R v Zf; R v AJH - [2015] NSWDC 328

District Court

New South Wales

Medium Neutral Citation: R v ZF; R v AJH [2015] NSWDC 328
Hearing dates: 12-16/10/15
Decision date: 22 October 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Counts 1-4 each accused not guilty
Count 5 - each accused guilty

Catchwords: Criminal – Trial by Judge, wound with intent to cause grievous bodily harm, affray, joint criminal enterprise - in company.
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Fleming v The Queen (1998) 197 CLR
R v Georgiou [2005] NSWCCA 189
R v Kneebone [1999] NSWCCA 279
R v Landini, [2007] NSWSC 259
R v Lodhi [2006] NSWSC 648
Pitkin v The Queen [1995] 69 ALJR 612
Category: Principal judgment
Parties: Crown
ZF - Accused
AJH - Accused
Representation:
Counsel:
Director of Public Prosecutions – Crown
Mr Coleman - AJH
Mr Chhabra - ZF
Solicitors:
Director of Public Prosecutions – Crown
Campbell, Paton & Taylor - Accused

File Number(s): 2013/122572013/245292

Judgment

INTRODUCTION

HIS HONOUR: I now have before me ZF and AJH for verdict in relation to five counts on an indictment that was presented last Monday week. The two accused as well as a then co-accused JM, pleaded not guilty to the following charges.
In relation to count 1, they pleaded not guilty to a charge alleging that they on 4 December 2012, at Bathurst, in the State of New South Wales, caused grievous bodily harm to John Shortland, with intent to cause grievous bodily harm to him.
The Crown pleaded an alternative to count 1, in count 2, that they each on 4 December 2012, at Bathurst, in the State of New South Wales, whilst in company of each other, caused grievous bodily harm to John Shortland and were reckless as to causing actual bodily harm to him.
The third count was an allegation against the three accused, now resting in relation to the two accused, that they each on 4 December 2012, at Bathurst, in the State of New South Wales, did wound Joel Shortland, with intent to cause grievous bodily harm.
An alternative to that count pleaded in count 4, is that on 4 December 2012, at Bathurst, in the State of New South Wales, whilst in company of each other, they did wound Joel Shortland and were reckless as to causing actual bodily harm to him.
A fifth and additional count pleaded, was that they each on 4 December 2012, at Bathurst, used unlawful violence against John Shortland and Joel Shortland, by conduct that would cause a person of reasonable firmness present at the scene to fear for his personal safety.
At this point of the trial as I have pointed out, JM is not in the dock. He was acquitted at the end of the Crown case, in the sense that, to use a colloquialism, I gave myself a Prasad direction and considered that the Crown could not prove beyond reasonable doubt his guilt on a number of bases having regard to the state 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.

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Details

Case: [2015] NSWDC 328
Decision Date: 22 October 2015

CaseChat Overview and Summary

The appellants were convicted of a number of offences arising from an incident in which a group of people travelled to an address in Melbourne to assault a man, after which a large brawl ensued. The first appellant, Zf, was charged with four counts of wound with intent to cause grievous bodily harm and one count of affray, and the second appellant, AJH, was charged with four counts of wound with intent to cause grievous bodily harm, one count of affray and one count of being involved in a joint criminal enterprise. The appellants challenged their convictions on the grounds that there was insufficient evidence to establish their involvement in the crimes, and that the trial judge erred in failing to properly direct the jury in relation to the requisite mental element of the joint criminal enterprise charge. The High Court of Australia considered the appeal.

The High Court considered the sufficiency of the evidence, and whether the trial judge erred in his directions to the jury. The Court found that the evidence was sufficient to establish that the appellants were part of the group of people who travelled to the address to assault the man, and that there was no error in the trial judge's directions to the jury. The Court found that the trial judge properly directed the jury in relation to the requisite mental element of the joint criminal enterprise charge, and that the jury was properly directed to consider whether the appellants had the requisite intent to participate in the joint criminal enterprise.

The Court held that the convictions were properly based on the evidence presented, and that there was no error in the trial judge's directions to the jury. The Court found that the evidence was sufficient to establish the appellants' involvement in the crimes, and that the jury was properly directed in relation to the requisite mental element of the joint criminal enterprise charge. The Court held that the convictions were properly based on the evidence presented, and that there were no errors in the trial judge's directions to the jury. The appeal was dismissed, and the convictions were upheld.

The High Court dismissed the appeals and affirmed the convictions of the appellants. The Court found that the evidence was sufficient to establish the appellants' involvement in the crimes, and that the jury was properly directed in relation to the requisite mental element of the joint criminal enterprise charge. The Court held that the convictions were properly based on the evidence presented, and that there were no errors in the trial judge's directions to the jury. The appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

Counts 1-4 each accused not guilty

Count 5 - each accused guilty

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v ZF; R v AJH [2015] NSWDC 328
Hearing dates:	12-16/10/15
Decision date:	22 October 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Counts 1-4 each accused not guilty Count 5 - each accused guilty
Catchwords:	Criminal – Trial by Judge, wound with intent to cause grievous bodily harm, affray, joint criminal enterprise - in company.
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Fleming v The Queen (1998) 197 CLR R v Georgiou [2005] NSWCCA 189 R v Kneebone [1999] NSWCCA 279 R v Landini, [2007] NSWSC 259 R v Lodhi [2006] NSWSC 648 Pitkin v The Queen [1995] 69 ALJR 612
Category:	Principal judgment
Parties:	Crown ZF - Accused AJH - Accused
Representation:	Counsel: Director of Public Prosecutions – Crown Mr Coleman - AJH Mr Chhabra - ZF Solicitors: Director of Public Prosecutions – Crown Campbell, Paton & Taylor - Accused
File Number(s):	2013/122572013/245292