio pointed at Mr Nylen and the group continued toward Mr Nylen exhibiting an aggressive threatening demeanour to all of those present at the skate ramp.
The group was by demeanour and speech aggressive towards Mr Nylen, and also towards Mr Zanatta, Mr Marwick and Mr Lewinson. At this time Mr Nylen was holding his skate board in a defensive gesture up to his shoulder and was trying to dissuade the group from advancing any further telling them to “back up and fuck off”. Mr Nylen was also necessarily backing away from the advancing group. Mr Kerr picked up Mr Zanatta’s skate board and advanced on Mr Nylen in a threatening manner saying “come on then cunt”.
As Delon Curcio approached Mr Nylen he shoved him in the chest forcing him backwards and advanced further towards Mr Lewinson.
Mr Nylen, knowing that he was in a hopeless situation, said words to the effect that if they were going to fight him then it should be fair, one on one. Although there was no actual confirmation from the group of an acceptance of the proposal it appears to have been accepted by all that the fight would be between Mr Nylen and Joson Curcio. Mr Nylen put his skate board down and then was in the process of putting his phone and wallet on the ground when Joson Curcio moved in quickly and struck him to the face. Mr Nylen was able to grab Joson Curcio and they went to the ground where they continued to wrestle and attempt to punch one another. After a short struggle Mr Nylen began to get the better of Joson Curcio and was on top of him with him in a head lock. At this point Matthew Kerr came in and kicked Mr Nylen twice in the rib or torso area and once to the back of the head. Mr Nylen and Joson Curcio were able to stand up and while Mr Nylen was in the process of continuing to shape up and defend himself against Joson Curcio Mr Kerr came in and struck him a solid blow to the jaw. Mr Nylen then retreated by running away and jumping over the skate park fence. The defendants and the remainder of the group then departed.
As a consequence of the assaults on Mr Nylen suffered injuries including bruising and soreness and a deviated nasal septum.
The Law
Delon Curcio is charged under section 335 of the Criminal Code with common assault whereas Matthew Kerr and Joson Curcio are charged under section 339 of the Criminal Code with assault occasioning bodily harm it being further alleged that they were in company.
The prosecution must prove that:
(a) the defendant assaulted the complainant; any person who strikes, touches or moves or otherwise applies force of any kind to the person or other, either directly or indirectly, without that person’s consent is said to assault that other person;
(b) the assault was unlawful, that is not authorised, justified or excused by law;
(c) and further in respect of Joson Curcio and Matthew Kerr the defendant thereby did the complainant bodily harm; that is, any bodily injury which interferes with health or comfort; and that Joson Curcio and Matthew Kerr were in company.
Consent
Consent is an element of the offence of assault and is a live issue in this matter at least in respect of Joson Curcio and Mr Kerr.
Mr Nylen clearly agreed to fight Joson Curcio. The question is whether that agreement would constitute “consent” for the purposes of s 245 in respect of Joson Curcio; Matthew Kerr; or both of them together.
The question to be determined in this case is not whether as in Lergesner v Carroll 1991 1QLR 206 the degree of violence used in the assault exceed that to which consent had been given and it is not as in R v Ferguson 1994 75 A Crim R 31 where it was held that “consent” in s 245 plainly includes a consent that is tacit or implied. The question here is whether Mr Nylen’s actions in agreeing to fight Joson Curcio one on one in the circumstances that existed amounted to “consent.”
If I find that Mr Nylen freely, voluntarily consented to fight Joson Curcio and that the force used did not exceed the force to which consent was given then I would of necessity find Joson Curcio not guilty, notwithstanding he might have been in company.
There is no suggestion Mr Nylen consented to fight Mr Kerr. Mr Kerr denies touching Mr Nylen.
I am referred by Mr Sheridan and Sergeant Marcum to the provisions of s 273, s 24 and s 7 of the Criminal Code:
Section 24
A person who does or admits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as a person believed to exist.
So, if Joson Curcio and/or Matthew Kerr assaulted Mr Nylen under an honest and reasonable, but mistaken, belief that Mr Nylen had consented to being assaulted he/they are not criminally responsible to any greater extent than if the real state of things had been such as he/they believed to exist.
A mere mistake is not enough, the mistaken belief must be both honest and reasonable.
I emphasis that there is no burden on the defendants to prove that he/they made a mistake of fact. The prosecution must satisfy me beyond reasonable doubt that he/they did not do so. If the prosecution should fail to satisfy me that the defendant(s) did not act under an honest and reasonable mistake of fact I must then of necessity find the defendant(s) not guilty.
The facts relating to the agreement by Mr Nylen to fight one on one with Joson Curcio are clear from the evidence of the prosecution witnesses;
“so when this negotiation was taking place did you feel like you had any other choice?” – “not at all, it was either do that or they were all going to fight me. There was no backing out of it really.” - Mr Nylen interview.
“And why did you do that?” - “it was either going to be me jumped by six people or me just trying to fight one”. – Mr Nylen.
“well there had been previous incidents in the past, two to three weeks with those – that group of boys showing up and letting every kid at the skate park know that they were looking for me so I knew it had to happen at some point, I just didn’t want it to. But there wasn’t much I could do about it at the same time”. – Mr Nylen.
“Well I – it felt to me that it was either going to be six on one or one on one”. – Mr Nylen.
“And I put it to you that you had ample opportunity to run to avoid the fight? – “incorrect”. – Mr Nylen.
“I put it to you that you wanted to fight him; that’s the reason you didn’t run away?” “incorrect incorrect”. – Mr Nylen.
“Well, my friend suggested to you, effectively, that you had every opportunity to run, but you wanted to fight, and you freely consented to fight. What do you say about that?” “completely incorrect. I felt I didn’t have an opportunity to run and I was not, in any way, wanting to fight”. – Mr Nylen.
“He definitely didn’t want anything to do with it. From the start, he said he didn’t want anything to do with it, and told them to go away, back off, and he was always – always backing up but didn’t want to run, I suppose, cause turn your back, you never know what’s going to happen”. - Mr Zanatta.
“I think he realised that if he – he was there, he was going to get either beaten up by eight of them, or try to get one on one, cause they were obviously there for one reason, and everyone knew it. Everyone knew why they were there, and Manuel was just scared” – Mr Zanatta.
“They were there, they were going to do what they did regardless of who was there, what anyone did” – Mr Zanatta.
“Was there any agreement from the group to make it one on one?” – “no” – Mr Zanatta.
“So he’s going to have a brawl, but he is going to abide by the Marquis of Queensberry rules?” – “no, well he was – he never agreed to having a brawl. Not once did he agree to having a fight at all. He always wanted nothing to do with it. The skate board was more defence because he was scared” – Mr Zanatta.
“I guess Manuel felt threatened and that was his only choice that was going to be the least severe to him, I assume”. - Mr Marwick.
“He didn’t have many options to choose from. It was either turn your back against seven or what not, or if he was going to run they threatened all of us, and if we were going to help it was also a threat.” - Mr Marwick.
“I think he felt forced into that only option. I don’t think he really had a free choice, but there was limited choices in that situation. He chose he felt what was the most safe. Because I think he might have also thought about us, our safety, and if we all” - Mr Marwick.
“It was an option for Manuel not to have a fight?” – “no I don’t think so”. - Mr Marwick.
“Because either he has the shit beat out of him by like seven people, or he tries to get a one on one, he runs away; like he’s leaving all his friends behind, they’ve got cars for one, there’s seven of them versus – he went to school with them at the time, he’s not going to run very far”. - Mr Lewinson.
“It was what seemed to me like a plead from Manuel for some sort of decency from these people, not to just get gang bashed” - Ms Peebles.
“Did you get the impression he was willing to take on more than one?” “No. I got the impression that he just had some sort of hope that it was going to not be unfair” - Ms Peebles.
“At no stage could he have vacated the premises?” “Absolutely not. The – a few reasons (1) fear he was obviously extremely scared. I doubt his ability to actually run away; and (2) there was six of them, the chances of him getting hunted down were outnumbered, and he knew that; (3) they had cars, so wherever he ran, they would have got there faster. - Ms Peebles.
“So its simply absolutely not an option to run?” “No. If he turned his back for spit second, they would have been behind him, grabbed him. It was not feasible in anyway that I could see for him to run safely and get away with it. And that to me was further exemplified by the fact that he had chosen to stay and say “let’s at least fight fair”. To me it was a resignation. He had thought of running, I’m sure, and he had realised that it was not possible. His only option was to stay there” - Ms Peebles.
Accepting as I do the evidence of the prosecution witnesses it is neither honest nor reasonable that the defendants Joson Curcio and Mr Kerr could in anyway be mistaken in their belief that Mr Nylen had willingly consented to fight Joson Curcio or Mr Kerr.
I find that Mr Nylen did not “consent” to be assaulted by Joson Curcio, or Mr Kerr, his acquiescence to fight Joson Curcio being as a result of a resignation by him of the fact that he was going to be bashed by several men unless he could limit the fight to just one of them. I find that Mr Nylen did not consent to being assaulted by Delon Curcio.
Joson Curcio and Delon Curcio did not give or call evidence at the hearing. That is their right. They are not bound to give or to call evidence. They are entitled to insist that the prosecution prove the case against them, if it can. The prosecution bears the burden of proving the guilt of the defendants beyond a reasonable doubt, and the fact that the defendants did not give evidence is not evidence against them. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution. It proves nothing at all, and there will be no assumption made by me that their decision not to give evidence adds in some way to the case against them. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant(s) beyond reasonable doubt.
Sections 271, 272, 273.
I have already determined that the prosecution has excluded the operation of s 24. Mr Sheridan raises the provisions of s 273 for my consideration. He says that if Mr Nylen had Joson Curcio in a headlock on the ground and was getting the better of him (which is denied by Mr Kerr) Mr Kerr’s actions in kicking Mr Nylen should be excused on the basis that he was actually assisting Joson Curcio.
The provisions of s 273 have no application to the situation. Joson Curcio was the aggressor. He and his companions had gone to the skate park for no other reason than to teach Mr Nylen a lesson. Joson Curcio was not defending himself against an assault. It was not lawful for Joson Curcio to use force to defend himself from an assault. It was not lawful for Mr Kerr neither to kick Mr Nylen nor to punch him in the face when he stood up. Mr Kerr in fact denies kicking and punching Mr Nylen at all.
I am satisfied the prosecution has negatived the application of s 273. The prosecution has satisfied me beyond reasonable doubt that it was not lawful for Joson Curcio to use force for the purpose of defending himself against an assault; that is he was not then protected by the provisions of either s 271 or s 272 and therefore it was not lawful for Mr Kerr to aid Joson Curcio in his defence. The degree of force used by Mr Kerr towards Mr Nylen was over and above any force being exhibited by Mr Nylen and Joson Curcio towards each other, they being involved in a scuffle on the ground. Mr Kerr delivered three deliberate kicks to the body of Mr Nylen and a solid punch to the jaw when Mr Nylen stood up.
Assault unlawful.
I am satisfied the assaults by Delon Curcio, Joson Curcio and Mr Kerr on Mr Nylen was unlawful, that is the assaults were not authorised, justified, or excused by law.
Bodily Harm.
Bodily harm means any bodily injury which interferes with health or comfort. The deviated nasal septum would amount to bodily harm, as would the other injuries recorded at the hospital including the swelling over the right eye, bruising to the left and right cheeks, and tenderness over the zygoma on the left side, and pain around the abdomen and ribs.
Parties to an offence Section 7 Criminal Code.
It is necessary to give consideration to the provisions of s 7 in circumstances where the evidence is unclear as to which blows caused which injuries to Mr Nylen. Having said that it is clear that the assaults by Mr Kerr consisting of two kicks to the torso, a kick to the head and then a subsequent blow to the head would have caused such injury as observed by Doctor King and would amount to bodily harm. The solid blow by Mr Kerr to the left side jaw of Mr Nylen was indicated by Mr Nylen on the video, the injury being visible in photographs 3, and 4 of exhibit number 7.
At the time when Mr Kerr kicked Mr Nylen, Mr Nylen was still on the ground fighting Joson Curcio and at the time when Mr Kerr punched Mr Nylen to the face after he had stood up he was engaged with Joson Curcio not in exchanging blows but both were shaping up as if the fight would continue.
It is necessary to give consideration to s 7 in circumstances where it is unclear whether Joson Curcio inflicted any injury to Mr Nylen which would amount to bodily harm. The deviated nasal septum suffered by Mr Nylen would amount to bodily harm however there is no actual evidence as to when and by whom this injury was inflicted, that is whether it was inflicted by Joson Curcio or Mr Kerr. Similar questions were considered in R v Sherrington & Kuchler [2001] QCA 105 and in R v Fowler and Aplin [2012] QCA 258.
The prosecutor in his submission to me relies on an application of s 7(1)(a) and 7(c) arguing that Joson Curcio and Mr Kerr were either principal offenders in that they committed the act which occasioned bodily harm or that they each aided the other in committing the offence of assault occasioning bodily harm.
As submitted by Sgt Marcum it is probable that the only blow which was described and was possible of causing the injury to Mr Nylen’s nose was the first blow delivered pre-emptively by Joson Curcio. The blow by Mr Kerr to the left jaw could have caused this injury however the evidence establishes that blow caused the injury to the left jaw.
In R v Sherrington and Kuchler it was objectively difficult to determine which of the appellants had struck the fatal blow or blows or whether both had done so. McPherson JA referred to s7:at paragraph 7:
“There are differences of judicial opinion about whether it is one rather than the other of paragraphs (a), (b), (c) and (d) of s 7(1) of the Code that applies in circumstances like these. On one view, it does not matter because, whichever paragraph it is, they all lead to the same conclusion, which is that each of the persons enumerated in those paragraphs “is deemed to have taken part in committing the offence and be guilty of the offence”, and is therefore liable to be charged “with actually committing it”. On the other hand, it is ordinarily necessary to focus on one or more of those paragraphs in order to ensure that the case against the accused is covered by at least one of them and so to direct the jury accordingly.”
At paragraph 9:
“In some cases like the present, where death or grievous bodily harm has resulted from an assault carried out by two or more persons, the conclusion that each of them is guilty has been reached by applying section 7(1)(a). In R v Wiles, ex p Attorney-General [1977] Qd R 169, Lucas J did so by applying to section 7(1)(a), as it is now, the provision in the Acts Interpretation Act requiring a word in the singular to be read as including the plural. The result was, his Honour said ([1977] Qd R 169, 177), that s 7(1)(a) was to be read distributively as meaning:
“all persons who actually do the act or one or more acts in the series which constitute the offence”.
Hoare J, on the other hand, held that section 7(1)(a) was to be construed in the light of the common law at the time the Code was enacted as meaning the persons, among others, who “acted in concert, one doing one thing and others other things, all leading to the completion of the incident which constituted the offence” were liable as having committed the offence. Matthews J, while recognising that the reasons of the other two members of the Court did “not run on altogether parallel lines”, agreed with the reasons of both of them.”
At paragraph 10 :
“The same question arose in Western Australia in Warren and Ireland v The Queen [1987] WAR 314. In circumstances similar to those in this case except that the offence was doing grievous bodily harm and not manslaughter, the Court of Criminal Appeal held both participants in the assault criminally responsible. Burt CJ did so on the ground that both appellants had joined in the assault, so that each was criminally responsible for the grievous bodily harm done, “and it matters not who struck the blow, if it were a single blow, which caused that grievous bodily harm”. Each of the appellants, his Honour said ([1987] WAR 314, 319):
“is directly responsible and no question of derivative responsibility arises … Under the Code that is so because of the application to the facts of s 7(a) and (c); and it would be so at common law.”
…”
At paragraph 11:
“For my part, I would prefer to avoid importing into the Code words that do not appear there. Incorporating the expression “in concert” in s 7(1)(a) involves a reversion to the common law, which (unless perhaps all else fails) is considered a form of heresy. In any event, as can be seen from Mohan v The Queen [1967] 2 AC 187, 194, proof of “concert” or pre-arranged plan, or that the accused were acting in pursuance of such a concert or plan, is not a requisite of the criminal responsibility of aiders and abettors at common law. In my respectful view, s 7(1)(a) applies in a case like this if both (or all) of the participants, inflict a blow or blows that combine to cause or contribute to the resulting death. Like Kennedy J in Warren & Ireland v The Queen, I see no need in law to identify a particular principal offender or actual perpetrator when s 7(1) deems all those in paras (a) to (d) as having taken part in the offence. See also R v Webb [1930] 2 Qd R 275, 287, But it is necessary to resort to one or other of those paragraphs of s 7(1) in order to establish criminal responsibility under the Code. In the circumstances disclosed here, it may be more difficult than in some other cases to invoke s 7(1)(b), which requires proof that Sherrington, in the case against him, did an act “for the purpose of enabling or aiding” Kuchler to commit the offence of manslaughter; or conversely, that Kuchler did an act for the purpose of enabling or aiding Sherrington to commit the offence. There was evidence here that each of them did an act or acts that aided the other in causing or contributing to the death of John Fotheringham, but it is less apparent that in doing so it was the purpose of either of them to enable the other to bring about that result.”
At paragraph 12:
“In these circumstances, it was and is my view necessary for the Crown, in order to sustain the convictions of manslaughter, to rely on s 7(1)(c) of the Code. That provision deems a person who aids another in committing an offence to have “taken part in committing it”. The word “aids” is an ordinary English word, which means “assists” or “helps”. At common law it was and is used in conjunction with “abets” in order to describe a person who was present at the commission of a felony….”
At paragraph 13 :
“Under the Code a person does not need to be present at the commission of the crime in order to be deemed by s 7(1)(c) to have “taken part in” committing the offence by aiding or assisting another in committing it. Of course, it is either explicit or implicit in s 7(1)(c) that the assistance must be given to another “in” committing the offence, which must mean that the participant is aware at least of what is being done or perhaps will be done by the other actor. In the present context, but with two possible qualifications, that requirement presents no difficulty because each of Sherrington and Kuchler knew that the other was inflicting blows or force on Fotheringham, and assisted him in doing it. In that way each of them aided the other in doing an act or acts that (whoever it was who did it) caused or substantially contributed to Fotheringham’s death; and that is so whether it was Sherrington or Kuchler who struck the blow (or blows) which led or contributed to that result.”
At paragraph 14:
“Of the two possible qualifications I have mentioned, one is whether there is evidence that supports the conclusion that each assisted the other in inflicting blows. …”
At paragraph 15:
“The second potential qualification that must be mentioned is the possibility that the fatal blow might have been delivered by Sherrington before Kuchler joined in the attack on Fotheringham, and that he died of its effects only after Kuchler struck him with the baton. …”
At paragraph 16:
“Within the meaning of s 7(1)(c), therefore, each of the appellants assisted or aided the other and each was under s 7(1) therefore deemed to be guilty of the offence which he had taken part in committing. In reaching their verdict the jury were entitled to apply their common sense to the facts as they found them, so long as in doing so they appreciated that the purpose of their inquiry was to assign criminal responsibility for the death of Fotheringham. In the result, they attributed it to both appellants, rather than to one and not the other. On the evidence they were in my opinion justified in doing so.”
Mr Kerr would be responsible by the operation of s 7(1)(a) and (c) as the kicks and blow delivered by him to Mr Nylen did cause injury which amounted to bodily harm and he did this at a time when Mr Nylen and Joson Curcio were fighting on the ground, Mr Nylen was gaining the upper hand over Joson Curcio, and then when they were standing facing one another.
In R v Fowler & Aplin (2012) QCA 258 the appellants argued amongst other things at [39] that the verdict was unreasonable because the prosecution confined the Crown case to reliance upon s 7(1)(a) of the Criminal Code and the prosecution could not prove beyond a reasonable doubt that either appellant was individually responsible for an assault which itself occasioned the facial bodily harm. At [42] Fraser JA said “In relation to the subsequent assaults whilst the complainant was on the ground, the evidence justified a finding that each appellant was criminally responsible for each subsequent assault alleged against the other on the basis that each appellant was responsible either as a principal offender under s 7(1)(a) or as an aider under 7(1)(c); that is so because the evidence allowed the jury to find beyond reasonable doubt that each appellant then knew that the other appellant was causing bodily harm by inflicting blows upon the complainant and intentionally assisted the other appellant in doing so by also inflicting blows upon the complainant at about the same time. It is true that the prosecutor identified s 7(1)(a) as the only relevant provision of s 7, but she did so only after repeated remarks by the trial judge to the effect that s 7(1)(a) encompassed a case in which persons who acted in concert were liable as having committed the offence. In the course of debate about a request by the jury for redirections, the prosecutor confirmed that the Crown case was that the appellants “acted in concert” … but “not as a team with a common purpose”, and there followed a confusing debate about what direction should be given to the jury about the issue. However, whether or not the complainant’s bodily harm was occasioned only by the combined effect of the blows, it was not necessary for the prosecution to allege that the defendants acted “in concert”; each appellant could be held criminally responsible for each assault causing bodily harm by a combination of s 7(1)(a) and (c).”
I am satisfied that Joson Curcio caused the deviated septum injury to Mr Nylen. It is probable that this injury occurred as a consequence of the very first blow delivered by Joson Curcio to Mr Nylen while he was in the process of putting his wallet and telephone on the ground. It is not easy to see how the evidence could justify Joson Curcio being held responsible under s 7(1)(c) for any assault Mr Kerr committed although the evidence is that he was actively engaged in fighting Mr Nylen on the ground when Mr Nylen was kicked by Mr Kerr (albeit he appeared to be losing) and also when he and Mr Nylen stood up the fight was not quite concluded, they squaring off against each other when Mr Kerr hit Mr Nylen to the jaw. I am satisfied Joson Curcio’s liability arises under s 7(1)(a).
In company
There are a number of useful decisions to which I have referred in giving consideration to the element of Joson Curcio and Mr Kerr being in company. In particular I refer to R v Wisher & Anor Full Court of Supreme Court of Queensland 4 August 1896 QLJ 1896 p 52; The Queen v Martin [1994] QCA 018; The Queen v Brougham SCSA 1986 SASR 187; R v Button [2002] NSWCCA 159 and R v Sherrington and Kuchler [2001] QCA 105.
In R v Button per Greg James J at [71] “the degree of proximity to others which could amount to physical presence, as required by the case law, such as to satisfy that element in the requirement of being ‘in the company of another person or persons’, is not fixed in absolute terms.” As per Kirby J at [123] “physical presence is an elastic concept” and at [125] “The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission.”
It is clear that the group had been on the lookout for Mr Nylen and had put the word out of their intentions toward him. I do not accept that the group went to the skate park to play soccer as put forward by Mr Kerr. The group of seven went to the skate park with a purpose. That purpose is evidenced by their demeanour, the statements they made as they approached Mr Nylen and his friends, by the fact that Mr Tachari stayed by the gate and was used as a threat to anybody who might seek to intervene in the proceeding and the threatening physical presence and proximity of the group including Joson Curcio and Mr Kerr. It is obvious to me that Joson Curcio and Mr Kerr were in company with one another and others although only the two of them have been charged with the offence, they being the two who participated in the physical assault on Mr Nylen.
I find the defendant Delon Curcio guilty as charged.
I find the defendant Joson Curcio guilty as charged.
I find the defendant Matthew Kerr guilty as charged.
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