New South Wales Court of Criminal Appeal CITATION: R v Trent BENISCHKE [2005] NSWCCA 169 HEARING DATE(S): 28 April 2005 JUDGMENT DATE: 28 April 2005 JUDGMENT OF: Spigelman CJ at 1 & 23; Grove J at 21; Howie J at 22 DECISION: Leave refused. CATCHWORDS: CRIMINAL LAW - Appeal against interlocutory judgment - Decision to refuse permanent stay - Defendant asserted that offence could not have been performed maliciously - Where open to jury to conclude that it was - Although this was not the basis upon which the trial judge refused the stay application it was relevant to leave. Crimes Act 1900: s5, s35 LEGISLATION CITED: Criminal Appeal Act 1912: s5F(3)(a) Trent Benischke (Applicant) PARTIES: Regina (Respondent) FILE NUMBER(S): CCA 2004/3167 P Boulten SC (Applicant) COUNSEL: E Wilkins (Respondent) Stephen Dack & Associates (Applicant) SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respodent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0016 LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ IN THE COURT OF CRIMINAL APPEAL 2004/3167 SPIGELMAN CJ GROVE J HOWIE J THURSDAY 28 APRIL 2005 REGINA v TRENT BENISCHKE Judgment 1 SPIGELMAN CJ: The applicant is one of four men who are accused of attacking and injuring JN and his then five-week-old daughter EN. On 14 August 2003 at 8.00 pm JN was walking in a street in Maroubra. He was carrying his daughter EN in a baby harness strapped to his chest. It was a cold night and he had zipped her up in his jacket. 2 On the Crown case the four co-accused had determined to seek out and assault a person who had assaulted the girlfriend of one of them earlier that evening. They picked JN for this purpose, even though the girlfriend had said that he was not the person who had assaulted her. They decided to attack him in any event. On the Crown case JN was attacked, punched and kicked repeatedly to the head and chest after he fell to the ground. During the course of the attack, baby EN was also injured. 3 The Crown is relying on a joint criminal enterprise in relation to all four of the accused. There are five counts on the indictment, three of which are directed to the attack on JN. These proceedings are concerned with counts 1 and 2 which relate to the injuries inflicted on EN. Count 1 alleges that the accused, whilst in company, maliciously inflicted grievous bodily harm on EN in contravention of s 35(2) of the Crimes Act 1900. The alternative Count 2 is that the accused maliciously inflicted grievous bodily harm on EN contrary to s 35(1)(b) of the Crimes Act. 4 The application before the Court is made pursuant to s 5F(3)(a) of Criminal Appeal Act 1912 seeking leave to appeal against an interlocutory judgment of his Honour Shadbolt DCJ in the Sydney District Court on 18 November 2004. His Honour rejected an application for a permanent stay of the criminal proceedings with respect to the charges involving the injuries to EN. Two of the alleged co-offenders withdrew their application to the Court during the course of the trial. His Honour rejected the application of the remaining two accused. Mr Benischke seeks leave to appeal to this Court. 5 The applicant contended before Shadbolt DCJ, and seeks to contend in this Court, that he was entitled to a permanent stay on the basis that, taking the prosecution case at its highest, it was not possible for the Crown to prove that the applicant committed the offences against EN. This position was based on a statement of agreed facts to which I was subsequently referred and which has also subsequently been qualified. 6 The basis of this contention is that there is no evidence that the applicant knew that the baby was there, as was at one stage stated in the agreed facts. She was not observable by reason of the way in which she was being carried by JN. It is submitted that the offences could not have been performed maliciously as was required. 7 The relevant terms of the provision creating the offence are: "35(1) Whoever maliciously by any means: … (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment." 8 The applicant relies particularly on the provisions of s5 the Crimes Act which provide: "5. Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime." 9 Shadbolt DCJ proceeded on the basis of an agreed statement of facts which included the following statement: "It is agreed that none of the accused knew of the existence of the baby at any relevant time." 10 His Honour determined the matter on this basis. He did so notwithstanding the fact that this agreed fact was qualified during the course of the submissions to him. The Crown Prosecutor said that the list of agreed facts were regarded as "non-controversial facts" but they were not "exhaustive". The Crown submits in this Court that the agreed fact that I have quoted above was "effectively withdrawn from the agreed facts". 11 The Crown Prosecutor referred Judge Shadbolt to the Crown brief in addition to the list of "non-controversial" agreed facts. This included the following matters relevant to knowledge of the existence of the baby: · The girlfriend of one of the co-accused said: "Betsy again kicked him to the stomach area and that is when I heard a noise which sounded like a cat's meow". That reference was said by the Crown to be the baby reacting to one of the kicks. · One of the co-accused made the following statement: "It started to cry. That's when I realised that there was something else there." And in answer to the question: "Was it crying while he was being kicked?" He answered: " Yep. Another couple of kicks and then it started screaming." 12 In the course of the submissions before Shadbolt DCJ by the Crown, Mr A Haesler SC, counsel for one of the co-accused (not the applicant) submitted that if the Crown was withdrawing the paragraph of the agreed facts, then he accepted that the application before Shadbolt DCJ was misconceived and it was a matter for the jury. 13 In response to this the Crown Prosecutor indicated that the focus was on the words "relevant time" in the above quoted paragraph of the agreed facts. He said that the Crown accepted that the accused did not know of the existence of the baby when they got out of the car prior to the assault. It was after this exchange that two of the accused withdrew their application before Shadbolt DCJ. 14 There is a body of evidence about the presence of the four co-accused during the course of the attack. Mr P Boulten SC, who appears for the applicant in this Court, acknowledged the significance of that body of evidence, in the light of the change in the Crown's position from the original draft of the agreed facts. 15 The thrust of the evidence, to which I have referred, is that all co-accused were present while two of them kicked JN while on the ground. The Crown proposes to rely on the existence of a joint criminal enterprise. There was evidence from which the jury could conclude that all four co-accused were present during the attack. 16 The evidence does not suggest that the applicant was one of the kickers. One eyewitness gave evidence about one of the assailants who could be identified, on the Crown case, to be the applicant by reason of his clothing. That evidence is that four or five males were standing over JN and the person said to be the applicant punched him in the body on the ground. This eyewitness said that this happened as he approached the group, it appears, in his car. The wife of this eyewitness, who was driving the car, also gave evidence that she saw one of the assailants kicking JN before her husband got out of the car. 17 Another eyewitness confirms that the kicking went on before the car drove up. The young woman who referred to a sound like a cat's meow said that "at about the time" she heard this, a car pulled up. 18 On the basis of this evidence it is open for the jury to accept that the applicant was in the group and punched JN during the course of the kicking. A jury could infer that the applicant became aware of the presence of EN whilst the applicant was involved in the attack. 19 Although this was not the basis upon which Shadbolt DCJ rejected the stay application, it is, in my opinion, relevant to the issue of leave. The Crown wishes to pursue a case that the attack continued after the applicant became aware of the presence of the baby. 20 This is a jury question. It is not appropriate for this Court to intervene at this stage. In my opinion leave should be refused. 21 GROVE J: I agree. 22 HOWIE J: I also agree. 23 SPIGELMAN CJ: That is the order of the court. ********** 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.