R v Kennedy; R v Barker [2024] NSWDC 71

District Court New South Wales

Medium Neutral Citation: R v Kennedy; R v Barker [2024] NSWDC 71 Hearing dates: 12 February 2024 - 14 February 2024 Date of orders: 14 March 2024 Decision date: 14 March 2024 Jurisdiction: Criminal Before: GRANT DCJ Decision: Charles Samuel Barker and Ziggy Kennedy are convicted and found guilty. Catchwords: Detain for psychological advantage – meaning of psychological advantage – includes vigilante conduct – detaining person mistakenly believed to have sexually assaulted sister – Judge Alone Trial – finding of guilt. Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Fleming v The Queen (1998) 197 CLR 250 Category: Principal judgment Parties: Rex (Crown) Ziggy Kennedy (accused) Charles Barker (accused) Representation: Counsel: Mr Paul Kerr (Crown) Mr Mark Davis (Barker) Mr T.C Jackson (Kennedy)

Solicitors: Mr Fraser Lawrance (ODPP) Mr John Weir (Barker) Mr Rohan Harrison (Kennedy) File Number(s): 2022/00314958; 2022/00310663

JUDGMENT 1. On 12 February 2024, the accused Ziggy Kennedy and Charles Samuel Baker were arraigned before the Albury District Court and pleaded not guilty to the following count (contrary to section 86(3) of the Crimes Act 1900), being count 1 on the Indictment: On or about 16 October 2022, at Albury, in the State of New South Wales, did detain Logan Berryman without his consent with the intent to obtain and advantage, namely, as a psychological advantage, and at the time of, or immediately before or after the taking, actual bodily harm was occasioned to Logan Berryman. 1. The accused were further arraigned in the alternative and pleaded guilty to the following count, being count 2 on the Indictment: On or about 16 October 2022, at Albury in the State of New South Wales, while in the company of another person, assaulted Logan Berryman, thereby occasioning to him actual bodily harm. 1. The Crown did not accept the plea to the alternative to count 1 in full satisfaction of the indictment. 2. Mr Jackson who appears for Mr Barker in his final address successfully argued that the charged as framed above was missing the words "while in company of another person" and therefore was a s86(2) charge. The Crown sought leave to amend the indictment. I refused leave due to prejudice the accused would suffer. There is a 5-year difference in the statutory maximum applicable.