R v Ross (No. 2)

[2020] NSWDC 195

District Court

New South Wales

Medium Neutral Citation:	R v Ross (No. 2) [2020] NSWDC 195
Hearing dates:	27 April 2020
Date of orders:	27 April 2020
Decision date:	27 April 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 17
Catchwords:	CRIMINAL PROCEDURE – Crown application to amend indictment to add further alternative charge – proposed alternative charge arises on same facts as existing charge – whether prejudicial to add proposed alternative charge
Legislation Cited:	Crimes Act 1900 (NSW), ss 35(3), 52A(3), 59(2) Criminal Procedure Act 1986 (NSW), s 20(1)(a)
Cases Cited:	R v Lykouras [2005] NSWCCA 8
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr DM Ross
Representation:	Counsel: Mr K Gilson for the Director of Public Prosecutions Mr J O’Sullivan for the accused     Solicitors: Solicitor for the Director of Public Prosecutions Conditsis Lawyers for the accused
File Number(s):	2018/148887
Publication restriction:	Nil

Judgment

1. In this matter, the accused has elected to be tried by judge alone. The trial has been scheduled to commence today. Prior to the arraignment, the Crown made application for leave to amend the indictment pursuant to s 20(1)(a) of the Criminal Procedure Act 1986 (NSW).

2. The indictment, in its current form is as follows:

Count 1: On 19 April 2018, in Wyong in the State of New South Wales, the accused wounded David MONRO with intent to cause grievous bodily harm to him.

Count 2: In the alternative, on 19 April 2018, in Wyong in the State of New South Wales, the accused in company of Kirk MICALLEF and Shannon Hodder, recklessly wounded David MONRO.

3. The Crown seeks the Court’s leave to amend so as to permit it to rely upon a further alternative charge as formulated by Mr Crown: that on 19 April 2018, in Wyong in the State of New South Wales, the accused, in the company of Kirk MICALLEF and Shannon HODDER, assaulted David MONRO thereby occasioning actual bodily harm, contrary to s 59(2) of the Crimes Act1900 (NSW).

4. The matter has had a somewhat chequered history. The accused had originally been arraigned with two others and the matter came before Beckett DCJ last December. On 5 December 2019, her Honour dealt with an application in relation to the admissibility of telephone intercept material. At paragraphs 3-5 (incl.), her Honour distilled the Crown Case in terms which I presently adopt for the purposes of the current application. It is that:

"[3] The Crown case is that Kirk Micallef, the accused and two others, including a male Shannon Hodder set upon the victim when the victim attended the home of a female named Robyn Pollock on 19 April 2018. Initially the victim on his attendance outside of Ms Pollock’s house was assaulted by one of two males outside his house before being attacked by the four others, who included the accused. During the course of punching and kicking the victim, the victim described feeling something ‘different’ in his lower right side which he later described as a…