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District Court 29 July 2024

May v R

[2024] NSWDC 318

Assault & violencePublic order & justice offences
CRIME CONVICTION APPEAL AFFRAY

Citation: May v R [2024] NSWDC 318
Court: District Court of New South Wales
Date: 29 July 2024
Judge: Bourke SC DCJ

Background

The appellant was convicted in the Local Court of affray under s 93C of the Crimes Act 1900 (NSW), arising from an incident on the evening of 30 November 2022 at Bidwill in western Sydney. The prosecution alleged that the appellant ran into a paddock where a fight was already occurring and stomped on the head of a man (Wellington) who was unconscious or semi-conscious on the ground, while another man (Doolan) simultaneously kicked him in the body.

The lead-up to the incident involved a prolonged dispute between neighbours. Wellington had gone to a nearby house to complain about a child crying, prompting a threat that "her man" would deal with him when he returned. When Doolan arrived home, he called Wellington out to the paddock, and the two men stripped off their shirts and engaged in what appeared initially to be a consensual fist fight. The fight ended with Wellington on the ground, at which point the violence escalated significantly.

The appellant brought his conviction appeal in the District Court, which conducted a full rehearing on the evidence from the Local Court. The appeal raised two grounds: that mobile phone evidence had been wrongly admitted, and that the evidence did not establish affray.

  • Whether a mobile phone, seized by police under a search warrant that did not nominate mobile phones as a target item, was obtained improperly such that it should have been excluded from evidence
  • Whether the appellant's conduct, namely stomping on the head of an unconscious victim in a paddock, satisfied all elements of affray under s 93C of the Crimes Act 1900 (NSW), and in particular whether it was conduct that would cause a hypothetical person of reasonable firmness to fear for their personal safety

Decision

Admissibility of the mobile phone evidence. The search warrant authorised police to seize, among other items, a "black hat with light colour print on the front." During the search, an officer located a hat and sought guidance from Senior Constable Tillott on whether it matched the warrant description. The court found that the phone was ultimately seized in circumstances that raised questions about whether the seizure was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). However, applying the Bunning v Cross discretion, the court upheld the Magistrate's decision to admit the evidence. The public interest in admitting cogent evidence of serious violence outweighed the impropriety, and the court was satisfied the Magistrate's ruling involved no error.

Whether the conduct amounted to affray. The text messages recovered from the phone ("I ran over and stomped on his head") and two video recordings placed the appellant at the scene beyond reasonable doubt. The main contest was the third element: whether the appellant's conduct was such as would cause a hypothetical person of reasonable firmness present at the scene to fear for their personal safety. The appellant argued that the incident occurred in a semi-public space with no bystanders in immediate proximity, that the initial fight had a consensual character, and that the Prosecution had not called several potential eye witnesses.

The court considered the relevant case law on the hypothetical bystander test and acknowledged that events in open spaces, where bystanders could distance themselves, may not always meet this threshold. Nevertheless, the court found the violence in this case extreme and indiscriminate. The two assailants, one of whom ran in unprompted to stomp on an unconscious man's head, were described as effectively out of control and heedless of consequences. A person of reasonable firmness witnessing that conduct would have been well justified in fearing that such aggression could be turned on others present. The absence of additional prosecution witnesses was taken into account but did not alter the conclusion.

Both grounds of appeal failed. The court confirmed that the Magistrate's findings were open on the evidence and aligned with the court's own assessment.

Orders Made

  • The appeal against conviction was dismissed.
  • The finding of guilt for the offence of affray was confirmed.

Key Takeaways

  • Extreme and indiscriminate violence, including unprovoked stomping on an unconscious victim's head, can satisfy the "person of reasonable firmness" test for affray even where the incident occurs in a semi-public space with no bystanders in immediate proximity.
  • Under s 93C of the Crimes Act 1900 (NSW), the hypothetical bystander need not actually be present; the relevant question is whether the conduct is objectively of a kind that would cause such a person to fear for their personal safety.
  • Where evidence is obtained in circumstances that raise questions of impropriety, the Bunning v Cross discretion requires courts to balance the public interest in excluding unlawfully obtained evidence against the public interest in admitting cogent evidence of serious crime.
  • The absence of potentially available prosecution witnesses is a matter a court may take into account when assessing whether guilt is established beyond reasonable doubt, following Mahmoud v Western Australia (2008) 232 CLR 397, though it does not automatically preclude a guilty finding.
  • In a District Court conviction appeal conducted as a rehearing, an appellate error of some kind must be demonstrated; the District Court forms its own view of the evidence while giving appropriate weight to the Magistrate's credibility findings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93C, 93D
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Evidence Act 1995 (NSW)
- Public Order Act 1986 (UK) (comparative reference)

Cases
- McNab v DPP [2021] NSWCA 298
- Bunning v Cross (1978) 141 CLR 54
- Mahmoud v Western Australia (2008) 232 CLR 397
- Colosimo & Ors v DPP [2006] NSWCA 293
- Colosimo and Ors v DPP [2005] NSWSC 854, 64 NSWLR 645
- Mann v R [2016] NSWCCA 10
- Khanwaiz v R [2012] NSWCCA 168
- Wu v R [2020] VSCA 94
- I v Director of Public Prosecutions [2002] 1 AC 285
- R v Blinkhorn [2006] EWCA Crim 1416
- DPP v Cotcher (1993) WL 964519
- R v Davison [1992] Crim LR 31
- R v Sanchez [1996] Crim LR 572
- R (on the application of Leeson) v DPP (2010) 174 JP 367