R v Duncan and Perre - [2004] NSWCCA 431

No judgment structure available for this case.

CITATION: Regina v Duncan and Perre [2004] NSWCCA 431 revised - 10/12/2004

HEARING DATE(S): 27/7/04

JUDGMENT DATE:
8 December 2004

JUDGMENT OF: Wood CJ at CL at 1; Adams J at 361; Hislop J at 362

DECISION: Perre - 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted, but confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm; 3.Appeal in respect of the sentence for the s 33 offence allowed; 4. Quash the sentence for the s 33 offence and in lieu thereof the Appellant is sentenced to imprisonment for 13 years to date from 18 August 2003 and to expire on 17 August 2016 with a non-parole period set of 9 years to date from 18 August 2003, and to expire on 17 August 2012, that being the earliest day on which the Appellant would be eligible for release on parole.; Duncan - 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted, confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, but otherwise refused; 3.Appeal in respect of the sentence for the s 33 offence allowed; 4.Quash the sentence imposed for that offence, and in lieu thereof sentence the Appellant to imprisonment for 13 years to date from 30 November 2002, and to expire on 29 November 2015, with a non-parole period set of 9 years to date from 30 November 2002 and to expire on 29 November 2011, that being the earliest date on which the Appellant would be eligible for release on parole.

CATCHWORDS: Criminal law - attack on victim by number of assailants - grievous bodily harm with intent: s 33 Crimes Act 1900 (NSW) - affray: s 93C Crimes Act 1900 - appeals against conviction and sentence - issue of whether cross-examination regarding visual identification was allowable - effect of alcohol consumption - whether proper exercise of legitimate sentencing discretion effected - weight given to favourable subjective circumstances -rehabilitative aspects including immaturity, youth and favourable circumstances - whether error in directions to jury - admissibility of evidence pertaining to s 13 of Children (Criminal Proceedings) Act 1987 - Crimes (Sentencing Procedure) Act 1997 ss 21A(3) and 44(2) - Criminal Appeal Act 1912 s 6(1) - Criminal Appeal Rules Rule 4 - Evidence Act 1995 s 114(1).

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 - s 13
Crimes (Sentencing Procedure) Act 1997 - ss 21A(3), 44(2)
Criminal Appeal Act 1912 - s 6(1)
Criminal Appeal Rules - Rule 4
Evidence Act 1995 - s 114(1)

CASES CITED: Adam v The Queen (2001) 75 ALJR 1537
Dhanhoa v The Queen (2003) 199 ALR 547
Edwards v The Queen (1993) 178 CLR 193
House v The Queen (1936) 55 CLR 499
Lowe v The Queen (1984) 154 CLR 606
McAuliffe v The Queen (1995) 183 CLR 108
Osland v The Queen (1998) 197 CLR 316
Postiglione v The Queen (1997) 98 A Crim R 134
R v Clarkson (1971) 1 WLR 1402
R v Crowley [2004] NSWCCA 256
R v Esho and Sako [2001] NSWCCA 415
R v Kelly (1993) 30 NSWLR 64
Festa v The Queen (2001) 208 CLR 593
R v C; R v S; R v T NSWCCA 12 October 1989
R v Doorey & Gage [1970] 3 NSWR 351
R v Fidow (2004) NSWCCA 172
R v Fletcher-Jones (1994) 75 A Crim R 381
R v Fowler (2000) NSWCCA 142
R v GAC NSWCCA 1 April 1997
R v GDP (1991) 53 A Crim R 112
R v Gilbert Adam (1999) 47 NSWLR 267
R v Gordon (1994) 71 A Crim R 459
R v Hearne (2001) 124 A Crim R 451
R v Henderson NSWCCA 5 November 1997
R v Holmes and Ratu [2003] NSWCCA 258
R v Fidow [2004] NSWCCA 172
R v King [2004] NSWCCA 20
R v Lozano NSWCCA 10 June 1997
R v McKnoulty NSWCCA 20 May 1998
R v Morgan (1993) 70 A Crim R 368
R v Nguyen (2002) NSWCCA 342
R v Oliver (1980) 7 A Crim R 174
R v Park [2003] NSWCCA 203
R v Pham and Ly (1991) 55 A Crim R 128
R v Phung and Huynh NSWSC 26 February 2001
R v Randell and McAlister [2004] NSWCCA 337
R v Rima (2003) NSWCCA 405
R v Sewell and Walsh (1981) 5 A Crim R 204
R v Skaf and Others [2004] NSWCCA 74
R v Simpson (2001) 53 NSWLR 704
R v Souleyman (1996) 40 NSWLR 712
R v Stanley [2004] NSWCCA 278
R v Stokes and Difford (1990) 51 A Crim R 25
R v Sumea [2002] NSWCCA 271
R v Tahere [1999] NSWCCA 170
R v Tang (2001) NSWCCA 210
R v Taufua NSWCCA 11 November 1996
R v Tran [1999] NSWCCA 109
R v Trevenna [2004] NSWCCA 43
R v Tugaga (1994) 74 A Crim R 190
R v Vachalec [1981] 1 NSWLR 351
R v Veleski (No 2) (1997) 93 A Crim R 420
R v Voss [2003] NSWCCA 182
Stanoevski v The Queen (2001) 75 ALJR 454
Zoneff v The Queen (2000) 200 CLR 234

PARTIES :
Regina
Adam John Perre
Paul Duncan

FILE NUMBER(S): CCA 60140/04; 60165/04

COUNSEL: D Arnott
T Golding (Perre)
S Kluss (Duncan)

SOLICITORS:
S Kavanagh
S E O'Connor
Muggenthaler & Associates (Duncan)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0054

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

IN THE COURT

60165/04

60140/04

WOOD CJ at CL

ADAMS J

HISLOP J

Regina v Paul DUNCAN

Regina v Adam John PERRE

The Appellants, Duncan and Perre, were convicted on 24 March on counts of maliciously inflicting grievous bodily harm with intent (s 33 Crimes Act 1900 NSW) and affray (s 93C Crimes Act) and were sentenced on 19 August 2003. A fight had erupted between two groups giving rise to the victim being attacked by a number of assailants with poles, a machete and a wheel brace. This resulted in his permanent disability. The Appellants received sentences of 16 years with a non-parole period of 12 years for the s 33 offence and concurrent fixed terms of 2 years for the s 93C offences. They each bring an appeal against the convictions and seek leave to appeal against the sentence.

Perre’s Appeal Against Conviction
Grounds 1-2

Did His Honour’s discretion miscarry in allowing the Crown under s 38 of the Evidence Act to cross-examine the witness, Siljanoski in relation to his visual identification? Held: R v Tahere [1999] NSWCCA 170 and R v Taufua NSWCCA 11 November 1996 are distinguishable. First, in the present case, the witness had sufficient prior familiarity with the accused. Secondly, in the context of whether it would have been reasonable to have an identification parade, Perre had earlier not co-operated in an identification parade related to a connected assault from the same night. It was certain that his participation pertaining to a more serious charge would have been refused. Additionally, no objection was made at trial (see Dhanhoa v TheQueen (2003) 199 ALR 547and R v Stanley [2004] NSWCCA 278). Appropriate directions on identification evidence generally were given to the jury. Rule 4 of the Criminal Appeals Rules applies. Leave to argue this ground is refused and the appeal against conviction is dismissed.

Perre’s Appeal Against Sentence
Ground 3
Held

: There was no error in his Honour’s approach to the evidence concerning the fact that the Appellant had been drinking alcohol before the offence. While alcohol may mitigate culpability through an offender acting out of character or in affecting the deliberateness of a crime: R v Gordon (1994) 71 A Crim R 417, it is not a license to commit crime: R v Fletcher-Jones (1994) 75 A Crim R 381 at 387 per Tierney J. The deliberate and sustained nature of the crime suggests that the Appellant was not affected by alcohol to any great degree.

Grounds 4 –6
Held:

There was latent error in the sentence given for the s 33 offence, being so far outside a proper exercise of legitimate sentencing discretion such that sufficient weight could not have been attached to the favourable subjective circumstances of the Appellant, including special circumstances existing relating to his age, thereby extinguishing all prospects of rehabilitation.

Orders:

1. Appeal against convictions dismissed;

2. Leave to appeal against sentence granted, but confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm;

3. Appeal in respect of the sentence for the s 33 offence allowed;

4. Quash the sentence for the s 33 offence and in lieu thereof the Appellant is sentenced to imprisonment for 13 years with a non-parole period set of 9 years.

Duncan’s Appeal Against Conviction
Ground 1

Did his Honour correctly allow Siljanoski to be cross-examined by the Crown? Held: His Honour correctly decided that the witness, Siljanoski’s evidence was at odds with his statement within s 38(1)(b) and (c) of the Evidence Act, thereby allowing the earlier out of court statement to be received as evidence of the facts of the attack: R v GAC NSWCCA 1 April 1997. S 38(1)(a) was also available, in so far as the evidence in chief was unfavourable to the Crown (see R v Souleyman (1996) 40 NSWLR 712, R v Veleski (No 2.) (1997) 93 A Crim R 420 and R v Lozano NSWCCA 10 June 1997).

His Honour did not fail to give sufficient attention to the probative and potential prejudicial effect of the evidence pursuant to s 192(2)(b), nor was he in error in not giving consideration to ss 135 and 137 when granting leave. The witness’s statement could not be considered unreliable or unfair: R v Nguyen (2002) NSWCCA 342 and R v Suteski (2002) NSWCCA 509. Moreover evidence of one witness’s identification may be properly taken into account in the context of the evidence as a whole: R v Tugaga (1994) 74 A Crim R 190 and R v Rima (2003) NSWCCA 405.

Ground 2: Should evidence of questioning of the Appellant during a search of his bedroom have been admitted, in that a support person was not present pursuant to s 13 of the Children (Criminal Proceedings) Act 1987? Held: Admissibility of this type of evidence depends upon the support person being in sufficient physical proximity. If this could not be proven, then s 13(b) had to be addressed and proper and sufficient reason shown for the absence of the support person. The evidence was of little importance in the entirety of the trial. No miscarriage of justice occurred, even if there were insufficient reasons.

Ground 3

Was there error in his Honour not giving a warning relating to evidence of Siljanoski in his statement, and elicited in cross-examination, as to Duncan being involved in the assault? Held: The need for care was obvious to the jury. Counsel had had not sought additional directions and a comprehensive direction had been given earlier in relation to consistency and inconsistency of account and in judging witnesses. Rule 4 applies and leave should be refused.

Ground 4

Was there error in not giving an Edwards direction? Held: The ground that his Honour erred in his directions to the jury regarding lies has no merit, in the context of a Zoneff direction being given.

Ground 5

Did his Honour fail to adequately direct the jury as to specific intent and the alternative to the first count on the indictment? Held: This ground is not made good. Comprehensive directions were given in relation to joint enterprise and participation and his Honour gave a sufficient explanation of the ways that the Appellant could be held criminally responsible under the first count or the statutory alternative. The principles enunciated in Osland v The Queen (1998) 197 CLR 316 and McAuliffe v The Queen (1995) 183 CLR 108 applied.

Ground 6

Did his Honour fail to direct the jury with respect to the evidence of Siljanoski?

Held

: The ground that his Honour insufficiently directed the jury is not made good.

Ground 7

Did his Honour err in his directions to invite the jury to convict upon a basis apart from a proper evaluation of the evidence and its application to the ingredients for the offence? Held: His Honour’s directions were clear. This ground is not made good.

Duncan’s Appeal Against Sentence
Ground (a)

Did his Honour make erroneous findings as to the objective circumstances of the offence such as overstating the role and objective criminality of the Appellant? Held: There was evidence supporting findings that Duncan initiated the events leading to the attack and it was properly open for his Honour to find he was an active participant.

Grounds (b), (c) and (d)
Held

: His Honour’s findings in respect of his lack of remorse and lack of insight were correct, but understated rehabilitative aspects connected to his relatively minor record, his immaturity and youth and his otherwise favourable subjective circumstances (see Hearne (2001) 124 A Crim R 451; s 3A(d) of the Crimes (Sentencing Procedure) Act 1999); and R v GDP (1991) 53 A Crim R 112).

Ground (e)
Held

: In view of the significant differences between Duncan and Lamacchia, another offender, the parity argument was not made good: Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134.

Ground (f)
Held

: The sentence was so far outside the range of a legitimate sentencing discretion as to establish latent error. Leave to appeal is granted.

1. Appeal against convictions dismissed;

2. Leave to appeal against sentence granted, confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, but otherwise refused;

3. Appeal in respect of the sentence for the s 33 offence allowed;

4. Quash the sentence imposed for that offence, and in lieu thereof sentence the Appellant to imprisonment for 13 years with a non-parole period set of 9 years.

- 96 -

60165/04
60140/04
Wood CJ at CL
Adams J
Hislop J

Wednesday 8 December 2004

Regina v Paul DUNCAN

Regina v Adam John PERRE

Judgment

1 WOOD CJ at CL: The Appellants were indicted before his Honour Judge Dodd and a jury, on 24 February 2003, upon counts of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm (s 33 Crimes Act 1900 (NSW)), and affray (s 93C Crimes Act). The Appellant Duncan was also indicted upon two further counts, each of maliciously damaging property (s 195(a) Crimes Act).

2 On 24 March 2003 the jury returned verdicts of guilty in relation to each Appellant, on the s 33 and s 93C counts. Duncan was acquitted of the two s 195(a) counts.

3 Each Appellant brings an appeal against the convictions and seeks leave to appeal against the sentence, which was imposed on 18 August 2003, for the s 33 offence, of imprisonment for 16 years with a non-parole period of 12 years. Concurrent fixed terms were imposed of 2 years imprisonment for the s 93C offences. The maximum sentences for these offences were imprisonment for 25 years and 5 years respectively.

A. THE EVIDENCE

4 The evidence is somewhat complex, having regard to the manner in which the events unfolded on the night of the offences, and also having regard to the large number of young people who were called as witnesses, not all of whom gave the same account.

5 To some extent these witnesses fell into separate groups. As will appear from the analysis of the evidence which follows, there were:

(a) Eight people who might loosely be described as the victim and his associates, namely the victim Christopher Wilson, Daniel Wilson, Mathew Michael, Paul Beiruti, Tughlet Homeh, Snezana Tankoska, Jovana Ljubojevic, and Christina Kusonogovski (from time to time referred to as “the Sydney group”);

(b) Four people who were independently present at the park, Diana Petroska, Lena Ivanovska, Ahmed Kak and Joseph Mishawi; and

(c) The remainder, excluding police and the witnesses who were not at the park, were friends and associates of the Appellants (from time to time referred to as “the Wollongong group”).

The Two Groups of Young People Gather in Stuart Park

6 On the night of Friday 2 November 2001, the victim Christopher Wilson travelled from Sydney to Wollongong with his brother Daniel Wilson, Paul Beiruti, Mathew Michael, and Tughlet Homeh. It was their intention to meet three local girls Snezana Tankoska, Jovana Ljubojevic and Christina Kusonogovski.

7 After meeting in the area near the lighthouse, they decided to drive to Stuart Park, in two motor vehicles, a blue Toyota Camry owned by Jovana Ljubojevic’s father and a black Toyota Celica owned by Mathew Michael. They parked near the Old Lagoon Restaurant intending to take shelter from the rain in a hut. Daniel Wilson, Tughlet Homeh and Paul Beiruti went to the hut. Jovana Ljubojevic sat in the Celica with the other two girls.

8 At the same time there was a birthday party taking place at the house of Elbert Jose, in Beach Street, which was a walk away from the Park. Both of the Appellants were described by a number of witnesses, including the host, Elbert Jose, as having been present at this party.

9 At about 11:30 PM, by which time it was common ground that the night was dark and that it was raining, the party started to break up and some of those present walked, or drove, to an area known as “the Strip” at South Beach, which is a known gathering spot for young people in Wollongong.

10 The Appellant Duncan (“Babe”) travelled to Stuart Park with Zoran Mitic, Steven Siljanoski, and two girls in a green Nissan Pulsar driven by Oliver Gjoreski.

11 The Appellant Duncan recognised Christina Kusonogovski at the Park, and using Zoran Mitic’s mobile phone he telephoned her elder brother, Jason Kusonogovski (“Bear”). In this regards Steven Siljanoski said that, after arriving at Stuart Park with Duncan, he saw him walk across the car park to speak to a girl. He said that it was then that Duncan asked Zoran Mitic if he could borrow his mobile phone. At the trial he acknowledged having heard bits of the conversation that followed, but said that he was not sure to whom Duncan was speaking. He said in chief that he heard him tell someone to “come down to the beach”. When he was cross-examined, by leave under s 38 of the Evidence Act, he acknowledged having said to police that Duncan had said over the phone:

“Come down to the beach if you don’t want your sister to get raped by a pack of Lebos”.

12 Zoran Mitic confirmed that he had lent his phone to Duncan, and said that he did not know Jason Kusonogovski. Of some importance in relation to this evidence is the fact that the telephone call charge records record a call from Mitic’s mobile phone to Kusonogovski’s phone at 11:57, followed by a call to the phone of Chi Tam Huynh (“Big Chi”), followed by another call to Kusonogovski.

13 Oliver Gjoreski gave evidence that after leaving their car for a while, Duncan returned and asked him whether he had a baseball bat in his car. Gjoreski said that he had removed it. Duncan then asked if he had anything else? Gjoreski pulled his boot release handle, saying that he did not know, but that Duncan was free to check. He heard Duncan rummaging around in the boot, but was unable to say whether he saw him remove anything before walking away. He gave evidence to the effect that there had been a wheel brace in the breakdown kit in the boot (possibly more appropriately described as a tyre lever as it was about 20 cms long and L-shaped). When he examined the breakdown kit two weeks later it was missing.

14 Jovana Ljubojevic and Snezana Tankoska each said that they saw Duncan talking to Christina Kusonogovski in the car before Jason Kusonogovski, and the others, arrived at the Park. Jovana Ljubojevic indicated that she had previously known him through school friends, while Snezana Tankoska said that she had known him from primary school. Jovana Ljubojevic said that while Duncan was sitting in their car, Jason Kusonogovski came over and spoke to his sister. The next thing she saw was them whispering together outside the car and then walking towards the hut where the Sydney boys had gathered. She also said that she saw another Islander there, who the Crown asserts was Sione Amone who gave evidence of walking over to the car and speaking to Christina Kusonogovski.

15 Christina Kusonogovski said that, while she was sitting in the car with Snezana Tankoska, her brother Jason Kusonogovski came over. He asked her for some money, told her it was late, and added that she should be getting home. She agreed that Duncan had also come to the car and spoken to her, but could not remember what he had said.

16 Jason Kusonogovski said that he had walked to South Beach. He confirmed that he had received a phone call from Duncan. He told him that he was looking for his sister. Duncan said that she was at South Park. He denied that Duncan had made any mention of him needing to go down to the Park if he did not want his sister to “be raped by a pack of Lebos”. He said that he rang his sister who confirmed that she was at South Park and could give him $10. He obtained a lift from Alana Ljubicic who drove him to the Park. He said that it was after he received some money from his sister who was sitting in Jovana Ljubojevic’s Toyota Camry, that he saw Duncan.

17 Although there were some differences in the accounts given by the various witnesses who were present, the Crown contended that at least four cars containing the people from the party, arrived at the Park. Subject to some differences in recollection, it would seem that those vehicles included a red Mitsubishi Lancer driven by Alana Ljubicic, which also contained Jason Kusonogovski, Sione Amone and Carla Busuttil; the green Nissan Pulsar previously mentioned, driven by Oliver Gjoreski; a blue Ford Laser driven by Tracey Saye; and a red Ford Laser driven by Chi Tam Huynh (“Big Chi”). It does have to be acknowledged, as I have observed, that there were inconsistencies in the evidence concerning the occupants of the various cars when they arrived at the Park. For reasons that will become obvious, of more importance was the identification of their occupants when they left the park.

18 There was another group of people in the Park, although independently from those previously mentioned. They were Diana Petroska, Ahmed Kak, Joseph Mishawi and Lena Ivanovska, who had travelled there in Mishawi’s Honda.

The Taking of Mathew Michael’s Phone

19 Mathew Michael said that as he walked away from the Sydney group to take a call on his mobile telephone, he was approached by two men (Duncan and Kusonogovski), who he described, respectively, as “Islander looking” and as “Yugoslavian or Serbian”. The latter man, he said, asked if he knew a girl Christina, and indicated that he was her brother. Michael said that the man of Islander appearance grabbed his phone and put it in his pocket. Words were exchanged including a description of the Sydney group as “fucking lebs”. He asked for the return of his phone.

20 Daniel Wilson said that when he heard Mathew Michael asking for his phone to be returned he went across, with Homeh and Beiruti, to see what was occurring. He saw two men standing near him, one he thought to be of Samoan or Islander appearance, and the other to be either Australian or Croatian. One of the men, who he thought to be the Samoan, whistled, after which they both walked down towards the car park. He saw about 20 “guys” waiting down there.

21 He said that after the man of Samoan appearance whistled, his brother Christopher joined his friends. There was swearing and words were exchanged from both sides.

22 Mathew Michael also said that the two men made off for the car park at some speed. They were followed by himself and his friends. He heard the Islander (Duncan) whistle to another group of males who then emerged from the car park. He estimated them to number about 15 people.

23 He similarly said that it was at this stage, that Christopher Wilson rejoined them. He said that he saw the Islander place the phone in a red Lancer. He heard someone from the Wollongong group, also of Islander appearance, scream, “let’s fight one on one”.

24 Sione Amone confirmed that it was he who had made this observation although he said his suggestion had been addressed to Duncan, who he had observed being chased. On his account he said to Duncan “why don’t you fight him one on one?” Snezana Tankoska also identified Amone as the speaker. She thought that the words had been directed at the person who was later attacked; while Carla Busuttil thought they had been directed by Amone to Duncan. Alana Ljubicic said that she saw Amone approach the ethnic looking group who had been chasing Duncan, and heard him tell them to fight “one on one”.

25 Jovana Ljubojevic also described hearing an argument over a phone, and seeing Duncan and Kusonogovski running from the hut and being followed by the Sydney boys down towards the car park. She also recalled hearing Duncan whistle.

26 Snezana Tankoska provided a similar account, and said that she had been able to recognise a number of the people who had gathered in the area where the two groups come together, including Sione Amone, Jap, Big Chi, Elbert Jose and Jason Kusonogovski.

27 Steven Siljanoski acknowledged seeing Duncan walking back towards the car park followed by some males, and also recalled hearing someone calling out “give me back my phone”.

28 Hayley Girgin who was still seated in Big Chi’s red Laser, described hearing someone calling out “give my phone back” followed by Sione Amone saying “Do you want to fight one on one?”

29 Jason Kusonogovski gave an altogether different account. He said that after getting some money from his sister he walked up the hill towards the group of men in the hut, followed by Duncan. Once there he said he was surrounded by these men, one of whom grabbed his shirt. He introduced himself as Christina’s brother, and said that he did not “want any trouble”. They asked him why he had walked up to them and whether he “wanted to start anything”. He repeated that he did “not want any trouble” and walked off. He said that they then pursued him back down the hill. He claimed not to see what Duncan was doing. He said that he walked across the car park and past Alana Ljubicic’s car and then hid where there was another hut and some bushes.

The Red Lancer is Driven Furiously Around the Park by Duncan

30 Alana Ljubicic said that Duncan made his way back to her red Lancer, and clambered into the driver’s seat after instructing her to move over. He began to drive the vehicle around the Park at speed, and in different directions, while, according to her, the other guys were trying to smash it with bottles.

31 She said that he had driven her car toward the lagoon, and then over towards the Novotel, and had been swerving the vehicle in an attempt to avoid the bottles. After parking the vehicle, she said, he got out and walked away.

32 Steven Siljanoski similarly said that when Duncan got into the car, it was surrounded by six to seven men of Lebanese appearance, who started smashing it with bottles. It was because of this, he said, that Duncan had driven it forwards and backwards. Sione Amone however said that Duncan had jumped into the car after being chased by three guys. He did not recall seeing any bottles being thrown at this vehicle at that stage, and confirmed that he saw Duncan swerving the car towards the people who had been pursuing him.

33 Mathew Michael, Snezana Tankoska, Hayley Girgin, Carla Busuttil, Freda Iordanidis, Zoran Mitic, Jovana Ljubojevic, and Sione Amone all confirmed that it was Duncan who had climbed into, and driven the vehicle around the Park after he had been pursued back to the car park by the Sydney group. They described him driving towards people, swerving in their direction and, on Mathew Michael’s account, doing wheelies, burnouts, spins and reversing the vehicle, causing people to jump out of the way.

34 Daniel Wilson and Tughlet Homeh each described having to move to avoid being struck. Homeh admitted to having smashed a bottle on the vehicle. He also thought that Daniel Wilson had thrown a bottle at it.

35 Snezana Tankoska said that Duncan brought the car to a stop near the entrance to the cricket oval. Zoran Mitic said that while Duncan had been driving the car backwards and forwards, bottles were being thrown at it, and it was being struck by someone with a wheel brace. Steven Siljanoski also described seeing people surrounding the car and hitting it with bottles before Duncan drove it away. He lost sight of him after he stopped the car. Freda Iordanidis also said that she saw the man who had been arguing with Duncan “smashing at” the Lancer. At that point she said Big Chi told Jose Elbert to move his car away. Jose then took his car down near the Lagoon.

36 Oliver Gjoreski said that it was shortly after Duncan had looked into the boot of his car, that he saw him returning to the car park area followed by six more men of Lebanese or European appearance. He heard an argument about a phone and saw Sione Amone trying to settle things down. Then he said that bottles started to be thrown on the road. Next, he said, Duncan got into a red Lancer, which he quickly accelerated and reversed. He also said that a scuffle was taking place at the time between the various people who had gathered near the car park. At that point, he said, he yelled out to his friends “hurry up. Let’s go”. Zoran Mitic and Siljanoski and another male, who had a bleeding hand, jumped into his car and he then drove off.

37 Anthony Quach similarly said that he heard yelling about a phone and saw people coming down the hill. He heard Alana Ljubicic scream at someone to get her out of her car, which was being driven backwards and forwards, while it was being hit with bottles and a wheel brace. It stopped eventually on the lagoon side of the park.

38 Hayley Girgin said that while Duncan was driving the car around the park, she walked across to Tracey Saye’s blue Laser. She noticed Sione Amone and Adam Perre also standing there.

39 Tracey Saye said that after seeing Paul Duncan being chased down the hill by a group of ethnic people, and hearing yelling about a phone, she saw a group of people gathering in a horseshoe at the back of Alana Ljubicic’s car and heard Sione Amone saying words to the effect “we don’t want a brawl, just one on one”. It was then that she saw Duncan driving Ms Ljubicic’s car, while the Lebanese group threw their bottles and pieces of wood at it.

The Fight Erupts

40 It is convenient first to note the evidence of the Sydney group.

41 Daniel Wilson said that after the red Lancer was driven away, he saw a man of Asian appearance (on the Crown case Chi Tam Huynh or “Big Chi”) open the boot of a vehicle and pull out machetes, baseball bats and trolley poles. At that point “all hell broke loose”. He said that he threw a bottle that he had in his hand toward the crowd, and together with his friends he ran up towards the hut pursued by the Wollongong group.

42 He also said that when the weapons were produced, he heard one member of the Wollongong group yell out “you Lebbos – get out of here”. He said, as did Mathew Michael, that as his group ran away, the victim Christopher Wilson became separated from the others. He was next seen by him to have been caught up near the barbeque area, where he became the victim of a savage attack, being struck with a machete and other implements, repeatedly to the head and body. He was also kicked and punched.

43 Mathew Michael said that after the red car had stopped driving around, he saw a group of young men coming towards his group with weapons in their hands, which he described as machetes, club locks, bats and wooden poles. He saw Beiruti being kicked and punched. He said that his group ran back towards the huts and the Lagoon Restaurant. When they arrived they realised that Christopher Wilson was missing.

44 He then described seeing an Asian man beating a man down, and other people hitting and kicking him. They were about 100 metres away. The man striking the victim on the head, he said, had a wheel brace in his hand.

45 Paul Beiruti also described seeing a large group of males approach them from the car park. He said that he fell to the ground and was kicked, punched and hit with a baseball bat carried by an Asian guy. He saw one male with a wheel brace. He managed to get away and to join his friends. He added that when they realised that Christopher Wilson was missing, his group armed themselves with garden pickets and ran back to where they had last seen him. He acknowledged having used one of these pickets to strike the rear window of the red Lancer. He identified, via some photographs, the injuries which he sustained.

46 Tughlet Homeh said that, after hearing Mathew Michael ask for the phone back, and hearing the Islander who had been arguing with him whistle, he saw about eight men walking towards them, with other males jumping out of cars. He said that Beiruti dragged him out of the way of the red Lancer as it was heading towards him. It was being driven, he said, by the Islander who had whistled. After hearing another Islander suggesting that they fight one to one, he noticed weapons being taken from the cars, including the club lock and a spanner. The islander had the club lock and the Asian had the spanner. The man with the club lock he said was not Sione Amone.

47 He said that, when his group began to run back towards the car park with the garden poles, the other group drove off in their cars. When he reached the car park he noticed the victim lying on the ground and he heard a girl crying.

48 On the following night he made an identification, from a group of photos, of the man who had whistled and had driven the red Lancer. He made a further identification on 20 April 2002. The Crown concedes that it was Sione Amone that he identified. On its case that had been a mistaken identification of Duncan. Each of these men was in fact of Islander appearance.

49 Jovana Ljubojevic said that after she heard Mathew Michael requesting the return of his phone, and Duncan whistle, she and the victim had left her car and made their way towards the hut. About half way there she saw her friends running towards the car park. It was after Duncan had been driving the red car around, that she saw “Jap” (Chi Bin Nguyen) take a machete out of the boot of the car. She said that she saw him swing the machete at the victim. The next thing she saw was the victim surrounded by a group of people who were armed with bats and poles. She said that she only recognised “Jap” who, at this time, had a metal pole, which he was using to hit the victim over the head repeatedly. Others in the group she said were also hitting him with poles and a bat before walking away. Three of them however came back and kicked him a few more times before leaving.

50 Snezana Tankoska also said that she saw “Jap” swing a machete at the victim, who ran towards the shed near the old restaurant, but was struck down before he got there, being surrounded by twenty or so people who were hitting and kicking him.

51 Christina Kusonogovski said that when she saw people running around and fighting, she moved away from the cars over towards the Novotel. The next thing she noticed was Jovana Ljubojevic’s car being smashed.

52 It is next convenient to deal with the evidence of the Wollongong group who had been at the party.

53 Sione Amone said that Big Chi took a machete out of the boot of his red Laser and gave it to Jap. At that point, he said, he tried to take the machete off Jap to stop him, succeeding only in cutting his finger. The injury he said was attended to by Tracey Saye, who had a beach towel in the back of her car. He said that he then remained near the car with Tracey Saye and Carla Busuttil.

54 He also said that he saw Duncan and the others chasing “a guy” back towards the barbeque area. He next saw a person on the ground with three or four persons standing over him, and hitting him with something. He recognised that the persons included Big Chi, Jap, and “some of the Massos” (Macedonians and Serbians). He agreed that he had not noticed anything in Duncan’s hand while he had been chasing the guy. He said that he saw another man, who he thought was Zelco, with a metal bar and Big Chi with a baseball bat running behind Jap.

55 He described seeing Duncan, Big Chi and Jap up in the area where the Sydney group had left their cars, smashing those cars. Although he said in chief that Duncan was kicking the cars, in cross-examination he withdrew that answer. He said that he, along with Carla Busuttil and Jason Kusonogovski, jumped into Alana Ljubicic’s red Lancer and left. As they did so the rear window was smashed after being struck twice. Duncan, he said, was standing near the other vehicles when they left.

56 He acknowledged having been charged over the assault, but said that the charge was later withdrawn. He admitted having told the police a lie about not having been to the park, when interviewed by them, and having offered Carla Busuttil as an alibi witness. The reason he said was because he was scared and wanted to stick up for his friends.

57 However, on 6 November 2001, he spoke again to police and provided answers to questions concerning the events in the park. He acknowledged having told police a lie on this occasion in so far as he had explained the cut on his finger as having occurred when he pushed out the broken rear window of Alana Ljubicic’s car, because he did not think they would have believed that it occurred when trying to disarm Jap.

58 Carla Busuttil said that she also saw Duncan running up towards the grassed area, chasing some people, after bringing the red Lancer to a stop.

59 She then saw “Big Chi” open the boot of his red Laser and take out a machete which he gave to “Jap”. They then ran off towards the grassed area. Elbert Jose moved Chi’s car, as did Alana Ljubicic. Carla said that she walked over to where Ljubicic’s car was parked. She saw people fighting in the grassed area, using pieces of wood or sticks, and kicking a person on the ground. She saw Jap swinging the machete in the air as he ran towards the grassed area. After that she got into Alana Ljubicic’s car together with Jason Kusonogovski and Sione Amone.

60 While Alana Ljubicic was yelling out for Duncan to join them, she saw that there were four people left in the grassed area: the victim who was lying on the ground, Duncan, Big Chi and Jap. Jap was hitting the man with the machete, Duncan was punching him and kicking him in the stomach, and then, on her account, he took the machete from Jap and struck the victim with it. The next thing she saw was Big Chi smashing windows of the cars and jumping on top of them. He was joined by Jap who also kicked and struck the cars. He was later joined by Duncan who similarly struck the cars. Big Chi ran to his red Laser, followed by Jap and finally by Duncan. The driver she said was Elbert Jose. As Ljubicic’s vehicle drove off it was struck from behind by someone, shattering the rear window.

61 Similarly to Amone, she acknowledged having given police a false account when interviewed by them on 3 November. On 5 and 25 November she provided further information to police in the form of an interview and statement, which she said had been truthful. Although she did acknowledge giving an explanation to the effect that the cut on Amone’s finger occurred while he was washing up, she said that at the time she had believed this to be the case, as she had seen him cut his hand on a broken glass in the sink.

62 She acknowledged having been Sione Amone’s girlfriend as at 2 November 2001, and said that their relationship was continuing. She denied that Amone had been involved in the fight, saying that he had remained with her between the time that he had told Duncan to fight them “one on one” until they had left the area.

63 She also denied having placed Duncan in the place of Amone in relation to the fight, and confirmed that Amone’s clothes had not been covered in blood. She had initially lied to police, she said, because she had been confused and scared of getting Amone and herself into trouble and of dobbing other people in.

64 Hayley Girgin also described seeing “Jap” with a machete in his hands, standing beside the man on the ground, along with eight or ten men who were kicking and hurting him, although in cross-examination she appeared to be less certain as to what precisely was occurring. She said that she did not recognise the people involved other than Jap.

65 She also gave evidence of Sione Amone receiving assistance for a cut to his hand. Additionally, she said, she had not seen him involved in any of the fighting.

66 Tracey Saye said that after Duncan had driven off in the red Lancer, she saw Sione Amone come over to her car with a cut on his hand. She took an old beach towel out of her boot and wrapped it around his head. While the boot was open, she said, Adam Perre came over, and took from it a wooden leg, which she had previously broken off from a “For Sale” sign. He then ran over to where the fight was taking place. She said that she heard people yelling and screaming and saw Perre hitting the boy on the ground with the piece of wood that he had taken from her car “like a cricket bat – just hitting.”

67 She said that she had not seen Duncan at the park after he had earlier got into Alana Ljubicic’s car and driven off in it. When that vehicle later drove off she confirmed seeing the boys of Lebanese appearance hitting it with bottles and sticks.

68 She agreed that she had not seen any blood on Duncan’s person or clothing at the house when the Wollongong group later gathered.

69 It was her evidence that she had driven Hayley Girgin, Adriano Karuso, Adam Lamacchia, and Anthony Quach from Stuart Park.

70 Although Alana Ljubicic initially said in chief that she had not seen Duncan after he had left the car, when she was cross-examined by the Crown by leave under s 38 of the Evidence Act, she acknowledged having told police (Detective Pamozzo) on 3 November 2001 that she had seen a number of fights breaking out in which Duncan and Jap had been involved. She said that what she had told police would have been true, although she did not now remember it.

71 In cross-examination she indicated that she could not fix any particular fight in which Duncan was seen by her to be a participant. Rather she was referring to the whole situation, pointing out that she had not actually seen the assault on the young man who was injured.

72 She also said that she sat in her car, which she had moved back from where Duncan had left it, while the fight was occurring. She recalled seeing Duncan jump into Big Chi’s car, which then drove off. Sione Amone, she said, got into her car together with Carla (Busuttil) and Jason Kusonogovski. As they were leaving, someone smashed the back window of her car. Sione Amone, she noticed, had cut his finger. He explained that he had been trying to take the knife off someone.

73 Jason Kusonogovski denied being involved in the fight that left the victim injured. He said that, while hiding on the other side of the park, he could hear yells and swearing and saw people running around but could not otherwise see what was happening. He eventually went back to Alana Ljubicic’s car and asked her to leave the area, as he was scared. She drove off. He was sitting in the back seat when the window was smashed by someone with a pole. He confirmed that the other occupants were Carla Busuttil and Sione Amone.

74 Steven Siljanoski said that after Duncan stopped the car “everything was just mayhem” with people running around and ending up on the grass near the beach. He remained near Gjoreski’s car, hiding behind it. He initially said that although he saw someone on the ground being hit with branches and perhaps a pole, he did not recognise any of the members of the group of three or four persons. He also said that when Oliver Gjoreski called out that it was time to go, he and Mitic jumped into Gjoreski’s car, followed by someone he did not know who had blood on his fist. As they left he saw Big Chi smashing one of the vehicles of the Sydney group.

75 He was cross-examined pursuant to leave given under s 38 of the Evidence Act and admitted to having made a statement to police, which he agreed he had read before signing it, and which he also agreed had been made to the best of his knowledge at the time.

76 In that statement, he accepted, he had told the police that he saw Duncan and Perre in the group of men who were hitting and kicking the victim. He said that he had seen someone with blonde hair in the group, and according to him the detective asked him if that had been Adam Perre. That led him to ask if Perre had blonde hair? The detective, he said, replied in the affirmative, even though Perre had black hair. He had also said that he had to wear glasses when he drove and that he could not see 100 percent.

77 When asked at the trial as to the extent of his knowledge of Perre, he said that “he didn’t really know him but he just knew the name.” He would not say they were friends but he “knew who he was”.

78 When cross-examined by defence counsel he reverted to saying that he could not now be certain that Duncan and Perre were members of the group who were attacking the victim.

79 Zoran Mitic said that he had been taken to the park in Oliver Gjoreski’s green Pulsar, and had hidden behind Oliver Gjoreski’s car while Duncan was driving the Lancer around. When he re-emerged he saw a man on the grass up near the beach being kicked and punched, but could not recognise those involved. He said that he left the area in Gjoreski’s vehicle, with Steven Siljanoski and someone else who he did not recall, who was holding his hand. They drove to the JJ Kelly Park. There, he said, he saw Duncan.

80 There was no suggestion made of Duncan having phoned him for a lift from the park, or of him driving Duncan away.

81 Oliver Gjoreski said that when he saw people scuffling and bottles being thrown, and the Lancer driving around, he called out to Mitic and Siljanoski “hurry up, hurry up, let’s go”. They joined him in his car, followed by someone who was dark, and who had blood on his hands, whom he did not know. He knew Duncan who had driven from Elbert Jose’s party to the park.

82 The person with blood on his hand, who got into this vehicle, the Crown asserted, was Adam Lamacchia.

83 Elbert Jose who acknowledged having had a fair bit to drink, said that he had been sitting in Big Chi’s car, sleeping while the fight occurred. He acknowledged hearing bottles breaking and people yelling. When he was woken up, he drove Big Chi’s vehicle toward the Novotel but then got out and someone else drove. He recalled its occupants being Big Chi, Frieda Iordanidis, Adam Perre and another person who he could not recall. He claimed not to have seen Duncan at the park or in the car.

84 Frieda Iordanidis said that after she noticed “Big Chi” smashing a car, she asked Elbert Jose to drive his car back to pick him up. She said that Big Chi, “Jap” and Perre got into his red Laser, in which she was sitting, followed finally by Duncan. Jose drove part of the way and was then replaced by Big Chi as driver. Alana Ljubicic also said that she saw Duncan jump into Chi’s car as she left.

85 Anthony Quach said, in cross-examination, that at the time that the two groups were yelling at one another and after the Lancer had been driven around, he saw people getting “stuff” out of the boot of a car, including a wheel brace.

86 Iannis Mellos said that he had not been involved in the fight, but indicated that he had seen “Jap” fighting a man.

87 Finally, reference may be made to the group of people who had not been to Elbert Jose’s party and who had independently arrived in the park.

88 Joseph Mishawi did not identify any of the assailants, but confirmed seeing someone being hit on the grassed area with poles by about three people. They then ran past his car. The next thing he saw was a red car leaving.

89 Ahmed Kak said that he had arrived in the park at about midnight with Joe (Mishawi) and Lena Ivanovska, and Diana. While they sat in Mishawi’s car, he noticed a “couple of guys” who looked like Syrians and who were screaming and swearing, kick and hit the red Lancer. He said that people inside that car, who he described as Asians, got out of the car with metal poles and chased the Syrians or Lebanese back towards the beach. One, he said, was too slow and was caught. He was then hit with poles, and hit and kicked by four or five men while he was on the ground. This continued for 3 or 4 minutes. One of the girls with them he recalled, was saying “stop, stop hitting him”.

90 Diana Petroska also described ten or more people bashing a man on the ground with poles, over the grassed area on the beach side of the park. One of these people she recognised as “Jap”, who she knew from school. This, she said, followed her observation of a red Lancer being driven around, and of people moving out of its way.

91 Lena Ivanovska gave a somewhat similar account of an attack taking place after the red car had been driving around, making turns and doing burnouts and skids. She was unable to see precisely what then occurred, but recalled seeing men with sticks and poles and then seeing people crowded around a man on the ground. She said that she was scared and tried to avoid looking.

The Fight Ends

92 It was the Crown case that the Wollongong group left the park in the following manner:

(i) Red Lancer (Alana Ljubicic)
Alana Ljubicic
Sione Amone
Carlo Busuttil
Jason Kusonogovski

(ii) Red Laser (Big Chi)
Chi Tam Huynh
Chi Binh Nguyen
Duncan
Perre
Elbert Jose
Freda Iordanidis

(iii) Green Pulsar (Gjoreski)
Oliver Gjoreski
Steven Siljanoski
Zoran Mitic
Adam Lamacchia

Blue Laser

93 There was general consensus among the witnesses in this respect, save for the fact that Tracey Saye alone said that Adam Lamacchia left in her car. Hayley Girgin said that she saw him leave in the red Laser. Tracey Saye’s evidence in relation to Lamacchia was not supported by the other occupants of her car, namely Girgin, Quach, Mellos, while Karuso, who said that he was asleep, had no memory of driving away.

94 Daniel Wilson said that when he realised that his brother was not with their group, he went back looking for him and saw him lying on the ground. Before doing so he dug out a wooden stake that was supporting a small tree. He did not, however, get to use the stake, because there was no one there to use it on. He noticed a couple of men walking away. After going over to assist his brother who was lying in a pool of blood he noticed Beiruti and Michael screaming and throwing things at the red Lancer (of Ljubicic) as it drove off.

95 Mathew Michael also said that when they realised that Christopher Wilson was missing and was being beaten, he and the others in the group took up garden pickets and started to run back towards the incident. It was at that stage that the Wollongong group ran towards their cars, but not before the man with the wheel brace and another man smashed the windows of his vehicle and that of Jovana Ljubojevic’s father. He acknowledged that his friend Paul Beiruti hit the back widow of the red Lancer, with the stake which he was carrying, before it left the area.

96 Tughlet Homeh said that the red Lancer whose rear window was smashed was the last vehicle to leave the scene.

97 Snezana Tankoska said that when she attempted to place a call for an ambulance on her mobile phone, someone who she did not see, who she thought was Nanad Radavassovic, but who the Crown asserts was the Appellant Perre, asked “who are you calling?” He then punched her to the face, cutting her lip and knocking her to the ground. She said that after getting up and placing a second call for help, she also noticed “Jap” smashing Jovana Ljubojevic’s car and “Big Chi” smashing Mathew Michael’s car. The last car that left the area, she said, was the red Lancer. One of the Sydney boys threw something at it, as it left, breaking the rear window.

98 Jovana Ljubojevic said that she raised the head of Christopher Wilson who was bleeding badly and having trouble breathing, and asked someone to call for an ambulance. She also said that she had earlier begged “Jap” to desist but that he and the others had refused, returning several times to resume their assault. One of these people told her, at one stage to “fuck off”.

99 She added that, while she was endeavouring to assist the victim, she looked up and saw Jap smashing the side windows and windscreen of her car.

The Wollongong Group Meet After the Fight

100 After the incident, most of the members of the Wollongong group drove to the JJ Kelly Park, a five minute drive away. While there, according to Tracey Saye, the Appellant Perre said that he had hit one of the girls in the face. She said that he was drunk and had blood on the top of his creamy coloured pants.

101 From this park a number of people moved on to FJ’s place in Lake Heights (premises owned by Sione Tuifua, a cousin of Sione Amone). Perre was driven there in Tracey Saye’s car. She had in her car, additionally, Hayley Girgin and Adrian Karuso.

102 Hayley Girgin said that, during the drive, Perre boasted of beating the victim and punching the girl. He told Hayley Girgin: “I was hitting him with a stick, the stick kept breaking into pieces, so I pick the pieces up and kept hitting him”. He also said that a girl was trying to stop him so he “punched her out”, causing her to fall to the ground.

103 Tracey Saye said that he made a similar admission to her, about hitting the victim with the stick, which broke into pieces, which he used until he had nothing left. Additionally she said that, at the JJ Kelly Park, he mentioned hitting one of the girls in the face.

104 Hayley Girgin said that she noticed that Perre had a cut on a knuckle, and blood on his creamy colour trousers. Carla Busuttil also said that she noticed that his hand was swollen and recalled him mentioning that it was “sore”.

105 Tracey Saye and Hayley Girgin gave evidence of driving Perre home from FJ’s place. Tracey Saye said that she told him that he would be in a lot of trouble for this incident. His response was “I hope it’s worth it then”. She said that he had been very drunk.

106 Hayley Girgin also recalled him saying: ”I don’t want to go inside. I have blood on my trousers. My mum will get angry. How am I going to get it off? It is not my blood. I think it is the guy on the ground’s.”

The Findings at the Crime Scene

107 The ambulance officer Anthony Ryan who examined the victim said that he had six to seven head wounds, with exposed brain tissue emerging from one wound. He had severe swelling to one of his eye orbits and welt marks to the legs, as well as a partially severed finger.

108 Police and ambulance officers including Senior Constable Weir who came to the victim’s assistance said that they found him being cradled by Jovana Ljubojevic, and that they observed, in the immediate vicinity, 6 pieces of broken timber, some 3 metal star pickets, and a chrome coloured metal wheel brace with fresh blood on it.

109 Detective Sergeant Doherty who carried out a crime scene examination recorded that the pieces of wood, which were bloodstained, bore fine impact splatter. The six pieces of wood could be rejoined to make a stake. On the face of two of the broken sections of the stake there were screws consistent with it having been part of a ‘For Sale’ sign.

110 He also gave evidence of finding bloodstains on the exterior and interior of the red Mitsubishi Lancer, particularly in the rear of the vehicle. Nothing of significance was found in the blue Laser, of Tracey Saye. He also gave evidence of finding a sheath for a machete, but not the machete itself.

111 Regrettably, due to resource limitations, not all of the crime scene exhibits were tested for fingerprints or for DNA. However, as emerged from the evidence of Detective Sergeant Doherty and Virginia Friedman, DNA evidence was obtained showing matching profiles, according to the Profiler Plus system, as follows:

(i) the profile of the swab from the exterior of the red Lancer of Alana Ljubicic matched the profile of Sione Amone.

(ii) the profile of two swabs from the interior of that vehicle matched the profile of the victim, Christopher Wilson.

(iii) the partial profile of a sample from a Magnalite torch recovered from the red Laser of Chi Tam Huynh could have come from the victim;

(iv) A profile of a swab from one of the car seat covers from the red Laser matched that of the victim;

(v) Other swabs from this vehicle threw up a mixed profile, for which Chi Tam Huynh could have been a contributor;

(vi) the profile from staining on Chi Tam Huynh’s trousers matched that of the victim; and

112 Detective Sergeant Doherty said that a tubular steel wheel brace was found some distance from the area where the victim was found, but the testing of it was negative for blood. No L-shaped tool was found at the scene.

113 He said that he examined a pair of trousers that had been seized from Chi Tam Huynh’s home, which were found to have staining on the front of one leg.

114 Detective Sergeant Doherty also gave evidence of a comparison which he made between the linear patterned abrasions to the back of Paul Beiruti and the stained area on the leg of Chi Tam Huynh’s trousers, and which revealed a sufficient similarity for the conclusion that the weapon which had caused Beiruti’s injuries had caused the staining on these trousers.

115 He also gave evidence of a cream pair of cargo pants having been found in the plastic bag, which contained the blue shorts of Duncan. They had some stains on them, but that was not tested for DNA, by reason of the positive testing which had been conducted on the shorts. Detective Sergeant Panozzo confirmed that Duncan’s fingerprints were found on the red Lancer.

116 Dr Duflou gave evidence based upon the medical records (without having examined the victim) to the effect that, if the wheel brace had been used to strike his head, in the right orientation, it could have produced the four injuries that were represented by lacerations in the shape of incomplete circles. He said that it was unlikely that the circular head wounds had been caused by shoes. He could not say whether the pieces of timber, or the machete, had caused these head injuries. He did say that a number of the other lacerations to the back of the head and to the face could have been caused by kicking or stomping, or by the victim having been struck with pieces of wood or a baseball bat.

117 The victim was hospitalised between the time of the attack and his release on 19 January 2002. He suffers permanent disability, arising from the comminuted fracture of the left parietal and occipital bones, the fracture of the right parietal bone, the underlying haematoma and bruising, and the diffuse axonal injury which was occasioned. He has ongoing and permanent lost of visual function, reduced memory and learning capability, slowed thinking and motor responses, and is at increased risk of post-traumatic epilepsy.

118 On any view, the behaviour of those involved in this wanton and vicious attack on a young victim who had done nothing, at any stage of the evening to provoke them, was utterly appalling. Their attack was vicious. It was brutal and cowardly, and not one of those involved is entitled to regard the evening as involving a shred of “honour”.

Perre’s Subsequent Accounts of the Incident and the Evidence in his Case

119 On the day following the incident Perre attended work at the Leisure Coast Garden Centre. A work colleague, Simon Baker gave evidence of noticing that he smelt of alcohol. He also noticed that he had a gash on a knuckle of one on his hands, which had been a little swollen in the morning but progressed as the day went on. Perre was holding it as if it was sore. When asked how his night out had been, Perre replied:

“I beat up some Lebo from Campbelltown. I had a me[t]al pole and my mates had machetes.”

“When I woke up in the morning I had blood all over my pants and all over my bed sheets. There was so much blood. I kept hitting him. I think I may have killed him.”

120 Perre was interviewed by Police, in the presence of his father on 12 November 2001, at a time when he was not a suspect. He said that he had been pretty drunk, and had not seen what happened, although he did acknowledge hearing shouting and the smashing of bottles and glass from the other side of the driveway, and seeing a few punches being thrown. He denied assaulting anyone.

121 When he arrived at the Park, he said, he had felt sick and had vomited. He said that he had experienced trouble focussing. He claimed to have seen someone having “a go” at Michael Gaspari, and had walked over to pull Gaspari away. He said that he and Gaspari had stayed behind the cars until it was all over. He had then jumped into the red Laser, in which he said there was Elbert Jose and Freda Iordanidis and Chi. He added that someone else got into the back of the car behind him, but he did not know who it was, as “I didn’t really look at him. I was, like sleeping, just put my head back”. He said that while Jose had begun to drive the vehicle, he was replaced as driver by Chi.

122 He acknowledged being taken home by Tracey Saye and Hayley Girgin, but claimed to have kept to himself at the house to which they had gone on the way. He claimed not to have had much recollection of the night.

123 He informed police that he had worn “light greeny-brown coloured cords” and a black skivvy on the night of the incident. Later that day he took to the police station a pair of light green corduroy trousers, a pair of white joggers, and a black skivvy.

124 On 15 November 2001 he was arrested and on that occasion he declined to be further interviewed in relation to the attack on Christopher Wilson, or the assault of Snezana Tankoska. On the following day an order was obtained for him to provide a buccal swab.

125 Hayley Girgin said that the clothes which he claimed to have been wearing were not the clothes that she had seen him in that night, recalling that he had in fact worn cream coloured pants and black leather shoes.

126 Perre gave evidence at the trial, in the course of which he said that he could not recall who had driven him from Elbert Jose’s party to Stuart Park. It was while he was vomiting, he said, that he could hear screaming, shouting and bottles breaking. At that stage, he said, he felt scared. He could see people over the hill and he walked over, and joined his friend, Michael Gaspari, when he saw a man walking towards him and yelling “come on. Do you want to go. Let’s go”. He thought this man was going to punch Gaspari so he went over to help and pulled him away.

127 He said that he had then hit the other man in the mouth, cutting his knuckle. He said that he returned to where the cars were parked on the mountain side of the driveway and stood behind them. He saw a red Laser approach. When it stopped he jumped in. The vehicle, which was being driven by Elbert Jose, waited for someone else, and then left the area. He acknowledged that its occupants included additionally Freda Iordanidis, Big Chi and someone else who sat on his right. Big Chi he recalled, took over driving from Elbert Jose.

128 He denied making the admissions which had been attributed to him by Tracey Saye, Hayley Girgin and Mr Baker, although he acknowledged that he had informed the latter that he had been in a fight with “Lebbo’s from Sydney”. He had said that, he explained, because he had heard Anthony Quach mention it at FJ’s house. He maintained his account of having worn the green corduroy trousers and white joggers and denied that they had received any blood stains. He said that the injury to his knuckle had bled overnight leaving some little spots of blood on his pyjama pants and doona. He denied hitting anyone with a stick or using any other weapon. He also denied having taken a piece of wood out of the boot of Tracey Saye’s car, or having struck Snezana Tankoska in the face. He denied seeing any weapons but acknowledged that Tracey Saye had driven him home.

129 His mother gave evidence to the effect that he had in fact been wearing white Nike shoes and fawn/beige coloured corduroy trousers. She added that she had not noticed any blood on his clothing. She did however say that when she washed his sheets she noticed a spot of blood on the doona cover.

130 Both she and Perre said that his black school shoes had been thrown out before the incident.

131 The Appellant called two character witnesses Ronald Sattin and Garry Norris.

Duncan’s Account of the Incident and the Evidence in his Case

132 Duncan presented himself to police on 5 November 2001, with his girlfriend Sheree Machan. He took part in an ERISP in the course of which he said that he had arrived at the park, merely in the course of driving around Wollongong, on the night of the incident, in the blue Honda Civic of his friend Zoran Mitic. He denied having anything to do with the fight, or having taken the mobile phone of Mathew Michael. He claimed to have been near the car in which Christina Kusonogovski had been sitting when the fighting broke out, to have seen two Asians “Vim” and “Huy” at the scene and to have seen Asians running down the hill. He denied hearing Amone make any mention of fighting “one on one”, and he denied whistling to the other people who had come to the park. He said that he observed the Asians and Serbs fighting, and asserted that it was the Serbs who had weapons in their hands and that he had been pursued by one man with a bat.

133 He said that he had been chased over to Alana Ljubicic’s car and had driven it off in an attempt to get away. He explained the subsequent manoeuvres as follows:

“I reversed it that way, and then went out the no entry way, and then people were still running towards me for that way, I turned around because I tried to get out of there…”

134 He denied having been to Jose’s party that night, or having phoned Jason Kusonogovski. On his account he had seen him for the first time that night as he was walking across to speak to his sister, shortly before the fight broke out. He said that the injuries, which had been occasioned to his knuckles, had occurred as the result of his use of a punching bag at his kickboxing class. He did acknowledge having spoken to Christina Kusonogovski with her brother, but said that he had not realised that she had been there until Jason Kusonogovski arrived. He also said that, while he had been driven away from the scene, he had not gone on to Lake Heights. He denied leaving the scene in the red laser which took Big Chi and Perre from the scene.

135 He also nominated as being present at the scene apart from the brothers “Vin” and “Huy”, another man whose nickname was Zelks (who no one else noticed) and a man Nanad.

136 After being interviewed, and placed under arrest, he was taken to his home by police while they made a search. The search and some further questions were video taped. Present at the home at the time were his mother and his girlfriend, Sheree Machan. During the search he identified the clothes which he claimed to have been wearing on the night of the incident.

137 Sheree Machan, who was called in the Prosecution case, said that before driving Duncan to the police station that morning, she had collected some of his clothes from the floor, because they looked dirty. She said that she had placed them in a plastic bag which she then left in her car. It had been her intention to wash them. She indicated that she usually washed his clothes on a daily basis. After the house had been searched she allowed police to search her car, as a result of which they found and examined the bag of clothes. They included the pair of blue board shorts previously mentioned, which had a red staining, the analysis of the DNA of which was found to be consistent with that of the victim. Inside the rear pocket of these shorts, police found a mobile phone Sim card belonging to Mathew Michael. There was no issue in the case concerning Duncan’s ownership of these shorts, trial counsel having expressly accepted that to have been the fact.

138 An attempt was made to organise an identification parade, but that did not proceed when a group of young Islander males who had been contacted, refused to assist. When an attempt was made to reinterview Duncan on 28 November he exercised his right not to be interviewed. It was then that he was arrested.

139 Duncan did not give evidence. He called Linda Machan, the mother of his girlfriend, who said that she had spoken to Sione Amone on the Monday following the offences, and had been told by him that he had cut his hand when trying to get the machete off Jap, that the blood of the victim, over whom he had been standing, “went all over me”, and that he had disposed of his clothes that night. Her daughter Sheree Machan gave similar evidence. Although leave was given to the Crown to cross-examine Sheree Machan, she denied having made up her evidence. She did, however, accept that she had initially lied to police in relation to her assertion that the clothes in the car had belonged to her brother.

140 There was no evidence presented at trial from Chi Tam Huynh, Chi Binh Nguyen, Adam Lamacchia, or Michael Gaspari, each of whom was convicted and sentenced for offences arising out of the night’s events. Nor was there any evidence from the two girls who were taken to the park by Oliver Gjoreski, but whose identities were unknown.

141 There was, however, some evidence from a man Nanad Radavassovic to rebut a suggestion that he may have been the person who struck Snezana Tankoska and the person to whom Duncan had referred. It was his uncontroverted evidence that he had been at work for the entirety of the night, and had been uninvolved in any of the events at the park. In reply, however, the defence contended that it was not Nanad Radavassovic who Duncan had in mind but someone else altogether known as Nennard.

B. THE BASIS ON WHICH THE CROWN CASE WAS PRESENTED

142 It was the Crown case that Jason Kusonogovski had not been telling the truth, and that while Steven Siljanoski and Alana Ljubojevic had initially told the police the truth, in relation to the fight, they had dishonestly attempted in the witness box to retreat from their original position.

143 Otherwise it put forward the various witnesses who were called in its case as credible witnesses, and offered as an explanation for any discrepancies, or lack of observation, the traumatic and rapidly unfolding nature of the night’s events, or alternatively the fact that they focussed upon only a part of what was occurring.

144 The prosecution case was based upon joint enterprise depending upon Perre and Duncan having personally inflicted the relevant injuries or having encouraged or assisted others to do so, with the intention, in each case, of occasioning that victim grievous bodily harm. Extended joint enterprise was also relied upon in so far as the Crown contended, in the alternative, that the two Appellants were parties to a joint enterprise to assault the victim, and contemplated the possibility of grievous bodily harm being occasioned to him.

145 It was its case that Kusonogovski and Duncan were not impressed by the fact that the sister of the former had met up with the Sydney group in the park, that a fight with them was contemplated, and then provoked by the two of them and particularly by Duncan when he took Mathew Michael’s phone, and effectively whistled up the members of the Wollongong group, whose presence had already been encouraged, for assistance. It was its case that Duncan added to the provocation for a fight by placing the stolen phone in the red Lancer and then deliberately driving it at the various members of the Sydney group.

146 The Crown asserted that there was a considerable body of evidence which excluded the defence proposition that it was Sione Amone, rather than Duncan, who had been the Islander involved in the fighting. The one obstacle in the way of that submission, it accepted was the finding of blood, the profile of which was consistent with that of the victim in the red Lancer in which Amone was driven from the park. However it also pointed to the presence in the vehicle, at that time, of Jason Kusonogovski, who on its case was one of the persons who effectively provoked the incident.

147 Otherwise it relied upon the individual strands of evidence, which will be referred to later in these reasons, to establish its case against each Appellant.

C. THE DEFENCE CASES

Perre

148 It was his case that each of Tracey Saye, Hayley Girgin, Steven Siljanoski and Simon Baker were either liars or the subject of fallible or false recollections, and as such were neither credible or reliable witnesses. In particular, reliance was placed upon what was said to be inconsistencies in their accounts over time.

149 It was also submitted that the Crown had incorrectly cited the transcript in support of the reasons which were advanced by it for proof of its case; that there was no independent forensic evidence linking him to the attack. Reliance was placed on the absence of any witness asserting that they saw blood on the Appellant’s clothing at FJ’s house, other than Tracey Saye and Hayley Girgin, who on the defence case had an interest to serve, in protecting Sione Amone; as well as the absence of any witness other than Tracey Saye saying that they saw Perre remove a piece of wood from the boot of her car; and additionally, the absence of any independent support from the other occupants of the car in which Perre was taken to FJ’s place, for the admissions which Hayley Girgin said that he made on the way there, or for the admissions which Tracey Saye said he made at the JJ Kelly Park, or at FJ’s place, or back outside his own home.

150 Reliance was also placed (as was the case in relation to Duncan) on the evidence of Snezana Tankoska and Jovana Ljubojevic which, it was suggested, pointed to there having been another Islander, “James”, at the scene, that is, an Islander other than Duncan and Amone, as well as a man Zelco who some witnesses nominated as having been present. These persons were not identified and not called, leaving open the possibility, so it was put, that they had been involved.

151 Moreover, it was submitted that the evidence of the mother of this Appellant contradicted any evidence concerning the sighting of the blood on his clothing, or admissions to that effect attributed to him.

152 Further, it was submitted that Siljanoski’s evidence was not to be accepted, in view of the contradictory accounts which emerged during the cross-examination pursuant to leave given under s 38, and the evidence which he offered concerning his eyesight, which is considered in more detail later in these reasons, since it is of relevance for the ground of appeal which is pursued in that respect.

153 Emphasis was given to the inevitable problems of identification in a setting that was dark, when it was raining, and when there was a great deal of activity taking place. Reliance was also placed upon the evidence that was available to the Appellant of prior good character.

154 An alternative hypothesis was said to remain open in relation to the injury to Perre’s hand, referable to him having suffered a cut to the knuckle when punching the man who, on his account, he believed to be posing a threat to Michael Gaspari.

155 It was contended that Tracey Saye was not a credible witness, suggesting that she had fabricated aspects of her account. Simon Baker was also suggested to have made up aspects of his account, for example in relation to the Sydney boys having come from Cabramatta, and in relation to Perre’s reported use of a metal pole, neither of which accorded with known facts. The submission was made that his evidence was based not upon any conversation with Perre, but rather from what he had learned from the media or other sources.

Duncan

156 Counsel for this Appellant accepted that he had participated in the night’s events to the extent of phoning Kusonogovski, talking to his sister, taking Michael’s phone and provoking what followed by that action, and also by driving the red Lancer in a somewhat dangerous manner. However, it was the defence case that this is where his involvement stopped, and that he did not become party to any joint enterprise of the kind asserted by the Crown, or become personally involved in any attack on the victim.

157 Considerable emphasis was placed by the defence upon the problems of identification in the circumstances of this night, and upon the proposition that by the time he had been pursued down the hill and driven Alana Ljubicic’s Lancer away, no weapons had been produced by members of the Wollongong group. This, it was contended, pointed to the absence of any knowledge, or expectation, on his part, of there being an altercation in which any of the Sydney group would be attacked and weapons used against them.

158 The driving away of the vehicle, and the manner thereof, it was contended, was attributable to fear and panic on his part to make an escape.

159 Further, it was submitted, in relation to Gjoreski’s evidence that no tyre lever or implement, of the kind that he said had gone missing from his tool kit, was found at the scene; and that it was somewhat improbable that the Appellant would have come to his vehicle seeking a weapon, before he had spoken to Christina Kusonogovski. A possible answer, for Gjoreski’s evidence, counsel suggested, was a desire to write himself out of the scene, it being implicit in this submission, despite the complete absence of evidence suggesting that Gjoreski had been involved in the fight, that he had in fact been one of the offenders.

160 A similar submission was advanced in relation to Carla Busuttil and Sione Amone, in so far as it was submitted that they were placing Duncan in Amone’s place. There was an associated submission that having regard to the physical likeness of these two men, a question arose as to identification. Reference was also made to the evidence of Snezana Tankoska and Tughlet Homeh which was suggestive of a third Islander, “Jamie”, or “James” having been observed in the park, adding to the risk of misidentification.

161 Reliance was placed on the fact that several witnesses described seeing Duncan in jeans. No one mentioned seeing him wearing the board shorts which were found to have the blood stains, and which he had allowed his girlfriend to collect and take away to be washed. Counsel did not offer any explanation for the presence on the shorts of a small amount of blood of the victim, but did question whether, if Duncan had been involved, there would not have been a good deal more blood upon them. The risk of contamination with other exhibits or of manipulation occurring, was somewhat obliquely suggested, although there was evidence that the shorts had been separately bagged.

162 The finding by police of the SIM card in the shorts was also questioned, it being asserted that it would have been somewhat unusual for the card to be kept and not the phone if that had been stolen by Duncan.

163 It was asserted that the jury would not accept that Siljanoski’s statement to police (in relation to the telephone call from Duncan to Kusonogovski) was correct, in the light of his evidence at trial concerning the making of that statement, it being contended, in effect, that the police had out of zealous enthusiasm, inserted their words into the document rather than his. Reference was also made to his asserted eyesight deficiency and uncertainty in relation to the identification of the co-accused Perre, so as to weaken his evidence.

306 I turn next to the submission that his Honour should have given a direction to the jury, in the terms that was sought by trial counsel, as to the circumstances in which the jury should convict on the statutory alternative rather than the primary count. The direction sought was to the following effect:

307 In essence Duncan asserts that this involved a hypothesis, consistent with innocence, which should have been the subject of a specific direction. There are obvious problems with that submission. First a hypothesis consistent with innocence must be both reasonable and available on the evidence: R v Park [2003] NSWCCA 203 (at para 56) and R v Skaf and Others [2004] NSWCCA 74 (at para 190-191). In the present case the Appellant had made an inquiry of Gjoreski for a weapon before the incident began. He had also asked Ljubicic whether she had anything. He acknowledged to police that he saw some persons with a bat, and there was evidence previously mentioned as to his personal involvement in the fight, in the course of which it must have been patently obvious that weapons were being used.

308 In any event, the jury were not left uninformed in relation to the fact that this was an argument which had been advanced by the defence, in so far as his Honour said that counsel had:

“submitted to you that, before that, you would find there was a verbal slanging match and that at the time that Paul Duncan got into the car no weapons had been produced by the group called the party goers and that you would be satisfied that there’s no evidence that Paul Duncan knew that such weapons were to be used or that there would be an overall stoush, as she put it, between the two groups."

309 Finally, in relation to this ground, is the submission that the directions were deficient in so far as there was no instruction that mere presence of a bystander was insufficient, and that a person who is present at the scene is not liable as an accessory unless he intentionally assists or encourages the principal offender to commit the offence.

310 I am not persuaded that this ground is made good. The prosecution case was always one depending upon the jury being satisfied beyond reasonable doubt of the Appellant’s active participation in a joint enterprise. Comprehensive directions were given in relation to joint enterprise and participation, and the suggested directions would not only have been superfluous but they risked complicating what was already a sufficiently complicated matter.

311 This ground is not made good.

GROUND 6 – His Honour Failed to Direct the Jury with Respect to the Evidence of Siljanoski

312 This is essentially a repetition of Ground 3, which has already been addressed. It is not made good.

ADDITIONAL GROUND 7 –

His Honour erred in his directions to invite the jury to convict upon a basis apart from a proper evaluation of the evidence and its application to the ingredients of the offence (by leave)

313 The Crown Prosecutor offered ten reasons why, in her submission, the jury should find Duncan guilty. In summary they were as follows:

(i) Sione Amone’s evidence of seeing Duncan chase the Sydney group up the hill;

(ii) Carla Busuttil’s evidence of seeing Duncan, Big Chi and Jap hitting and kicking the man on the ground;

(iii) Oliver Gjoreski’s evidence, before the attack, of Duncan asking if he had a baseball bat and then making a search of the boot of his car;

(iv) Steven Siljanoski’s initial statement to police in which he described seeing Duncan and Perre in the group of men who were striking the victim;

(v) Alana Ljubicic’s initial statement to police of Duncan getting out of her car, at a time when people were yelling out “get something” and of them seeing him and Jap in the fights.

(vi) The fact that Duncan told lies in the ERISP to the effect that he had not been at the party, that he had not telephoned Jason Kusonogovski, that he left the park with Alana Ljubojevic, that he was near the car in which Christina Kusonogovski was seated when the fights started, and that the first thing he saw was Asians running down the hill towards him, that persons called “Vim” and “Huy” (whom no one else mentioned) were at the scene, that he was chased by two persons, one of whom had a bat, that he had not realised that Christina Kusonogovski was in the park until Jason Kusonogovski arrived and that he had not got into the red Laser or gone on to Lake Heights;

(vii) The fact of his erratic driving which was only consistent with provocative conduct on his part, and inconsistent with an attempt to get away;

(viii) The fact that blood having the same DNA profile as the victim was found on his shorts;

(ix) the fact that Mathew Michael’s SIM card was found in the pocket of those shorts;

314 This ground focuses on the following observations by his Honour, which preceded his summary of the ten points relied upon by the Crown:

any one of those 10 reasons

315 The opening sentence was somewhat unfortunate, although properly understood I am satisfied that it did not bear out the connotation which is sought to be placed upon it, namely, that the Appellant's guilt could be established if any one of the 10 reasons was made good. That is not what was said. Read fairly, what his Honour was saying was that if any of the ten reasons left the jury satisfied beyond reasonable doubt of the Appellant's guilt, then it did not matter if some or even all of the others were not made good. It is obvious from the nature of the matters listed that no single one of them taken alone, save for item (ii), could prove the Appellant’s guilt. Nor did the Crown Prosecutor suggest that to be the case.

316 That this was the sense of what was conveyed to the jury emerges with crystal clarity from the additional observations which his Honour made.

317 At the next adjournment, Counsel pointed to the possibly misleading nature of the opening observations.

318 His Honour then put the matter beyond doubt by directing the jury:

319 Subsequently, his Honour made it clear that in relation to Counts 3 and 4, the only evidence of Duncan smashing the motor vehicle was that of Carla Busuttil, and directed the jury that in order to convict him on those counts, they had to be satisfied beyond reasonable doubt that she was "telling the truth and accurately recounting what had occurred...so far as those particular aspects are concerned". This was accompanied by a direction to scrutinise her evidence carefully. This ground is also not made good.

320 For these reasons I am of the view that Duncan's appeal against conviction should be dismissed.

DUNCAN SENTENCE APPEAL
GROUND (a) - His Honour Made Erroneous Findings as to the Objective Circumstances of the Offence.

321 It was submitted that his Honour overstated the role, and the objective criminality, of the Appellant, in so far as he found that he had been “the architect of the night’s events”, and had “deliberately set about inciting an attack upon” the Sydney group. It was also submitted that he erred in finding beyond reasonable doubt that Duncan had been part of the group beating Christopher Wilson and in so far as he added:

“You were very prominent this night. You were in the centre of attention for a number of reasons. You had summoned your troops. You drove the car dangerously. You got out of the car. There is not a single witness who says they saw you just standing by, watching what was going on, or, for that matter, doing anything else unconnected with the assault on Christopher Wilson. Not one of them says anything like “Babe was with me while Christopher Wilson was being assaulted.

However I should also say that it seems to me to add or subtract little from your criminal culpability whether you were the person involved in beating Christopher Wilson. The alternative is that you stood by and watched all [the] people you had called up, and provoked, did so, and you did nothing to stop them…

In the circumstances, having stirred up and unleashed your followers, if you did stand back, the only reasonable conclusion to reach is virtually letting them to (sic) your dirty work. In my view, there would not be a matter sounding in mitigation of this offence.”

322 These findings, it was submitted, were not properly open on the evidence, and that rather than the incident having involved a planned attack, it was one that unexpectedly developed and escalated, in the volatile circumstances of the night.

323 Further it was contended that although his Honour found that Carla Busuttil’s evidence was buttressed by that of Steven Siljanoski, there was still a deficiency of evidence to establish that this Appellant was one of the persons who had personally assaulted the victim, or alternatively that he knowingly stood by and encouraged those who were directly involved in the attack to beat and assault the victim.

324 This Court is a Court of error, it does not conduct a review of factual findings unless there was no evidence to support those findings: R v Vachalec [1981] 1 NSWLR 351, R v Kelly (1993) 30 NSWLR 64; House v The Queen (1936) 55 CLR 499; R v Crowley [2004] NSWCCA 256; R v Randell and McAlister [2004] NSWCCA 337.

325 In the present case there was evidence to support the findings that by his actions Duncan initiated the events that led to the attack upon the victim, and that he personally participated in the attack. There was no evidence of premeditation, and to that extent it may be accepted, in the Appellant’s favour, that the incident escalated somewhat quickly, and did not begin with any specific intention on the Appellant’s part to occasion grievous bodily harm, specifically to Christopher Wilson as distinct from someone in the Sydney group. The Appellant’s submission that there was no evidence to show that he was present when the victim was attacked, cannot be sustained, and at best comes very close to traversing the jury’s verdict.

326 In the particular circumstances of this case, while it was properly open for his Honour to find that the Appellant was an active participant in the violence inflicted upon the victim, I am also unpersuaded that the alternative scenario, which would still have involved the Appellant’s participation in a joint venture which he had initiated, would have involved any significant lessening in his objective criminality.

GROUNDS (b) AND (c):

b) His Honour Rejected or Failed to Adequately Take Into Account the Subjective Findings Favourable to the Applicant that were Available and Uncontested on the Evidence.

c) His Honour Failed to Adequately Consider the Age of the Offender and the Evidence of Rehabilitation.

327 The Appellant was born on 26 November 1983 and was aged 17 years and 11 months at the time of the offence. He had a juvenile record which included entries for assault occasioning actual bodily harm, two counts of affray, which had attracted Community Service Orders only four months earlier, two offences of driving while disqualified, one offence of reckless driving and one offence of drive conveyance taken without consent. He was subject to a 2 year Order for Probation in relation the second drive while disqualified offence, at the time of the current offences.

328 He had been kept in detention for 9 months following his arrest, before being bailed. He had established a record of exemplary behaviour during that period.

329 There was also evidence in his favour that he had been of good behaviour, had been employed and was living in a steady domestic situation while he was on bail.

330 There were reports before his Honour from Juvenile Justice Officer Kilby, Dr Westmore and Associate Professor Susan Hayes. There was also a substantial number of character references.

331 His Honour was somewhat critical of Officer Kilby’s report in so far as the Appellant’s regret for his actions, and realisation of the wrongness thereof, which that officer recorded, were said to be inconsistent with his denial of any responsibility for the offence. His Honour also rejected this Officer’s suggestion that the situation got out of control due to peer pressure, immaturity, and alcohol, upon the basis that the Appellant had been in complete control of matters, and showed no difficulty in carrying out the physical and mental steps involved.

332 His Honour was also critical of Dr Westmore’s report, in so far as the history which the Appellant was recorded as giving was considered to have been “almost entirely at variance with the evidence given at the trial and with the jury’s verdict.” This account, his Honour found, demonstrated the emptiness and insincerity of the expressions of remorse which he had purportedly disclosed to Officer Kilby, indicating a lack of insight, and being suggestive of a habit of minimising his criminal culpability in defiance of the proved or admitted facts.

333 His Honour was similarly critical of the report of Professor Hayes in so far as the history which she was apparently given by the Appellant was said to be “far removed from the truth”, and also in so far as she had also offered an opinion that alcohol consumption, or the influence of the peer group, had been major factors in the commission of the offence, and had described the Appellant as remorseful.

334 While his Honour was dismissive of the reports from Dr Westmore and Professor Hayes in relation to their assessment of the triggers for the offences, it remains the fact that they did identify some favourable subjective circumstances, in so far as Dr Westmore saw it as a positive that he had been able to maintain a lengthy relationship with his girlfriend and had reduced his use of recreational drugs and alcohol during the period on bail. He excluded any sign of major psychotic illness, but drew attention to the Appellant’s earlier history of polysubstance abuse.

335 Professor Hayes noted that because of his below average intelligence, he might have been expected to have had limited insight into the causes of his own offending behaviour, in the past, and on this occasion. She also suggested that he may stay out of trouble if he could continue to receive the kind of sympathetic supervision which he had received from the Machan family. Additionally she drew attention to his somewhat dysfunctional background, which had involved abuse of alcohol and violence on the part of his father, and which had eventually led to the break up of the family. It was during this period, when he lacked family support, that his earlier offending had occurred. Psychotic disorders were excluded.

336 In the result his Honour dealt with this aspect of the sentencing exercise in the following way:

“You were the ringleader in the perpetration of the terrible events of this night. I find no evidence of any genuine contrition or remorse, nor any acceptance of the jury’s verdict, or its ramifications. Youth is really the only matter in your favour, but considerations of giving greater weight to rehabilitation on that account cannot outweigh the factors to be attributed to the objective circumstances of the offences where there is little to support the youth factor. In your case, there is no contrition or remorse, and no real insight into the nature of what you have done and why.”

337 In general terms it was submitted that his Honour should have given greater weight to the expert opinions which had not been challenged by the Crown, and should have made a more positive finding as to the Appellant’s prospects of rehabilitation and also as to his remorse. Similar submissions to those that were advanced in relation to Perre were made, concerning the greater importance of rehabilitation in the sentencing of a juvenile offender.

338 In these respects it was argued that insufficient weight had been given to the mitigating factors referred to in s 21A(3) of the Crimes (Sentencing Procedure) Act as it applied at the relevant time.

339 I am not persuaded that his Honour erred in relation to his findings as to lack of remorse and contrition, or as to a lack of insight. While the Appellant is not to be additionally punished for defending the proceedings, his continued claim of innocence, and his distortion of the facts when providing histories to the expert witnesses, amply justified his Honour’s findings.

340 I am, however, of the view that his Honour somewhat understated the significance of rehabilitation for a young offender who had a relatively minor record, albeit that he was on Probation, and had only recently received a sentence involving community service, and who had shown some signs of behaving in an acceptable fashion between the time of the offence and the time of sentencing. The principles identified in R v GDP (1991) 53 A Crim R 112 were applicable as was the Appellant’s immaturity (R v Hearne (2001) 124 A Crim R 451; see also s 3A(d) of the Crimes (Sentencing Procedure) Act 1999). This was subject to a suitable balance being struck in the light of the consideration that the case was one involving extreme violence, and was also one where the offender was approaching adulthood: R v Tran [1999] NSWCCA 109 and R v Pham and Ly (1991) 55 A Crim R 128 at 135 per Lee CJ at CL.

341 As these reasons later indicate I have reached the conclusion that the sentence was so far outside an appropriate range of sentencing discretion that at least latent error was disclosed. It may be that, in part, this was due to his Honour giving insufficient weight to these considerations.

Ground (d)

it is submitted that his Honour should have found special circumstances within section 44 of the C

rimes Sentencing Procedure Act.

342 His Honour said, in this respect:

“Although it is open to me to find special circumstances on account of youth, and perhaps other matters, in my view, the period of supervision available on parole will be sufficient in view of the structure of the sentences I propose.

I take into account the eight months eighteen days spent in custody.

A submission was made on your behalf that I should order that so much of your sentence as possible be served in a juvenile institution. You will be twenty this coming November. Most of your sentence will have to be served in an adult institution. In my view, the concerns about spending your time in an adult institution are not more than apply to most prisoners unfortunately. I see little point in making such an order.”

343 It was submitted that there were a number of factors that potentially qualified as special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act, including the Appellant’s age, his stable relationship and support within the Machan family, his prospects for rehabilitation, and the fact that this was to be his first prison sentence, being one that was to be served in an adult gaol.

344 It was also submitted that his Honour erred in apparently viewing the special circumstances to be relevant only in relation to the period during which the offender would be subject to supervision; whereas in R v Simpson (2001) 53 NSWLR 704, it had been made clear that the primary consideration should be the length of the minimum period of actual incarceration, and that this encompasses the full range of issues which are relevant to this period.

345 As in the case of Perre, the non-parole period was set at the statutory ratio, and similar considerations arise in relation to this ground, which overlaps with the final ground of challenge to the sentence, concerning whether or not sufficient weight was given to the subjective circumstances of the offender, when the sentence as a whole was constructed.

346 It is to be recalled that it was made clear, by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 (paras 63 and 65), that the ultimate constraint on the discretion of a sentencing judge to find special circumstances warranting a reduction of the non-parole period, is that the non-parole period must itself reflect the criminality involved in the offence, including the objective gravity of the offence and the need for general deterrence. His Honour continued (para 67):

“Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence.”

347 In R v Fidow [2004] NSWCCA 172 the Chief Justice observed at para 18:

Simpson

348 It is self evident that the various matters identified by the Appellant were potentially capable of qualifying as special circumstances. The real question is whether they were given sufficient weight in accordance with the decision in Regina v Simpson, which inevitably also drew attention to the potential period of release upon supervision.

349 Two considerations weigh in relation to parole. First, release on parole does provide a constraint on poor behaviour and re-offending in view of the possibility of its revocation and return of the offender to custody to serve the balance of parole. Secondly, there are practical constraints in relation to the period of time for which supervision can be given, as well as questions as to its continued utility where rehabilitation has been achieved. As a result there may, sometimes, be no real purpose in structuring a sentence in a way that will potentially provide an unduly lengthy period of release on parole. In other cases a prolonged period of release on parole may be appropriate.

350 Essentially the same considerations apply in relation the absence of a finding of special circumstances in Duncan’s case, as applied in relation to Perre. The question is inextricably linked with the final ground of appeal.

Ground (e) - Parity

351 The parity argument was largely confined to the comparison that was made with the sentence that had been imposed on Lamacchia.

352 The principle of parity was settled in Lowe v The Queen (1984) 154 CLR 606 and in Postiglione v The Queen (1997) 98 A Crim R 134 at 301. For the Court to intervene, it must be satisfied that the difference in sentences between co-offenders, after making sufficient allowance for any differences in their objective and subjective circumstances, would leave the Appellant with a justifiable sense of grievance. As was said in Postiglione at 303:

“As between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender’s criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody.”

353 In the present case there were a number of differences of significance between Duncan and Lamacchia, in that Lamacchia had:

(i) pleaded guilty at the first opportunity to an offence contrary to s 35 Crimes Act carrying a maximum penalty of imprisonment for 7 years, compared with the s 33 offence which carried a maximum penalty of imprisonment for 25 years to which the Appellant had pleaded not guilty;

(ii) he had confessed to his part in the attack when first interviewed by police;

(iii) he was genuinely contrite and remorseful;

(iv) he was not armed;

(v) he kicked Christopher Wilson twice towards the end of the assault, there being no evidence that his acts caused any particular damage;

(vi) he did this on the spur of the moment without premeditation;

(vii) whilst he had a criminal record it did not include any offences of violence;

(viii) he had “glowing” testimonials and his Honour found violence was out of character for him;

354 In all of these circumstances, the parity argument provides little assistance to the Appellant.

Ground (f) -

The sentence imposed by His Honour was manifestly excessive.

355 Apart from the general submission that the sentence was significantly outside the general sentencing pattern for s 33 offences, and was said to crush all hope of rehabilitation, it was contended that deterrence had lesser relevance, in so far as the Appellant had been under a misapprehension as to the position of Christina Kusonogovski and had been fired up by alcohol, in circumstances where there was no evidence to show that he had known or expected that the friends, who he called in, would resort to the use of the weapons that were eventually deployed.

356 The same considerations as those that were identified in relation to Perre’s grounds 4, 5 and 6 apply to this Appellant. While the disastrous consequences that flowed to the victim, and the excessive violence which was displayed by Duncan, cannot be discounted, I have reached the conclusion that the sentence was so far outside the range for a legitimate exercise of sentencing discretion, that latent error has been established. Leave to appeal should be given, and the Appellant should be re-sentenced in relation to Count 1. No occasion arises to interfere with the sentence for the offence of affray, in respect of which error has not been asserted or shown.

357 The age and immaturity of the Appellant, his favourable prospects of rehabilitation, the fact that this will be his first period of custody, and the circumstance that the sentence will be served in an adult prison, were all factors to be taken into account in setting the head sentence, which would be reflected in the non-parole period.

358 Taking into account the fact that full credit should be given for the mitigating effects in this way, and the absence of any need for attention to be given to any special aspects of rehabilitation, I am of the view that only a minor adjustment should be made by reason of the special circumstances which related to the length of the sentence which I propose, and its significance for a young offender.

359 The sentence should be backdated to take into account the pre-trial custody.

360 In the case of Duncan I propose the following orders:

1. Appeal against convictions dismissed;

2. Leave to appeal against sentence granted, confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, but otherwise refused;

3. Appeal in respect of the sentence for the s 33 offence allowed;

4. Quash the sentence imposed for that offence, and in lieu thereof sentence the Appellant to imprisonment for 13 years to date from 30 November 2002, and to expire on 29 November 2015, with a non-parole period set of 9 years to date from 30 November 2002 and to expire on 29 November 2011, that being the earliest date on which the Appellant would be eligible for release on parole.

361 ADAMS J: I agree with Wood CJ at CL.

362 HISLOP J: I agree with Wood CJ at CL.

**********

Last Modified: 12/15/2004

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Citations

R v Duncan and Perre [2004] NSWCCA 431

Most Recent Citation

R v Amohanga; R v Rai [2005] NSWCCA 249

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CITATION:	Regina v Duncan and Perre [2004] NSWCCA 431 revised - 10/12/2004
HEARING DATE(S):	27/7/04
JUDGMENT DATE:	8 December 2004
JUDGMENT OF:	Wood CJ at CL at 1; Adams J at 361; Hislop J at 362
DECISION:	Perre - 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted, but confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm; 3.Appeal in respect of the sentence for the s 33 offence allowed; 4. Quash the sentence for the s 33 offence and in lieu thereof the Appellant is sentenced to imprisonment for 13 years to date from 18 August 2003 and to expire on 17 August 2016 with a non-parole period set of 9 years to date from 18 August 2003, and to expire on 17 August 2012, that being the earliest day on which the Appellant would be eligible for release on parole.; Duncan - 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted, confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, but otherwise refused; 3.Appeal in respect of the sentence for the s 33 offence allowed; 4.Quash the sentence imposed for that offence, and in lieu thereof sentence the Appellant to imprisonment for 13 years to date from 30 November 2002, and to expire on 29 November 2015, with a non-parole period set of 9 years to date from 30 November 2002 and to expire on 29 November 2011, that being the earliest date on which the Appellant would be eligible for release on parole.
CATCHWORDS:	Criminal law - attack on victim by number of assailants - grievous bodily harm with intent: s 33 Crimes Act 1900 (NSW) - affray: s 93C Crimes Act 1900 - appeals against conviction and sentence - issue of whether cross-examination regarding visual identification was allowable - effect of alcohol consumption - whether proper exercise of legitimate sentencing discretion effected - weight given to favourable subjective circumstances -rehabilitative aspects including immaturity, youth and favourable circumstances - whether error in directions to jury - admissibility of evidence pertaining to s 13 of Children (Criminal Proceedings) Act 1987 - Crimes (Sentencing Procedure) Act 1997 ss 21A(3) and 44(2) - Criminal Appeal Act 1912 s 6(1) - Criminal Appeal Rules Rule 4 - Evidence Act 1995 s 114(1).
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 - s 13 Crimes (Sentencing Procedure) Act 1997 - ss 21A(3), 44(2) Criminal Appeal Act 1912 - s 6(1) Criminal Appeal Rules - Rule 4 Evidence Act 1995 - s 114(1)
CASES CITED:	Adam v The Queen (2001) 75 ALJR 1537 Dhanhoa v The Queen (2003) 199 ALR 547 Edwards v The Queen (1993) 178 CLR 193 House v The Queen (1936) 55 CLR 499 Lowe v The Queen (1984) 154 CLR 606 McAuliffe v The Queen (1995) 183 CLR 108 Osland v The Queen (1998) 197 CLR 316 Postiglione v The Queen (1997) 98 A Crim R 134 R v Clarkson (1971) 1 WLR 1402 R v Crowley [2004] NSWCCA 256 R v Esho and Sako [2001] NSWCCA 415 R v Kelly (1993) 30 NSWLR 64 Festa v The Queen (2001) 208 CLR 593 R v C; R v S; R v T NSWCCA 12 October 1989 R v Doorey & Gage [1970] 3 NSWR 351 R v Fidow (2004) NSWCCA 172 R v Fletcher-Jones (1994) 75 A Crim R 381 R v Fowler (2000) NSWCCA 142 R v GAC NSWCCA 1 April 1997 R v GDP (1991) 53 A Crim R 112 R v Gilbert Adam (1999) 47 NSWLR 267 R v Gordon (1994) 71 A Crim R 459 R v Hearne (2001) 124 A Crim R 451 R v Henderson NSWCCA 5 November 1997 R v Holmes and Ratu [2003] NSWCCA 258 R v Fidow [2004] NSWCCA 172 R v King [2004] NSWCCA 20 R v Lozano NSWCCA 10 June 1997 R v McKnoulty NSWCCA 20 May 1998 R v Morgan (1993) 70 A Crim R 368 R v Nguyen (2002) NSWCCA 342 R v Oliver (1980) 7 A Crim R 174 R v Park [2003] NSWCCA 203 R v Pham and Ly (1991) 55 A Crim R 128 R v Phung and Huynh NSWSC 26 February 2001 R v Randell and McAlister [2004] NSWCCA 337 R v Rima (2003) NSWCCA 405 R v Sewell and Walsh (1981) 5 A Crim R 204 R v Skaf and Others [2004] NSWCCA 74 R v Simpson (2001) 53 NSWLR 704 R v Souleyman (1996) 40 NSWLR 712 R v Stanley [2004] NSWCCA 278 R v Stokes and Difford (1990) 51 A Crim R 25 R v Sumea [2002] NSWCCA 271 R v Tahere [1999] NSWCCA 170 R v Tang (2001) NSWCCA 210 R v Taufua NSWCCA 11 November 1996 R v Tran [1999] NSWCCA 109 R v Trevenna [2004] NSWCCA 43 R v Tugaga (1994) 74 A Crim R 190 R v Vachalec [1981] 1 NSWLR 351 R v Veleski (No 2) (1997) 93 A Crim R 420 R v Voss [2003] NSWCCA 182 Stanoevski v The Queen (2001) 75 ALJR 454 Zoneff v The Queen (2000) 200 CLR 234
PARTIES :	Regina Adam John Perre Paul Duncan
FILE NUMBER(S):	CCA 60140/04; 60165/04
COUNSEL:	D Arnott T Golding (Perre) S Kluss (Duncan)
SOLICITORS:	S Kavanagh S E O'Connor Muggenthaler & Associates (Duncan)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/41/0054
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ