Sivaraja v R; Sivathas v R [2017] NSWCCA 236

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sivaraja v R; Sivathas v R [2017] NSWCCA 236 Hearing dates: 7 April 2017 Decision date: 04 October 2017 Before: Meagher JA; R A Hulme and Beech-Jones JJ at [1] Decision: (1) Leave to appeal against conviction granted. (2) Appeal allowed. (3) The verdict of guilty on Count 3 and the sentence imposed on 24 February 2017 are set aside. In lieu thereof, substitute a verdict of guilty of an offence under s 33B(2) of the Crimes Act 1900 (NSW) of using an offensive weapon with intent to commit an indictable offence, namely assault, whilst in company. Catchwords: CRIME – conviction appeal – wound with intent to cause grievous bodily harm – s 33(1)(a) Crimes Act 1900 – whether trial judge should have left self-defence to jury – group attack – no evidence from any of five accused – accused initial aggressors – accused had means to leave – pure speculation to theorise victim produced knife during confrontation – reasonable possibility accused believed necessary to assault victim with a weapon in order to defend themselves excluded – Crown case joint criminal enterprise lasted throughout course of melee – artificiality of breaking up a violent incident into discrete components – trial judge correct to refuse to direct on self-defence

CRIME – conviction appeal – wound with intent to cause grievous bodily harm – s 33(1)(a) Crimes Act 1900 – whether unreasonable verdict – Crown case victim attacked by five men armed with cricket bat, knife and metal pole – whether mental element proved beyond reasonable doubt – no clear evidence on force with which weapon(s) used – wounds consistent with causes other than metal pole – victim's evidence required circumspection – reliability and credibility issues – admitted lies – intoxication – verdict cannot be supported having regard to the evidence – s33(1)(a) verdict set aside – substituted with verdict of guilty of a s 33B(2) offence Legislation Cited: Crimes Act 1900 (NSW) ss 33(1)(a), 33B(2), 418, 419, 428C Criminal Appeal Act 1912 (NSW) ss 5(1)(a) and (b), 6(1), 7(2), 12(2) Evidence Act 1995 (NSW) s 38 Cases Cited: Alhassan v R [2017] NSWCCA 73 Braysich v The Queen [2011] HCA 14; 243 CLR 434 Chen v R [2013] NSWCCA 116 Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Cuzman v R; Bucataru v R [2014] NSWCCA 222 Elias v R [2006] NSWCCA 365 Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 Hawi v R [2014] NSWCCA 83; 244 A Crim R 169 Oblach v R [2005] NSWCCA 440; 65 NSWLR 75 R v Katarzynski [2002] NSWSC 613 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12 R v Stokes & Difford (1990) 51 A Crim R 25 Shamoun v R [2015] NSWCCA 246 Sharp v R [2012] NSWCCA 134 Spies v The Queen [2000] HCA 43; 201 CLR 603 Swan v R [2016] NSWCCA 79 The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 Tonari v R [2013] NSWCCA 232; 237 A Crim R 490 Viro v The Queen [1978] HCA 9; 141 CLR 88 Category: Principal judgment Parties: Suresh Sivathas (Applicant) Kajan Sivaraja (Applicant) Regina (Respondent) Representation: Counsel: Mr H Dhanji SC with Mr T Ramrakha (Suresh Sivathas) Mr W Flynn (Kajan Sivaraja) Ms N Williams (Crown)