R v Ross (No. 4)

Case [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.

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

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AGLC
R v Ross (No. 4) [2020] NSWDC 197
Case
[2020] NSWDC 197
Decision Date

CaseChat Overview and Summary

The case of R v Ross (No. 4) involved the Crown prosecuting the defendant, Ross, for his involvement in an assault on a victim by a group. The victim was stabbed during the attack, and Ross claimed that he was not present at the scene. The case was heard in the Supreme Court of Victoria. The primary legal issues before the court were whether the Crown had successfully disproved the alibi evidence provided by Ross, and whether Ross could be held liable under the doctrine of joint enterprise for the grievous bodily harm inflicted upon the victim.

In addressing the first issue, the court examined the alibi evidence presented by Ross and determined whether it was sufficiently rebutted by the Crown. The court considered the credibility of the witnesses and the strength of the evidence presented by both parties. Regarding the second issue, the court assessed whether there was an agreement among the assailants to inflict grievous bodily harm and whether Ross foresaw the possibility of the victim being wounded. The court analysed the nature of the assault, the actions of the other assailants, and Ross's knowledge and intentions.

The court found that the Crown had successfully disproved Ross's alibi evidence, as the alibi witnesses were deemed unreliable and the Crown's evidence was more credible. In relation to joint enterprise liability, the court held that there was an agreement among the assailants to commit an assault, and that Ross had foreseen the possibility of the victim being wounded. Consequently, Ross was held liable for the grievous bodily harm inflicted upon the victim.

The final orders of the court were that Ross was found guilty of the charges brought against him, and his sentence was determined. The specific details of the sentence can be found in paragraphs 293-295 of the judgment.

Orders

Orders of the court

See paragraphs 293-295

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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