Citation: Parhizkar v R [2014] NSWCCA 240
Court: Court of Criminal Appeal, New South Wales
Date: 30 October 2014
Judges: Basten JA; Price J; McCallum J
Background
In April 2011, the applicant was a detainee at Villawood Immigration Detention Centre. He joined a protest in which detainees climbed onto the roof of a building, removed tiles, and threw them toward security officers. Other detainees on the roof protested without using or threatening violence. Detainees on the ground provided encouragement and supplies to those on the roof, and some also used or threatened unlawful violence, including spraying and throwing fire extinguishers at security staff.
The applicant was charged with riot (s 93B, Crimes Act 1900 (NSW)) and affray (s 93C). He pleaded guilty to affray but contested the riot charge at trial, arguing that fewer than 12 people had used or threatened unlawful violence in sufficiently close proximity to satisfy the statutory requirement that the relevant persons be "present together."
The applicant was convicted of riot. He sought leave to appeal both his conviction and his sentence.
Legal Issues
- Whether the trial judge misdirected the jury on the meaning of "present together" in s 93B, specifically whether the phrase requires close physical proximity between participants.
- Whether persons acquitted of riot but convicted of affray could lawfully be counted among the 12 persons required for the riot offence.
- Whether the trial judge erred in refusing to permit cross-examination of a witness about internet footage of the disturbance.
- Whether the trial judge should have discharged the jury following publication of a newspaper article describing the events as a "riot."
- Whether the trial judge erred by not informing the jury of their right to request transcripts of counsel's addresses and the summing up.
- Whether the trial judge failed to account for the more restrictive conditions of immigration detention when sentencing the applicant.
Decision
"Present together" and the jury direction
The majority (Price J, McCallum J agreeing) held that "present together" in s 93B carries its ordinary meaning and does not require proof of close physical proximity between participants. The trial judge's directions adequately identified the applicable principles and made plain that "present together" was a live issue for the jury. The majority followed the English authority of Regina v W(N) [2010] 1 WLR 1426 and declined to follow Anderson v Attorney General for New South Wales (1987) 10 NSWLR 198.
Basten JA dissented on the adequacy of the directions. His Honour considered that "present together" must be read harmoniously with the other elements of the offence, including common purpose and the requirement that the conduct taken together would cause a person of reasonable firmness to fear for their safety. Basten JA would have required the jury to be directed to consider whether those on the ground were in sufficiently close proximity to those on the roof, and whether all conduct by ground-level participants actually constituted threats or use of unlawful violence.
All three judges found the trial judge's example of persons behaving violently in different grandstands of a football stadium to be at least potentially problematic. Basten JA and McCallum J considered it risked misleading the jury away from the common purpose element; McCallum J nevertheless concluded it did not produce a miscarriage of justice. Price J found the example untroubling, observing that a jury could readily apply common sense to envisage such persons sharing a common purpose.
Persons convicted of affray counted toward the 12
The Court unanimously held that no inconsistency arose in relying on persons convicted of affray (rather than riot) to establish that 12 or more persons used or threatened unlawful violence. Only a person who has actually used unlawful violence can be guilty of riot, but the threshold of 12 persons using or threatening violence can be satisfied by including those who merely threatened violence, as affray captures threatening conduct. The two requirements operate distinctly.
Other grounds
The Court dismissed the remaining grounds. The excluded cross-examination about internet footage was found to be of no consequence. The trial judge's repeated and clear directions to the jury to rely only on evidence before them was sufficient to address the published article, and discharging the jury was not required. No miscarriage of justice arose from the failure to inform the jury of their right to request transcripts, as nothing in the circumstances suggested the jury would have made such a request.
Sentence
The Court found that the trial judge had been unaware of the particular restrictive conditions of the applicant's immigration detention while awaiting trial. Because the judge could not be said to have weighed and rejected a factor he did not know about, no appellate error was established in his approach to sentencing.
Orders Made
Basten JA's proposed orders (which differed from the majority, as his Honour would have allowed the conviction appeal) were:
- Grant leave to appeal against conviction for riot; allow the appeal and set aside the conviction.
- Refuse leave to appeal against sentence on the riot conviction.
- Note that, as the non-parole period had been served and the applicant had pleaded guilty to affray without being convicted and sentenced for it, the matter of whether to retry the applicant for riot or to remit for sentencing on affray was left to the Director of Public Prosecutions.
The majority orders (Price J and McCallum J) were:
- Leave granted to appeal against conviction for riot; appeal dismissed.
- Leave granted to appeal against sentence on the riot conviction; appeal dismissed.
Key Takeaways
- Under s 93B of the Crimes Act 1900 (NSW), the phrase "present together" bears its ordinary meaning and does not impose a requirement of close physical proximity between the 12 or more persons using or threatening unlawful violence. The majority of the Court of Criminal Appeal followed the English approach in Regina v W(N).
- A conviction for riot requires that the accused personally used unlawful violence, but the separate threshold of 12 participants using or threatening violence can be met by including persons whose conduct amounts only to threatening violence, such as those convicted of affray rather than riot.
- Jury directions on a single element of a multi-element offence must not be framed in a way that risks obscuring other elements, particularly common purpose and the reasonable firmness test. The majority found no miscarriage of justice on the facts, but Basten JA's dissent signals that examples used in directions warrant careful scrutiny for their interaction with all elements of the offence.
- Where a trial judge was simply unaware of a potentially mitigating sentencing factor, an appeal court will not find error merely because the factor went unaddressed. The relevant question is whether the judge weighed and wrongly rejected the consideration, not whether it went unremarked.
- Repeated and emphatic jury directions to rely only on evidence before the court can, in appropriate circumstances, adequately address the risk of prejudice arising from extraneous media coverage, without requiring the jury to be discharged.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93A, 93B, 93C, 93D, 93E; Sch 3, cl 3
- Jury Act 1977 (NSW), s 55C
- Public Order Act 1986 (UK), ss 1, 2, 3
- Summary Offences Act 1988 (NSW), s 11A
Cases
- Anderson v Attorney General for New South Wales (1987) 10 NSWLR 198
- Colosimo v Director of Public Prosecutions [2005] NSWSC 854; 64 NSWLR 645
- Jones (1974) 59 Cr App R 120
- Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
- Regina v W(N) [2010] 1 WLR 1426
- R v Bartle [2003] NSWCCA 329; 181 FLR 1
- R v Kisacanin [2012] NSWSC 91
- R v Taousanis [1999] NSWSC 107; 146 A Crim R 303
- Regina v Sukkar [2005] NSWCCA 54
- Summers (1972) 56 Cr App R 604
- Woodrow (1959) 43 Cr App R 105