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Court of Criminal Appeal 12 February 2016

Kim Sean Mann v R

[2016] NSWCCA 10

Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION AFFRAY WHETHER VERDICT UNREASONABLE

Citation: Kim Sean Mann v R [2016] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 12 February 2016
Judge(s): Bathurst CJ, Hidden J, Davies J

Background

The appellant was tried in the District Court on three counts arising from an incident at a park in Canley Vale on the night of 15 June 2013. During the incident, a man named Caine Little was shot in the wrist. The Crown alleged the appellant was the shooter.

The jury acquitted the appellant of firing a firearm in a public place and wounding with intent to cause grievous bodily harm, but convicted him of affray. He was sentenced to a short term of imprisonment, which had already expired by the time of the appeal.

The appellant appealed against the affray conviction on the grounds that the verdict was unreasonable and that the trial judge failed adequately to put the defence case to the jury.

  • Whether the jury's verdict of guilty on the affray count was unreasonable, given the acquittals on the shooting counts and the state of the evidence about the appellant's presence and conduct at the park
  • Whether the evidence was sufficient to establish that the appellant participated in the affray, either by using or threatening unlawful violence himself, or through membership of a joint criminal enterprise to engage in an affray
  • Whether the trial judge adequately put the defence case to the jury (not ultimately determined, as the first ground succeeded)

Decision

The Court of Criminal Appeal was satisfied that the first ground of appeal, unreasonable verdict, was made out. Because that conclusion was sufficient to dispose of the appeal, the Court did not need to consider whether the trial judge had adequately directed the jury on the defence case.

The only evidence placing the appellant at the park came from witnesses whose accounts were deeply unsatisfactory. Several had given police statements implicating the appellant in the shooting but resiled from those statements in court. Two witnesses denied seeing the appellant at the park at all. The evidence that was accepted established, at most, that the appellant may have arrived at the park with others in the same group as Mr Ouch, and was present during the fight.

The Crown's primary case on affray was that the appellant had fired the gun. Once the jury rejected that case, the alternative was that he had participated in a joint criminal enterprise or had himself used or threatened unlawful violence at the scene. The Court found no evidence to support either alternative. All of the evidence pointed to the arrangement being a one-on-one fist fight between Little and Ouch. There was no evidence that the appellant had participated in the fight, threatened anyone, or been party to any arrangement beyond attending the park.

Davies J, with whom Bathurst CJ and Hidden J agreed, concluded that mere presence at the scene, particularly in light of the acquittals on the shooting counts, could not sustain the affray conviction. The verdict was therefore unreasonable and was quashed.

Orders Made

• The verdict on count 1 should be quashed.

Key Takeaways

  • Mere presence at the scene of a fight, without more, does not establish participation in an affray. The evidence must show that the accused used or threatened unlawful violence, or was party to a joint criminal enterprise to do so.
  • A conviction for affray based on joint criminal enterprise requires evidence that the accused was a participant in the criminal arrangement, not simply that they were present in the company of those who were.
  • Where a jury acquits a defendant of the conduct forming the primary basis of a charge, an alternative basis for conviction must itself be independently supported by sufficient evidence. It is not enough that the primary conduct was alleged as part of the same incident.
  • The Court of Criminal Appeal confirmed that the test for an unreasonable verdict, drawn from M v The Queen and SKA v The Queen, requires the appellate court to assess whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt. Where that standard cannot be met, the conviction must be quashed.
  • Evidence from witnesses who resile from prior police statements and give internally inconsistent accounts must, when assessed in its totality, be capable of sustaining each element of the offence charged. Residual uncertainty across a body of unsatisfactory witness evidence does not fill gaps in the Crown case.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 38

Cases
- SKA v The Queen [2011] HCA 13, 243 CLR 400
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Youkhana v R [2015] NSWCCA 41
- Colosimo v Director of Public Prosecutions [2005] NSWSC 854, (2005) 64 NSWLR 645
- Osland v The Queen (1998) 197 CLR 316
- R v Chishimba & Ors [2010] NSWCCA 228
- R v Phan [2001] NSWCCA 29, 53 NSWLR 480
- R v Tangye (1997) 92 A Crim R 545
- R v Donnelly [2001] NSWCCA 394
- R v Allan & Ors [1965] 1 QB 130
- R v Coney (1882) 8 QBD 534