Police v Curcio

[2013] QMC 2

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     

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. Delon Curcio denies pushing Mr Nylen in the chest.  Delon Curcio did not give evidence.

1. Joson Curcio says the fight with Mr Nylen was by consent.  He did not give evidence.

1. Matthew Kerr says he did not hit Mr Nylen.

1. The defendants raised the issue…