R v Fernando - [2022] NSWSC 1332

Supreme Court

New South Wales

Medium Neutral Citation: R v Fernando & Ors [2022] NSWSC 1332
Hearing dates: 11 July – 12 September 2022
Decision date: 30 September 2022
Jurisdiction: Common Law
Before: Fullerton J
Decision:
Verdicts of not guilty entered for each of the accused. Each of the accused is acquitted.

Catchwords:
CRIMINAL LAW – murder – trial by judge alone – joint trial of seven co-accused –extended joint criminal enterprise – whether in the course of an agreement to assault a fatal injury was inflicted with intention to inflict grievous bodily harm – whether the accused foresaw the possibility of infliction of grievous bodily harm by one or more of the accused with the intention to inflict grievous bodily harm –circumstantial case – no eyewitnesses – limited forensic evidence – Crown failed to establish joint criminal enterprise agreement as particularised

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
King v The Queen (1986) 161 CLR 423; [1986] HCA 59
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: The Crown
Leslie David Fernando (Accused)
David Richard Beale (Accused)
Stacey Kelly-Greenup (Accused)
Lional Charles McGrady (Accused)
Michael Thomas Porter (Accused)
Jeremy Owen James Smith (Accused)
Shane Keith Weatherall (Accused)
Representation:
Counsel:
P Barrett (Crown)
G Harrison (Accused Fernando)
M Smith (Accused Beale)
C Watson (Accused Kelly-Greenup)
H White (Accused McGrady)
A Webb (Accused Porter)
S Climo (Accused Smith)
P Coady (Accused Weatherall)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Macquarie Law Group (Accused Fernando)
Rivera Legal (Accused Beale)
Ryan Payten Le (Accused Kelly-Greenup)
McWilliams Lawyers (Accused McGrady)
Lisa De Luca & Co (Accused Porter)
Andrews Solicitors (Accused Smith)
Streeton Lawyers (Accused Weatherall)

File Number(s): 2020/185995
2020/309668
2020/193673
2020/185963
2020/186020
2020/192380
2020/185899

Judgment

HER HONOUR: On 6 August 2021 Mr Leslie David Fernando, Mr David Richard Beale, Ms Stacey Kelly-Greenup, Mr Lional Charles McGrady, Mr Michael Thomas Porter, Mr Jeremy Owen James Smith, and Mr Shane Keith Weatherall were arraigned on a charge that on 30 December 2019, they murdered Mr Vergel Velasquez at Girraween in the State of New South Wales.
The joint trial of the accused commenced before me on 11 July 2022. At that time, it was intended to be a trial with a jury.
On 11 August 2022, after a number of pre-trial applications resulted in the exclusion of evidence in the Crown case against Mr McGrady, Mr Porter, Mr Smith, Ms Kelly-Greenup and Mr Weatherall, on the application of all accused and consented to by the Crown, an order was made in accordance with s 132 of the Criminal Procedure Act 1986 (NSW) that the joint trial of the accused proceed without a jury.
On that day the accused were rearraigned before me and each entered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fernando

Details

AGLC: R v Fernando [2022] NSWSC 1332
Case: [2022] NSWSC 1332
Decision Date: 30 September 2022

CaseChat Overview and Summary

The case of R v Fernando involved seven co-accused facing charges of murder, tried jointly before a judge alone. The incident arose from a violent confrontation, resulting in the death of the victim. The Crown alleged that the accused had engaged in a joint criminal enterprise involving an agreement to assault the victim, with one or more of them inflicting a fatal injury with intent to cause grievous bodily harm. The defence contested the existence of such an agreement and argued that no individual accused had the requisite foresight of the possibility of fatal injury being inflicted with the intent to cause grievous bodily harm.

The court had to determine the existence and nature of the joint criminal enterprise, whether an agreement existed to cause grievous bodily harm, and if any of the accused foresaw the possibility of fatal injury being inflicted with the requisite intent. Given the absence of eyewitnesses and limited forensic evidence, the court had to rely on the circumstantial evidence presented by both parties. The Crown's burden was to establish the joint criminal enterprise agreement as particularised, which included proving the intent and foresight required for each accused.

The court found that the Crown had not met its burden of proof. The circumstantial evidence did not sufficiently establish the particularised agreement as alleged by the Crown. The court held that the Crown had failed to prove beyond reasonable doubt that an agreement existed to cause grievous bodily harm, nor had it proven that any of the accused foresaw the possibility of fatal injury being inflicted with the requisite intent. Consequently, the court acquitted all seven co-accused of the murder charge.

Orders