District Court New South Wales Medium Neutral Citation: Naira v R [2020] NSWDC 938 Hearing dates: 15 April 2020 Date of orders: 15 April 2020 Decision date: 15 April 2020 Jurisdiction: Criminal Before: P Taylor SC DCJ Decision: In respect of the offence of common assault, the conviction appeal is upheld, the conviction is quashed and a verdict of not guilty is entered. Catchwords: CRIME — Violent offences — Common assault APPEAL – conviction – identity of the offender Category: Principal judgment Parties: Anaru Naira (appellant) Regina (respondent) Representation: Solicitors: FTC Law (appellant) Office of the Director of Public Prosecutions (respondent) File Number(s): 2019/00198653 Publication restriction: None Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 17 February 2020 Before: Magistrate S Corry File Number(s): 2019/00198653 Judgment 1. The appellant, Anaru Naira, was with other male persons involved in an altercation with two security guards, Sioeli Pepa and Harpreet Singh, on 24 December 2018, outside the McDonald's store in Emerton. Mr Naira was convicted of common assault of Mr Singh and appeals against that conviction. The sole ground of the appeal is whether Mr Naira was identified to the criminal standard to be the person engaged in a particular assault on Mr Singh of striking him in the neck. An account of the events includes a number of assaults that are not the subject of the conviction. 2. Mr Pepa and Mr Singh both gave oral evidence, and statements of each were tendered. Mr Pepa's statement was dated 17 July 2019, some seven months after the relevant events. The statement records that Mr Pepa received a call from the other security guard, on the radio, who claimed that he had been hit and was outside McDonald's. On arrival, Mr Pepa saw an "Islander boy" wearing red gloves with a black T-shirt hanging on his neck and green shorts. The rest of the group was nearby. The other security guard yelled, "[H]e hit me three times," and Mr Pepa then told the person to go. 3. The Islander male bent to pick up his bike, spun backwards, and his elbow hit Mr Pepa in the chest. Mr Pepa then pushed him, right hand to the face, and the Islander male fell to the ground. Mr Pepa took the bike away and gave it to the group and told them to move on. Subsequently, another "Islander boy" wearing a black T-shirt with white writing, ran from McDonald's, said, "That's my brother" and started running towards the other security guard. Mr Pepa got between them. The second Islander male started throwing punches, some hit Mr Pepa in the chest, and he put his hands up to protect himself. The statement concludes, "I turned and saw the other boy was on the ground. I did not give them permission to punch or elbow me". 4. Whether the "other boy" on the ground was the first Islander male, who remained there, or the second mentioned, is unclear, although the context seems to favour the first person who allegedly elbowed Mr Pepa. In any event, none of these assaults are said to be the assault the subject of the charge. 5. In oral evidence, Mr Pepa says that he "suppose[d]" that the person who hit the other security guard, Mr Singh, was the male "walking toward the pushbike" and that Mr Singh said, "[H]e's the one that hit me". Mr Pepa said that the male elbowed him, he [Mr Pepa] pushed him in the face and the male fell down. The male was wearing red gloves, no shirt and something red around his neck. Mr Pepa said the second person was not there initially but came from McDonald's. He said that someone told him it was the first person's brother and that the second person did not do anything. [1] Mr Pepa said, "There was just boys everywhere at that time" and the second person had said, "I'm just going to run to my brother". The second person was wearing a dark blue, striped shirt. 6. Mr Pepa said that no one threw any punches at him. In cross-examination, he accepted that the male who ran from McDonald's threw punches at him, some hitting him in the chest. In re-examination, he said, "[W]hen I run to cover, of course there was a – was a few, you know punching happening". He said that he did not speak of the punches in his evidence-in-chief "[b]ecause I don't really wanted to be involved in that situation", that the brother "was a different matter". Again, none of these assaults are the subject of the charge. 7. Mr Singh's statement was contemporaneous to the events, recorded in a police notebook at 4.13pm on 24 December 2018. It recorded: "At about 3pm seven males have entered the shopping centre on pushbikes. The group started harassing members of the public by riding their bikes in and around everyone". He then recorded a complaint by the cleaner. The statement continued: "On arrival the group were riding from Jersey Rd entrance to the Chinese shop. Once they saw me they rode their bikes to the McDonald's exit. Once I confronted the group they began to swear at me. I asked them to politely leave, however they refused. However, the group wanted to go outside. I heard a male say to another, 'Go and hit him, hit him'. A male then walked up to me and, with a closed right fist, punched me. 3-5 times to the left side of my face. I tried to defend myself, however, a second male has hit me from the other side. It all happened so fast. I swung my hands and hit someone to defend myself then more males from the group attacked me. I heard one say, 'His my brother. His my brother'. My partner, Pepa, tried defending me also. I have then called police causing the group to leave. I watched the group go to KFC on Jersey Rd, Emerton". 1. The assault the subject of the charge is that which involved the second male, "a second male has hit me from the other side". In evidence, Mr Singh said: "And I told them – told them to leave. They start walking to McDonald exit. I was right behind them, and this gentleman telling other boys to hit me. And one of – and come hit me, for – with a – his punch. Hit me maybe three to four times, maybe more. And – and I take them outside, I manage to take them outside the shopping centre, outside the McDonald door. And I called my colleague, and he's come. And this gentleman hit my colleague too. And my colleague hit him back for self-defence." 1. Mr Singh then gave evidence that the appellant, then in the dock: "[Told another] man with him…To hit me…Yeah, one come – one come forward, and he tried to hit me. I tried to block…He punched me, Ma'am. He punched me…He punched me from right fist, he tried to hit my cheeks. I stopped him. I tried to block him, but he kept hitting. And I just stopped him, then I was holding his hands to stop me, and then I called my colleague to come help me to stop this." Mr Singh said this male was blond-headed, pretty tall and skinny. 1. Again, this assault is not the subject of the charge. It was accepted, and there was a contemporaneous photo in evidence showing, that the appellant was not blond at the time. 2. Mr Singh, in his evidence, continued: "Then my colleague come. When he hit my colleague, my colleague hit him back but it was a self-defence". He said his colleague came: "Then, suddenly somebody running to us, and yelling on us. I think that's his brother. And yelling, 'He's my brother, don't hit him.' When he sees his brother, he attacked me again". 1. The transcript then records: "Q. Okay, so when he sees his brother - - - A. Running to us. Q. Who? A. This boy. Young boy. Q. Okay, when he sees his brother, you said, "He attacked me again." What did he do? A. He's tried to punch from my back. I just – just make him – throwing him away, you know, from me. Q. Okay, so you say, and you were pointing to the dock, that he attacked you a second time. A. Yes. Yep. Q. Well, what was the first time he attacked you? A. First time when the – when the other male is hitting me, he's tried to hit me same time, too, you know. Q. Okay, so tell me about that. A. Yes, Ma'am. Q. I want to know what he did. Okay? Because now you're talking about a second time A. Yep. Q. that he hit you. A. Yep. Q. Okay? But you're telling me that he also hit you before then. This man hit you before then. Is that right, or not? A. I'm not sure, Ma'am. It's happened so quick. Q. Okay. So, you're not sure about the first? A. Yes, somebody – I was blocking one man, there's another one hitting from me from behind. I don't know who was it, his or somebody else, I don't know. There were several of them there, Ma'am." [2] 1. Mr Singh then recounts that he blocked one right-hand fist punch, but he was hit in the neck so Mr Singh hit him back straight away, "Just once. Yeah, I think" with a right-hand fist to his face "[a]nd he was knocked out". Police were called and the group went to KFC. 2. Mr Singh then identified the appellant, both in the dock and from the photo, as the second person who punched him "one time in the neck". Mr Singh subsequently said: "He's outside from the shopping centre, when his brother's running to me, my colleague blocked him, and this male's attacked me that time" and "I hit - I got maybe many punches, but I don't know who was hitting. There is seven of them, yeah, Ma'am" and: "Q. The second photo? A. I remember he was wearing these gloves. Yep. Yep. Q. So when you got punched to the neck area - - - A. No, he wasn't. I think so. I'm not a hundred percent sure he was wearing gloves, or not. Q. When he punched you? A. Yeah. I'm not sure." 1. In cross-examination, Mr Singh accepted that he did not identify the appellant as the person in his statement who said, "Go on. Hit him. Hit him" and said, "I don't even know him before, sir". Mr Singh also accepted that he did not speak in his statement of a blond person hitting him. He also accepted that he did not recount in his statement a second hit, after the reference to the person saying, "He's my brother". When challenged on this testimony of the punching by the appellant, Mr Singh said: "You can ask the police that time who was there. I was so like I can't control that time. What happened to me, I don't understand, you know? I was so nervous, and my head was panicked, you know? What – what – why 30 the kids do to me, you know? I'm human being, sir, I'm not a dog. And somebody come hit me for nothing, you know." 1. Although Mr Singh did not in his statement describe somebody hitting him after the reference to "He's my brother", he did say, "[A] second male has hit me from the other side". In his evidence-in-chief at first, this second person is not mentioned. There is then a reference to Mr Pepa being hit and hitting back in self-defence. Although the evidence initially indicated that it was the blond man, the subsequent evidence indicated that it was "somebody running" yelling, "He's my brother". And, again, whether the first person who attacked "again" was blocked and struck him in the neck, or whether it was a second person, is unclear. 2. One difficulty in identifying the accused as the person who struck him in the neck is that the second male is not identified in his statement. Mr Singh does not identify the person moving towards him other than as "somebody". The connection between the second male and the person running towards him, whether a different person, as the statement indicates, or the same person, is not clear. And three times Mr Singh indicates uncertainty about the identity, "I don't know who was hitting. There is seven of them," and "I'm not sure, Ma'am. It's happened so quick," and "[T]here's another one hitting from me from behind. I don't know who was it, his or somebody else". The account of Mr Pepa speaks of knocking out someone who held him to the chest, and a separate person who ran from McDonald's throwing punches, who hit Mr Pepa to the chest. 3. So Mr Singh's evidence of an attack by a blond person initially is clear, but after that he was hit in the neck by someone and there were seven of them, he said. He then said he knocked someone out, the man who hit him in the neck. Mr Pepa's evidence is he was held by a person and knocked him to the ground, who Mr Pepa seems to say is the blond man. Thus, the identity of the second attacker and how many more there were involved in the fighting is unclear. 4. The Crown sought to prove this second attacker to be the appellant by the use of admissions made by the appellant when interviewed by the police. After the group went to KFC, police officers approached and cautioned them and the evidence of Officer Caruana is as follows: "I approached him and cautioned him, asked him where he'd been that day and he was really vague with his answers. I asked him if he'd been in a fight and that's when a second male sitting next to him, who I now know to be his brother, Peter, interrupted me and asked me why I'm asking these questions or what's the problem? And then at that point, more officers arrived. I told [Mr Naira] to stand up and he followed me outside the store. I sat him down just to the right of the store and I continued the conversation with him. And I said, 'Were you in a fight?' and he said, 'Yeah'. I said, 'Did you have a fight with a security guard at Emerton just before?' and he said, 'Yes'. I said, 'Did you punch him?' and he said, 'Yes'. I said, 'At any point did he punch you back?' and he said, 'No'. I said, 'Why did you hit him?' and he said, 'I don't know'. He also stated that the security guard stopped him because he was trying to get a drink". [3] 1. There are a number of difficulties with this evidence. The particular security guard, Mr Singh or Mr Pepa, is not identified in Mr Naira's admissions. Mr Naira denies being punched, a matter that may seem to be contrary to his interests, but the Crown, Mr Singh in his oral evidence, Mr Pepa in his statement, and even Mr Naira's evidence, all seem to indicate that Mr Naira was knocked out. As I indicated, Mr Naira not only admitted that he was knocked out, but admitted in his evidence that he was intoxicated. 2. Whilst Mr Naira getting knocked out supports the circumstance of him being involved in the incident, it does not support the veracity of his confession. If he was intoxicated and knocked out, and then interviewed immediately thereafter, that might be thought to render his answers in the interview unsafe and unreliable. Even if those answers were accepted, it still leaves open whether the appellant was one of the seven who could have been throwing punches, the person who ran to the scene, the person who elbowed Mr Pepa and was knocked down by him, or the person who was knocked out by Mr Singh. 3. There was a video of evidence of Mr Naira's brother, which was played before the magistrate, but was, by the consent of the parties, not tendered before me. 4. In all the circumstances, although Mr Naira was undoubtedly involved in the fracas, I am not satisfied beyond a reasonable doubt that he committed the assault the subject of the charge by the Crown, that is, that he was the second male that Mr Singh said had hit him from the side on his neck, or from behind as he said in oral evidence. The evidence leaves me with a doubt, which I consider reasonable, as to what role was played by Mr Naira and whether he was knocked out by Mr Singh or by Mr Pepa. 5. For these reasons, in respect of the offence of common assault, the conviction appeal is upheld, the conviction is quashed and a verdict of not guilty is entered. ********** Endnotes 1. Tcpt, 21 January 2020, p 9(39), (50). 2. Tcpt, 21 January 2020, pp 19(16)-20(2). 3. Tcpt, 17 February 2020, pp 4(38)-5(1). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2022