Citation: Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854
Court: Supreme Court of New South Wales, Common Law Division
Date: 25 August 2005
Judge(s): Johnson J
Background
Three co-accused (referred to in the judgment as Julius, Sergio, and Vincenzo Colosimo) were convicted by a magistrate at Downing Centre Local Court of affray under s 93C of the Crimes Act 1900 (NSW), following an incident in the early hours of 18 November 2002 at the Lagoon Bar within the Star City Casino in Sydney. The incident involved a confrontation with five casino security officers. Each plaintiff was fined $1,500 plus $63 in court costs.
The prosecution also laid a range of assault-related charges against each plaintiff. The magistrate acquitted all three on those charges but was satisfied beyond reasonable doubt that each had committed affray. No evidence was called by the defence.
The plaintiffs appealed to the Supreme Court on questions of law only, contesting their affray convictions on multiple grounds.
Legal Issues
- Whether the elements of the offence of affray under s 93C Crimes Act 1900 were correctly identified and applied by the magistrate
- Whether affray can be proven where several accused are charged together and the precise violent acts of each individual cannot be clearly identified from the evidence
- Whether the magistrate erred in failing to give adequate reasons for the convictions
- Whether self-defence was raised on the evidence such that the magistrate was required to consider and rule it out
- Whether the evidence was capable of supporting the finding that what occurred would cause a person of reasonable firmness present at the scene to fear for their personal safety
Decision
Johnson J dismissed all five grounds of appeal. His Honour found that the magistrate had correctly identified and applied the elements of the statutory affray offence, which replaced the old common law offence following the enactment of Part 3A of the Crimes Act 1900 in 1988.
On the central question of proof where individual acts cannot be precisely attributed, Johnson J confirmed that the offence does not require the prosecution to isolate the specific violent conduct of each accused with precision, provided the totality of the evidence establishes that each accused used or threatened unlawful violence and that the conduct, taken as a whole, would cause a person of reasonable firmness present at the scene to fear for their personal safety. The compilation video footage of the incident was among the evidence considered.
Regarding the adequacy of reasons, Johnson J was satisfied that the magistrate's reasons, read as a whole, sufficiently disclosed the basis for the convictions and disclosed no error of law. The reasons did not need to address every argument raised by counsel.
On self-defence, Johnson J found that the evidence before the magistrate did not raise self-defence as a live issue. No evidence of injury to the plaintiffs was elicited, and the defence had chosen not to call any evidence. Accordingly, the magistrate was not required to address self-defence. On the "reasonable firmness" element, the court was satisfied that the evidence, including the video footage, was capable of supporting that finding.
Orders Made
- The appeal of each plaintiff against conviction is dismissed.
- The plaintiffs' summons is dismissed.
- Costs orders were reserved pending further submissions from the parties.
Key Takeaways
- Under s 93C Crimes Act 1900 (NSW), the affray offence does not require the prosecution to precisely identify the individual violent acts of each accused where multiple persons are charged together, provided the overall evidence establishes the necessary elements against each.
- The statutory offence of affray replaced the common law offence in New South Wales in 1988 and is contained in Part 3A of the Crimes Act 1900; section 93C(4) expressly provides that no person of reasonable firmness need actually be, or be likely to be, present at the scene.
- In dismissing the appeal, Johnson J confirmed that a magistrate's reasons need not address every submission made by counsel, so long as they disclose the essential basis for the findings made.
- Self-defence is not raised as a live issue requiring consideration simply because a confrontation occurred; positive evidence pointing to self-defence must be present in the material before the tribunal.
- No error of law arises merely because the same factual matrix that supports assault charges also supports an affray conviction, even where the assault charges are not proven beyond reasonable doubt.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35, 59, 61, 93A–93E (Part 3A)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 52, 55
- Summary Offences Act 1988 (NSW), s 11A (formerly s 28)
- Public Order Act 1986 (UK)
Cases:
- May v O'Sullivan (1955) 92 CLR 654
- R v Annakin (1988) 17 NSWLR 202
- Anderson v Attorney-General for NSW (1987) 10 NSWLR 198
- R v Honeysett (1987) 10 NSWLR 638
- Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
- R v Downs (1985) 3 NSWLR 312
- R v Huynh [2000] NSWCCA 18
- R v Eleter [2003] NSWCCA 130
- R v Fajka [2004] NSWCCA 166
- I v Director of Public Prosecutions [2002] 1 AC 285
- Osland v The Queen (1998) 197 CLR 316
- R v Burgess and Saunders [2005] NSWCCA 52
- R v Nguyen (1995) 36 NSWLR 397