Sivaraja v R; Sivathas v R

The appellants, Sivaraja and Sivathas, appealed against their convictions for wounding with intent to cause grievous bodily harm under section 33(1)(a) of the Crimes Act 1900. The case was heard by the NSW Court of Criminal Appeal. The dispute centred around the events of a group attack where the appellants, along with three others, assaulted a victim who sustained serious injuries. The appellants claimed self-defence but did not provide any evidence. The Crown argued that the appellants were the initial aggressors, had the means to leave, and there was no evidence to suggest the victim produced a knife during the confrontation. The appeal raised two main issues: whether the trial judge should have left self-defence to the jury and whether the verdict was unreasonable.

The court held that the trial judge was correct in refusing to direct the jury on self-defence. The court found that the appellants were the initial aggressors, had the means to leave, and there was no evidence to support the claim that the victim produced a knife during the confrontation. The court also noted the artificiality of breaking up a violent incident into discrete components. The court concluded that there was a reasonable possibility that the appellants believed it necessary to assault the victim with a weapon to defend themselves, but this did not exclude the possibility that they acted in a joint criminal enterprise. Therefore, the trial judge was correct in not leaving self-defence to the jury.

The court further held that the verdict of the appellants was unreasonable. The Crown's case was that the victim was attacked by five men armed with a cricket bat, knife, and metal pole. However, there was no clear evidence on the force with which the weapons were used. The wounds were consistent with causes other than the metal pole. The victim's evidence required circumspection due to reliability and credibility issues, including admitted lies, intoxication, and the absence of evidence from any of the five accused. The court found that the verdict could not be supported having regard to the evidence. Consequently, the verdict under section 33(1)(a) was set aside and substituted with a verdict of guilty of a section 33B(2) offence. The court ordered a re-sentencing hearing.