R v Mubarak Khalid [2018] NSWDC 249

District Court New South Wales

Medium Neutral Citation: R v Mubarak Khalid [2018] NSWDC 249 Hearing dates: 10, 11, 20 July 2018 Date of orders: 17 August 2018 Decision date: 17 August 2018 Jurisdiction: Criminal Before: Montgomery DCJ Decision: I find the accused not guilty on Count 1.

I find the accused not guilty on Count 2. Catchwords: CRIMINAL LAW – particular offences – offences against the person – causing grievous bodily harm with intent to cause grievous bodily harm – affray – judge alone trial – joint criminal enterprise Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: Dickson v R [2017] NSWCCA 78 Olford v Magee (1952) 85 CLR 437 R v Baden-Clay [2016] HCA 35 R v Cameron (1983) NSWLR 6 R v Lieu (No 2) [2018] NSWSC 486 R v Lykouras [2005] NSWCCA 8 R v Tangye (1997) 92 A Crim R 545 Category: Principal judgment Parties: Crown Mubarak Khalid (accused) Representation: Counsel: Mr G Niven (Crown) Mr D Carroll (accused)

Solicitors: DPP (Crown) El Baba Lawyers (accused) File Number(s): 2016/357703 Publication restriction: Nil

Judgment 1. When arraigned on 10 July 2018, the accused pleaded not guilty to the principal count and to the alternative count on the indictment dated 6 July 2018. 2. Count 1 on the indictment is that on 18 January 2012 in Beverley Hills in the State of New South Wales, the accused did cause grievous bodily harm to Christopher Edwards with the intent to cause grievous bodily harm to him: s 33(1)(b) Crimes Act 1900. 3. Count 2 on the indictment is that, in the alternative to Count 1, on 18 January 2012 at Beverley Hills in the State of New South Wales, the accused did use unlawful violence towards Christopher Edwards, by conduct that would cause a person of reasonable firmness present at the scene to fear for their personal safety: s 93C(1) Crimes Act 1900. 4. Pursuant to s 33(3) Crimes Act, 1900 if I am not satisfied that the Count 1 offence is proved but am satisfied that an offence against s 35 has been committed, I may acquit the accused of the Count 1 offence and find him guilty of an offence against s 35. Neither party submitted the s 33(3) was of utility in this case. 5. As will be seen, the factual issue identified by both parties was whether or not the accused participated in the physical assault upon Mr Edwards. Counsel had adequate opportunity to choose to conduct the trial as they did, without reference to an alternative count: R v Cameron (1983) NSWLR 66 at 7B approved in R v Lecouras (2005) NSWCCA 8 at [24]. 6. Neither party submitted that his participation in the Count 1 offence was in the nature of recklessness as contemplated by offences against s 35. I agree with this approach.