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District Court 17 August 2018

R v Mubarak Khalid

[2018] NSWDC 249

Assault & violence
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON AFFRAY JUDGE ALONE TRIAL JOINT CRIMINAL ENTERPRISE

Citation: R v Mubarak Khalid [2018] NSWDC 249
Court: District Court of New South Wales
Date: 17 August 2018
Judge: Montgomery DCJ

Background

The accused stood trial on charges arising from a road rage incident in Beverley Hills on 18 January 2012. The incident began when two cars became involved in a confrontation on General Holmes Drive following a near-collision, and culminated in a violent assault on the victim, Christopher Edwards, who suffered life-threatening stab wounds to the chest and hip.

The stabbing was carried out by a co-offender (referred to in the judgment as "the principal offender"), who had already been separately convicted for intentionally inflicting grievous bodily harm on the victim. The principal offender's identity had been established years after the event through DNA matching. The accused was present at the scene and was a work colleague of the principal offender.

The Crown did not allege that the accused wielded the knife. Instead, it alleged that the accused participated in a joint criminal enterprise with the principal offender by physically assaulting the victim (punching or kicking him) while knowing the principal offender was using a knife. The accused denied any physical participation in the assault.

  • Whether the accused participated in a joint criminal enterprise with the principal offender to cause grievous bodily harm to the victim, contrary to s 33(1)(b) of the Crimes Act 1900
  • Whether the accused used unlawful violence towards the victim in a manner that would cause a person of reasonable firmness to fear for their personal safety, contrary to s 93C(1) of the Crimes Act 1900 (affray)
  • In a judge alone trial, what standard of care applies when drawing inferences of guilt from a purely circumstantial case, including the application of jury-direction warnings

Decision

Montgomery DCJ conducted a judge alone trial under s 133 of the Criminal Procedure Act 1986, which required the judge to identify the principles of law applied and the findings of fact relied upon, and to take into account any warnings that would ordinarily be given to a jury. The Crown's case on joint criminal enterprise rested entirely on circumstantial evidence and inference, including the alleged inference that the accused had punched or kicked the victim while the principal offender stabbed him.

The judge applied the standard direction that a circumstantial case must exclude all reasonable hypotheses consistent with innocence, and that the Crown cannot ask the finder of fact to consider particular circumstances in isolation. The Crown also conceded that certain facts, identified as indispensable to the chain of reasoning toward guilt, had to be proved beyond reasonable doubt.

On the key factual question of whether the accused physically participated in the assault, the judge preferred the eyewitness account of a bystander (Mr Zammit), who placed the accused some considerable distance from the principal offender, and other bystander evidence indicating that only one male attacked the victim at the relevant time. The judge found this bystander evidence more reliable than the recollections of the victim and of Mark McCormack. The bystander evidence was also consistent with what the accused had told police when denying participation.

Because the Crown failed to prove beyond reasonable doubt that the accused physically participated in the assault, it also failed to establish the existence of a joint criminal enterprise or the accused's participation in it. Without that foundation, neither the s 33(1)(b) charge nor the affray charge could be made out, and the accused was acquitted on both counts.

Orders Made

  • The accused was found not guilty on Count 1 (causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900)
  • The accused was found not guilty on Count 2 (affray, contrary to s 93C(1) of the Crimes Act 1900)

Key Takeaways

  • A conviction under a joint criminal enterprise theory requires the Crown to prove beyond reasonable doubt both the existence of an agreement or arrangement between the parties and the accused's participation in it; presence at the scene alone is insufficient.
  • Where certain facts are identified as indispensable steps in the chain of reasoning toward an inference of guilt in a circumstantial case, those facts themselves must be proved beyond reasonable doubt, not merely inferred from the overall body of evidence.
  • In a judge alone trial under s 133 of the Criminal Procedure Act 1986, the judge must apply the same warnings and safeguards that would be given to a jury, including the direction to be extremely careful when drawing inferences of guilt from circumstantial evidence.
  • Preferred eyewitness evidence from independent bystanders, found more reliable than the recollections of the victim and an associated witness, was sufficient to raise a reasonable doubt about whether the accused physically participated in the assault.
  • Under R v Tangye (1997), as confirmed in Dickson v R [2017] NSWCCA 78, a person may participate in a joint criminal enterprise by being present and intentionally assisting or encouraging the principal offender, but the Crown must still prove that presence or encouragement beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 33(3), 35, 93C(1)
- Criminal Procedure Act 1986 (NSW), s 133

Cases
- Dickson v R [2017] NSWCCA 78
- Olford v Magee (1952) 85 CLR 437
- R v Baden-Clay [2016] HCA 35
- R v Cameron (1983) NSWLR 6
- R v Lieu (No 2) [2018] NSWSC 486
- R v Lykouras [2005] NSWCCA 8
- R v Tangye (1997) 92 A Crim R 545