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. Judge alone trial – principles – section 133 Criminal Procedure Act 1. Section 133 Criminal Procedure Act prescribes my duties in this trial without a jury. I am to include in my judgment the principles of law I apply and findings of fact on which I rely. I am required to take into account any warning which, in the circumstances of the case, I would give a jury. Issues 1. It is common ground that the event the subject of the charges occurred in the culmination of a road rage incident. 2. In relation to Count 1 the Crown submits that the accused is guilty by reason of his participation in a joint criminal enterprise with the principal offender Zaid Tabikh who I will refer to as 'principal offender'. 3. There is no dispute that the principal offender intentionally inflicted grievous bodily harm to the victim, Mr Christopher Edwards, by stabbing him with a knife. There is no dispute that only the principal offender stabbed Mr Edwards. 4. According to the certificate of expert evidence signed by Dr Jennings (exhibit Q) Mr Edwards suffered stab wounds to the right and left as well as back sides of his chest, of such severity as to require critical emergency treatment. He also suffered a left hip wound. 5. His diagnosed injuries included bilateral pneumothoraxes, right haemothorax with basal collapse and a moderate pericardial effusion. He suffered a one centimetre laceration to the right ventricle of his heart. It was not contested that the wounds suffered by Mr Edwards might have been fatal, but for the almost immediate arrival of an ambulance and critical medical care at hospital. 6. Other than Dr Jennings' report of critical care identifying stab wounds, there is no medical survey or other evidence of bodily injuries suffered by Mr Edwards, such as lacerations and or bruises, as might result from punching or kicking. Accordingly, the only grievous bodily harm identified in the evidence is the harm resulting from the stabbing. It is the stabbing carried out by the principal offender which is the subject of the joint criminal enterprise alleged. 7. There is no dispute that the accused was with the principal offender and saw the principal offender carry out the stabbing of the victim; transcript p 69 line 5. 8. The accused denies punching, kicking or otherwise physically assaulting Mr Edwards. His case is that only the principal offender assaulted Mr Edwards. He denies that his presence amounted to participation in a joint criminal enterprise with the principal offender: transcript p 68 lines 5 to 39. It is necessary to state here only so much of the factual evidence and law as is relevant to the real issue: Olford v Magee (1952) 85 CLR 437 at 466; R v Lieu (No 2) [2018] NSWSC 486 at [22]. 9. The Crown case on the agreement or arrangement of the alleged joint criminal enterprise is both circumstantial and relies on inference. As I am reminded to do by the Crown to do, I take into account the warning provided by the standard direction in a jury trial at Criminal Trial Courts Bench Book [3‑150] to be extremely careful about the drawing of the inference on which the Crown relies in this case. I cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence: R v Baden-Clay [2016] HCA 35 at 46 to 47. As I am reminded to do by the Crown, I take into account the warning provided by the standard directions in a jury trial at Criminal Trial Courts Bench Book [2-500] to [2-530] that the Crown relies on a circumstantial case and it is wrong to consider any particular fact in isolation. 10. Further, that I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from the evidence of the facts that is inconsistent with the accused's guilt, the circumstantial case fails to satisfy the Crown's burden of proof of beyond reasonable doubt. 11. Whilst generally particular facts and circumstances relied upon in a circumstantial case do not need to be proved beyond reasonable doubt, in this case the facts of the accused's participation relied upon by the Crown as giving rise to the inference of the joint criminal enterprise are so fundamental to the process of reasoning in the determination of whether or not the accused is guilty, that those facts must be proved beyond reasonable doubt. The Crown's closing submission identifies those facts as indispensable in the chain of reasoning toward an inference of guilt. The Crown case is that the accused's participation in the assault upon Mr Edwards by punching or kicking him whilst aware the principal offender was using the knife and afterward: transcript p 69, lines 35 to 44. 12. It was not until some years following the event that police identified the principal offender by match of DNA found on Mr Edwards following the event with DNA of the principal offender forensically obtained in relation to another event. The principal offender, prior to the commencement of the trial, had been convicted for intentionally inflicting grievous bodily harm on Mr Edwards, namely stabbing him with a knife. 13. The accused did not give evidence. Facts 1. At 5pm on 18 January 2012, Mr Jaryd McCormack, who was 22 years of age, his brother Mark McCormack, who was 15 years of age and Mr Christopher Edwards (the victim) who was 22 years of age, met and travelled to the Sydney Cricket Ground to watch Sydney Sixers play Perth Scorchers, a cricket match. 2. The evidence is inconsistent as to whether Mr Edwards consumed Southern Comfort mixed with soft drink during the travel to the match. The alcoholic strength and quantity of that consumption is not determinable with any precision from the evidence. 3. They arrived at about 6.30pm. During the match, Mr Edwards drank beer. The evidence is inconsistent as to the number of beers and the alcoholic strength of the beers. Doing the best that I can with the evidence, I find that Mr Edwards drank between five and seven cups of beer, varying from "light" to "full strength" prior to their departure at approximately 10.20pm. Overall, I accept that Mr Edwards consumed alcohol during a period of approximately five hours and that whilst he was to some degree intoxicated by that consumption, he was not in common parlance "drunk" or significantly inebriated such as to have been significantly incapacitated at the time of the subject course of events of road rage and assault. 4. At the time of the events the accused was working at a café within Sydney Airport. He worked with the principal offender. When they finished work, the accused and the principal offender were picked up to be driven home by the principal offender's cousin, Mohammed, who was driving his green Subaru Forester motor vehicle. 5. At about 10.20pm, Mr Mark McCormack, Mr Jaryd McCormack and Mr Edwards proceeded quickly to the blue Mitsubishi driven by Mr Jaryd McCormack. Mr Jaryd McCormack realised by Mr Edwards' laughing and joking that Mr Edwards was to some extent "intoxicated": exhibit S, statement of Jaryd McCormack. 6. Whilst driving in the right-hand lane on General Holmes Drive, Brighton‑Le‑Sands, the blue Mitsubishi driven by Mr Jaryd McCormack was overtaken in the left hand lane by the green Subaru Forester, which because of a parked car, entered the right hand lane, causing Mr Jaryd McCormack to swerve and slow-down in order to avoid a collision. He beeped his car horn for about three seconds. 7. When he did this, he noticed that the brake lights of the green Subaru came on and off and the passenger behind the driver of that vehicle stuck his arm out the window and put his middle finger up in a position directed toward the blue Mitsubishi. 8. Subsequently, whilst travelling in a westerly direction on the D5, Mr Jaryd McCormack drove in the left hand lane behind the Subaru in order to beat the traffic banked in the right lane. The passenger behind the driver in the green Subaru stuck his head out the window and stuck his finger up in the direction of the blue Mitsubishi. Mr Jaryd McCormack described that person as of Middle Eastern appearance, olive skin in his mid-twenties, short black hair and no facial hair. Mr Jaryd McCormack stuck his finger up directed at the person. He saw Mr Edwards do the same thing. 9. After about a further ten minutes, when the vehicles were on Stoney Creek Road after travelling on the D5, Mr Jaryd McCormack drove the blue Mitsubishi in the left lane, past the green Subaru which was in the right lane. At a later time, the green Subaru passed in the left lane and swerved in front of the blue Mitsubishi. 10. The green Subaru slowed down to what Mr Jaryd McCormack estimated as about 10 kilometres per hour and he drove the blue Mitsubishi at about the same speed behind it. The green Subaru then came to a complete stop in the right hand lane, parallel to a parked van. There was an oncoming car and Mr Jaryd McCormack states that he could not pass the green Subaru because that manoeuvre would have caused him to travel into the opposing traffic. 11. The front passenger of the green Subaru exited the vehicle. The passenger sitting behind the driver of the green Subaru exited that vehicle. Both of those men moved to the area in the vicinity of the front passenger side of the blue Mitsubishi. Mr Edwards, who was seated in the front passenger seat, exited the blue Mitsubishi. 12. Mr Jaryd McCormack was unable to describe the men who arrived at the passenger side of the blue Mitsubishi: statement exhibit S para [14]. 13. From this point, Mr Jaryd McCormack was engaged with trying to exit the driver's door where the driver of the green Subaru was opposing him. Mr Jaryd McCormack was unable to get to the passenger side of his vehicle in order to assist Mr Edwards. He was able to push his door open but after punching away the driver of the Subaru, when he arrived at the passenger side of the blue Mitsubishi, he saw Mr Edwards in the foetal position, laying on the road and the two men who had exited the passenger seats of the green Subaru standing about two metres away from Mr Edwards. They were not speaking. The two men stepped backwards toward the green Subaru whilst staring at Mr Jaryd McCormack. 14. During the assault, Mr Edwards heard Mr Mark McCormack say "Chris has been stabbed". 15. The accused concedes being in the green Subaru and involvement in the road rage. 16. All descriptions of the event identified the driver of the green Subaru to be not the accused. Only three men left the green Subaru. It necessarily follows that the accused and the principal offender were the two men in the vicinity of attack on Mr Edwards near the passenger side of the blue Mitsubishi. The accused concedes this. 17. Four years after the event, on 25 October 2016, the accused voluntarily attended Kogarah Police Station, where he told Detective Sergeant Van Tol the following: [The principal offender] got out of the car and approached the passenger of the other car and started punching him. I got out of the car and went over. I saw that [the principal offender] had a knife in his hand and was stabbing the other guy. I pulled [the principal offender] off because I thought he would kill him. I don't know where the knife came from. 1. Detective Sergeant Van Tol asked: Q. Did you know the principal offender was armed with a knife? A. No. Q. What happened then? A. We ran back to our car and Mohammed drove away. 1. The accused also told Detective Sergeant Van Tol that after the event, the principal offender and his cousin Mohammed, whilst in the green Subaru, threatened him not to talk to anyone about what had happened. He said to Detective Sergeant Van Tol: "I've just seen what they could do so I took the threat seriously." The accused quit his job where he had worked with the principal offender. He told Detective Sergeant Van Tol that he was reluctant "Having just seen what they can do, they know where I live", exhibit A statement Detective Sergeant Van Tol 6 December 2016. 2. Police investigations included telecommunication interception of the mobile phone of the accused between 22 and 27 November 2016. The communications were between himself and his fiancé. There are no admissions to be found in the transcripts of those conversations. The conversations confirm that he saw the principal offender stabbing Mr Edwards and that his involvement with the principal offender and his cousin Mohammed was that he was getting a lift home from work because the principal offender worked with him and they offered him a lift. He was in the rear passenger seat of the green Subaru. 3. Statements by eye witnesses contained in exhibit A were read without objection. Oral evidence of Detective Sergeant Van Tol described what Mrs Rajaranaroon reported when interviewed by police at the scene, following the event. The relevant content of that evidence may be briefly described as follows: * Mr Paul Royston: in his triple-O call, Mr Royston reported the drivers of the two vehicles fighting and that the Subaru decamped the scene. In his statement made 25 January 2012, a week after the incident, Mr Royston described that: As he and his wife Frances were driven by Mr John Zammit past the scene, he only saw three people involved in the incident. One of those persons was standing near the driver's door of the blue Mitsubishi. His attention was focussed on one male being on the ground and another male punching him. He described the male who was punching as between 20 and 25 years old and of middle eastern appearance. He was a fit looking guy with dark short hair. I observe that the accused was not at the driver's side door. The accused was unlikely to be the male with dark short hair. The accused is bald on top of his head with hair only at the sides. Only Mr Edwards went to ground. Accordingly, Mr Royston's description is most consistent with the principal offender punching Mr Edwards. Participation of the accused was not seen. * Mrs Frances Royston also gave a statement to police one week after the incident, it is dated 24 January 2012. She observed that the driver of the green Subaru exited that vehicle and a male person with dark hair exited the front passenger seat of that car. They both walked toward the blue Mitsubishi. The male with the dark hair got to the blue Mitsubishi first. She described the driver of the green Subaru as male and bald. She said that he approached the driver's door of the blue Mitsubishi and that he held the driver's door of the blue Mitsubishi so that the driver - who is known to be Mr Jaryd McCormack - could not exit. She observed that the dark haired male who had exited from the front passenger seat of the green Subaru went to the front passenger door of the blue Mitsubishi and that he there had the passenger - who is known to be Mr Edwards - by the shirt and was dragging him out of the car. As for Mr Royston's evidence, Mrs Royston's description is of attack on Mr Edwards by the principal offender, not by the accused. Mrs Royston described only the principal offender moving from the green Subaru to Mr Edwards and only the principal offender's involvement in the initial assault on Mr Edwards. Participation of the accused was not seen. * Mr Sobhi Daher, also known as Sam, drove his car with his wife Leila past the scene and called triple-O. He reported physical fighting, estimated six or seven people involved and did not see any weapons. In his statement to police made about a week after the incident on 23 January 2012, he said that as he drove past he had a clear view of two males throwing punches at each other on the passenger side of the stopped vehicle. The description of two males punching does not meet with Mrs Royston's description of the initiation of the assault on Mr Edwards. She did not see punches thrown. She did not see both men standing. Her description of the dark haired male dragging Mr Edwards from the vehicle would logically be of events preceding the two men punching described by Mr Daher. Logically that exchange of punches followed Mr Edwards being out of the car and preceding his going to ground. In that time, participation of the accused was not seen. * Police at the scene were told by Ms Rajaranaroon, a bystander, that she saw two men fighting and one fell to the ground. Given that the dark haired principal offender commenced the attack on Mr Edwards, that description is consistent with her not having seen participation of the accused. * Mr John Zammit's statement to the police, also made about one week after the incident, is dated 25 January 2012. He was driving the Saab motor vehicle in which Mr and Mrs Royston were passengers. As he passed the two motor vehicles, he slowed to 5 to 10 kilometres per hour. It is important for consideration of the issues in this case that Mr Zammit at para [10] gave the following description of the two men he observed: I can describe one of the males in the fight as being a Middle Eastern in appearance. He was skinny and had dark tanned skin. He would have been in his 20s and had thick and healthy dark coloured hair.... The second guy looked to be balding on top he was about 35 to 50 years old and a medium build. He was also Middle Eastern in appearance. He was shorter than the first person and appeared to be clean shaven. Being the driver of his car, Mr Zammit described his opportunity for that observation as a "glance". At para [11] he said that as he passed the scene, he had another opportunity to view for a few seconds and again I quote his evidence because it gives a description of the event unfolding on the passenger side of the motor vehicles which is of importance to determination of what the accused was doing in terms of participation: the males were also on the passenger side of the cars. I looked at the males and saw the first male I have drawn the letter "A" identifying the first male on the drawing I gave Detective Glasson. The first male was standing in between the two cars on the passenger side. I saw what I thought to be his left arm moving up and down in a striking motion. He appeared to be striking someone on the ground. I could not see anything in his hands. I could not see anything on the ground because it was obscured by the cars. The second male who I have identified in the map as person "B". He did not do anything and was just standing there at this point in time. In his diagram he drew the position of the male "A" very close to the position of the victim, Mr Edwards, and the position of the male "B" as some distance away, about a half of the length of each of the cars which he drew. He included the description: "I see one man repeatedly laying into another while a second looks on". There is obvious consistency of description of the one male attacking Mr Edwards in the evidence of Mr and Mrs Royston and Mr Zammit. Each of them describes the male of dark hair doing the attacking. That description does not match the accused. Mrs Royston's description of the initiation of attack describes only that dark haired male being involved. Mr Royston observed only that male attacking at a later stage when Mr Edwards was on the ground and Mr Zammit, at the stage of Mr Edwards being on the ground, observed a third male who is balding on top description fits the accused, to be standing some metres away and not involved in the assault. * In her statement made five years after the incident on 4 January 2017, Mrs Leila Daher said that she saw four males get out of a car and run to another car and that she saw them drag two males out of the other car, one from the driver's side and the other from behind the driver. She reported that they started punching the two males they had dragged out of the car. Mrs Daher's evidence includes the inaccuracy of four males exiting the Subaru. There were only three. The passage of time requires bearing in mind that inaccuracy renders her evidence less reliable than that of the other witnesses. 1. Detective Sergeant Van Tol's evidence included that a full forensic examination of Mr Edwards' body found DNA of the principal offender only. There was no sample indicating physical contact of the accused with Mr Edwards. His evidence was: Q. Mr Khalid consented to a sample of his DNA being taken? A. Yes, that's correct. Q. And, as a consequence of that, there was attempts to see if his DNA profile was recovered from the samples taken from Chris Edwards? A. Yes. Q. And in relation to Chris Edwards, because the injuries were so serious, there was quite an extensive sampling of the skin of Mr Edwards? A. There were samples taken from various components of Mr Edwards, yes. Q. At that particular time when he was in ICU there was some prospect that the man might die? A. I believe so. Q. And you were approaching it as if this may well be a murder investigation? A. Potentially, yes. Q. As a consequence there was sampling taken of his hands? A. Yes. Q. Fingernails? A. Yes. Q. His clothing? A. Yes. Q. And all that biological material has been analysed to see if Mr Khalid's DNA was recovered? A. That's correct. Q. And nothing was turned up? A. That's correct. Q. And also in relation to the car? A. Yes. Q. Fingerprinting. When I say "the car", the blue Mitsubishi being tested for fingerprints? A. Yes. Q. You also took Mr Khalid's fingerprints? A. Yes. Q. And nothing has been recovered? A. That's correct. 1. The victim, Mr Edwards, having conceded that the gesticulating during the road rage had been mutual between the occupants of the vehicles in that he had participated, was asked during examination-in-chief why he got out of the motor vehicle. He did not say that he was dragged from the motor vehicle and in that regard, his evidence of recollection is not consistent with the statement of Mrs Royston, one week following the incident. Mr Edwards said: Q. Do you remember what happened then? A. They both got out of the car and were headed towards us and then I proceeded to open up my door and got out of the car also. Q. Were you preparing for a stoush? A. No, I wasn't, no. Q. Or what you were expecting to be a stoush? A. No, I didn't. Q. Is there any reason why you got of the vehicle that you can remember? A. No reason at all. Q. What do you remember happening after that? A. I just remember them, both of them having words to me. I didn't really respond. And next thing I know they both jump me, hit me from, on side of the head and hit me from behind. And then I was on the ground and they started attacking me while I was on the ground. …….. Q. Do you remember any words being said to you by anybody or by you to anybody? A. From memory I just remember them both saying from me "Oh, we're going to have problems". Q. I'm sorry, what was that? A. I just remember them saying to me, "Oh, we're going to have problems". Q. So you say you were punched, is that right? A. Yes. Q. And when did you become aware that something more serious had happened to you? A. After they had got me to the ground and was finished with me I tried to get up and then I just remember Mark yelling out that I had been stabbed and then I just collapsed to the ground and blacked out after that: transcript, pages 24 to 25. 1. Four years after the event, in December 2016, police asked Mr Edwards to look at a selection of photographs, but he was unable to identify the people who attacked him. Police first interviewed him about eight weeks after the event, that being about six weeks after he had returned home from discharge from hospital. 2. His injuries had rendered him unconscious at the scene and he was in and out of consciousness for about the first week of hospitalisation. He was in extreme pain and heavily medicated with morphine during treatment. During his two weeks in hospital, he was too heavily medicated to be able to communicate properly with people. He was to some degree intoxicated at the time of the event. 3. Mr Edwards frankly conceded in cross-examination that the medication affected his recollection of events at the time and that he did not have a clear memory of events, such as in the following evidence from the transcript: Q. Do you remember the stuff which he did in terms of driving the car? Do you have a memory of what he did? A. No. I just remember him just, yeah, driving as you normally would I guess and then obviously the gestures that were given out between both cars and that's all I recall. Q. So you don't have a clear memory of all the interactions between the cars from the moment they crossed your path to the moment A. Yeah, I just remember them just getting cut off and yeah, giving the gestures and what not. Q. Do you remember yourself giving any gestures? A. No, I don't, no. Q. You are not saying you didn't? A. I'm not saying I didn't, I'm not saying I did either. Q. No. You just can't remember? A. I just can't remember. Q. Because certain events took over in terms of the injuries and the medication? A. Yes. Q. And you are the first to accept that your memory of what took place that night is not the best? A. No. Obviously not once it all happened, everything was a bit of a blur but I do remember specific things. Q. And the evidence which you gave my friend was asking questions was about that. So in your mind you have yourself being attacked by two people? A. Yes, I was attacked by two people. Q. But you didn't differentiate between those two people? A. No, I cannot, no. Q. In terms of what they did? A. No. Q. And that's just because your memory is fluid in relation to what happened that night. You accept that, don't you? A. Yeah, I just remember, yes, getting attacked. That was it. 1. Of the assault upon him, Mr Edwards gave the following description during cross-examination: Q. You threw a few punch that night? A. Yeah, to defend myself, yes. Q. Again, to defend yourself. So after you were hit by a person you retaliated by throwing punches? A. Yes. Q. You don't know how punches you threw? A. No. Q. You don't even have a cessation about being stabbed? A. No. Q. You didn't see the knife? A. No, I didn't. Q. You didn't hear anyone talk about the knife? A. I just remember Mark yelling it out when I was on the ground. Q. But during the fight, if I can call it, I'm not saying you fought, you don't recall anyone making reference to a knife like stab him or any conversation like that? A. No I don't, no. Q. The first time you became aware that you were stabbed was after being told by A. Yeah, when Mark yelled it out and I tried getting back up and then I blacked out. Q. So you obviously accept that you weren't sort of perceiving things accurately at the time in terms of what was happening to you. You accept that, don't you? A. I remember those situations that happened quite clearly in my head. Q. You don't even have a recollection or a memory of being stabbed? A. That's the adrenaline kicking in when you are obviously getting attacked by two people, you got to defend yourself, so. Q. The adrenaline was affecting your ability to recall things. You accept that, don't you? A. Yes, yes. Q. Now, in your statement to the police you describe where the two people who attacked you came from in terms of the positions in the car? A. Yes. Q. You said that one person came from the front passenger side? A. Yes. Q. And you saw a door opening on the driver's side? A. Yes. Q. So your recollection as to where these people came from, one was from the passenger side? A. Yes. Q. And one from the driver's side? A. Yes. Q. You don't know how the attack upon you stopped? A. No, I don't. Q. You certainly didn't deliver a punch or, that stopped the attack upon you? A. No. Q. You just don't know why the stabbing stopped? A. No. Q. You don't know who pulled that person off? A. No. Q. You can't comment upon that? A. No I cannot, no. Q. You know Mark didn't? A. Didn't what? Q. Pull anyone off you? A. No. Q. You have obviously spoken about what they were doing while you were being stabbed? A. Yes. Q. As you would? A. Yes. Q. And Jaryd didn't do it? A. Yes. Q. He told you he was fighting someone else, did he tell you that? A. From what he told me he said he was being held in the car by a third person and he was trying to get out to come to my aid. : Transcript pages 30 to 31. 1. Mr Edwards agreed that after he had left hospital he discussed what had happened with Messrs Jaryd and Mark McCormack and that they both told him that he had been attacked by two people. He gave the following evidence at transcript p 32 line 1: Q. And they both told you what they could recall about the incident? A. Yes. Q. Mark told you that you were attacked by two people? A. Yes. Q. And you, after hearing that, that confirmed your belief? A. Yes. Q. And as did Jaryd? A. Yes. Q. Could you be mistaken about the role of the second person? A. No. Q. But you can't tell us anything about what that person did? A. I just know there were two people attacking me. I can't tell you exactly what they did and who it was. 1. In re-examination when asked from which door of the green Subaru the second person who Mr Edwards attacked him came, he answered: "I think the driver's side backseat" and added "Again, my memory of that is hard to remember." 2. Mr Edwards presented as a witness doing his best to give evidence truthfully. The precision and reliability of his recollection was diminished however for the reasons disclosed in his own evidence, including trauma, loss of consciousness, medications, intoxication and having spoken with Jaryd and Mark McCormack prior to giving his statement to police. 3. In particular, the recollection did not permit him to describe what the person whom he believed to be the second assailant did by way of assault or attack. His evidence does not amount to more than an honestly held belief that both of the male persons he saw, being the principal offender and the accused, physically assaulted him. 4. I accept the evidence of Mr Edwards of the attack to the extent that it is consistent with the evidence of the eye witnesses and other objective evidence, being the forensic evidence. I prefer the evidence of the bystanders to the extent that it is inconsistent with the evidence of Mr Edwards. Importantly, whereas bystanders commonly described only one person physically attacking Mr Edwards, I do not prefer Mr Edwards' belief based evidence of two physical attackers in the absence of his being able to describe the physical attack by the second person, being the accused. 5. Mr Mark McCormack witnessed the event as a 15 year old, seated in the rear passenger seat of the blue Mitsubishi. He said that he was challenged to get out but refused to do so. He was plainly exposed to a severely traumatic scene. The first that Mr Edwards knew of his being stabbed was his hearing Mr Mark McCormack that he had been. 6. A significant matter in the evaluation of Mark McCormack's evidence is that six hours after the event when assisting police by making his statement dated 19 December 2012, he did not describe any form of physical attack by the second male on the passenger side of the motor vehicles and indeed, was unable to give a physical description of that person at all. He first informed police of attack upon Mr Edwards by the second male, the accused, nearly four years after the event. His police statement giving that information is dated 28 July 2016. In cross-examination, he conceded that his focus was upon the principal offender and the stabbing. 7. In oral evidence in‑chief, he gave the following description of events: "Q. And can you tell us, in your own words, what happened next? A. So after there was a bit of after the road rage, they pulled up on the left hand side and they stopped in front of us. They braked in front of us, so we had to stop, otherwise we would have ran up the back of the car. Two guys jumped out on the left hand side, and then the bald headed guy jumped out on the driver's side and he went around Jaryd's side. Two guys went around to Chris' side. Chris jumped out of the car and there proceeded to be a fight, and the two guys were hitting Chris, and then, from what I remember, then a knife was pulled. I don't remember the knife actually coming out, but I just, from what I remember, I think I turned back to Jaryd, and then I looked back, and there was a, like the guy with the stubble was stabbing Chris whilst the other guy was still hitting him, and then Chris fell on the ground. And then the two guys proceeded to kick Chris whilst he was on the ground. And then I remember the guy saying to me, "Come on", like trying to get me to come out of the car. I said: "I'm only 15. I'm only 15". And then I remember him picking up the knife off the ground, and then both running back to the car. And then, yeah. 1. Mark McCormack was asked by police in November 2016 if he could identify any of the occupants of the green Subaru from photographs shown to him by police. He was unable to do so. 2. During cross-examination Mr Mark McCormack conceded that when he made his statement to police on 19 January 2012, he was able to describe the man with the knife, the principal offender, by description of height, ethnicity, his hair in terms of colour and length, his age, the stubble on his face and his clothing: transcript p 46 lines 9 to 40. He volunteered: My attention was solely on the stabber the course after I'd seen that Chris had been stabbed, obviously you're going to-yeah I was-my focus was on the guy with the-stabber with the hair, the long pants.: transcript, page 46 lines 42 to 49. 1. His 19 January 2012 statement also described in detail the driver of the green Subaru as bald, mid-thirties, Lebanese in appearance, 5 foot 7, like his mother, wearing a striped T-shirt which was low cut with buttons at the front and colours like a rainbow: transcript p 48, lines 1 to 25. 2. When it was put to Mark McCormack in cross-examination that his police statement made on 19 January 2012 included that he was unable to describe the third male, the accused, he gave the following answers by AVL at the trial, five and-a-half years after the event: Q. But in relation to any other person who may have got out of the car, you can't describe that person at all? A. I could describe him as being of Lebanese ethnicity. Q. Why are you doing that? Is that the first time you've ever told anybody about that? Look at your statement. A. I can't read it in my statement anywhere but I do remember him being of Lebanese ethnicity and being young. Q. Is there any particular reason why you have withheld that information from the police for six years? A. I didn't withhold the information. I just must not have been, must not have come up. But I do remember all three. I'm pretty sure it's possible that I gave somewhere that I collectively called them all three of Lebanese ethnicity. Q. Look at your statement on 19 January. You are aware that Chris was in a very serious condition at that stage? A. Yes, yes. Q. You were aware that the people in the vehicle had driven off? A. Yes. Q. The police were interested to try and get a description of those people? A. Yes. Q. And that interest in terms of trying to get a description has continued throughout the years, correct? A. (Witness nods.) Q. You were asked repeatedly on 19 January to try and describe any other person who got out of that Subaru? A. Yes. Q. Correct? A. Yes, yes. Q. And repeatedly in that statement you told the police that you could not describe that person at all, correct? A. Not at all. I would say that I wouldn't be able to I definitely a hundred per cent can't describe them to the extent of which I could describe the other two guys. But as an overall I could definitely a hundred per cent say that he ways of Lebanese descent. Q. And you definitely A. Or Middle Eastern, Middle Eastern descent. Q. Why have you moved from Lebanese to Middle Eastern? A. Because they are very similar. He could be from Saudi Arabia for all I know. They have a very similar look. Q. And definitely you're a hundred per cent confident that you never gave that description to the police on 19 January about that person's ethnic background? A. I can't remember not giving it. I can't remember giving it. Q. You have got your statement in front of you? A. Oh, yeah, I haven't it's nowhere to be seen here. Q. And you can't think of one explanation as to why you would not A. I can't think of one. Q. Just let me finish. I know there is a delay. You can't think of one explanation as to why you would have withheld that information from the police? A. No, I can't. Q. The only explanation is that you had no memory of what that other person looked like, correct? At that time. That is the only explanation? A. I can say a hundred per cent that I can remember that he was of Middle Eastern descent but I can't say to the same extent, I can't describe their appearance to the same extent as to which I can with the driver and the stabber. Q. Well you couldn't describe the other person to any extent, correct? A. I didn't describe him in the statement, no, to any extent. Q. And you certainly weren't withholding information from the police at that time? A. No, of course not. Of course not. Q. You were doing your best? A. Yeah. Q. Is it possible that because you know or you believe that the two others looked Middle Eastern that the other person must have been Middle Eastern; is that possibly how your mind is working, making assumptions? A. No, because I remember when I went in for my photographs, when I had to do I remember when I went in to do my photographs, to try and see if anyone, I could choose any one of to see if I recognise any one of them, I remember saying that yes, possibly the driver looked like, that the stabber looked like that, and also there could be a possibility that he was Middle Eastern as well, the third guy. : Transcript day 2, page 49, line 1 to page 50, line 50. 1. Referring to the occasion of his viewing photographs at the police station on 17 November, for the purpose of identifying the occupants of the green Subaru, Mr Mark McCormack's evidence in cross-examination, adjectively described his capacity in terms of: "I think I recollect" and "My vague recollection of what he looked like"; transcript p 51 lines 23 to 44. On balance, his evidence as it appears on the transcript and as was apparent from the manner in which he gave it before the Court, carried significant uncertainty. It was not more than him expressing an impression of the third person - the accused - which he truthfully retained in his formed recollection more than five years after the event, but which on analysis of his evidence, is displayed as not an actual and reliable recollection. 2. Mr Mark McCormack was a truthful witness, doing the best that he could to support denunciation of the horrific assault which he witnessed as a 15 year old, but a witness who was unable to appreciate that he bore no actual recollection of the accused. Just as he was unable to describe the actions of the accused when making his police statement on 19 December 2012. I am not persuaded by the accused's submission as to credit. That Mark McCormack said police advised him of the availability of AVL and Detective Sergeant Van Tol said that he did not offer evidence by AVL whilst an inconsistency, was not exposed in evidence of communications in such detail as to satisfy me that Mr Mark McCormack's evidence was untruthful. 3. When at the making of his second police statement on 28 July 2016 Mr Mark McCormack was shown his statement of 19 January 2012 and police asked whether he could tell them anything about the third male - the accused - he responded "I can't really remember the other guy in the vehicle"; transcript p 53 line 35. In cross-examination his evidence was: Q. And you have given evidence today in relation to the other guy kicking Chris Edwards on the ground? A. Yes. Q. And in relation to your statement on 19 January no reference to that at all. You accept that, don't you? A. In the first statement? Q. Yes. A. Yes. Q. And you gave a detailed description of what the stabber did after the stabbing and where people went and what they did? A. Yes. 1. The following further passage of transcript of cross-examination shows that Mr Mark McCormack did not possess any better quality of actual recollection of action taken by the third male - being the accused - than he possessed of his appearance. CARROLL Q. And in relation to the other guy you made no reference to him punching or kicking him after you were aware that Chris was stabbed. You accept that, don't you? A. In the first statement? Q. Yes? A. Yes. Q. And again you were trying to be accurate to police on 19 January? A. Yes, yes. Q. The police were asking you in particular what did the stabber do and you did your best efforts to describe what he did, the driver, correct? A. Yes. Q. And then you go on to the other guy. They asked you what did the other guy do? A. Yes. Q. And when you were asked that question you never told the police that the other guy was kicking Chris. You accept that, don't you? A. Yes. Q. And that is because you had no memory of that at the time? A. At the time. Q. Then you have spoken to your brother and Chris about events after that? A. Yes. Q. Is it possible that what they have told you has affected your memory? A. No. I don't I, I still remember now six years later that it definitely occurred but I can't imagine why I wouldn't say it on the day after in the statement but it was, it was a definite. Q. So six years later you have a clear memory of the other guy kicking but six hours later you have no memory? A. Yes. Possibly, I don't know, possibly due to shock or I don't know. But I, I, I don't know why I wouldn't say that during the first statement, why I wouldn't give evidence towards it, but, yeah. HIS HONOUR: Mr Carroll, in your question did you say six hours or six years? CARROLL Q. I'm sorry, I asked a poor question, Mark. Your statement on 19 January was about six hours after the event? A. It was I don't know how many hours passed. Q. It was hours after the incident? A. Yeah. Oh yeah, yeah. It was definitely like the next day or yeah. Q. And your answer is there is no reason why you would not include an act as brutal as kicking if you had a memory of it? A. Yes. I would assume that my focus probably, it was the first, it was the first time I'd ever seen someone get stabbed before so I'd probably say all my attention at the time would have been on just what the stabber did. Q. Yes. And that affects everything about how you perceive the situation on that evening. That your focus was directed upon the man with the stubble who was the first person who attacked Chris, correct? A. They attacked him together. Q. You understand my question. You have tried to explain your answer about missing the kick by saying that your attention was focussed on the stabber, correct? A. Yeah, yeah. My, yeah, the majority of my attention was on the stabber. I, I'd never seen anything like that before so that is why I was able to give a full description of his appearance and everything because my majority of attention was on him. Q. And the stabber was the first person to punch Chris, correct? A. I can't remember if yeah, he was the one who was closest to Chris after coming out. He was the one. Q. You could remember on 19 January who was the first person to punch Chris, correct? It is in your statement? A. Which one? Q. Paragraph 12. I'll read it out to you: "I saw one of the guys throw punches at Chris, the one with stubble." That's what you wrote? A. Yes. Q. So you could remember back on 19 January who it was, the one with stubble? A. Yeah. Q. And A. I, I, I can't remember that now but obviously back then I could. It would be fair to say that because he was the first one to come to the car and the other guy was behind him as they walked over. Q. But that's a process of deductive reasoning or making assumptions, what you have just spoken about? OBJECTION. QUESTION WITHDRAWN Q. You didn't describe events like that in your statement of 19 January. You were specific about the person who threw the first punch, correct? A. Yes. Q. But you want to walk away from that now as you give your evidence? A. Of who threw the first punch? Q. Yes. You want to say something different now A. No Q. Because you want the person HIS HONOUR: Can the witness finish his answer. He did not finish his answer. Q. Could you complete that answer? A. No, I don't want to retract. I want to say that I don't remember who threw the first punch and, yeah. CARROLL Q. So you don't want to accept what you wrote on 19 January about who was the person who threw the first punch? A. I can't remember who threw the first punch, no. But I, the, the other guy was behind as they walked over, the main guy with the stubble was the one that worked over first. Q. You even have a doubt about who threw the first punch now. You can't even remember that clearly? A. Yes. Q. Your memory is very poor about what people did that night, correct? OBJECTION A. If my memory HIS HONOUR: Sorry, stop. Once there is an objection, you might not have heard. CROWN PROSECUTOR: He is being asked to remember things. Is it today in the witness box that happened six years ago or is it about his memory at a time that he made a particular statement. HIS HONOUR: Could you clarify the time to which you refer please, Mr Carroll. CARROLL: I will break it down. Q. Your memory of 19 January you accept is far better than it is today? A. I accept that I can remember an overall of what happened but I can't remember fine details as to who threw first punch or who threw second. But I can remember as an overall what happened. Q. You can't describe any action with any precision about what the other person did from that Subaru, correct? A. Not any, not in the chronological order or anything like that. But I do remember what overall happened and there was kicks and there was punches. Q. You have an impression of the other person being hostile towards Chris, correct? A. No, not an impression. A definite of I saw him hitting Chris with the other guy, the main guy and then him get stabbed, then him fall on the ground and then both of them kicking him at the same time. Q. When did that recollection about Chris fall on the ground and both kicking come back to you? When did it come back? A. I wouldn't be able to say. Q. The year after your statement of 19 January? Two years? Three years? A. I wouldn't be able to say. :transcript day 2, pages 55, line 36 to page 59, line 20 1. In re-examination, Mr McCormack refreshed his memory from reading paras 12, 13 and 14 of his police statement made 28 July 2016. With reference to para 13 he said that whilst he could not describe "the third guy" - the accused - he did remember that the third guy punched Mr Edwards three or four times whilst Mr Edwards had his hands up in a boxing position in front of his face and his head bowed. This was before the stabbing and in the early part of the assault: transcript p 62 lines 20 to 50. With his 28 July 2016 statement in front of him, he was read para 14 and gave the following evidence in which the "third man" would be the accused: Q. And do you agree that in paragraph 14 of your statement you said, this is of 28 July 2016, "Once Chris fell to the ground the guy with the dark stubble", who I might refer to as the stabber, is that right? A. Yes. Q. "And the third man both started kicking Chris on the ground. Chris was still conscious and he was trying to protect his head by putting his hands over his head. They were both kicking and stomping on Chris to his head and body. They were doing this for about five or 10 seconds". Do you still adhere to that description of what occurred? A. Yes. Q. And is it fair to say that with the effluxion of time between 2012 and July 2016 you had time to think about more detail for the purposes of making your statement of what happened that night? A. Yes, I would say so. Yes. 1. The detail of that description of assault of Mr Edwards whilst on the ground by the accused contained in para 14 of his statement dated 28 July 2016 included the action of stomping, which was not described in Mr McCormack's recount of the attack given in evidence-in-chief quoted above. One might think that attack by stomping to Mr Edwards' head and body would be particularly significant to a witness observing the attack. In my opinion, the omission of stomping from his oral description of the events in‑chief is not insignificant. 2. Paragraph 14 of the 28 July 2016 statement describes the attack on the ground by both the principal offender and the accused as lasting about five or ten seconds. That independent witnesses' accounts as they drove by at very low speed did not include attack by a second assailant whilst Mr Edwards was on the ground and did not describe kicking or stomping, is inconsistent with Mr Mark McCormack's evidence. Their opportunity to view must surely have lasted at least some seconds. 3. The medical certificate of Dr Jennings does not describe treatment for all injuries, other than as resulted from stabbing. There is no description in Dr Jennings' certificate of injuries resulting from assault by kicking or stomping. 4. I do not accept that Mr Mark McCormack could be of better recollection of the accused and actions taken by the accused during the trial, than he was six hours after the event when speaking to police and three and-a-half years after the event when speaking to the police. In cross-examination he agreed that he was being truthful when he told police in July 2016 that he could not recall what the third male looked like: transcript p 54, line 35. 5. I do not accept that his recall of the event contained in his police statement made three and-a-half years after the event and after a discussion with his brother Jaryd and with Mr Edwards in the interim, should be preferred to his recall of events given to police in his statement made 19 January 2012. That in his 19 January 2012 statement he recorded that he could not describe the third guy and his actions in my opinion, makes his evidence unreliable. 6. On the whole of the evidence, I am not satisfied beyond reasonable doubt that the accused was immediately present with the principal offender at the time of the punching of Mr Edwards before he went to ground, during the stabbing and attack of Mr Edwards by the principal offender whilst Mr Edwards was on the ground, or immediately during the aftermath of the stabbing. 7. I am not satisfied that the accused punched or kicked Mr Edwards at that time. I am not satisfied that the accused participated in the principal offender's infliction of grievous bodily harm upon Mr Edwards. 8. The Crown relies solely on that participation for the inference of agreement between the accused and the principal offender in the criminal enterprise. For a finding of guilt, the Crown must establish beyond reasonable doubt both the existence of the joint criminal enterprise and the participation in it by the accused. 9. The joint criminal enterprise exists only where the Crown proves beyond reasonable doubt that the principal offender and the accused were of an understanding or arrangement, amounting to an agreement that they would commit the crime. It need not have been reached at any time before the infliction of grievous bodily harm by the principal offender. 10. The circumstances of participation between two or more persons in the commission of a particular crime may themselves establish an unspoken understanding or arrangement, amounting to such an agreement by inference. A person may participate in a joint criminal enterprise simply by being present at the time when the crime is committed and with knowledge that the crime is to be or is being committed, by intentionally assisting or encouraging the principal offender to commit a crime. A readiness to give aid to the principal offender would be sufficient: R v Tangye [1997] 92 A Crim R 545 approved in Dickson v R [2017] NSWCCA 78. 11. The eye witness account of Mr Zammit that the accused was standing some considerable distance from the principal offender and of the other eye witnesses that only one male person attacked Mr Edwards at the relevant time, is to be preferred, because of the unreliability of recollection of the evidence of Mr Mark McCormack and Mr Edwards. 12. The bystander evidence is not inconsistent with what the accused told Detective Sergeant Van Tol when denying relevant participation. The Crown has failed to prove beyond reasonable doubt the participation of the accused in the joint criminal enterprise. On Count 1, the accused is not guilty. 13. The Crown has failed to prove beyond reasonable doubt that the accused did use unlawful violence towards Mr Edwards by conduct that would cause a person of reasonable firmness present at the scene, to fear for their personal safety. On Count 2, the accused is not guilty. ORDERS 1. I find the accused not guilty on Count 1. 2. I find the accused not guilty on Count 2. ********** Amendments 17 September 2018 - [7] - typographical error 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. Decision last updated: 17 September 2018