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District Court 12 May 2020

R v Ross (No. 4)

[2020] NSWDC 197

Assault & violence
CRIMINAL LAW GANG ASSAULT ON VICTIM ACCUSED’S RELIANCE UPON ALIBI EVIDENCE WHETHER CROWN DISPROVED ALIBI EVIDENCE JOINT ENTERPRISE LIABILITY

Citation: R v Ross (No. 4) [2020] NSWDC 197
Court: District Court of New South Wales
Date: 12 May 2020
Judge: Abadee DCJ

Background

On 19 April 2018, the victim was attacked by a group of men at a residential facility in Wyong. During the assault, the victim suffered a stab wound to his lower right side, along with other injuries. Blood droplets were found both inside and outside the premises.

The accused faced three counts on indictment: intentionally wounding the victim with intent to cause grievous bodily harm (Count 1, under s 33 of the Crimes Act 1900); in the alternative, recklessly wounding the victim in company (Count 2, under s 35); and further in the alternative, assaulting the victim in company causing actual bodily harm (Count 3, under s 59). The Crown's case on the wounding counts relied on joint criminal enterprise liability, not a direct allegation that the accused was the one who wielded the weapon.

The accused elected trial by judge alone, pleaded not guilty to all counts, and relied on alibi evidence. Abadee DCJ tried the matter without a jury.

  • Whether the Crown disproved the accused's alibi evidence and established his presence at the scene beyond reasonable doubt
  • Whether the accused and co-offenders entered into a joint criminal enterprise to inflict grievous bodily harm on the victim
  • Whether the wounding fell within the scope of any such agreement, or whether the accused at least foresaw the possibility of wounding occurring
  • Whether, on the alternative counts, the elements of reckless wounding in company or assault occasioning actual bodily harm in company were made out

Decision

Count 1 (Wounding with intent to cause grievous bodily harm): Abadee DCJ was not satisfied beyond reasonable doubt that the accused and his co-offenders agreed to inflict grievous bodily harm. The assault was consistent with an agreement to use traumatic force, but not penetrative force. His Honour drew a distinction, informed by expert medical evidence, between blows causing traumatic injury and a stabbing. There was no evidence that anyone other than co-offender Hodder agreed to, or knew about, the use of any implement or instrument.

Count 2 (Reckless wounding in company): His Honour was not satisfied that the assailants agreed to wound the victim, or that the accused adverted to the possibility of wounding occurring. The Crown therefore failed to establish this alternative count beyond reasonable doubt, and the accused was acquitted.

Count 3 (Assault occasioning actual bodily harm in company): The Crown did establish that the accused, together with co-offenders Micallef and Hodder, participated in a joint enterprise to assault the victim. The victim identified the accused and Hodder as part of the group (having previously met Hodder in custody). Micallef drove to the scene and, together with the accused, later attempted to dispose of the vehicle. All elements of assault occasioning actual bodily harm in company were made out, and the accused was found guilty on this count.

Orders Made

  • Count 1: Not guilty (wounding with intent to cause grievous bodily harm)
  • Count 2: Not guilty (recklessly wounding in company)
  • Count 3: Guilty (assault occasioning actual bodily harm in company)

Key Takeaways

  • A joint criminal enterprise to assault does not automatically extend to wounding: where there is no evidence that participants agreed to use a weapon or foresaw its use, the wounding counts may fail even where a co-offender inflicts a stab wound during the attack.
  • The distinction between "traumatic force" and "penetrative force" was central to the court's reasoning on the wounding counts, with expert medical evidence informing where the scope of the enterprise ended.
  • Under joint enterprise liability, a co-offender can be convicted of a lesser offence (here, assault occasioning actual bodily harm) while being acquitted of the more serious offences arising from the same incident if the Crown cannot prove the additional elements required for those counts.
  • The accused's alibi evidence did not need to be proved true: the Crown bore the onus of disproving it beyond reasonable doubt, consistent with the principle that no burden rests on an accused to establish any version of events.
  • Victim identification evidence, combined with circumstantial evidence of post-offence conduct (such as attempting to dispose of a vehicle), contributed to the finding of guilt on the assault count.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 33, 35, 59
- Criminal Procedure Act 1986 (NSW), ss 131, 133
- Evidence Act 1995 (NSW), ss 87, 116

Cases:
- Blackwell v R (2011) 81 NSWLR 119
- Clayton v The Queen (2006) 168 A Crim R 174
- De Silva v The Queen [2019] HCA 48
- Fleming v The Queen (1998) 197 CLR 250
- GBB v R [2019] NSWCCA 296
- Gillard v The Queen (2003) 219 CLR 1
- Huynh v The Queen [2013] HCA 6
- IL v The Queen (2017) 260 A Crim R 101; [2017] HCA 27
- McAuliffe v The Queen (1995) 183 CLR 108
- McKey v R [2012] NSWCCA 1
- Miller v The Queen (2016) 259 CLR 380
- R v Nguyen [2001] VSCA 1
- R v Smith (1837) 8 C & P 173
- R v Winner (1995) 79 A Crim R 528
- Swan v R [2016] NSWCCA 79
- Youkhana v R (2015) 249 A Crim R 424