R v ZF; R v AJH [2015] NSWDC 328

District Court New South Wales

Medium Neutral Citation: R v ZF; R v AJH [2015] NSWDC 328 Hearing dates: 12-16/10/15 Decision date: 22 October 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Counts 1-4 each accused not guilty Count 5 - each accused guilty Catchwords: Criminal – Trial by Judge, wound with intent to cause grievous bodily harm, affray, joint criminal enterprise - in company. Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Fleming v The Queen (1998) 197 CLR R v Georgiou [2005] NSWCCA 189 R v Kneebone [1999] NSWCCA 279 R v Landini, [2007] NSWSC 259 R v Lodhi [2006] NSWSC 648 Pitkin v The Queen [1995] 69 ALJR 612 Category: Principal judgment Parties: Crown ZF - Accused AJH - Accused Representation: Counsel: Director of Public Prosecutions – Crown Mr Coleman - AJH Mr Chhabra - ZF

Solicitors: Director of Public Prosecutions – Crown Campbell, Paton & Taylor - Accused File Number(s): 2013/122572013/245292

Judgment

INTRODUCTION 1. HIS HONOUR: I now have before me ZF and AJH for verdict in relation to five counts on an indictment that was presented last Monday week. The two accused as well as a then co-accused JM, pleaded not guilty to the following charges. 2. In relation to count 1, they pleaded not guilty to a charge alleging that they on 4 December 2012, at Bathurst, in the State of New South Wales, caused grievous bodily harm to John Shortland, with intent to cause grievous bodily harm to him. 3. The Crown pleaded an alternative to count 1, in count 2, that they each on 4 December 2012, at Bathurst, in the State of New South Wales, whilst in company of each other, caused grievous bodily harm to John Shortland and were reckless as to causing actual bodily harm to him. 4. The third count was an allegation against the three accused, now resting in relation to the two accused, that they each on 4 December 2012, at Bathurst, in the State of New South Wales, did wound Joel Shortland, with intent to cause grievous bodily harm. 5. An alternative to that count pleaded in count 4, is that on 4 December 2012, at Bathurst, in the State of New South Wales, whilst in company of each other, they did wound Joel Shortland and were reckless as to causing actual bodily harm to him. 6. A fifth and additional count pleaded, was that they each on 4 December 2012, at Bathurst, used unlawful violence against John Shortland and Joel Shortland, by conduct that would cause a person of reasonable firmness present at the scene to fear for his personal safety. 7. At this point of the trial as I have pointed out, JM is not in the dock. He was acquitted at the end of the Crown case, in the sense that, to use a colloquialism, I gave myself a Prasad direction and considered that the Crown could not prove beyond reasonable doubt his guilt on a number of bases having regard to the state of the evidence in the trial. Some of the matters that informed that verdict will be reflected in the judgment I now give, but they are also of some significance in the assessment of the evidence that remains in relation to each of the accused. 8. During the course of my judgment, I propose without any disrespect to anybody, from time to time refer to John Shortland as either John or JJ, as he was referred to in the evidence, and Joel Shortland as Joel. Likewise in relation to ZF and AJH, I propose from time to time to refer to them by their given names. It is much easier this way, particularly delivering an oral judgment. I will give the full names of some of the dramatis personae, including witnesses in this case initially, but from time to time I may refer to them either by surname or given name. Likewise, in relation to Melissa Smith and Fergus O'Connor, I may from time to time refer to them either by their given name or their surname without any disrespect. 9. Before I turn to the issues in the case, there is one pertinent observation I should make, that very much is present in this particular case. The case has been conducted in a most professional way by the learned Crown Prosecutor and of course counsel for the accused. It became apparent in the course of the giving of evidence, that various police had been officers-in-charge in relation to this matter, but had ceased their involvement for reasons I need not go into. 10. It has to be fairly said that the case was very poorly investigated in a range of ways and it seems that a number of things that have occurred which have to my mind affected the quality of the Crown case could have been avoided if appropriate direction had been given to particular witnesses about care they should take in respect of the matter, or otherwise appropriate investigations that could be undertaken by them. 11. A good example of that, putting aside any comments made about the supposed identification of the accused by Joel and John Shortland, is the issue of the young woman Shanaya Fitzpatrick-King, who I will refer to either as Shanaya or Ms Fitzpatrick, concerning her use of a golf club. It seems self evident to me that even preliminary inquiries at a very early stage would have established that a woman used a golf club that had been obtained from the Brearleys, either from them personally or from the boot of one of their two cars, who figure somewhat prominently in the evidence. 12. There is no evidence from any police officer in the case. I understand from the evidence of the Brearleys that in fact they gave statements to police in this matter on 6 December 2012, that is two days after the event. I have not seen their statements, save for perhaps issues relating to refreshing their memory. But it became apparent when they were giving evidence before me, that one or other of them clearly accepted the fact ultimately that a golf club that was used in the attack upon Joel Shortland had come from one of their cars. I have no evidence before me as to what investigations were undertaken in an endeavour to find that golf club to, for example, conduct some sort of examination of it to determine whether any DNA profile could be obtained, fingerprints could be obtained or whatever. 13. Perhaps it was a 'no through road' in the investigation of the matter. But it is an illustration, it seems to me, of a failure to properly investigate this matter. Bearing in mind clearly that John and Joel Shortland were injured, bearing in mind that there was clearly a police investigation in place as early or as late as 5 December 2012 and bearing in mind at that time, putting aside issue of the identification or recognition of particular people, the fundamental facts as to what had happened to John and Joel were known to the investigating authorities. The failure to properly investigate has created considerable difficulties for the prosecution in the conduct of this case. 14. Another difficulty in the conduct of this case is the fact that the trial has come on almost three years after relevant events. On a number of occasions a number of witnesses have said that they could not recall particular events occurring. Perhaps they made statements closer to the event that might have filled the gap of their recollection in this trial. Some witnesses were either allowed to refresh their memories from their statements, in the sense of being led by the Crown which was a sensible course of action, or by being cross-examined upon previous statements. I do not know the reasons for the delay, but all the witnesses were put in a very difficult position in order to give to this Court a cogent and coherent and perhaps reliable account of relevant matters when they were called upon to remember events well after the events had occurred. Three years to my mind is an unacceptable delay. I appreciate it is no fault of the learned Crown or counsel for the accused or the accused themselves for that matter for all I know. But the situation is entirely unacceptable. It has infected the reliability of the evidence in the case to some extent. 15. Another aspect of the case that concerns me is the fact that witnesses were permitted to talk amongst themselves about relevant matters, in good faith it would seem in some cases, and in an understandable way without warning. The fact that witnesses gave multiple statements was another difficulty in the case, giving an opportunity for people to build upon their recollection in circumstances. As I point out in my summary of the evidence Mr Coleman SC demonstrated through examining Joel Shortland that memory of relevant events would be clearer closer to the events in question. 16. But then again this has become a common problem in criminal trials, where people give extensive statements, particularly to the police, and are called back many months later to give further statements, volunteering information that either should have been volunteered, or could have been volunteered when the first statement was obtained and in circumstances where there was always the risk that the further information is a result of some contaminated memory.