R v Ross (No. 2) [2020] NSWDC 195

District Court New South Wales

Medium Neutral Citation: R v Ross (No. 2) [2020] NSWDC 195 Hearing dates: 27 April 2020 Date of orders: 27 April 2020 Decision date: 27 April 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 17 Catchwords: CRIMINAL PROCEDURE – Crown application to amend indictment to add further alternative charge – proposed alternative charge arises on same facts as existing charge – whether prejudicial to add proposed alternative charge Legislation Cited: Crimes Act 1900 (NSW), ss 35(3), 52A(3), 59(2) Criminal Procedure Act 1986 (NSW), s 20(1)(a) Cases Cited: R v Lykouras [2005] NSWCCA 8 Category: Procedural and other rulings Parties: Director of Public Prosecutions Mr DM Ross Representation: Counsel: Mr K Gilson for the Director of Public Prosecutions Mr J O'Sullivan for the accused

Solicitors: Solicitor for the Director of Public Prosecutions Conditsis Lawyers for the accused File Number(s): 2018/148887 Publication restriction: Nil

Judgment 1. In this matter, the accused has elected to be tried by judge alone. The trial has been scheduled to commence today. Prior to the arraignment, the Crown made application for leave to amend the indictment pursuant to s 20(1)(a) of the Criminal Procedure Act 1986 (NSW). 2. The indictment, in its current form is as follows: Count 1: On 19 April 2018, in Wyong in the State of New South Wales, the accused wounded David MONRO with intent to cause grievous bodily harm to him. Count 2: In the alternative, on 19 April 2018, in Wyong in the State of New South Wales, the accused in company of Kirk MICALLEF and Shannon Hodder, recklessly wounded David MONRO. 1. The Crown seeks the Court's leave to amend so as to permit it to rely upon a further alternative charge as formulated by Mr Crown: that on 19 April 2018, in Wyong in the State of New South Wales, the accused, in the company of Kirk MICALLEF and Shannon HODDER, assaulted David MONRO thereby occasioning actual bodily harm, contrary to s 59(2) of the Crimes Act 1900 (NSW). 2. The matter has had a somewhat chequered history. The accused had originally been arraigned with two others and the matter came before Beckett DCJ last December. On 5 December 2019, her Honour dealt with an application in relation to the admissibility of telephone intercept material. At paragraphs 3-5 (incl.), her Honour distilled the Crown Case in terms which I presently adopt for the purposes of the current application. It is that: "[3] The Crown case is that Kirk Micallef, the accused and two others, including a male Shannon Hodder set upon the victim when the victim attended the home of a female named Robyn Pollock on 19 April 2018. Initially the victim on his attendance outside of Ms Pollock's house was assaulted by one of two males outside his house before being attacked by the four others, who included the accused. During the course of punching and kicking the victim, the victim described feeling something 'different' in his lower right side which he later described as a 'stab'. The evidence is expected to establish that the victim sustained as a result of the assault upon him a bruised eye, laceration to the eyebrow, a dislocated shoulder and a two centimetre wound to his right flank extending at least through the epidermal and dermal layers of skin. [4] The offender said that he recognised two people involved in the attack upon him, one of whom was that accused who he had known for six weeks and attended his home, and the other person being a person Shannon Hodder who he had been in custody with. He said that stab wound was in an area that he believed he had been struck by Shannon Hodder. [5] The case against the accused is both direct and circumstantial. The Crown relies on the recognition of the accused by Mr Munro in addition to telephone and other circumstantial material that they contend places the accused in communication with the other participants prior to the attack and suggests he was with them at the time of the incident. Additionally there are telephone intercepts between the participants, some of which include the accused, after the incident during which the participant is referred to in a context of doing acts to avoid detection, namely the disposal of a car used in the course of incident." 1. The Crown acknowledged the lateness of this application. Mr Crown explained that the application has been brought in circumstances where he came into the case relatively recently, and independently formed a view as to the sufficiency of Count 2, which is the first alternative to the primary charge. That is, he submitted that although the factual matrix for the existing counts in the indictment, and the proposed additional count, is relevantly the same, on the basis of some unsettled case law authorities, there may be some doubt whether the existing first alternative might be made out to the requisite standard. Mr Crown said that he formed the view, perhaps more pessimistically than his predecessor, that it was debatable whether the existing alternative count may be made out if the evidence indicated that the accused was unaware that a sharp implement was intended to be used or capable of causing the wound. 2. Mr Crown submitted that if the primary count failed, and the Crown did not make out Count 2, then so long as the accused was identified as participating in the company of others in the argued activity, it would likely make out the proposed additional charge. He said that the basal facts relied upon to sustain the proposed new charge were still the same, namely that: (a) the accused drove to the place where the assault occurred; (b) that he, with 4 or 5 others participated in the assault; (c) the victim, Mr Monro, said he identified and recognised the accused, but could not specifically attribute any specific acts by him; and (d) as the victim was stabbed, he heard one of the other persons in the group refer to him as a "dog". The Crown case is that it is most likely that it was this other person who wielded the knife. Given that the facts were the same for the existing counts and the proposed count, permitting the amendment would acknowledge the accused's alleged criminality in the contingency that the existing first alternative (Count 2) failed. 3. In support of his application, Mr Crown referred me to the Court of Criminal Appeal's decision in R v Lykouras [2005] NSWCCA 8. In that case, the Crown was permitted to add a further and alternative count to an indictment, upon a basis that there be separate trials on the two counts. That case concerned a primary charge of dangerous driving causing grievous bodily harm where the driver driving the vehicle was under the influence of a drug contrary to s 52A(3)(a) of the Crimes Act. The Crown sought to amend the indictment by adding an alternative count that the dangerous driving causing the grievous bodily harm in circumstances where the driver driving the vehicle was driving in a manner dangerous to another person/s. The Crown's amendment application was brought to pre-empt the accused's challenge to the admissibility of evidence of his blood analysis which, if successful, might have resulted in the failure of the first charge. 4. In the Court of Criminal Appeal, in which Howie J delivered the leading judgment (Sully J and Hidden J agreeing), there was debate whether, having regard to the terms of s 52A(3), there was a single offence, with three different ways of proving the offence, or three separate offences. But it was unnecessary for that debate to be resolved. 5. The Court of Criminal Appeal determined (at [21]) that it was not oppressive or unfair for the Crown to propose a new charge under the apprehension that a primary charge might fail because evidence sustaining that charge would be rejected. It could not be unfair for the Crown to prove the charge in more than one way, or to rely upon alternative charges arising from one set of facts. At [25] Howie J said that he knew of no occasion where a Court had refused to allow the Crown to rely upon an alternative count (or alternative way of proving) the offence charged simply because to do so might deprive the accused the chance of a complete acquittal. His Honour (at [26]) characterised that all the Crown was seeking to do was to rely upon a further an alternative allegation of a criminal charge arising from the same facts and circumstances as that which gave rise to the primary charge. 6. At [27] Howie J said that it would be a very rare case for a Court to refuse to allow the Crown to amend an indictment in order to add an alternative count unless the Court is satisfied that to permit the amendment would result in prejudice to the fair trial of the accused on the amended indictment. 7. Counsel for the accused said that the accused relies upon alibi evidence in this case. It was not elaborated how this circumstance would be affected by the proposed amendment. Counsel accepted that a paramount consideration in considering this application is prejudice to the accused. The prejudice was said to arise from uncertainty as to what the Crown case is. It was uncertain whether the Crown case was that the accused was party to a joint criminal enterprise to stab the victim with a knife, or whether it was that the accused was party to an assault upon the victim. Counsel said that the Crown had, by the existing first and second counts, committed to a case that the accused knew that there was a knife and that it was intended to be used. If, as Mr Crown now intimated, the Crown has doubts whether either count could be made out, then it should consider whether to proceed at all. 8. In my opinion, there is something of a difference to Lykouras, in the sense that it is less obviously the case that the offence recognised in the existing charge and the proposed additional charge is one and the same. There is, in my view, a clear difference between the offence under s 35(3) and an offence under s 59(2) of the Crimes Act and the statutory provisions considered in Lykouras. Both offences in the existing alternative and the proposed alternative charges in this case have different elements. They also carry different maximum punishments. As to the latter aspect, Mr Crown rightly characterises the proposed new count as being a lesser charge. 9. I am not convinced that there is any real confusion in the way that the Crown has telegraphed that it wishes to bring this case if it was permitted to add the new charge. As the reasons in Beckett DCJ's ruling on the admissibility of evidence last December indicates, the accused is well aware that the Crown's case on the primary charge is predicated upon proof that the accused was aware that one of the group was in possession of an implement with the intent to wound the victim. Mr Crown candidly acknowledges that there may be some uncertainty in law whether, to sustain the existing alternative charge, it is necessary for the Crown to establish that the accused knew that a knife (or other sharp implement) was necessary to be used in order to wound the victim. Counsel for the accused did not suggest that he did not share this view. It is plain that if the state of the law requires the accused to have known that a knife or sharp implement was to be used as the means of perpetrating the harm upon the victim and if the Crown cannot surmount that proof, the Crown will wish to say that perpetrating actual bodily harm to the victim was within the reasonable contemplation of the joint criminal enterprise, whether the accused was aware that a knife was to be used or not. 10. I accept the submission for the Crown that the physical facts and circumstances relied upon to prove the existing alternative charge and the proposed new alternative charge are, subject to a qualification, relevantly the same. The substantive difference is the accused's state of mind as to whether he knew that a knife was intended to be used to cause harm. It is a situation where, as the Court of Criminal Appeal said in Lykouras (at [21]) the Crown is seeking to rely upon alternative charges arising from the one set of (physical) facts. 11. Accepting that there is no real confusion, no separate prejudice was pointed to by Counsel for the accused; other than the lost opportunity for acquittal which, as the Court of Criminal Appeal said in Lykouras, is not enough. 12. That means that the accused is left to fall back upon a generalised complaint of unfairness and appeal to the lateness of this application. But the Court of Criminal Appeal said in Lykouras that such broader complaint of unfairness is not to be equated as if the prosecution was to be conducted like a sporting contest; and although it might be somewhat regrettable that the application is made late, even that should not be exaggerated. A complaint of lateness may have more salience when the accused has acted in some way to his detriment, as in making forensic decisions which are irrevocable. Given that this application has been brought before the commencement of the trial, that complaint may be put aside. 13. It follows that leave is granted to the Crown to amend the indictment in the manner that is sought. 14. I note, finally, that neither the accused nor the Crown suggested that as a consequence of this grant of leave, there is any occasion for separate trials on any of the counts in the indictment, as had been determined at first instance in Lykouras; but rejected in the circumstances of that case by the Court of Criminal Appeal.