Citation: R v ZF; R v AJH [2015] NSWDC 328
Court: District Court of New South Wales
Date: 22 October 2015
Judge(s): Judge S Norrish QC
Background
Two accused (referred to as ZF and AJH) stood trial alongside a third accused (JM) on five counts arising from a violent confrontation in Bathurst on 4 December 2012. The incident followed a dispute between the complainants, two brothers, and a group that had gathered at a BMX track. After one complainant's driver manoeuvred his vehicle in a way that those at the track perceived as threatening, a group pursued the complainants to a residential address on George Street.
At George Street, the pursuing group attacked the two brothers. One attacker used a sword, causing a compound fracture and lacerations to the older brother's arm. A second man then picked up the sword and wounded the younger brother. A woman in the group struck the younger brother repeatedly with a golf club.
The indictment charged each accused with causing grievous bodily harm with intent (count 1), causing grievous bodily harm in company while reckless (count 2), wounding with intent to cause grievous bodily harm (count 3), wounding in company while reckless (count 4), and affray (count 5). The third accused, JM, was acquitted at the close of the Crown case. ZF and AJH proceeded to verdict.
Legal Issues
- Whether the identification evidence was sufficiently reliable to establish that ZF and AJH were the first and second swordsmen respectively
- Whether a joint criminal enterprise existed between the accused to inflict grievous bodily harm or to wound the complainants
- Whether the accused were relevantly "in company" for the purposes of counts 2 and 4
- Whether the statements attributed to the attacking group referencing "the Bettles" were admissible and probative as admissions or for a non-hearsay purpose
- Whether the elements of affray were established against each accused by their presence and conduct at the scene
Decision
Issue 1: Reliability of identification evidence
The court found the identification evidence from the Shortland group fundamentally unreliable. The witnesses had no prior knowledge of ZF or AJH, the events occurred at night in limited street lighting, and the confrontation was sudden and brief (at [69]-[70], [82]-[84]). Critically, the complainants and their associates searched Facebook photographs together after being given the name "Bettles" by a third party, discussed events among themselves without any independent record of those discussions, and progressively built their accounts in ways that could not be disentangled from mutual suggestion (at [152]-[155], [187]). The court directed itself on the dangers of identification evidence under the Evidence Act 1995 and concluded that, at best, the witnesses were asserting a similarity between the accused and the attackers, not a reliable identification (at [69], [196]).
Issue 2: Whether ZF and AJH were present at the scene
Notwithstanding the unreliable identification evidence from the Shortland group, the court accepted the evidence of Shanaya Fitzpatrick, a woman who had pleaded guilty to assaulting one of the complainants and who knew ZF and AJH personally (at [209], [216]-[218]). She gave evidence that both accused travelled with her from the BMX track to George Street, got out of the car with her, and were present as the group approached the Shortlands. The court found her evidence credible, noting she gave it against her own interest, had no discernible reason to falsely implicate the two accused while exculpating JM, and had ample prior knowledge of both accused to identify them reliably (at [213]-[225]). The court was satisfied beyond reasonable doubt that ZF and AJH were part of the group that confronted the Shortlands (at [209]).
Issue 3: Counts 1 to 4 (grievous bodily harm and wounding charges)
Although the court was satisfied that grievous bodily harm was inflicted on one complainant and wounding on the other, it could not be satisfied beyond reasonable doubt that ZF was the first swordsman or that AJH was the second (at [232]-[234]). Fitzpatrick's own evidence was that she did not see either accused holding a weapon. The contaminated identification process meant no witness's attribution of the sword roles to specific accused could be relied upon. Without proof of who performed which act, neither a joint criminal enterprise nor an "in company" arrangement could be established for counts 1 to 4 (at [236]-[244]). The court also found a reasonable possibility that the second swordsman acted on his own volition in response to an unforeseen event, namely the first swordsman being knocked to the ground, rather than pursuant to any prior agreement (at [238]-[240]). Both accused were found not guilty on counts 1 to 4.
Issue 4: Count 5 (affray)
The court found the elements of affray established beyond reasonable doubt against both accused (at [246]-[247]). Their presence was proven, the group's approach was aggressive, weapons were visibly carried and used, and the conduct objectively would have caused a person of reasonable firmness to fear for their safety. The court was satisfied each accused used or threatened unlawful violence and was at least aware their conduct was or threatened to be violent (at [246]-[252]). Both accused were found guilty of affray.
Issue 5: The "Bettles" statements
The court found that representations attributed to the attacking group referencing "the Bettles" could not be established as admissions because no identified person was proven to have made them (at [203]-[207]). Their use for a non-hearsay purpose was of minimal probative value: the statements were too general to identify specific offenders and the possibility could not be excluded that they were made by a non-accused person (at [206]-[207]).
Orders Made
- Counts 1 to 4: each accused not guilty
- Count 5: each accused guilty of affray
Key Takeaways
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Reliable identification requires more than honest belief: where witnesses form views about identity through a process of collective Facebook searches, cross-contaminating discussions, and prompted memory, those accounts cannot ground a finding of guilt beyond reasonable doubt, even where the witnesses appear sincere (at [152]-[155], [187], [232]).
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Presence at the scene of an affray, combined with membership of an approaching armed group and conduct that would cause a person of reasonable firmness to fear for their safety, can be sufficient to establish affray even where the accused is not shown to have personally carried or used a weapon (at [246]-[252]).
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A joint criminal enterprise to commit a specific offence requires proof of an agreement to commit that offence. Where a reasonable possibility exists that a participant's act, such as picking up a sword and using it, was a spontaneous individual response to an unforeseen event rather than a pre-agreed course of conduct, the enterprise element is not established beyond reasonable doubt (at [238]-[243]).
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Statements attributed to an unidentified member of an attacking group have very limited probative value for establishing identity or agreement. Without proof of who made the statement, the evidence cannot serve as an admission and its non-hearsay value in identifying particular offenders is slight (at [203]-[207]).
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The District Court observed that a three-year delay between the events and trial, combined with poor investigative practices including failure to secure physical evidence and permitting witnesses to discuss events freely, materially undermined the reliability of the evidence and created significant difficulties for the prosecution (at [10]-[14]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995
Cases
- 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