R v Ng
[2018] NSWDC 145
•01 March 2018
District Court
New South Wales
Medium Neutral Citation: R v Ng [2018] NSWDC 145 Hearing dates: 1 March 2018 Date of orders: 25 May 2018 Decision date: 01 March 2018 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: The application by accused for a verdict by direction is dismissed
Catchwords: VERDICT BY DIRECTION – no case to answer Cases Cited: Doney v R (1990) 171 CLR 207
May v O’Sullivan (1955) 92 CLR 654
Osland v The Queen [1998] 197 CLR 316
R and Tangye (1997) 92A Crim R 545
R v Bilick (1984) 36 SASR 321
R v JMR (1991) 57 A Crim R 39
R v JMR (1991) 57 A Crim R 39Category: Procedural and other rulings Parties: Regina (Crown)
Trevor Ng (Accused)Representation: Mr Mehta (Crown)
Solicitors:
Mr P Skinner of counsel (Accused)
ODPP (Crown)
Longton Legal (Accused)
File Number(s): 2016/20870 Publication restriction: None
REASONS
INTRODUCTION
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On 28 February 2018, the third day of the trial, counsel for the accused made an application that there was no case to answer, also known as an application for a verdict by direction.
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Submissions on the application were heard on 1 March 2018 [T124].
THE CHARGE ON THE INDICTMENT
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Before turning to the submissions, I note that the charge on the indictment read:
On 24 August 2015, at Rydalmere in the State of New South Wales, (Trevor Ng) wounded Sheng Xiao with intent to cause grievous bodily harm.
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The case against the accused was put on the basis, that although he did not commit the offence directly, he was criminally liable pursuant to the principles of joint illegal enterprise or extended joint illegal enterprise.
THE ALTERNATIVE STATUTORY CHARGE
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There was also a statutory back-up charge to s33(1)(a) which was ultimately withdrawn and dismissed.
THE CROWN CASE
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The Crown case was largely if not wholly circumstantial. Evidence was called from the complainant regarding the events leading to and surrounding the offending. He had driven to Pine Street in Rydalmere in order to make a delivery to the rear of the Chinese restaurant. As he was unloading his van, somebody attacked him. Although the person was unknown to the complainant at the time, it has since been established that the attacker was Palenapa-Pili. It was the association between Palenapa-Pili and the accused which gave rise to the charge on the indictment.
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Evidence was also given by Anson Tinirau, a passenger in a taxi travelling on Pine Street shortly after the attack occurred. He was travelling to a medical appointment by taxi when he saw three people standing in the middle of the road. Two were closer to the footpath and one was in the middle of the road. The man in the middle of the road was holding his face with one hand and with the other hand was pointing in the direction of a guy walking away. That man was wearing a fluro top and walking in an easterly direction.
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Mr Tinirau observed that person to be walking quite fast whilst at the same time a blue Commodore was travelling in the same direction opposite the taxi and at a slow pace. The blue Commodore was travelling from east to west on Pine Street and drove past the complainant who was standing on the road.
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Mr Tinirau observed the blue Commodore stop before the round-about at Hillman Avenue. Mr Tinirau saw the guy walking fast from the scene of the crime, cross the road and jump into the passenger side of the blue car which was stationary. The car then left Pine Street.
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Mr Tinirau wrote the number plate of the blue car on his hand, a photograph of which was tendered in evidence (Exhibit G). Looking at the photograph, the registration number of the blue vehicle appeared to have been CA 08 00.
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I pause to note that on the day of the offence, the accused was driving a blue Holden Commodore with registration CA 08 DO.
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Mr Tinirau took three further photographs (Exhibit H) which showed the hammer used to attack the claimant and a blue bag with the label Champion.
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Mr Tinirau was cross-examined and his evidence was largely left intact, so far as his material observations were concerned. Additional information provided arising from cross-examination was that after the blue car stopped and the man in the fluro top entered its passenger seat, it took off in a sudden way.
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Evidence was also given in the Crown case by Detective Senior Constable O’Reilly who attended the scene of the attack at about midday. He identified three sources of CCTV footage. The location of the cameras were marked on a map and became Exhibit J. The DVD containing the CCTV footage put together from those sources was tendered in evidence (Exhibit V).
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Detective Senior Constable O’Reilly identified DNA from the principal offender, Palenapa-Pili in the vehicle when it was confiscated by the police the day after the offence; a trail of SMS messages demonstrating an arrangement between the accused and Mr Palenapa-Pili to meet on the morning of the offence and then later the same day at which time Mr Palenapa-Pili paid the accused a sum of money; CCTV footage showing Mr Palenapa-Pili running from the scene of the incident immediately after its occurrence and the blue Commodore driving up and down Pine Street around the same time.
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Another important component of the Crown case was the interview between Detective Senior Constable O’Reilly and the accused in which the accused plainly lied. Implicit in the exchange that occurred between the police and the accused at that time was an acceptance by the accused that he was the driver of the subject vehicle at the location of the attack at the time the attack occurred. He provided an untruthful account as to his reason for being in that location and also an untruthful account as to his contact with another person being Mr Palenapa-Pili.
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It was conceded by counsel for the accused that the account provided by the accused to the police on 15 December 2015 contained a number of lies. In my view, that demonstrated a consciousness of guilt, an important component of the Crown case.
THE LAW
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On an application such as this, it is necessary for the accused to demonstrate that there is no prima facie case. More particularly, the question is whether there is sufficient evidence upon which the accused may be convicted (May v O’Sullivan (1955) 92 CLR 654), that is, whether there is evidence capable of proving each of the elements of the offence beyond reasonable doubt (R v Bilick (1984) 36 SASR 321). A verdict of not guilty can only be directed if there is a defect in the evidence such that it is taken at its highest will not sustain a verdict of guilty (Doney v R (1990) 171 CLR 207).
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In particular, I note that where a Crown case is based on circumstantial evidence the Trial Judge is to decide the question on the basis of such inferences that are reasonably open as are most favourable to the Crown and shall not choose between the available inferences or direct an acquittal on the basis that other reasonable inferences are open (R v JMR (1991) 57 A Crim R 39).
SUBMISSIONS ON BEHALF OF THE ACCUSED
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Counsel for the accused directed the Court to a number of authorities relating to the question of criminal complicity or joint criminal enterprise.
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It is necessary to identify, with precision, the essential elements of the offence on the Indictment.
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In the circumstances, there was no dispute that the complainant was wounded in the relevant sense and that the wounding occurred with the intention to cause grievous bodily harm. The contentious element of the offending so far as the accused was concerned was whether or not the evidence established either directly or inferentially that the accused was a party to an agreement with Mr Palenapa-Pili to wound the complainant.
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There was no direct evidence of such an agreement, arrangement or understanding. The question then is whether or not the evidence in the Crown case would, at its highest, permit a reasonable inference that such an agreement, arrangement or understanding was made between the accused and Mr Palenapa-Pili.
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In Osland v The Queen [1998] 197 CLR 316 Justice McHugh referred to the applicable principles with approval as stated in the New South Wales Court of Criminal Appeal decision of R and Tangye (1997) 92 A Crim R 545. In that case, the Court stated:
(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be expressed, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed.
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Counsel for the accused submitted that there was no evidence in the Crown case which would support a reasonable inference of such an agreement between the offenders. Further, it was submitted that the accused was not relevantly present when the wounding took place as he was in the vehicle a little distance away.
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It was further submitted by counsel for the accused that given the basis upon which the case had been opened by the Crown (an intention to intimidate or assault) to extend that agreement to wounding causing grievous bodily harm was a “stretch”.
SUBMISSIONS ON BEHALF OF THE CROWN
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In the course of addresses, the trial advocate was asked a number of questions which sought to identify potential weaknesses or defects in the Crown case.
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The Crown relied upon both joint criminal enterprise and extended joint criminal enterprise.
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The Crown also relied upon the contemporaneity between Palenapa-Pili getting out of the blue Commodore and the assault occurring as linking the accused’s involvement in a temporal and proximate sense.
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The learned trial advocate agreed with the proposition that there was no express or specific inference that he could rely upon to establish the Crown case. Instead, the Crown sought to rely upon the totality of the evidence as giving rise to a reasonable inference that there was an agreement between the accused and Mr Palenapa-Pili to either assault or intimidate the complainant.
APPLICATION DISMISSED
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After careful consideration of the evidence and lengthy discussions in the form of addresses between Counsel and the Bench, I am satisfied that there is a sufficient evidentiary basis to give rise to a reasonable inference that the accused and Mr Palenapa-Pili were acting pursuant to an agreement to assault or intimidate the complainant. My decision in relation to that matter is further strengthened by the fact that the accused lied to police after being informed of the attack. I form the view that the lies told by the accused to the police demonstrated a consciousness of guilt which, together with the reasonable inferences, gave rise to a sound case to be left to the jury for determination.
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It is on this basis that the accused’s application for a verdict by direction is rejected.
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Decision last updated: 08 June 2018
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