R v Goh - [2002] NSWCCA 234

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v GOH [2002] NSWCCA 234

FILE NUMBER(S):
60133/02

HEARING DATE(S): 14 June, 2002

JUDGMENT DATE: 14/06/2002

PARTIES:
Regina (appellant)
Ian Goh (respondent)

JUDGMENT OF: Spigelman CJ Adams J Blanch AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1139

LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ

COUNSEL:
W Dawe QC (Crown)
H Dhanji (respondent)

SOLICITORS:
SE O'Connor (Crown)
DJ Humphreys (respondent)

CATCHWORDS:
Criminal law
Crown appeal
affray
discretion to dismiss

LEGISLATION CITED:
Criminal Appeal Act, 1912 s5D
Crimes (Sentencing Procedure) Act, 1999 s10, s10(3)
Crimes Act s93

DECISION:
Crown appeal dismissed

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60133/2002
SPIGELMAN CJ
ADAMS J
BLANCH J
14 June, 2002

Regina v Ian GOH

Judgment

BLANCH J: This is a Crown appeal by the Director of Public Prosecutions under s5D of the Criminal Appeal Act, 1912 from an order made by Judge Finnane on 18 January, 2002.
The respondent pleaded guilty to one count of affray pursuant to s93C of the Crimes Act which proscribes a maximum penalty of five years imprisonment. His Honour dismissed the charge pursuant to the provisions of s10 of the Crimes (Sentencing Procedure) Act, 1999. The Crown submission is that the sentencing judge erred in applying the provisions of s10 and that in the result the order of the Court was manifestly inadequate.
A statement of facts was tendered which stated that at about 12.15 a.m. on Saturday, 28 October, 2000 the respondent was at Galaxy World, George Street, Sydney with three friends. They became aware of the presence of another group of people with whom there had been a previous incident and one of the respondent’s friends then went to telephone his brother to ask him to return to the city and the brother did so with another friend. At 12.50 a.m. the respondent and the collected group of his friends met at Galaxy World and walked to Dungate Lane “for the purpose of confronting the other group. They knew that a fight was likely to take place.
On reaching Dungate Lane, the group, including the Defendant, armed themselves with bottles and approached the other group. Initially pushing occurred and then blows were struck between the groups. Bottles were thrown and persons were chased in the alley way but not by the defendant. Windows to cars were smashed. Persons, not including the defendant were kicking and punching and hitting with bottles.
The Defendant later told investigating police that he didn’t have time to throw a bottle but saw Carlo Estera fighting with two people. The Defendant then went and “swung” one of the persons off Carlo Estera. The defendant was then grabbing him on the ground (ERISP 18/12/00 Q183). The Defendant stated that he was “grabbing the guy and stuff, pushing him round, I hit him”, (ERISP 18/12/00 Q216). A witness, Cuong Lam later complained to police of being struck to the face by the Defendant.
After a period of…

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 Goh

Details

AGLC: R v Goh [2002] NSWCCA 234
Case: [2002] NSWCCA 234
Decision Date: 14 June 2002

CaseChat Overview and Summary

The case of R v Goh involved the Crown's appeal against the decision of a lower court to dismiss charges of affray against the defendant, Goh. The case centred on the Crown's challenge to the dismissal of charges against Goh for his involvement in a public affray that occurred in a busy street. The appeal was heard in the Supreme Court of New South Wales, where the Crown argued that the dismissal was an abuse of judicial discretion and that the evidence was sufficient to support a conviction.

The legal issues before the court were primarily concerned with the scope of judicial discretion in dismissing charges and the standard of evidence required to support a conviction for affray. The Crown contended that the lower court had overstepped its authority by dismissing the charges and that the evidence presented was sufficient to prove Goh's involvement in the affray. The defence argued that the dismissal was justified, as there were significant procedural issues that undermined the reliability of the evidence.

The court held that the lower court had indeed overstepped its discretion in dismissing the charges, as the evidence presented was indeed sufficient to support a conviction for affray. The court emphasised that while the lower court has discretion to dismiss charges, this power must be exercised judiciously and only in the most exceptional circumstances. The court found that the procedural issues raised by the defence did not reach the threshold of exceptional circumstances necessary to justify the dismissal of the charges. Consequently, the Crown's appeal was upheld, and the charges against Goh were reinstated.

The final orders of the court were that the charges against Goh for affray would be reinstated, and the case would be remitted to a lower court for further proceedings. The court's decision underscored the importance of judicial discretion in criminal proceedings and reinforced the need for a high standard of evidence to support convictions, particularly in cases involving public disturbances.

Orders