R v Ross (No. 4)

[2020] NSWDC 197

District Court

New South Wales

Medium Neutral Citation:	R v Ross (No. 4) [2020] NSWDC 197
Hearing dates:	27 April – 1 May, 4-5 May 2020
Date of orders:	12 May 2020
Decision date:	12 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 293-295
Catchwords:	CRIMINAL LAW – gang assault on victim – victim suffers stab wound by one assailant – accused’s reliance upon alibi evidence – whether Crown disproved alibi evidence – joint enterprise liability – whether agreement to inflict grievous bodily harm – whether accused foresaw possibility of wounding
Legislation Cited:	Crimes Act 1900 (NSW), ss 4, 33, 35, 59 Criminal Procedure Act 1986 (NSW), ss 131, 133 Evidence Act 1995 (NSW), ss 87, 116
Cases Cited:	Blackwell v R (2011) 81 NSWLR 119 Clayton v The Queen (2006) 168 A Crim R 174 De Silva v The Queen [2019] HCA 48 Fleming v The Queen (1998) 197 CLR 250 GBB v R [2019] NSWCCA 296 Gillard v The Queen (2003) 219 CLR 1 Huynh v The Queen [2013] HCA 6 IL v The Queen (2017) 260 A Crim R 101; [2017] HCA 27 McAuliffe v The Queen (1995) 183 CLR 108 McKey v R [2012] NSWCCA 1 Miller v The Queen (2016) 259 CLR 380 R v Nguyen [2001] VSCA 1 R v Smith (1837) 8 C & P 173 R v Winner (1995) 79 A Crim R 528 Swan v R [2016] NSWCCA 79 Youkhana v R (2015) 249 A Crim R 424
Category:	Principal judgment
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

BACKGROUND

1. On the afternoon of 19 April 2018, Mr David Monro (‘Monro’) was the victim of a violent assault by a group of men in and/or about a residential (motel-style) facility called ‘Strathavon’ in Boyce Avenue, Wyong. Droplets of his blood were located inside and outside those premises. It was uncontroversial that in the course of the assault, and amongst his other injuries, Monro was wounded by being stabbed on his lower right side.

2. The accused, Mr Daniel Michael Ross, is charged with 3 counts on an indictment. They are that on 19 April 2018, in Wyong in the State of New South Wales:

• as to Count 1, he wounded the victim, David Monro, with intent to cause him grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act1900 (NSW) (the ‘Act’);

• in the alternative to Count 1, Count 2, in the company of Kirk Micallef and Shannon Hodder, he recklessly wounded David Monro, contrary to s 35(3) of the Act; and

• further in the alternative, Count 3, in the company of Kirk Micallef and Shannon Hodder, he assaulted David Monro, contrary to s 59(2) of the Act.

3. This was a trial by judge alone. Section 133(1) of the Criminal…