Regina v Duncan and Perre

WOOD CJ at CL : The Appellants were indicted before his Honour Judge Dodd and a jury, on 24 February 2003, upon counts of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm (s 33 Crimes Act 1900 (NSW)), and affray (s 93C Crimes Act ). The Appellant Duncan was also indicted upon two further counts, each of maliciously damaging property (s 195(a) Crimes Act ).

On 24 March 2003 the jury returned verdicts of guilty in relation to each Appellant, on the s 33 and s 93C counts. Duncan was acquitted of the two s 195(a) counts.

Each Appellant brings an appeal against the convictions and seeks leave to appeal against the sentence, which was imposed on 18 August 2003, for the s 33 offence, of imprisonment for 16 years with a non-parole period of 12 years. Concurrent fixed terms were imposed of 2 years imprisonment for the s 93C offences. The maximum sentences for these offences were imprisonment for 25 years and 5 years respectively. A. THE EVIDENCE

The evidence is somewhat complex, having regard to the manner in which the events unfolded on the night of the offences, and also having regard to the large number of young people who were called as witnesses, not all of whom gave the same account.

To some extent these witnesses fell into separate groups. As will appear from the analysis of the evidence which follows, there were: (a) Eight people who might loosely be described as the victim and his associates, namely the victim Christopher Wilson, Daniel Wilson, Mathew Michael, Paul Beiruti, Tughlet Homeh, Snezana Tankoska, Jovana Ljubojevic, and Christina Kusonogovski (from time to time referred to as “the Sydney group”); (b) Four people who were independently present at the park, Diana Petroska, Lena Ivanovska, Ahmed Kak and Joseph Mishawi; and (c) The remainder, excluding police and the witnesses who were not at the park, were friends and associates of the Appellants (from time to time referred to as “the Wollongong group”). The Two Groups of Young People Gather in Stuart Park

On the night of Friday 2 November 2001, the victim Christopher Wilson travelled from Sydney to Wollongong with his brother Daniel Wilson, Paul Beiruti, Mathew Michael, and Tughlet Homeh. It was their intention to meet three local girls Snezana Tankoska, Jovana Ljubojevic and Christina Kusonogovski.

After meeting in the area near the lighthouse, they decided to drive to Stuart Park, in two motor vehicles, a blue Toyota Camry owned by Jovana Ljubojevic’s father and a black Toyota Celica owned by Mathew Michael. They parked near the Old Lagoon Restaurant intending to take shelter from the rain in a hut. Daniel Wilson, Tughlet Homeh and Paul Beiruti went to the hut. Jovana Ljubojevic sat in the Celica with the other two girls.

At the same time there was a birthday party taking place at the house of Elbert Jose, in Beach Street, which was a walk away from the Park. Both of the Appellants were described by a number of witnesses, including the host, Elbert Jose, as having been present at this party.

At about 11:30 PM, by which time it was common ground that the night was dark and that it was raining, the party started to break up and some of those present walked, or drove, to an area known as “the Strip” at South Beach, which is a known gathering spot for young people in Wollongong.

The Appellant Duncan (“Babe”) travelled to Stuart Park with Zoran Mitic, Steven Siljanoski, and two girls in a green Nissan Pulsar driven by Oliver Gjoreski.

The Appellant Duncan recognised Christina Kusonogovski at the Park, and using Zoran Mitic’s mobile phone he telephoned her elder brother, Jason Kusonogovski (“Bear”). In this regards Steven Siljanoski said that, after arriving at Stuart Park with Duncan, he saw him walk across the car park to speak to a girl. He said that it was then that Duncan asked Zoran Mitic if he could borrow his mobile phone. At the trial he acknowledged having heard bits of the conversation that followed, but said that he was not sure to whom Duncan was speaking. He said in chief that he heard him tell someone to “come down to the beach”. When he was cross-examined, by leave under s 38 of the Evidence Act, he acknowledged having said to police that Duncan had said over the phone: “Come down to the beach if you don’t want your sister to get raped by a pack of Lebos”. That evidence was only admitted against Duncan.

Zoran Mitic confirmed that he had lent his phone to Duncan, and said that he did not know Jason Kusonogovski. Of some importance in relation to this evidence is the fact that the telephone call charge records record a call from Mitic’s mobile phone to Kusonogovski’s phone at 11:57, followed by a call to the phone of Chi Tam Huynh (“Big Chi”), followed by another call to Kusonogovski.

Oliver Gjoreski gave evidence that after leaving their car for a while, Duncan returned and asked him whether he had a baseball bat in his car. Gjoreski said that he had removed it. Duncan then asked if he had anything else? Gjoreski pulled his boot release handle, saying that he did not know, but that Duncan was free to check. He heard Duncan rummaging around in the boot, but was unable to say whether he saw him remove anything before walking away. He gave evidence to the effect that there had been a wheel brace in the breakdown kit in the boot (possibly more appropriately described as a tyre lever as it was about 20 cms long and L-shaped). When he examined the breakdown kit two weeks later it was missing.

Jovana Ljubojevic and Snezana Tankoska each said that they saw Duncan talking to Christina Kusonogovski in the car before Jason Kusonogovski, and the others, arrived at the Park. Jovana Ljubojevic indicated that she had previously known him through school friends, while Snezana Tankoska said that she had known him from primary school. Jovana Ljubojevic said that while Duncan was sitting in their car, Jason Kusonogovski came over and spoke to his sister. The next thing she saw was them whispering together outside the car and then walking towards the hut where the Sydney boys had gathered. She also said that she saw another Islander there, who the Crown asserts was Sione Amone who gave evidence of walking over to the car and speaking to Christina Kusonogovski.

Christina Kusonogovski said that, while she was sitting in the car with Snezana Tankoska, her brother Jason Kusonogovski came over. He asked her for some money, told her it was late, and added that she should be getting home. She agreed that Duncan had also come to the car and spoken to her, but could not remember what he had said.

Jason Kusonogovski said that he had walked to South Beach. He confirmed that he had received a phone call from Duncan. He told him that he was looking for his sister. Duncan said that she was at South Park. He denied that Duncan had made any mention of him needing to go down to the Park if he did not want his sister to “be raped by a pack of Lebos”. He said that he rang his sister who confirmed that she was at South Park and could give him $10. He obtained a lift from Alana Ljubicic who drove him to the Park. He said that it was after he received some money from his sister who was sitting in Jovana Ljubojevic’s Toyota Camry, that he saw Duncan.

Although there were some differences in the accounts given by the various witnesses who were present, the Crown contended that at least four cars containing the people from the party, arrived at the Park. Subject to some differences in recollection, it would seem that those vehicles included a red Mitsubishi Lancer driven by Alana Ljubicic, which also contained Jason Kusonogovski, Sione Amone and Carla Busuttil; the green Nissan Pulsar previously mentioned, driven by Oliver Gjoreski; a blue Ford Laser driven by Tracey Saye; and a red Ford Laser driven by Chi Tam Huynh (“Big Chi”). It does have to be acknowledged, as I have observed, that there were inconsistencies in the evidence concerning the occupants of the various cars when they arrived at the Park. For reasons that will become obvious, of more importance was the identification of their occupants when they left the park.

There was another group of people in the Park, although independently from those previously mentioned. They were Diana Petroska, Ahmed Kak, Joseph Mishawi and Lena Ivanovska, who had travelled there in Mishawi’s Honda. The Taking of Mathew Michael’s Phone

Mathew Michael said that as he walked away from the Sydney group to take a call on his mobile telephone, he was approached by two men (Duncan and Kusonogovski), who he described, respectively, as “Islander looking” and as “Yugoslavian or Serbian”. The latter man, he said, asked if he knew a girl Christina, and indicated that he was her brother. Michael said that the man of Islander appearance grabbed his phone and put it in his pocket. Words were exchanged including a description of the Sydney group as “fucking lebs”. He asked for the return of his phone.

Daniel Wilson said that when he heard Mathew Michael asking for his phone to be returned he went across, with Homeh and Beiruti, to see what was occurring. He saw two men standing near him, one he thought to be of Samoan or Islander appearance, and the other to be either Australian or Croatian. One of the men, who he thought to be the Samoan, whistled, after which they both walked down towards the car park. He saw about 20 “guys” waiting down there.

He said that after the man of Samoan appearance whistled, his brother Christopher joined his friends. There was swearing and words were exchanged from both sides.

Mathew Michael also said that the two men made off for the car park at some speed. They were followed by himself and his friends. He heard the Islander (Duncan) whistle to another group of males who then emerged from the car park. He estimated them to number about 15 people.

He similarly said that it was at this stage, that Christopher Wilson rejoined them. He said that he saw the Islander place the phone in a red Lancer. He heard someone from the Wollongong group, also of Islander appearance, scream, “let’s fight one on one”.

Sione Amone confirmed that it was he who had made this observation although he said his suggestion had been addressed to Duncan, who he had observed being chased. On his account he said to Duncan “why don’t you fight him one on one?” Snezana Tankoska also identified Amone as the speaker. She thought that the words had been directed at the person who was later attacked; while Carla Busuttil thought they had been directed by Amone to Duncan. Alana Ljubicic said that she saw Amone approach the ethnic looking group who had been chasing Duncan, and heard him tell them to fight “one on one”.

Jovana Ljubojevic also described hearing an argument over a phone, and seeing Duncan and Kusonogovski running from the hut and being followed by the Sydney boys down towards the car park. She also recalled hearing Duncan whistle.

Snezana Tankoska provided a similar account, and said that she had been able to recognise a number of the people who had gathered in the area where the two groups come together, including Sione Amone, Jap, Big Chi, Elbert Jose and Jason Kusonogovski.

Steven Siljanoski acknowledged seeing Duncan walking back towards the car park followed by some males, and also recalled hearing someone calling out “give me back my phone”.

Hayley Girgin who was still seated in Big Chi’s red Laser, described hearing someone calling out “give my phone back” followed by Sione Amone saying “Do you want to fight one on one?”

Jason Kusonogovski gave an altogether different account. He said that after getting some money from his sister he walked up the hill towards the group of men in the hut, followed by Duncan. Once there he said he was surrounded by these men, one of whom grabbed his shirt. He introduced himself as Christina’s brother, and said that he did not “want any trouble”. They asked him why he had walked up to them and whether he “wanted to start anything”. He repeated that he did “not want any trouble” and walked off. He said that they then pursued him back down the hill. He claimed not to see what Duncan was doing. He said that he walked across the car park and past Alana Ljubicic’s car and then hid where there was another hut and some bushes. The Red Lancer is Driven Furiously Around the Park by Duncan

Alana Ljubicic said that Duncan made his way back to her red Lancer, and clambered into the driver’s seat after instructing her to move over. He began to drive the vehicle around the Park at speed, and in different directions, while, according to her, the other guys were trying to smash it with bottles.

She said that he had driven her car toward the lagoon, and then over towards the Novotel, and had been swerving the vehicle in an attempt to avoid the bottles. After parking the vehicle, she said, he got out and walked away.

Steven Siljanoski similarly said that when Duncan got into the car, it was surrounded by six to seven men of Lebanese appearance, who started smashing it with bottles. It was because of this, he said, that Duncan had driven it forwards and backwards. Sione Amone however said that Duncan had jumped into the car after being chased by three guys. He did not recall seeing any bottles being thrown at this vehicle at that stage, and confirmed that he saw Duncan swerving the car towards the people who had been pursuing him.

Mathew Michael, Snezana Tankoska, Hayley Girgin, Carla Busuttil, Freda Iordanidis, Zoran Mitic, Jovana Ljubojevic, and Sione Amone all confirmed that it was Duncan who had climbed into, and driven the vehicle around the Park after he had been pursued back to the car park by the Sydney group. They described him driving towards people, swerving in their direction and, on Mathew Michael’s account, doing wheelies, burnouts, spins and reversing the vehicle, causing people to jump out of the way.

Daniel Wilson and Tughlet Homeh each described having to move to avoid being struck. Homeh admitted to having smashed a bottle on the vehicle. He also thought that Daniel Wilson had thrown a bottle at it.

Snezana Tankoska said that Duncan brought the car to a stop near the entrance to the cricket oval. Zoran Mitic said that while Duncan had been driving the car backwards and forwards, bottles were being thrown at it, and it was being struck by someone with a wheel brace. Steven Siljanoski also described seeing people surrounding the car and hitting it with bottles before Duncan drove it away. He lost sight of him after he stopped the car. Freda Iordanidis also said that she saw the man who had been arguing with Duncan “smashing at” the Lancer. At that point she said Big Chi told Jose Elbert to move his car away. Jose then took his car down near the Lagoon.

Oliver Gjoreski said that it was shortly after Duncan had looked into the boot of his car, that he saw him returning to the car park area followed by six more men of Lebanese or European appearance. He heard an argument about a phone and saw Sione Amone trying to settle things down. Then he said that bottles started to be thrown on the road. Next, he said, Duncan got into a red Lancer, which he quickly accelerated and reversed. He also said that a scuffle was taking place at the time between the various people who had gathered near the car park. At that point, he said, he yelled out to his friends “hurry up. Let’s go”. Zoran Mitic and Siljanoski and another male, who had a bleeding hand, jumped into his car and he then drove off.

Anthony Quach similarly said that he heard yelling about a phone and saw people coming down the hill. He heard Alana Ljubicic scream at someone to get her out of her car, which was being driven backwards and forwards, while it was being hit with bottles and a wheel brace. It stopped eventually on the lagoon side of the park.

Hayley Girgin said that while Duncan was driving the car around the park, she walked across to Tracey Saye’s blue Laser. She noticed Sione Amone and Adam Perre also standing there.

Tracey Saye said that after seeing Paul Duncan being chased down the hill by a group of ethnic people, and hearing yelling about a phone, she saw a group of people gathering in a horseshoe at the back of Alana Ljubicic’s car and heard Sione Amone saying words to the effect “we don’t want a brawl, just one on one”. It was then that she saw Duncan driving Ms Ljubicic’s car, while the Lebanese group threw their bottles and pieces of wood at it. The Fight Erupts

It is convenient first to note the evidence of the Sydney group.

Daniel Wilson said that after the red Lancer was driven away, he saw a man of Asian appearance (on the Crown case Chi Tam Huynh or “Big Chi”) open the boot of a vehicle and pull out machetes, baseball bats and trolley poles. At that point “all hell broke loose”. He said that he threw a bottle that he had in his hand toward the crowd, and together with his friends he ran up towards the hut pursued by the Wollongong group.

He also said that when the weapons were produced, he heard one member of the Wollongong group yell out “you Lebbos – get out of here”. He said, as did Mathew Michael , that as his group ran away, the victim Christopher Wilson became separated from the others. He was next seen by him to have been caught up near the barbeque area, where he became the victim of a savage attack, being struck with a machete and other implements, repeatedly to the head and body. He was also kicked and punched.

Mathew Michael said that after the red car had stopped driving around, he saw a group of young men coming towards his group with weapons in their hands, which he described as machetes, club locks, bats and wooden poles. He saw Beiruti being kicked and punched. He said that his group ran back towards the huts and the Lagoon Restaurant. When they arrived they realised that Christopher Wilson was missing.

He then described seeing an Asian man beating a man down, and other people hitting and kicking him. They were about 100 metres away. The man striking the victim on the head, he said, had a wheel brace in his hand.

Paul Beiruti also described seeing a large group of males approach them from the car park. He said that he fell to the ground and was kicked, punched and hit with a baseball bat carried by an Asian guy. He saw one male with a wheel brace. He managed to get away and to join his friends. He added that when they realised that Christopher Wilson was missing, his group armed themselves with garden pickets and ran back to where they had last seen him. He acknowledged having used one of these pickets to strike the rear window of the red Lancer. He identified, via some photographs, the injuries which he sustained.

Tughlet Homeh said that, after hearing Mathew Michael ask for the phone back, and hearing the Islander who had been arguing with him whistle, he saw about eight men walking towards them, with other males jumping out of cars. He said that Beiruti dragged him out of the way of the red Lancer as it was heading towards him. It was being driven, he said, by the Islander who had whistled. After hearing another Islander suggesting that they fight one to one, he noticed weapons being taken from the cars, including the club lock and a spanner. The islander had the club lock and the Asian had the spanner. The man with the club lock he said was not Sione Amone.

He said that, when his group began to run back towards the car park with the garden poles, the other group drove off in their cars. When he reached the car park he noticed the victim lying on the ground and he heard a girl crying.

On the following night he made an identification, from a group of photos, of the man who had whistled and had driven the red Lancer. He made a further identification on 20 April 2002. The Crown concedes that it was Sione Amone that he identified. On its case that had been a mistaken identification of Duncan. Each of these men was in fact of Islander appearance.

Jovana Ljubojevic said that after she heard Mathew Michael requesting the return of his phone, and Duncan whistle, she and the victim had left her car and made their way towards the hut. About half way there she saw her friends running towards the car park. It was after Duncan had been driving the red car around, that she saw “Jap” (Chi Bin Nguyen) take a machete out of the boot of the car. She said that she saw him swing the machete at the victim. The next thing she saw was the victim surrounded by a group of people who were armed with bats and poles. She said that she only recognised “Jap” who, at this time, had a metal pole, which he was using to hit the victim over the head repeatedly. Others in the group she said were also hitting him with poles and a bat before walking away. Three of them however came back and kicked him a few more times before leaving.

Snezana Tankoska also said that she saw “Jap” swing a machete at the victim, who ran towards the shed near the old restaurant, but was struck down before he got there, being surrounded by twenty or so people who were hitting and kicking him.

Christina Kusonogovski said that when she saw people running around and fighting, she moved away from the cars over towards the Novotel. The next thing she noticed was Jovana Ljubojevic’s car being smashed.

It is next convenient to deal with the evidence of the Wollongong group who had been at the party.

Sione Amone said that Big Chi took a machete out of the boot of his red Laser and gave it to Jap. At that point, he said, he tried to take the machete off Jap to stop him, succeeding only in cutting his finger. The injury he said was attended to by Tracey Saye, who had a beach towel in the back of her car. He said that he then remained near the car with Tracey Saye and Carla Busuttil.

He also said that he saw Duncan and the others chasing “a guy” back towards the barbeque area. He next saw a person on the ground with three or four persons standing over him, and hitting him with something. He recognised that the persons included Big Chi, Jap, and “some of the Massos” (Macedonians and Serbians). He agreed that he had not noticed anything in Duncan’s hand while he had been chasing the guy. He said that he saw another man, who he thought was Zelco, with a metal bar and Big Chi with a baseball bat running behind Jap.

He described seeing Duncan, Big Chi and Jap up in the area where the Sydney group had left their cars, smashing those cars. Although he said in chief that Duncan was kicking the cars, in cross-examination he withdrew that answer. He said that he, along with Carla Busuttil and Jason Kusonogovski, jumped into Alana Ljubicic’s red Lancer and left. As they did so the rear window was smashed after being struck twice. Duncan, he said, was standing near the other vehicles when they left.

He acknowledged having been charged over the assault, but said that the charge was later withdrawn. He admitted having told the police a lie about not having been to the park, when interviewed by them, and having offered Carla Busuttil as an alibi witness. The reason he said was because he was scared and wanted to stick up for his friends.

However, on 6 November 2001, he spoke again to police and provided answers to questions concerning the events in the park. He acknowledged having told police a lie on this occasion in so far as he had explained the cut on his finger as having occurred when he pushed out the broken rear window of Alana Ljubicic’s car, because he did not think they would have believed that it occurred when trying to disarm Jap.

Carla Busuttil said that she also saw Duncan running up towards the grassed area, chasing some people, after bringing the red Lancer to a stop.

She then saw “Big Chi” open the boot of his red Laser and take out a machete which he gave to “Jap”. They then ran off towards the grassed area. Elbert Jose moved Chi’s car, as did Alana Ljubicic. Carla said that she walked over to where Ljubicic’s car was parked. She saw people fighting in the grassed area, using pieces of wood or sticks, and kicking a person on the ground. She saw Jap swinging the machete in the air as he ran towards the grassed area. After that she got into Alana Ljubicic’s car together with Jason Kusonogovski and Sione Amone.

While Alana Ljubicic was yelling out for Duncan to join them, she saw that there were four people left in the grassed area: the victim who was lying on the ground, Duncan, Big Chi and Jap. Jap was hitting the man with the machete, Duncan was punching him and kicking him in the stomach, and then, on her account, he took the machete from Jap and struck the victim with it. The next thing she saw was Big Chi smashing windows of the cars and jumping on top of them. He was joined by Jap who also kicked and struck the cars. He was later joined by Duncan who similarly struck the cars. Big Chi ran to his red Laser, followed by Jap and finally by Duncan. The driver she said was Elbert Jose. As Ljubicic’s vehicle drove off it was struck from behind by someone, shattering the rear window.

Similarly to Amone, she acknowledged having given police a false account when interviewed by them on 3 November. On 5 and 25 November she provided further information to police in the form of an interview and statement, which she said had been truthful. Although she did acknowledge giving an explanation to the effect that the cut on Amone’s finger occurred while he was washing up, she said that at the time she had believed this to be the case, as she had seen him cut his hand on a broken glass in the sink.

She acknowledged having been Sione Amone’s girlfriend as at 2 November 2001, and said that their relationship was continuing. She denied that Amone had been involved in the fight, saying that he had remained with her between the time that he had told Duncan to fight them “one on one” until they had left the area.

She also denied having placed Duncan in the place of Amone in relation to the fight, and confirmed that Amone’s clothes had not been covered in blood. She had initially lied to police, she said, because she had been confused and scared of getting Amone and herself into trouble and of dobbing other people in.

Hayley Girgin also described seeing “Jap” with a machete in his hands, standing beside the man on the ground, along with eight or ten men who were kicking and hurting him, although in cross-examination she appeared to be less certain as to what precisely was occurring. She said that she did not recognise the people involved other than Jap.

She also gave evidence of Sione Amone receiving assistance for a cut to his hand. Additionally, she said, she had not seen him involved in any of the fighting.

Tracey Saye said that after Duncan had driven off in the red Lancer, she saw Sione Amone come over to her car with a cut on his hand. She took an old beach towel out of her boot and wrapped it around his head. While the boot was open, she said, Adam Perre came over, and took from it a wooden leg, which she had previously broken off from a “For Sale” sign. He then ran over to where the fight was taking place. She said that she heard people yelling and screaming and saw Perre hitting the boy on the ground with the piece of wood that he had taken from her car “like a cricket bat – just hitting.”

She said that she had not seen Duncan at the park after he had earlier got into Alana Ljubicic’s car and driven off in it. When that vehicle later drove off she confirmed seeing the boys of Lebanese appearance hitting it with bottles and sticks.

She agreed that she had not seen any blood on Duncan’s person or clothing at the house when the Wollongong group later gathered.

It was her evidence that she had driven Hayley Girgin, Adriano Karuso, Adam Lamacchia, and Anthony Quach from Stuart Park.

Although Alana Ljubicic initially said in chief that she had not seen Duncan after he had left the car, when she was cross-examined by the Crown by leave under s 38 of the Evidence Act , she acknowledged having told police (Detective Pamozzo) on 3 November 2001 that she had seen a number of fights breaking out in which Duncan and Jap had been involved. She said that what she had told police would have been true, although she did not now remember it.

In cross-examination she indicated that she could not fix any particular fight in which Duncan was seen by her to be a participant. Rather she was referring to the whole situation, pointing out that she had not actually seen the assault on the young man who was injured.

She also said that she sat in her car, which she had moved back from where Duncan had left it, while the fight was occurring. She recalled seeing Duncan jump into Big Chi’s car, which then drove off. Sione Amone, she said, got into her car together with Carla (Busuttil) and Jason Kusonogovski. As they were leaving, someone smashed the back window of her car. Sione Amone, she noticed, had cut his finger. He explained that he had been trying to take the knife off someone.

Jason Kusonogovski denied being involved in the fight that left the victim injured. He said that, while hiding on the other side of the park, he could hear yells and swearing and saw people running around but could not otherwise see what was happening. He eventually went back to Alana Ljubicic’s car and asked her to leave the area, as he was scared. She drove off. He was sitting in the back seat when the window was smashed by someone with a pole. He confirmed that the other occupants were Carla Busuttil and Sione Amone.

Steven Siljanoski said that after Duncan stopped the car “everything was just mayhem” with people running around and ending up on the grass near the beach. He remained near Gjoreski’s car, hiding behind it. He initially said that although he saw someone on the ground being hit with branches and perhaps a pole, he did not recognise any of the members of the group of three or four persons. He also said that when Oliver Gjoreski called out that it was time to go, he and Mitic jumped into Gjoreski’s car, followed by someone he did not know who had blood on his fist. As they left he saw Big Chi smashing one of the vehicles of the Sydney group.

He was cross-examined pursuant to leave given under s 38 of the Evidence Act and admitted to having made a statement to police, which he agreed he had read before signing it, and which he also agreed had been made to the best of his knowledge at the time.

In that statement, he accepted, he had told the police that he saw Duncan and Perre in the group of men who were hitting and kicking the victim. He said that he had seen someone with blonde hair in the group, and according to him the detective asked him if that had been Adam Perre. That led him to ask if Perre had blonde hair? The detective, he said, replied in the affirmative, even though Perre had black hair. He had also said that he had to wear glasses when he drove and that he could not see 100 percent.

When asked at the trial as to the extent of his knowledge of Perre, he said that “he didn’t really know him but he just knew the name.” He would not say they were friends but he “knew who he was”.

When cross-examined by defence counsel he reverted to saying that he could not now be certain that Duncan and Perre were members of the group who were attacking the victim.

Zoran Mitic said that he had been taken to the park in Oliver Gjoreski’s green Pulsar, and had hidden behind Oliver Gjoreski’s car while Duncan was driving the Lancer around. When he re-emerged he saw a man on the grass up near the beach being kicked and punched, but could not recognise those involved. He said that he left the area in Gjoreski’s vehicle, with Steven Siljanoski and someone else who he did not recall, who was holding his hand. They drove to the JJ Kelly Park. There, he said, he saw Duncan.

There was no suggestion made of Duncan having phoned him for a lift from the park, or of him driving Duncan away.

Oliver Gjoreski said that when he saw people scuffling and bottles being thrown, and the Lancer driving around, he called out to Mitic and Siljanoski “hurry up, hurry up, let’s go”. They joined him in his car, followed by someone who was dark, and who had blood on his hands, whom he did not know. He knew Duncan who had driven from Elbert Jose’s party to the park.

The person with blood on his hand, who got into this vehicle, the Crown asserted, was Adam Lamacchia.

Elbert Jose who acknowledged having had a fair bit to drink, said that he had been sitting in Big Chi’s car, sleeping while the fight occurred. He acknowledged hearing bottles breaking and people yelling. When he was woken up, he drove Big Chi’s vehicle toward the Novotel but then got out and someone else drove. He recalled its occupants being Big Chi, Frieda Iordanidis, Adam Perre and another person who he could not recall. He claimed not to have seen Duncan at the park or in the car.

Frieda Iordanidis said that after she noticed “Big Chi” smashing a car, she asked Elbert Jose to drive his car back to pick him up. She said that Big Chi, “Jap” and Perre got into his red Laser, in which she was sitting, followed finally by Duncan. Jose drove part of the way and was then replaced by Big Chi as driver. Alana Ljubicic also said that she saw Duncan jump into Chi’s car as she left.

Anthony Quach said, in cross-examination, that at the time that the two groups were yelling at one another and after the Lancer had been driven around, he saw people getting “stuff” out of the boot of a car, including a wheel brace.

Iannis Mellos said that he had not been involved in the fight, but indicated that he had seen “Jap” fighting a man.

Finally, reference may be made to the group of people who had not been to Elbert Jose’s party and who had independently arrived in the park.

Joseph Mishawi did not identify any of the assailants, but confirmed seeing someone being hit on the grassed area with poles by about three people. They then ran past his car. The next thing he saw was a red car leaving.

Ahmed Kak said that he had arrived in the park at about midnight with Joe (Mishawi) and Lena Ivanovska, and Diana. While they sat in Mishawi’s car, he noticed a “couple of guys” who looked like Syrians and who were screaming and swearing, kick and hit the red Lancer. He said that people inside that car, who he described as Asians, got out of the car with metal poles and chased the Syrians or Lebanese back towards the beach. One, he said, was too slow and was caught. He was then hit with poles, and hit and kicked by four or five men while he was on the ground. This continued for 3 or 4 minutes. One of the girls with them he recalled, was saying “stop, stop hitting him”.

Diana Petroska also described ten or more people bashing a man on the ground with poles, over the grassed area on the beach side of the park. One of these people she recognised as “Jap”, who she knew from school. This, she said, followed her observation of a red Lancer being driven around, and of people moving out of its way.

Lena Ivanovska gave a somewhat similar account of an attack taking place after the red car had been driving around, making turns and doing burnouts and skids. She was unable to see precisely what then occurred, but recalled seeing men with sticks and poles and then seeing people crowded around a man on the ground. She said that she was scared and tried to avoid looking. The Fight Ends

It was the Crown case that the Wollongong group left the park in the following manner: (i) Red Lancer (Alana Ljubicic) Alana Ljubicic Sione Amone Carlo Busuttil Jason Kusonogovski (ii) Red Laser (Big Chi) Chi Tam Huynh Chi Binh Nguyen Duncan Perre Elbert Jose Freda Iordanidis (iii) Green Pulsar (Gjoreski) Oliver Gjoreski Steven Siljanoski Zoran Mitic Adam Lamacchia (iv) Blue Laser (Saye) Tracey Saye Haley Girgin Anthony Quach Michael Gaspari Iannis Mellos

There was general consensus among the witnesses in this respect, save for the fact that Tracey Saye alone said that Adam Lamacchia left in her car. Hayley Girgin said that she saw him leave in the red Laser. Tracey Saye’s evidence in relation to Lamacchia was not supported by the other occupants of her car, namely Girgin, Quach, Mellos, while Karuso, who said that he was asleep, had no memory of driving away.

Daniel Wilson said that when he realised that his brother was not with their group, he went back looking for him and saw him lying on the ground. Before doing so he dug out a wooden stake that was supporting a small tree. He did not, however, get to use the stake, because there was no one there to use it on. He noticed a couple of men walking away. After going over to assist his brother who was lying in a pool of blood he noticed Beiruti and Michael screaming and throwing things at the red Lancer (of Ljubicic) as it drove off.

Mathew Michael also said that when they realised that Christopher Wilson was missing and was being beaten, he and the others in the group took up garden pickets and started to run back towards the incident. It was at that stage that the Wollongong group ran towards their cars, but not before the man with the wheel brace and another man smashed the windows of his vehicle and that of Jovana Ljubojevic’s father. He acknowledged that his friend Paul Beiruti hit the back widow of the red Lancer, with the stake which he was carrying, before it left the area.

Tughlet Homeh said that the red Lancer whose rear window was smashed was the last vehicle to leave the scene.

Snezana Tankoska said that when she attempted to place a call for an ambulance on her mobile phone, someone who she did not see, who she thought was Nanad Radavassovic, but who the Crown asserts was the Appellant Perre, asked “who are you calling?” He then punched her to the face, cutting her lip and knocking her to the ground. She said that after getting up and placing a second call for help, she also noticed “Jap” smashing Jovana Ljubojevic’s car and “Big Chi” smashing Mathew Michael’s car. The last car that left the area, she said, was the red Lancer. One of the Sydney boys threw something at it, as it left, breaking the rear window.

Jovana Ljubojevic said that she raised the head of Christopher Wilson who was bleeding badly and having trouble breathing, and asked someone to call for an ambulance. She also said that she had earlier begged “Jap” to desist but that he and the others had refused, returning several times to resume their assault. One of these people told her, at one stage to “fuck off”.

She added that, while she was endeavouring to assist the victim, she looked up and saw Jap smashing the side windows and windscreen of her car. The Wollongong Group Meet After the Fight

After the incident, most of the members of the Wollongong group drove to the JJ Kelly Park, a five minute drive away. While there, according to Tracey Saye , the Appellant Perre said that he had hit one of the girls in the face. She said that he was drunk and had blood on the top of his creamy coloured pants.

From this park a number of people moved on to FJ’s place in Lake Heights (premises owned by Sione Tuifua, a cousin of Sione Amone). Perre was driven there in Tracey Saye’s car. She had in her car, additionally, Hayley Girgin and Adrian Karuso.

Hayley Girgin said that, during the drive, Perre boasted of beating the victim and punching the girl. He told Hayley Girgin: “I was hitting him with a stick, the stick kept breaking into pieces, so I pick the pieces up and kept hitting him”. He also said that a girl was trying to stop him so he “punched her out”, causing her to fall to the ground.

Tracey Saye said that he made a similar admission to her, about hitting the victim with the stick, which broke into pieces, which he used until he had nothing left. Additionally she said that, at the JJ Kelly Park, he mentioned hitting one of the girls in the face.

Hayley Girgin said that she noticed that Perre had a cut on a knuckle, and blood on his creamy colour trousers. Carla Busuttil also said that she noticed that his hand was swollen and recalled him mentioning that it was “sore”.

Tracey Saye and Hayley Girgin gave evidence of driving Perre home from FJ’s place. Tracey Saye said that she told him that he would be in a lot of trouble for this incident. His response was “I hope it’s worth it then”. She said that he had been very drunk.

Hayley Girgin also recalled him saying: ”I don’t want to go inside. I have blood on my trousers. My mum will get angry. How am I going to get it off? It is not my blood. I think it is the guy on the ground’s.” The Findings at the Crime Scene

The ambulance officer Anthony Ryan who examined the victim said that he had six to seven head wounds, with exposed brain tissue emerging from one wound. He had severe swelling to one of his eye orbits and welt marks to the legs, as well as a partially severed finger.

Police and ambulance officers including Senior Constable Weir who came to the victim’s assistance said that they found him being cradled by Jovana Ljubojevic, and that they observed, in the immediate vicinity, 6 pieces of broken timber, some 3 metal star pickets, and a chrome coloured metal wheel brace with fresh blood on it.

Detective Sergeant Doherty who carried out a crime scene examination recorded that the pieces of wood, which were bloodstained, bore fine impact splatter. The six pieces of wood could be rejoined to make a stake. On the face of two of the broken sections of the stake there were screws consistent with it having been part of a ‘For Sale’ sign.

He also gave evidence of finding bloodstains on the exterior and interior of the red Mitsubishi Lancer, particularly in the rear of the vehicle. Nothing of significance was found in the blue Laser, of Tracey Saye. He also gave evidence of finding a sheath for a machete, but not the machete itself.

Regrettably, due to resource limitations, not all of the crime scene exhibits were tested for fingerprints or for DNA. However, as emerged from the evidence of Detective Sergeant Doherty and Virginia Friedman, DNA evidence was obtained showing matching profiles, according to the Profiler Plus system, as follows: (i) the profile of the swab from the exterior of the red Lancer of Alana Ljubicic matched the profile of Sione Amone. (ii) the profile of two swabs from the interior of that vehicle matched the profile of the victim, Christopher Wilson. (iii) the partial profile of a sample from a Magnalite torch recovered from the red Laser of Chi Tam Huynh could have come from the victim; (iv) A profile of a swab from one of the car seat covers from the red Laser matched that of the victim; (v) Other swabs from this vehicle threw up a mixed profile, for which Chi Tam Huynh could have been a contributor; (vi) the profile from staining on Chi Tam Huynh’s trousers matched that of the victim; and (vii) the profile from the staining on the blue board shorts of Duncan matched that of the victim.

Detective Sergeant Doherty said that a tubular steel wheel brace was found some distance from the area where the victim was found, but the testing of it was negative for blood. No L-shaped tool was found at the scene.

He said that he examined a pair of trousers that had been seized from Chi Tam Huynh’s home, which were found to have staining on the front of one leg.

Detective Sergeant Doherty also gave evidence of a comparison which he made between the linear patterned abrasions to the back of Paul Beiruti and the stained area on the leg of Chi Tam Huynh’s trousers, and which revealed a sufficient similarity for the conclusion that the weapon which had caused Beiruti’s injuries had caused the staining on these trousers.

He also gave evidence of a cream pair of cargo pants having been found in the plastic bag, which contained the blue shorts of Duncan. They had some stains on them, but that was not tested for DNA, by reason of the positive testing which had been conducted on the shorts. Detective Sergeant Panozzo confirmed that Duncan’s fingerprints were found on the red Lancer.

Dr Duflou gave evidence based upon the medical records (without having examined the victim) to the effect that, if the wheel brace had been used to strike his head, in the right orientation, it could have produced the four injuries that were represented by lacerations in the shape of incomplete circles. He said that it was unlikely that the circular head wounds had been caused by shoes. He could not say whether the pieces of timber, or the machete, had caused these head injuries. He did say that a number of the other lacerations to the back of the head and to the face could have been caused by kicking or stomping, or by the victim having been struck with pieces of wood or a baseball bat.

The victim was hospitalised between the time of the attack and his release on 19 January 2002. He suffers permanent disability, arising from the comminuted fracture of the left parietal and occipital bones, the fracture of the right parietal bone, the underlying haematoma and bruising, and the diffuse axonal injury which was occasioned. He has ongoing and permanent lost of visual function, reduced memory and learning capability, slowed thinking and motor responses, and is at increased risk of post-traumatic epilepsy.

On any view, the behaviour of those involved in this wanton and vicious attack on a young victim who had done nothing, at any stage of the evening to provoke them, was utterly appalling. Their attack was vicious. It was brutal and cowardly, and not one of those involved is entitled to regard the evening as involving a shred of “honour”. Perre’s Subsequent Accounts of the Incident and the Evidence in his Case

On the day following the incident Perre attended work at the Leisure Coast Garden Centre. A work colleague, Simon Baker gave evidence of noticing that he smelt of alcohol. He also noticed that he had a gash on a knuckle of one on his hands, which had been a little swollen in the morning but progressed as the day went on. Perre was holding it as if it was sore. When asked how his night out had been, Perre replied: “I beat up some Lebo from Campbelltown. I had a me[t]al pole and my mates had machetes.” He went on to say, according to Mr Baker: “When I woke up in the morning I had blood all over my pants and all over my bed sheets. There was so much blood. I kept hitting him. I think I may have killed him.” He also said, according to Mr Baker, that he was not sure how he had injured his knuckle, observing, “I think I might have been hit with one of the machetes.” Mr Baker added that he had said that he kept hitting the man in the head with the pole.

Perre was interviewed by Police, in the presence of his father on 12 November 2001, at a time when he was not a suspect. He said that he had been pretty drunk, and had not seen what happened, although he did acknowledge hearing shouting and the smashing of bottles and glass from the other side of the driveway, and seeing a few punches being thrown. He denied assaulting anyone.

When he arrived at the Park, he said, he had felt sick and had vomited. He said that he had experienced trouble focussing. He claimed to have seen someone having “a go” at Michael Gaspari, and had walked over to pull Gaspari away. He said that he and Gaspari had stayed behind the cars until it was all over. He had then jumped into the red Laser, in which he said there was Elbert Jose and Freda Iordanidis and Chi. He added that someone else got into the back of the car behind him, but he did not know who it was, as “I didn’t really look at him. I was, like sleeping, just put my head back”. He said that while Jose had begun to drive the vehicle, he was replaced as driver by Chi.

He acknowledged being taken home by Tracey Saye and Hayley Girgin, but claimed to have kept to himself at the house to which they had gone on the way. He claimed not to have had much recollection of the night.

He informed police that he had worn “light greeny-brown coloured cords” and a black skivvy on the night of the incident. Later that day he took to the police station a pair of light green corduroy trousers, a pair of white joggers, and a black skivvy.

On 15 November 2001 he was arrested and on that occasion he declined to be further interviewed in relation to the attack on Christopher Wilson, or the assault of Snezana Tankoska. On the following day an order was obtained for him to provide a buccal swab.

Hayley Girgin said that the clothes which he claimed to have been wearing were not the clothes that she had seen him in that night, recalling that he had in fact worn cream coloured pants and black leather shoes.

Perre gave evidence at the trial, in the course of which he said that he could not recall who had driven him from Elbert Jose’s party to Stuart Park. It was while he was vomiting, he said, that he could hear screaming, shouting and bottles breaking. At that stage, he said, he felt scared. He could see people over the hill and he walked over, and joined his friend, Michael Gaspari, when he saw a man walking towards him and yelling “come on. Do you want to go. Let’s go”. He thought this man was going to punch Gaspari so he went over to help and pulled him away.

He said that he had then hit the other man in the mouth, cutting his knuckle. He said that he returned to where the cars were parked on the mountain side of the driveway and stood behind them. He saw a red Laser approach. When it stopped he jumped in. The vehicle, which was being driven by Elbert Jose, waited for someone else, and then left the area. He acknowledged that its occupants included additionally Freda Iordanidis, Big Chi and someone else who sat on his right. Big Chi he recalled, took over driving from Elbert Jose.

He denied making the admissions which had been attributed to him by Tracey Saye, Hayley Girgin and Mr Baker, although he acknowledged that he had informed the latter that he had been in a fight with “Lebbo’s from Sydney”. He had said that, he explained, because he had heard Anthony Quach mention it at FJ’s house. He maintained his account of having worn the green corduroy trousers and white joggers and denied that they had received any blood stains. He said that the injury to his knuckle had bled overnight leaving some little spots of blood on his pyjama pants and doona. He denied hitting anyone with a stick or using any other weapon. He also denied having taken a piece of wood out of the boot of Tracey Saye’s car, or having struck Snezana Tankoska in the face. He denied seeing any weapons but acknowledged that Tracey Saye had driven him home.

His mother gave evidence to the effect that he had in fact been wearing white Nike shoes and fawn/beige coloured corduroy trousers. She added that she had not noticed any blood on his clothing. She did however say that when she washed his sheets she noticed a spot of blood on the doona cover.

Both she and Perre said that his black school shoes had been thrown out before the incident.

The Appellant called two character witnesses Ronald Sattin and Garry Norris. Duncan’s Account of the Incident and the Evidence in his Case

Duncan presented himself to police on 5 November 2001, with his girlfriend Sheree Machan. He took part in an ERISP in the course of which he said that he had arrived at the park, merely in the course of driving around Wollongong, on the night of the incident, in the blue Honda Civic of his friend Zoran Mitic. He denied having anything to do with the fight, or having taken the mobile phone of Mathew Michael. He claimed to have been near the car in which Christina Kusonogovski had been sitting when the fighting broke out, to have seen two Asians “Vim” and “Huy” at the scene and to have seen Asians running down the hill. He denied hearing Amone make any mention of fighting “one on one”, and he denied whistling to the other people who had come to the park. He said that he observed the Asians and Serbs fighting, and asserted that it was the Serbs who had weapons in their hands and that he had been pursued by one man with a bat.

He said that he had been chased over to Alana Ljubicic’s car and had driven it off in an attempt to get away. He explained the subsequent manoeuvres as follows: “I reversed it that way, and then went out the no entry way, and then people were still running towards me for that way, I turned around because I tried to get out of there…” He said that he got out of the car when Alana Ljubicic said that she wanted to go home. He said that he then phoned Zoran Mitic from his mobile to pick him up and added that Zoran took him home in his car, along with Mitic’s cousin. He denied getting into Big Chi’s car or leaving the scene with him.

He denied having been to Jose’s party that night, or having phoned Jason Kusonogovski. On his account he had seen him for the first time that night as he was walking across to speak to his sister, shortly before the fight broke out. He said that the injuries, which had been occasioned to his knuckles, had occurred as the result of his use of a punching bag at his kickboxing class. He did acknowledge having spoken to Christina Kusonogovski with her brother, but said that he had not realised that she had been there until Jason Kusonogovski arrived. He also said that, while he had been driven away from the scene, he had not gone on to Lake Heights. He denied leaving the scene in the red laser which took Big Chi and Perre from the scene.

He also nominated as being present at the scene apart from the brothers “Vin” and “Huy”, another man whose nickname was Zelks (who no one else noticed) and a man Nanad.

After being interviewed, and placed under arrest, he was taken to his home by police while they made a search. The search and some further questions were video taped. Present at the home at the time were his mother and his girlfriend, Sheree Machan. During the search he identified the clothes which he claimed to have been wearing on the night of the incident.

Sheree Machan , who was called in the Prosecution case, said that before driving Duncan to the police station that morning, she had collected some of his clothes from the floor, because they looked dirty. She said that she had placed them in a plastic bag which she then left in her car. It had been her intention to wash them. She indicated that she usually washed his clothes on a daily basis. After the house had been searched she allowed police to search her car, as a result of which they found and examined the bag of clothes. They included the pair of blue board shorts previously mentioned, which had a red staining, the analysis of the DNA of which was found to be consistent with that of the victim. Inside the rear pocket of these shorts, police found a mobile phone Sim card belonging to Mathew Michael. There was no issue in the case concerning Duncan’s ownership of these shorts, trial counsel having expressly accepted that to have been the fact.

An attempt was made to organise an identification parade, but that did not proceed when a group of young Islander males who had been contacted, refused to assist. When an attempt was made to reinterview Duncan on 28 November he exercised his right not to be interviewed. It was then that he was arrested.

Duncan did not give evidence. He called Linda Machan , the mother of his girlfriend, who said that she had spoken to Sione Amone on the Monday following the offences, and had been told by him that he had cut his hand when trying to get the machete off Jap, that the blood of the victim, over whom he had been standing, “went all over me”, and that he had disposed of his clothes that night. Her daughter Sheree Machan gave similar evidence. Although leave was given to the Crown to cross-examine Sheree Machan, she denied having made up her evidence. She did, however, accept that she had initially lied to police in relation to her assertion that the clothes in the car had belonged to her brother.

There was no evidence presented at trial from Chi Tam Huynh, Chi Binh Nguyen, Adam Lamacchia, or Michael Gaspari, each of whom was convicted and sentenced for offences arising out of the night’s events. Nor was there any evidence from the two girls who were taken to the park by Oliver Gjoreski, but whose identities were unknown.

There was, however, some evidence from a man Nanad Radavassovic to rebut a suggestion that he may have been the person who struck Snezana Tankoska and the person to whom Duncan had referred. It was his uncontroverted evidence that he had been at work for the entirety of the night, and had been uninvolved in any of the events at the park. In reply, however, the defence contended that it was not Nanad Radavassovic who Duncan had in mind but someone else altogether known as Nennard. B. THE BASIS ON WHICH THE CROWN CASE WAS PRESENTED

It was the Crown case that Jason Kusonogovski had not been telling the truth, and that while Steven Siljanoski and Alana Ljubojevic had initially told the police the truth, in relation to the fight, they had dishonestly attempted in the witness box to retreat from their original position.

Otherwise it put forward the various witnesses who were called in its case as credible witnesses, and offered as an explanation for any discrepancies, or lack of observation, the traumatic and rapidly unfolding nature of the night’s events, or alternatively the fact that they focussed upon only a part of what was occurring.

The prosecution case was based upon joint enterprise depending upon Perre and Duncan having personally inflicted the relevant injuries or having encouraged or assisted others to do so, with the intention, in each case, of occasioning that victim grievous bodily harm. Extended joint enterprise was also relied upon in so far as the Crown contended, in the alternative, that the two Appellants were parties to a joint enterprise to assault the victim, and contemplated the possibility of grievous bodily harm being occasioned to him.

It was its case that Kusonogovski and Duncan were not impressed by the fact that the sister of the former had met up with the Sydney group in the park, that a fight with them was contemplated, and then provoked by the two of them and particularly by Duncan when he took Mathew Michael’s phone, and effectively whistled up the members of the Wollongong group, whose presence had already been encouraged, for assistance. It was its case that Duncan added to the provocation for a fight by placing the stolen phone in the red Lancer and then deliberately driving it at the various members of the Sydney group.

The Crown asserted that there was a considerable body of evidence which excluded the defence proposition that it was Sione Amone, rather than Duncan, who had been the Islander involved in the fighting. The one obstacle in the way of that submission, it accepted was the finding of blood, the profile of which was consistent with that of the victim in the red Lancer in which Amone was driven from the park. However it also pointed to the presence in the vehicle, at that time, of Jason Kusonogovski, who on its case was one of the persons who effectively provoked the incident.

Otherwise it relied upon the individual strands of evidence, which will be referred to later in these reasons, to establish its case against each Appellant. C. THE DEFENCE CASES Perre

It was his case that each of Tracey Saye, Hayley Girgin, Steven Siljanoski and Simon Baker were either liars or the subject of fallible or false recollections, and as such were neither credible or reliable witnesses. In particular, reliance was placed upon what was said to be inconsistencies in their accounts over time.

It was also submitted that the Crown had incorrectly cited the transcript in support of the reasons which were advanced by it for proof of its case; that there was no independent forensic evidence linking him to the attack. Reliance was placed on the absence of any witness asserting that they saw blood on the Appellant’s clothing at FJ’s house, other than Tracey Saye and Hayley Girgin, who on the defence case had an interest to serve, in protecting Sione Amone; as well as the absence of any witness other than Tracey Saye saying that they saw Perre remove a piece of wood from the boot of her car; and additionally, the absence of any independent support from the other occupants of the car in which Perre was taken to FJ’s place, for the admissions which Hayley Girgin said that he made on the way there, or for the admissions which Tracey Saye said he made at the JJ Kelly Park, or at FJ’s place, or back outside his own home.

Reliance was also placed (as was the case in relation to Duncan) on the evidence of Snezana Tankoska and Jovana Ljubojevic which, it was suggested, pointed to there having been another Islander, “James”, at the scene, that is, an Islander other than Duncan and Amone, as well as a man Zelco who some witnesses nominated as having been present. These persons were not identified and not called, leaving open the possibility, so it was put, that they had been involved.

Moreover, it was submitted that the evidence of the mother of this Appellant contradicted any evidence concerning the sighting of the blood on his clothing, or admissions to that effect attributed to him.

Further, it was submitted that Siljanoski’s evidence was not to be accepted, in view of the contradictory accounts which emerged during the cross-examination pursuant to leave given under s 38, and the evidence which he offered concerning his eyesight, which is considered in more detail later in these reasons, since it is of relevance for the ground of appeal which is pursued in that respect.

Emphasis was given to the inevitable problems of identification in a setting that was dark, when it was raining, and when there was a great deal of activity taking place. Reliance was also placed upon the evidence that was available to the Appellant of prior good character.

An alternative hypothesis was said to remain open in relation to the injury to Perre’s hand, referable to him having suffered a cut to the knuckle when punching the man who, on his account, he believed to be posing a threat to Michael Gaspari.

It was contended that Tracey Saye was not a credible witness, suggesting that she had fabricated aspects of her account. Simon Baker was also suggested to have made up aspects of his account, for example in relation to the Sydney boys having come from Cabramatta, and in relation to Perre’s reported use of a metal pole, neither of which accorded with known facts. The submission was made that his evidence was based not upon any conversation with Perre, but rather from what he had learned from the media or other sources. Duncan

Counsel for this Appellant accepted that he had participated in the night’s events to the extent of phoning Kusonogovski, talking to his sister, taking Michael’s phone and provoking what followed by that action, and also by driving the red Lancer in a somewhat dangerous manner. However, it was the defence case that this is where his involvement stopped, and that he did not become party to any joint enterprise of the kind asserted by the Crown, or become personally involved in any attack on the victim.

Considerable emphasis was placed by the defence upon the problems of identification in the circumstances of this night, and upon the proposition that by the time he had been pursued down the hill and driven Alana Ljubicic’s Lancer away, no weapons had been produced by members of the Wollongong group. This, it was contended, pointed to the absence of any knowledge, or expectation, on his part, of there being an altercation in which any of the Sydney group would be attacked and weapons used against them.

The driving away of the vehicle, and the manner thereof, it was contended, was attributable to fear and panic on his part to make an escape.

Further, it was submitted, in relation to Gjoreski’s evidence that no tyre lever or implement, of the kind that he said had gone missing from his tool kit, was found at the scene; and that it was somewhat improbable that the Appellant would have come to his vehicle seeking a weapon, before he had spoken to Christina Kusonogovski. A possible answer, for Gjoreski’s evidence, counsel suggested, was a desire to write himself out of the scene, it being implicit in this submission, despite the complete absence of evidence suggesting that Gjoreski had been involved in the fight, that he had in fact been one of the offenders.

A similar submission was advanced in relation to Carla Busuttil and Sione Amone, in so far as it was submitted that they were placing Duncan in Amone’s place. There was an associated submission that having regard to the physical likeness of these two men, a question arose as to identification. Reference was also made to the evidence of Snezana Tankoska and Tughlet Homeh which was suggestive of a third Islander, “Jamie”, or “James” having been observed in the park, adding to the risk of misidentification.

Reliance was placed on the fact that several witnesses described seeing Duncan in jeans. No one mentioned seeing him wearing the board shorts which were found to have the blood stains, and which he had allowed his girlfriend to collect and take away to be washed. Counsel did not offer any explanation for the presence on the shorts of a small amount of blood of the victim, but did question whether, if Duncan had been involved, there would not have been a good deal more blood upon them. The risk of contamination with other exhibits or of manipulation occurring, was somewhat obliquely suggested, although there was evidence that the shorts had been separately bagged.

The finding by police of the SIM card in the shorts was also questioned, it being asserted that it would have been somewhat unusual for the card to be kept and not the phone if that had been stolen by Duncan.

It was asserted that the jury would not accept that Siljanoski’s statement to police (in relation to the telephone call from Duncan to Kusonogovski) was correct, in the light of his evidence at trial concerning the making of that statement, it being contended, in effect, that the police had out of zealous enthusiasm, inserted their words into the document rather than his. Reference was also made to his asserted eyesight deficiency and uncertainty in relation to the identification of the co-accused Perre, so as to weaken his evidence.

An argument was advanced that Jovana Ljubicic, who knew Duncan and others from the Wollongong group, could however be trusted, and that it was significant that, even though she was very close to the fight, the only person she could identify as a participant was Jap.

Defence counsel accepted that he had lied in the ERISP, including, she suggested, that he had scripted Sione Amone out of the scene in order to protect him, but suggested that he may have responded differently had he been aware that he was facing the present charge rather than that of assault, in respect of which he was arrested. THE SENTENCES PASSED ON OTHER OFFENDERS

Sione Amone was initially charged upon the basis of the identification made by Tughlet Homeh which was later accepted as having been mistaken. The charges against him were then withdrawn.

Chi Binh Nguyen (Jap) who was 19 years old at the time of the offence, and who had a prior record for violence, including an offence for which he had been on conditional liberty, pleaded guilty, at his arraignment on 6 February 2003, to the same s 33 offence, to affray, and to two counts of malicious damage to a motor vehicle. He was given a discount of 25 per cent for the plea, and was sentenced to imprisonment for 12 years with a non-parole period of 9 years for the s 33 offence, and was given terms of 3 years with a non-parole period of 2 years and 3 months for the malicious damage charges, and a fixed term of 2 years for the affray offence. The sentence for the s 33 offence was cumulative upon the non-parole period for the malicious damage offences. The overall sentence was therefore one of 14 years and 3 months with an overall non-parole period of 11 years 3 months.

Chi Tam Huynh (Big Chi) who was 18 years of age at the time of the offence, and who had a prior history of malicious damage and of affray, pleaded guilty, just prior to the commencement of the trial, to maliciously inflicting grievous bodily harm (s 35 Crimes Act ), and to one count of malicious damage to a motor vehicle (s 195(a) Crimes Act ). A form 1 matter was taken into account of having a prohibited weapon. He was additionally sentenced for a separate offence namely the ongoing supply of a prohibited drug (s 25A Drug Misuse and Trafficking Act 1985).

He was given a discount for the plea of 25 per cent, and was sentenced to imprisonment for 7 years for the s 35 offence, with a non-parole period of 4 years, and to imprisonment for a fixed term of 3 years for malicious damage. A sentence of 3 years was imposed for the drug offence, and the sentence for the s 35 offence was made cumulative upon that sentence by 1 year in round terms. The overall sentence was accordingly one of 8 years, in round terms, with a non-parole period of 5 years.

Adam Lamacchia also pleaded guilty shortly before trial to maliciously inflicting grievous bodily harm upon Mr Wilson, contrary to s 35 (1)(b) of the Crimes Act , an offence for which the maximum penalty is imprisonment for 7 years, and to affray. He had been aged 18 years at the time of the offence and had no prior record of violence.

He was sentenced to imprisonment for 2 years which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act for the s 35 offence, and to a s 9 bond for 4 years in relation to the offence of affray.

Michael Gaspari later pleaded guilty to one count of affray. He was sentenced by Phelan DCJ to an unconditional s 9 bond for 2 years. D. PERRE’S APPEAL

Perre has raised the following grounds of appeal: “GROUND 1. His Honour’s discretion miscarried and he was wrong to allow the Crown to cross-examine the witness Siljanoski in relation to that witness’s visual identification of the Appellant because he failed to consider s 114 of the Evidence Act. GROUND 2. The trial miscarried because his Honour erred in allowing the Crown to lead the inadmissible evidence of visual identification of the Appellant by Siljanoski.

The Appellant also applied for leave to appeal against the sentences imposed by his Honour on the following grounds: GROUND 3. His Honour was in error not to take the intoxication of the Applicant into consideration as going to the degree of deliberation involved in the offence. GROUND 4. His Honour failed to take into account, properly or at all, the youth and good character of the Applicant or that he was a juvenile at the time of the offence. GROUND 5. His Honour was in error not to have found special circumstances. GROUND 6. The sentences imposed by his Honour were manifestly excessive.”

Before dealing with these grounds it is convenient to note that the case against Perre primarily rested upon: (a) Tracey Saye’s evidence of him taking the wooden leg from the boot of her car, and striking the victim, while he was lying on the ground “like a cricket bat, like just hitting – just hitting”. (b) The admission which Tracey Saye, and Hayley Girgin said that he made to them, to the effect that he had hit the victim with a stick that kept breaking into pieces, which was consistent with the six bloodied pieces of garden stake that were found at the scene. (c) The observations of Tracey Saye and Hayley Girgin as to the presence of blood on his cream pants, and the admission which he made to Hayley Girgin as to his concerns about going home with blood on his trousers, which he thought had come from the “guy on the ground”. (d) Snezana Tankoska’s evidence of being punched by a man while she was phoning for help in circumstances where no other female who was present that night said that she was struck and where Perre had admitted to Hayley Girgin and to Tracey Saye that he had struck a girl. (e) The presence of a cut and bruised knuckle on his hand that was seen by Simon Baker, Hayley Girgin and Carla Busuttil. (f) His admission to Simon Baker of beating up “some Lebo” and hitting him with a pole. (g) His false claim to have worn the green corduroy trousers on the night of the assault, which he produced to police. (h) His attempt to minimise his participation in and recollection of, the nights’ events, under a veil of intoxication. (i) His presence with the other principal offenders in the red Laser of “Big Chi” which took them from the scene, that being a vehicle in which blood was found having a profile that matched that of the victim. (j) Steven Siljanoski’s account to police as to having seen Perre in the group of men who were striking the victim. APPEAL AGAINST CONVICTION Grounds 1 and 2 - Ground 1: His Honour’s discretion miscarried and he was wrong to allow the Crown to cross-examine the witness Siljanoski in relation to that witness’s visual identification of the Appellant because he failed to consider s 114 of the Evidence Act. Ground 2: The trial miscarried because his Honour erred in allowing the Crown to lead the inadmissible evidence of visual identification of the Appellant by Siljanoski.

These are obviously overlapping grounds of appeal.

There were two witnesses who were relied upon by the Crown as having identified Perre as one of the attackers: Tracey Saye and Steven Siljanoski.

The identification by Tracey Saye was positive and unequivocal, and she was a person who had known him before the incident. Although there was an attack made upon her credit, she remained unshaken and was obviously accepted by the jury. His Honour gave a sufficient direction in relation to visual identification evidence, and no point is taken upon appeal in relation to this aspect of the case.

The appeal is, accordingly, concerned with the evidence led from Steven Siljanoski, in particular as to whether leave should have been given to the Crown, under s 38 of the Evidence Act , to cross-examine him, and as to whether there had been compliance with s 114 of the Evidence Act . That section is in the following terms: “Exclusion of visual identification evidence (1) In this section: visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence. (2) Visual identification evidence adduced by the prosecutor is not admissible unless: (a) an identification parade that included the defendant was held before the identification was made, or (b) it would not have been reasonable to have held such a parade, or (c) the defendant refused to take part in such a parade, and the identification was made without the person who made it having been intentionally influenced to identify the defendant. (3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account: (a) the kind of offence, and the gravity of the offence, concerned, and (b) the importance of the evidence, and (c) the practicality of holding an identification parade having regard, among other things: (i) if the defendant failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure, and (ii) in any case—to whether the identification was made at or about the time of the commission of the offence, and (d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification. (4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held. (5) If: (a) the defendant refused to take part in an identification parade unless a lawyer acting for the defendant, or another person chosen by the defendant, was present while it was being held, and (b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a lawyer or person to be present, it is presumed that it would not have been reasonable to have held an identification parade at that time. (6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

In order for this ground to be considered it is necessary to set out Siljanoski’s evidence in a little more detail, and to note what occurred at the trial in relation to it.

In chief, his evidence was to the following effect: “Q. Did you recognise anybody that was hitting [the victim]? A. Hundred percent sure, no. ….. Q. Do you know a person named Adam Perre? A. Yes I do. Q. How long have you known him? A. I don’t really know him, just know the name. Q. Do you know him or not? A. Well, I wouldn’t say I’m friends with him, I don’t know him, really spoken to him before, but like, I know who he is, but I don’t know – we have never really had a conversation together. Q. You see, Mr Siljanoski, you have told the Court you already knew what Adam looked like before this night? A. Yes, I knew what he looked like.”

The Crown then made an application under s 38 of the Evidence Act to cross-examine him in respect of the inconsistent statements contained in a statement which he had made to the police on 29 November 2001.

The application was opposed. Counsel for the Appellant conceded that s 38 of the Evidence Act (“the Act”) applied but submitted that his Honour would not grant leave because of the provisions of s 192 (2)(b) of the Act. When asked by his Honour “what (other) provisions of the Act” were relevant, counsel replied, “No. Probably for the very good reason that none apply”. Counsel maintained that the effect of the evidence of Siljanoski was that “he didn’t really know” the Appellant, and it was upon that basis that leave to cross-examine him was opposed.

His Honour granted leave to the Crown to cross-examine Siljanoski and observed in his judgment “the evidence could be of crucial importance so far as the Crown case is concerned in respect of each accused”. In his judgment he referred only to ss 38 and 192 of the Act.

The Crown cross-examined Siljanoski who then gave evidence that he had made a statement to the police which contained the following: “At that stage [Duncan] almost ran me over so I ran behind Ollie’s car. They must have done something like put the breaks [ sic ] on hard. They skidded and the bottles landed near me… [Duncan] must have got out of the car and went back to fight because I looked back towards where the fight was taking place and saw a group of 4 or 5 guys around maybe one guy. I saw [Duncan] was one of the guys in that group a guy I know as Adam Perre and others. They were hitting him maybe with a pole a branch… I yelled out… “Hurry up let’s get out of here”. I remember leaving, Ollie was driving. Zoran got in the front seat. I got in the back seat. We started driving off towards the south. At this time another guy, some other guy, ran up to the car jumped in behind Ollie’s seat.”

When Siljanoski was confronted by his statement to the police identifying the Appellant as one of the assailants, he said (T275.6): “…when I made that statement I told – the detectives asked me, I said there was someone with maybe blond hair. He said “was it Adam Perre?” I said “I am not sure, does he have blonde hair?” And he said “Yeah he does and he was just arrested a day before that.”

Detective Senior Constable Worthington said, in his evidence, that he could not recall whether Siljanoski’s eyesight was discussed when the statement was being taken; whether Siljanoski had said there was a person with blond hair or whether Siljanoski asked him whether the Appellant had blond hair. It was his account that he typed the version which he was given on the word processor. What he was told he put into the statement.

The evidence of Siljanoski led through cross-examination by the Crown was obviously visual identification evidence falling within s 114(1) of the Evidence Act , and was inadmissible ( R v Tahere 1999 NSWCCA 170) unless one of the three conditions referred to in s 114(2) had been met. No identification parade had been held and the Appellant had not been asked whether he would take part in one in relation to the investigation into either of the offences contained in the indictment.

There had however been a request made of him to participate in an identification parade in relation to the alleged assault by him of Snezana Tankoska which had occurred during the general incident at Stuart Park. The Appellant declined to participate in that parade. The identifying witness for that assault was not Siljanoski. The information relating to the request for and refusal of an identification parade for that assault was not placed before the jury. Nor was evidence led to show that it became necessary for police to obtain an order for him to provide a buccal sample for DNA testing, since he was not prepared to give his consent.

It was submitted that, upon the evidence, Siljanoski had been not been sufficiently familiar with the Appellant to conclude that it would not have been reasonable, on that account, to have held an identification parade.

While neither the Crown nor defence Counsel referred his Honour to the requirements of s 114, it is now submitted that, at the very least an inquiry should have been made by his Honour as to whether s 114 of the Act had been satisfied.

Reliance was placed on decisions of this Court in R v Tahere [1999] NSWCCA 170 and R v Taufua NSWCCA 11 November 1996. Each is distinguishable. The critical finding in Tahere was that there was no evidence to show that at the time of the trial, or at a time reasonably proximate to the trial it would not have been reasonable to have held a parade. In the present case there was evidence of that kind available related to the earlier lack of co operation on the part of the Appellant.

Taufua was a case that was concerned with the application of s 114 in the case of an in-Court identification, and also with the question whether the witness had sufficient prior familiarity with the accused for the trial judge to have reached a conclusion that it would not have been reasonable to hold an identification parade. The present case is in a different position, since there was evidence available upon which such a conclusion could readily have been reached.

In summary there are obvious problems, in relation to this submission, in so far as: (i) Experienced trial counsel did not take any objection at trial; (ii) The evidence was capable of showing that Siljanoski already knew the Appellant; (iii) Having refused an identification parade in relation to one aspect of the night’s events, it was virtually certain that any request to participate in a parade concerning the more serious charge would have been refused; (iv) There was a considerable body of evidence, apart from that of Siljanoski to show that Perre had been actually engaged in the assault, not only from Tracey Saye, but in the form of the several admissions previously mentioned; and (v) The Wollongong group which included Perre and Siljanoski had all come from the same party, with the result that Siljanoski would have been likely to have recognised him later that night.

The High Court in Dhanhoa v The Queen (2003) 199 ALR 547 pointed out that the provisions of the Evidence Act need to be assessed in the adversarial context of the trial. In a joint judgment Gleeson CJ and Hayne J said at 20: “Sections 114 and 115, like many other provisions of the Evidence Act, declare that evidence of a certain kind is not admissible in certain circumstances, or unless certain conditions are fulfilled. Yet evidence of a kind to which those sections refer may not be the subject of objection. Counsel for an accused person may have any one of number of reasons for not objecting. A trial judge ordinarily will not know why no objection is taken, and may have no right to enquire. Counsel might decide not to object simply because he or she knows that that accused, upon giving evidence, will admit that the identification evidence is correct. The Evidence Act applies in an adversarial context. It is the parties, and their counsel, who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection…” See also R v Stanley [2004] NSWCCA 278.

In the present case, had the absence of an identification parade been taken up by the defence, the Crown would have been entitled to lead evidence from Detective Senior Constable Audrey Pearson concerning the Appellant’s refusal on 15 November 2001 to participate in a parade, in relation to the assault of the female, an event which was very closely linked with the central events of the night. Having been refused once, police would have been reasonably entitled to assume that any further request would also be declined, particularly in view of the Appellant’s refusal to enter into an ERISP after his arrest, and the need for police to seek an order to obtain a buccal swab from him.

Absent any evidence from experienced trial counsel as to why the point was not taken, and given the appropriate directions that the jury received as to identification evidence generally, Rule 4 of the Criminal Appeal Rules applies. Leave to argue this ground should, in my view, be refused.

For these reasons the appeal of Perre against conviction should, in my opinion, be dismissed. APPEAL AGAINST SENTENCE Ground 3 - His Honour was in error not to take the intoxication of the Applicant into consideration as going to the degree of deliberation involved in the offence.

His Honour noted the submission that he should find that the Appellant, whose role was assessed to have been among the most serious of the various offenders, had committed the offence because of his drunkenness and that this factor should have been treated as one operating in mitigation of sentence. He observed: “I am not convinced that any aspect of your account is true. Anyway, intoxication due to alcohol consumption is, in view of the jury verdict, no excuse or mitigation. On the other hand, if all that is sought is an acknowledgment that you may on occasions drink too much and be better off not doing so, then I am prepared to make these findings.”

It was submitted that his Honour was in error to dismiss the question of intoxication out of hand since the degree of culpability of an offender may be influenced by the degree of deliberateness involved in an attack R v Sewell and Walsh (1981) 5 A Crim R 204, and this may in turn be affected by intoxication.

There was evidence to show that the Appellant had been affected by alcohol, coming not only from himself, but also from Tracey Saye. On the other hand as his Honour correctly observed, by its verdict the jury had been satisfied that he had not been so affected as to have lacked the specific intent required for the offence.

The deliberate and sustained nature of the conduct attributed to the Appellant, both in savagely beating the victim, and in punching Snezana Tankoska in order to stop her calling for help, and his apparent awareness of what had occurred as disclosed by the various admissions which he made to Tracey Saye, Hayley Girgin and Mr Baker after the offence, are inconsistent with him having been affected by alcohol to any great degree.

While it is correct that alcohol may tend to mitigate the culpability of an offender where it causes him to act out of character, or where it affects the deliberateness of his act ( R v Gordon (1994) 71 A Crim R 417), the evidence in the circumstances outlined in this case, fell well short of this mark. At most this was a case of reduced inhibitions, without any suggestion of any decrease in the Appellant’s awareness of what he was doing. Alcohol is not a licence to commit crime: R v Fletcher-Jones (1994) 75 A Crim R 381, at 387 per McTierney J, and it was obviously to that principle that his Honour was referring when he noted that intoxication “is no excuse or mitigation”.

I am accordingly not persuaded that his Honour’s findings were erroneous, or that any lessening in the Appellant’s culpability is to be attributed to the fact that he had been drinking alcohol before the attack. Grounds 4, 5 and 6 - Ground 4: His Honour failed to take into account, properly or at all, the youth and good character of the Applicant or that he was a juvenile at the time of the offence. Ground 5: His Honour was in error not to have found special circumstances. Ground 6: The sentence imposed by his Honour were [ sic ] manifestly excessive.

His Honour appropriately noted that there was nothing remarkable about the Appellant’s upbringing or background “except that he had achieved well in all areas”, and that his prospects of rehabilitation were good. He continued “however in view of the objective facts of this matter, this aspect plays little significant role in the ultimate sentence”.

It was submitted that his Honour failed to give sufficient weight to the evidence, which showed that the Appellant, who was aged just short of 18 years at the time of the offence, had a prior excellent character with a substantial history of employment and involvement in the community. In this regard it was the case that he had a supportive family, he had completed his HSC, he was undertaking a civil engineering course at a TAFE college, he had bright career prospects, and the offence was described by those who knew him as being out of character. He had no criminal antecedents, he was of above average intelligence, and he had excelled at soccer.

Properly understood it is obvious from the reasons for sentence, that his Honour accepted that the subjective circumstances of the Appellant were favourable, in these various respects, and that his observation as to there being “nothing of note” did not go beyond an indication that there was nothing adverse in his record.

Reliance was placed on the general principle exemplified in R v GDP (1991) 53 A Crim R 112 and R v C; R v S; R v T, NSWCCA 12 October 1989, that the youth of an offender will generally mean that less weight will be given to deterrence and more to rehabilitation.

This is, however, subject to the qualification that when the nature of the conduct includes extreme violence, or is akin to that which is more commonly expected of an adult offender, then the interest of rehabilitation has less significance: R v Tran (1999) NSWCCA 109, R v Hearne (2001) 124 A Crim R 451, and R v Voss (2003) NSWCCA 182. The principles referred to in these authorities were directly applicable in the light of his Honour’s finding, which was amply based on the evidence, that he had deliberately struck the victim with a piece of wood, several times, while he was being attacked by co-offenders with implements such as a machete, poles and a wheel brace.

There is a further qualification of particular relevance in this case, in so far as the fact of age becomes of less importance the closer the offender is to adulthood. The Appellant was born on 20 December 1983, and was therefore only months short of his eighteenth birthday at the time of the offence.

The case is one for which the observations of Lee CJ at CL in R v Pham and Ly (1991) 55 A Crim R 128 at 135 are particularly apposite: “It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft [1975] VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, ie, coercive action is fundamental to correctional treatment in our society.”

Although the Appellant was by no means a mature adult, he was no child. He knew well the grave seriousness of the violence to which he was a party.

It was also submitted that the sentence imposed was crushing and was outside the legitimate range for offences of its kind. In this respect, attention was drawn to the JIRS statistics, which suggest that both the sentence and the non-parole period were 50% higher than any sentence previously imposed upon an offender less than 21 years of age (the highest, albeit in a population of only 26 offenders, having been a head sentence of 10 years, with a non-parole period of 8 years).

There is limited value in any comparison based on such a small sample, particularly when the statistics include cases displaying a wide range of objective and subjective circumstances; equally it is the case that only limited assistance can ever be attained by reference to individual cases of the same general type, involving other offenders, having regard to the fact that they form part of the range, and also having regard to the need to assume that they were correct: R v Morgan (1993) 70 A Crim R 368, R v Trevenna [2004] NSWCCA 43.

It does however remain necessary that consistency be achieved in sentencing R v Oliver (1980) 7 A Crim R 174, and in this respect regard to the statistics, and to the cases that make up the range, can help, so long as the practical constraints mentioned are kept in mind.

In this instance reference was made to three s 33 cases that resulted in the victim sustaining a permanent and serious brain injury: R v Henderson NSWCCA 5 November 1997, R v McKnoulty NSWCCA 20 May 1998 and R v Sumea [2002] NSWCCA 271. In Henderson a sentence of 11 years with a non-parole period of 8 years was imposed after a plea; in McKnoulty , after trial, a sentence of 18 years with a minimum term of 13½ years was imposed; and in Sumea , a sentence of 11 years with a non-parole period of 7 years was imposed, following a plea. There were obvious differences in the objective and subjective circumstances in these cases, and in the result they provide relatively little assistance.

The s 33 offence in this case was of very great objective seriousness such that a condign sentence was called for, that reflected not only a significant punitive and retributive element for the serious and permanent brain injuries that were caused, but that also conveyed a substantial element of general deterrence.

Young offenders who elect to respond to any form of confrontation between different groups, need to understand, with crystal clarity, that sentences of imprisonment await those who cause the confrontation to be elevated to one involving extreme violence. Particularly is that so if they band together, in a brutal and cowardly pack attack with weapons, on a single unarmed and defenceless victim.

The present case falls precisely into that category, and it was in the upper range of seriousness. It was not a case where the Appellant has shown any remorse or contrition, having continued to maintain his innocence. While he is not to be punished additionally for going to trial, or for maintaining this appeal, or for his lack of contrition, on the other hand he is not entitled to claim any discount or mitigation, on either account.

The critical question for this aspect on the appeal, which is tied up with the next ground, is whether the sentence was so far above the range, having regard to the Appellant’s otherwise favourable circumstances, that some lesser sentence was warranted in law, and should have been passed: s 6(1) Criminal Appeal Act 1912.

His Honour observed, relevantly for ground 5: “I could find special circumstances on account of your youth and other matters, but because of the structure of the sentence I am about to impose, I see no reason to increase the period available for parole.”

Although this passage is somewhat opaque, it would seem that his Honour regarded the period for potential release on parole of 4 years to have been sufficient to accommodate the kind of post release supervision that would have been required to ensure the Appellant’s successful return to the community.

There can be no quarrel with such a conclusion particularly having regard to the fact that the Appellant was not shown to have any psychological condition, or problems with substance abuse, that called for particular attention, and also having regard to the current practice as to when effective supervision ceases.

The case was one where there were factors that could properly have been taken into account when setting the head sentence, which also fell into the category of circumstances that can qualify as special circumstances, such as the age of the Appellant, the fact that this was his first time in custody, and his good prospects of rehabilitation.

It was not obligatory for his Honour to have found special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1997: R v Holmes [2003] NSWCCA 258.

The existence of an undue readiness for this provision to be used, as a means of reducing an otherwise appropriate sentence, has been noted in decisions in this Court such as R v Fidow (2004) NSWCCA 172 that is, where they have already been given full weight when setting the head sentence.

What is of concern in the present case is whether any weight was given to the Appellant’s subjective circumstances at all, when the head sentence was determined, against which a non-parole period was fixed in accordance with s 44 of the Crimes (Sentencing Procedure) Act.

I can see no error, whether latent or patent, in relation to the sentence for the affray offence.

I have however reached the conclusion that the sentence for the s 33 offence was so far outside a proper exercise of legitimate sentencing discretion, that his Honour could not have allowed sufficient weight to be attached to the favourable subjective circumstances of the Appellant. It is, a sentence that would all but extinguish his prospects of rehabilitation, and in this respect latent error has been established.

In my view the lesser sentence that was warranted was one of imprisonment for 13 years, with a non-parole period of 9 years. This involves a minor variation in the statutory ratio, but I am persuaded that special circumstances exist relating to the age of the Appellant, to the interest of securing his rehabilitation and to the fact that he is to serve a lengthy period of imprisonment.

I would propose, accordingly in the appeal of Perre, the following orders: 1. Appeal against convictions dismissed. 2. Leave to appeal against sentence granted, but confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. 3. Appeal in respect of the sentence for the s 33 offence allowed. 4. Quash the sentence for the s 33 offence and in lieu thereof the Appellant is sentenced to imprisonment for 13 years to date from 18 August 2003 and to expire on 17 August 2016 with a non-parole period set of 9 years to date from 18 August 2003, and to expire on 17 August 2012, that being the earliest day on which the Appellant would be eligible for release on parole.

I observe that in re-sentencing the Appellant, I have taken into account the additional material tendered which confirms the progress of the Appellant while in custody, and supports his favourable prospects of rehabilitation. DUNCAN’S APPEAL

Duncan has raised the following grounds of appeal: “GROUND 1 His Honour erred in permitting the Crown to cross-examine the witness Stephen Siljanoski pursuant to s 38 of the Evidence Act , in that the witness was not “unfavourable” within the meaning of the act particularly s 38(1)(b) and (c) and s 192 AND His Honour failed to consider s 135-7 of the Evidence Act with respect to this evidence. GROUND 2 His Honour erred in permitting the Crown to adduce evidence of questioning of the Appellant in the search warrant video. GROUND 3 His Honour erred in his directions to the jury regarding the evidence of identification. GROUND 4 His Honour erred in his directions to the jury regarding “lies”. GROUND 5 His Honour failed to adequately direct the jury as to specific intent and the alternative to the first count on the indictment. GROUND 6 His Honour failed to direct the jury with respect to the evidence of Siljanoski. GROUND 7 His Honour erred in his directions to invite the jury to convict upon a basis apart from a proper evaluation of the evidence and its application to the ingredients of the offence (by leave).

Additionally Duncan has brought an application for leave to appeal against sentences imposed by his Honour on the following grounds: a) His Honour made erroneous findings as to the objective circumstances of the offence. b) His Honour rejected or failed to adequately take into account the subjective findings favourable to the Applicant that were available and uncontested on the evidence. c) His Honour failed to adequately consider the age of the offender and the evidence of rehabilitation. d) It is submitted that His Honour should have found special circumstances within section 44 of the Crimes Sentencing Procedure Act. e) Parity. f) The sentence imposed by His Honour was manifestly excessive.”

Again before dealing with the separate grounds of appeal it may be noted that the case against Duncan primarily rested upon: (a) The evidence which suggested a degree of hostility on his part towards the Sydney group, including the making of a phone call to Jason Kusonogovski, and his inquiry of Gjoreski as to whether he had a baseball bat. (b) The presence of a wheel brace near the place where the victim was found, and his search of the boot of the vehicle of Oliver Gjoreski, and the fact that a brace which had previously been in the boot was later found to be missing, in association with the evidence of Dr Duflou that some of the injuries could have been caused by such an implement. (c) The fact that he took Mathew Michael’s phone, the SIM card for which was found in his blue shorts, and that he initiated the confrontation which followed, by whistling up his friends, and by then driving around the Park in an erratic and dangerous manner. (d) The observations of Sione Amone and Carla Busuttil of him chasing the Sydney group back towards the grassed area where the victim was attacked, and of him hitting the man on the ground. (e) The description by Alana Ljubicic and Steven Siljanoski in their initial statements, and of Carla Busuttil of his involvement in the fight, and their observations of him punching and kicking the victim, and of hitting him with a machete. (f) The presence of blood, the DNA of which was consistent with that of the victim, on his blue shorts. (g) The damage which he sustained to his knuckles. (h) The evidence of Freda Iordanidis, Carla Busuttil and Alana Ljubicic to the effect that the person who was seen by others to have been principally involved in the fight, re-entered the red Laser in which she was sitting, in the order of Perre, “Big Chi”, “Jap” and finally Duncan. APPEAL AGAINST CONVICTION Ground 1 - His Honour erred in permitting the Crown to cross-examine the witness Stephen Siljanoski pursuant to s 38 of the Evidence Act , in that the witness was not “unfavourable” within the meaning of the act particularly s 38(1)(b) and (c) and s 192 AND His Honour failed to consider s 135-7 of the Evidence Act with respect to this evidence.

It was after Siljanoski had given evidence at the trial that he had seen a group of people hitting someone on the grass, that he indicated that he “couldn’t be a hundred per cent sure who they were”, and that he had not recognised anybody who had been involved in the assault, that leave was given for him to be cross-examined under s 38 of the Evidence Act . He was then asked to read the relevant paragraphs in his earlier statement to police, which he agreed had constituted the account which he had given and which, he also agreed, had been true to the best of his knowledge and ability at that time. The relevant paragraphs in the statement so far as Duncan was concerned, were to the following effect: “At that stage Babe (the Appellant) almost ran me over so I ran behind Ollie’s car. They must have done some thing like put the brakes on hard. They skidded and the bottles landed near me. Q. Would you read a little bit more slowly? A. Babe must have got out of the car and went back to fight because I looked back towards where the fight was taking place and I saw a group of four or five guys around maybe one guy. I saw Babe was one of the guys in that group a guy I know as Adam Perre and others. They were hitting him may be with a pole, branch. I saw it had leaves on it, another pole. I also saw people kicking the guy that was on the bonnet. Ollie yelled out to me, in “Hurry up let’s go”. So I yelled out to Big Chi, “hurry let’s get out of here”. I remember leaving, Ollie was driving. Zoran got in the front seat, I got in the back seat. We started driving of [ sic ] towards the South. At this time another guy, some other guy, ran up to the car jumped in behind Ollie’s seat. Then we stopped and were looking back.”

His Honour decided, as clearly was correct, that the witness’ evidence at the trial, was at variance with his statement, and that the case came within “s 38(1)(c) and (e)” of the Evidence Act , the latter obviously having been intended by his Honour as a reference to sub para (b). The case was one to which decisions of this Court in Regina v GAC NSWCCA 1 April 1997 applied, and which permitted the contents of the earlier out of court statement to be received as evidence of the facts concerning the attack on the victim.

There was also a proper basis for the case to have been brought within s 38(1)(a), in so far as the evidence given in chief was unfavourable to the Crown, as this term has been judicially interpreted: R v Souleyman (1996) 40 NSWLR 712 at 715, R v Velevski (No. 2) (1997) 93 A Crim R 420 and R v Lozano NSWCCA 10 June 1997.

Objection was taken to leave being given under s 192 of the Act, it being submitted, by reference to s 192(2)(b), that it would be unfair to the accused for such cross-examination to be permitted. His Honour did not overlook the need to give consideration to the matters referred to in s 192, as had been held necessary in Stanoevski v The Queen (2001) 75 ALJR 454, Adam v The Queen (2001) 75 ALJR 1537 and R v Fowler (2000) NSWCCA 142. It was however submitted that error arose in so far as insufficient attention had been given to the probative value and potential prejudicial effect of the evidence, so far as fairness under s 192(2)(b) was concerned.

It was submitted, on appeal although not at the trial, that his Honour should have additionally given consideration to ss 135 and 137 of the Evidence Act before giving leave.

The principle basis of these submissions rested upon the proposition that the witness’ evidence was unreliable, as he had already indicated that he “could not see one hundred per cent” without glasses, and that he had been pressured by police into making the statement. The evidence which he gave in this regard, once leave had been granted, was to the following effect: “Q. And you told Det Worthington the things that appear in Paragraph 13 of your statement, that is right isn’t it? A. Yes, but there was something that I think he worded wrong, the way it came out on [ sic ] my mouth. Because I told him from the distance I was and my eyesight, I have to wear glasses when I drive, by the way, I could not see 100 per cent. And for some reason that is not in the statement. I did not know that until I went to the committal here I never got a copy of my statement as other people did.”

In cross-examination, he agreed that he had felt under pressure at the police station, that he had been embarrassed by having been visited by police at his place of work, and that what had appeared in his statement had been what the police officer (Det Worthington) had wanted to put down, and not what he had meant.

It was submitted that the overall weight and reliability of the statement was also weakened by the possibility that it had been based upon reconstruction after the event, from knowledge which had been later acquired, by the unfavourable lighting, and general confusion in the park, and by the distance between him and the fighting which was calculated to have been in the order of 20 metres, to the point where leave should have been refused under s 192 or the evidence otherwise excluded under ss 135 or 137.

There was evidence from Det Worthington denying that he had “composed words” for the witnesses. He said that his general practice was to include in statements that which he was told by witnesses. Additionally it was the case that Siljanoski acknowledged knowing Duncan, Big Chi, Little Chi and Sione Amone, and conceded, at one point, that his eyesight was “alright” for long distance. He said that he had been about 20 to 25 metres away from where the person on the ground had been struck, and was able to see the leaves on the branch that was being used by some of the attackers. Duncan was a solid man of Islander appearance who had been wearing a distinctive sleeveless T-shirt, and there was no obvious reason for the witness to confuse him with Sione Amone who had been excluded by the other witnesses.

Having regard to the remaining evidence and to the contemporaneity of the initial account, and the witness’ acknowledgement that the statement had been truthful to the best of his knowledge and ability at the time of its making, I am not persuaded that it should have been regarded as unreliable.

In any event, it is well established that the “unfairness”, with which s 135 and s 137 are concerned relate to the risk of the evidence provoking some irrational, emotional or illogical response, or of it being given more weight than it truly deserves: R v Nguyen (2002) NSWCCA 342 at para 28 and R v Suteski (2002) NSWCCA 509 at para 116. The fact that the evidence may be weak, or the subject of challenge, is not of itself a ground for its exclusion: Festa v The Queen (2001) 208 CLR 593 at para 51 per McHugh J.

Moreover, evidence of one witness’ identification may properly be taken into account in the context of the evidence as a whole: R v Tugaga (1994) 74 A Crim R 190 at 196 and R v Rima (2003) NSWCCA 405. In the present case, there was evidence as to Duncan’s involvement from Alana Ljubicic, Carla Busuttil and Sione Amone. Additionally, there was evidence as to the presence of blood consistent with that of the victim on his shorts, and as to him searching for a weapon before the attack.

A reading of the examination in chief and the cross-examination shows that the witness Siljanoski was somewhat uncooperative, and was obviously attempting to avoid saying anything that would be harmful to the Appellants. In those circumstances the case bears some similarity to that which came before this Court in R v GAC NSWCCA 1 April 1997. In that case the fact that the witness’ memory or certainty as to events which he had recounted to police, soon after the relevant events, had only failed him at the critical stage, and the fact that he was available for cross-examination at the trial, were each taken into account in determining whether leave should have been given.

Clear directions were given in relation to visual identification evidence, both generally and specifically, and in considerable detail, in relation to the care which needed to be given in relation to Siljanoski’s evidence on that aspect of the case. The issues which arose in relation to s 135 and s 137 of the Evidence Act were essentially the same as those arising under s 192(2)(b), as was the case in Regina v GAC . Moreover the defence had ample opportunity to cross-examine him on the prior statement and to obtain answers which potentially assisted their case, subject of course to an assessment of their credibility.

No argument was advanced at trial to the effect that the use of the evidence should be restricted under s 136 to that which was permissible prior to the enactment of the Evidence Act . In any event no proper basis would have been established for such a restriction, since the out of court statement went directly to the events in question, was made shortly after their occurrence, and the witness was clearly being evasive and protective of the Appellants. This ground has not been made good. GROUND 2 – HIS HONOUR ERRED IN PERMITTING THE CROWN TO ADDUCE EVIDENCE OF QUESTIONING OF THE APPELLANT DURING THE SEARCH.

A voir dire examination was conducted in relation to the admissibility of this evidence, which related to the questioning of the Appellant, in his bedroom, during the search of the premises where he lived. A video was tendered of this search and of the questioning that occurred.

In the course of earlier questioning at the police station, the Appellant had said to police that he was wearing his jeans, a grey "cut off like, top thing", and the jacket and shoes that he was wearing during the interview. He said that the rest of his clothes were at his home and he agreed to let police search the premises for them.

While he was in his bedroom, he pointed out the grey sleeved T-shirt, which was then taken into police custody, along with his jacket and shoes. The only part of the video recording objected to a trial was the following question and answer: Kelly: “Who does the washing here?” Duncan: “I do”.

That answer was relied upon by the Crown as a lie, in so far as Sheree Machan had given evidence that it was she who washed his clothing, on a daily basis.

The admissibility of this portion of the conversation was challenged, at trial, and upon appeal, by reference to s 13 Children (Criminal Proceedings) Act 1987. That section is in the following terms: 13 Admissibility of certain statements etc (1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings unless: (a) there was present at the place where, and throughout the period of time during which, it was made or given: (i) a person responsible for the child, (ii) an adult (other than a member of the police force) who was present with the consent of the person responsible for the child, (iii) in the case of a child who is of or above the age of 16 years—an adult (other than a member of the police force) who was present with the consent of the child, or (iv) a barrister or solicitor of the child’s own choosing, or (b) the person acting judicially in those proceedings: (i) is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and (ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings. (2)... (3)…

It was asserted that the requirement that the support person be "present at the place" where, and throughout the period of time during which, the Appellant's statement was made, meant that such person had to be physically located in the bedroom where the discussion took place.

The video shows the Appellant speaking to police. It does not show the mother or the girlfriend at the time of this conversation, although it is evident from a viewing of the video as a whole that they were present in the dwelling which contained this bedroom.

The house was small, there were only a few rooms, and there was not much space in the bedroom where the Appellant and police were standing. Detective Kelly said, on the voir dire, that his last recollection of the mother was of her standing in the corridor about 3 metres from where he and the Appellant stood. He was unable to say precisely where she was at the time of the particular question and answer.

The Appellant propounded a test for the section as one which required the support person to be "in a physical position to influence the questioning". This involves something of an overstatement. I am of the view that the section should be understood in the way that was outlined by me in Regina v Phung and Huynh NSWSC 26 February 2001: “34. It may be accepted that the purpose of the legislative regime, that now applies to the interview of children, and particularly those in custody following arrest, is to protect them from any disadvantage inherent in their age, as well as to protect them from any form of police impropriety. As to the former, what is required is compliance with the procedure laid down so as to prevent the young or vulnerable accused from being overawed by the occasion of being interviewed, at a police station, by detectives who are likely to be considerably older and more experienced than they are. 35. This principle derives from what was said by Lee J in Warren (1982) 2 NSWLR 360; by Roden J in Williams NSW Supreme Court 9 August 1982; by Hunt J in Cotton (1990) 19 NSWLR 593; by Carruthers J in Dunn NSW CCA 15 April 1992; and also by Hidden J in H (supra). 36. The role of the support person is to act as a check upon possible unfair or oppressive behaviour; to assist a child, particularly one who is timid, inarticulate, immature, or inexperienced in matters of law enforcement, who appears to be out of his or her depth, or in need of advice; and also to provide the comfort that accompanies knowledge that there is an independent person present during the interview. That role cannot be satisfactorily fulfilled if the support person is himself or herself immature, inexperienced, unfamiliar with the English language, or otherwise unsuitable for the task expected, that is, to intervene if any situation of apparent unfairness or oppression arises, and to give appropriate advice if it appears the child needs assistance in understanding his or her rights.”

These observations were cited, with apparent approval by this Court in Regina v Tang (2001) NSWCCA 210 where Greg James J, with whom Spigelman CJ agreed, said, additionally: “58 It can be seen from the structure of the provision that it lays the onus entirely upon the Crown, should it seek to tender the material. The section, by providing the exceptions, provides circumstances in the absence of which the evidence must be, in law, rejected. Other provisions, eg., those in Part 3.4 of the Evidence Act 1995 make further provision for the admissibility and inadmissibility of such material. My view of s. 13 is that for the Appellant to satisfy this court that, in the admitted absence of such a person as s.13(1)(as) refers to, there was a significant possibility the evidence would be rejected, merely requires the Appellant to satisfy us that there is a significant possibility, notwithstanding that the police were misinformed as to his birth date, that a judge would still reject the evidence. The judge is required to do that unless, even if satisfied there was proper and sufficient reason for the absence of such an adult, only if that judge considers that, in the particular circumstances of the case, the evidence should be admitted. On consideration of such a matter, a judge would have regard to the history of provisions of this kind (see Regina v. Aquilina (1978) 1 NSWLR 358; Regina v. Warren (1982) 2 NSWLR 360; McKellar & Booth v. Smith (1982) 2 NSWLR 950; Regina v. Cotton (1990) 19 NSWLR 593; Regina v. Dunn (CCA, unreported 15 April 1992); Regina v. H (1996) 85 A. Crim. R. 481; Regina v. Phung & Huynh (Wood, CJ. at CL, unreported 26 February 2001). … 60 It must be noted that the law not only requires the affording of an opportunity to a child during an interrogation to exercise on proper advice the option to speak or remain silent, but to have that advice so as to give consideration as to whether, in speaking, they might produce an account which does not do justice to their position.”

It would normally be necessary for the support person to be within a sufficient proximity to provide the protection which the section contemplates. It would not be enough, for example, if the support person was allowed to speak to the suspect but then required to wait in the general office of the police station, while the suspect was interviewed elsewhere. Nor would it be sufficient if the interview was conducted wholly out of earshot of the support person, or in a language which the latter did not understand.

In the present case, while it is clear that the support person was in the company, in a broad sense, of the Appellant, at all times, there was no evidence to show her precise location at the time of the relevant question and answer, or to show whether she was in a position to hear the conversation.

The trial Judge found that, on the balance of probabilities, both the accused mother and Sheree Machan were in the house throughout the period of the search, and held that this was sufficient to meet the statutory requirement. Alternatively, His Honour held that if he was in error in this respect, then there was proper and sufficient reason for the absence of the support person at the relevant time, and that the statement should be admitted into evidence, in accordance with s 13(b) of the Act.

A submission was developed to the effect that his Honour addressed the wrong question in so far as he focused upon the place where the search took place as distinct from the place where, and the time at which, the relevant statement was made. This involves something of a literal reading of the reasons, but whether His Honour erred in this respect or not, it remains appropriate for us to determine whether error occurred by reference to the issue which appropriately arose, that is, whether the support person was present at the place where, and at the time when, the relevant statement was made by the Appellant.

The onus of establishing admissibility rested upon the Crown. Absent proof of sufficient physical proximity at the time of the relevant question, it needed to rely on s 13(b). There was a strong argument available in the circumstances of a search which was being conducted, while those concerned were walking through a small house, and conversing briefly in a bedroom, which was barely large enough to contain the Appellant and the officers who were conducting and recording the search, that there was sufficient and proper reason for the absence of the support person in the immediate vicinity of that conversation. However, where the evidence which was to be adduced merely went to credibility, I am not persuaded that the second leg of s 13(b)(ii) was satisfied.

That is not, however, a sufficient basis to quash the conviction. The evidence in question was of little moment in the entirety of the trial, as indicated by the fact that it was not the subject of mention in the summing up. I am not persuaded that its admission gave rise to a miscarriage of justice. If error occurred then the proviso applies. GROUND 3 – His Honour Erred in His Directions to the Jury Regarding the Evidence of Identification

This ground essentially involves the assertion that his Honour failed to give a warning in relation to the evidence elicited from Siljanoski, in cross-examination, as one of the persons involved in the assault, when giving his initial statement to police.

The difficulty with this ground is that no additional direction was sought by counsel for Duncan at trial even though, at the request of counsel for Perre, a comprehensive direction was given in relation to the matters which may have rendered his identification of Perre unreliable. Many of those, for example, his distance from the fight, the poor conditions of visibility, his asserted eyesight problems, were common for each Appellant, and there is no reason to suppose that the jury overlooked those matters.

There was an important difference between the appellants in so far as Siljanoski’s evidence at trial introduced some qualification as to the extent of his knowledge of Perre. He did not do so in relation to Duncan, who, it was common ground, had been well known to him and who had arrived at the park in the same motor vehicle.

The only direction that was sought by counsel for Duncan, in this respect, was to point out to the jury the fact that when giving evidence in chief, Siljanoski had not mentioned seeing Duncan in the group attacking the victim, that it was only in cross-examination that it emerged that he had given an account of seeing him in that group, and further, that he had given an explanation in that he wished to rectify what he had said in that statement.

That this was the case could not have been other than crystal clear to the jury. There had been extensive cross-examination on the issue, and when dealing with the address of counsel for Duncan, his Honour reminded them that she had pointed out that Siljanoski had "said that there were things in that statement that he'd never said, and she submitted that you would find that he was trying to put things right in the evidence that he gave to you."

While it is the case that a recital by a trial judge, in a summing up, of an argument put by counsel cannot substitute for a caution or direction where it is required, a failure to deliver such a caution or direction does need to be considered in the context of the trial, and in particular in the context of what was obvious to the jury.

Counsel, in this instance, was not seeking a direction or caution. At most, a comment was sought drawing a distinction between what had been said out of court and pre-trial, albeit in a context where counsel had been able to cross-examine the witness in a way that was favourable to his case, subject to the jury's assessment of the witness’s credibility.

Moreover, this was a case where a comprehensive direction had earlier been given in relation to the way that consistency or inconsistency of account could be taken into account in judging witnesses. In my view, Rule 4 applies and leave should be refused to argue this ground. GROUND 4 – His Honour Erred in His Directions to the Jury Regarding “Lies”

In relation to the topic of lies, his Honour gave the following general direction: "The next direction that I must give you is about lies . It has been part of the Crown submissions made to you that each of the accused has told lies at various stages, including lies to the police and, in the case of Mr Perre who gave evidence, lies in Court. You will make up your own mind about whether either of the accused was telling lies and, if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case, but I give you this morning, do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that is evidence of guilt."

Thereafter, when dealing with the case concerning each accused, his Honour carefully pointed out that the lies which the Crown asserted that each had told went only to the credibility of the accounts which they had given in their ERISPs or, in Perre’s case, additionally in his evidence. In that respect his Honour also pointed out that Duncan's ERISP, having been tendered, was before them as his version of events.

For example when dealing with Perre’s evidence of not having remembered things, and of being asleep in the car, his Honour said: "They are matters concerned with, to a large extent, with aspects of Mr Perre’s credibility and your assessment of him in terms of whether he is telling the truth in the witness box. On those kinds of grounds alone, you would not convict Mr Perre of course, but they are matters to be taken into account in assessing whether you think he is telling you the truth about his movements and his actions on the night."

In relation to the sixth reason advanced by the Crown in relation to Duncan, his Honour said: " Item number six is Mr Duncan's version given to police in his interview, where the Crown says he lied. I have already given you a direction in respect of lies. If you find them in fact to be deliberate lies, and if you found that to be the only thing made out by the Crown, that in itself would not support a finding of guilt. But you have regard to all of the evidence in the case and all of the submissions made by the Crown."

This then was a case where the Crown made it clear that it did not rely on lies, in either case, as consciousness of guilt, for which a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 would have been required. It specifically relied on lies only on as a matter that went to the credibility of the versions of facts put forward by the two appellants.

The decision of the High Court in Zoneff v The Queen (2000) 200 CLR 234 is pertinent. It was there held that an Edwards direction should only be given where the prosecution contends that a lie is evidence of guilt. When there is a concern as to the risk of the jury engaging in an impermissible process of reasoning, and of elevating lies which are relied upon as going to credibility alone, as matters going to proof of guilt, then, the Court held, the type of direction which was given in this case, should be given.

In circumstances where His Honour underlined, on several occasions, that the prosecution relied upon Duncan's lies only as going to the credibility of his answers in the ERISP, where a Zoneff direction was given, and where no Edwards direction was sought at trial, this ground is without merit. GROUND 5 – His Honour Failed to Adequately Direct the Jury as to Specific Intent and the Alternative to the First Count on the Indictment

This ground needs to be understood in the light of the entirety of the directions that were given in relation to intention, in relation to the way in which the Crown put it case on the principal count, and in relation to the statutory alternative of maliciously inflicting grievous bodily harm (which was properly left having regard, for example, to Regina v King [2004] NSWCCA 20).

Early in the summing up, his Honour gave some general directions in relation to the expressions "maliciously" and "intentionally". They were somewhat incomplete in relation to "maliciously", in so far as his Honour only said: "Something is done maliciously, if it is done intentionally and without lawful excuse”.

Any inadequacy in this direction was however corrected when his Honour returned, a little later, to give a redirection concerning this expression.

In relation to intention his Honour gave an entirely unexceptional direction, in so far as he explained that this word had its ordinary English meaning, and also explained how it was that intention could be inferred, or deduced, from the circumstances in which certain activities occurred. In the course thereof, his Honour made it clear that the Crown had to prove, in relation to Count 1, that there was an intention to occasion the victim grievous bodily harm.

The elements for Count 1 were summarised by way of a direction that there were three elements to be made out beyond reasonable doubt: "... that there was grievous bodily harm inflicted upon Christopher Wilson, that that was done maliciously, and that was done with intent to cause him grievous bodily harm."

His Honour then moved on to the statutory alternative, explaining that it was also necessary, in order for this count to be made out, that the Crown prove beyond reasonable doubt the elements of grievous bodily harm and malice, the only difference being that, for this count, the Crown did not have to prove the specific intent to do grievous bodily harm.

Next, his Honour dealt with the joint criminal enterprise, both in its basic form and its extended form where the Crown relied upon common purpose.

His Honour said: "The law is that where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. A joint criminal enterprises exist where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express. That means they do not have to actually say or write down anything expressing that agreement and its’ existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit a crime."

His Honour applied this principle to the present case, first in general terms, and then specifically in relation to the evidence. He began with the following directions: “The Crown has sought to rely upon two alternatives which are commonly referred to in a discussion of joint criminal enterprise. The first is this, if the agreed crime is committed by one or others of the parties to that joint criminal enterprise or if all played some part in committing that crime, then all parties are equally guilty of the crime, regardless of the part played by each in its commission. I will give you an illustration of that shortly. The alternative aspect of it is this, where firstly instead of the crime agreed another crime is committed by one or other of the parties to that joint criminal enterprise or, secondly, all played some part in committing that other crime and, thirdly, where the Crown has established that the parties to that enterprise had contemplated that other crime as a possible incident in the execution of the agreed crime, all parties are equally guilty of that other crime regardless of the part played by each in its commission. It does not matter then that the crime committed does not correspond in every detail with that contemplated by the parties. What must be contemplated by the parties is the substantial risk, not merely a slender chance, that it will be committed."

His Honour dealt with the element of participation in the following terms: “A person participates in a joint criminal enterprise either by committing the crime charged itself or with knowledge that the crime is to be committed by intentionally assisting or encouraging another party to the joint criminal enterprise to commit a crime. The presence of a person at the time when the crime is committed and a readiness to give and if required are sufficient to amount to an encouragement to the other participants in the joint criminal enterprise to commit a crime." Almost certainly the emphasised “and” in this passage was a mistype for the word “assistance”.

Some illustrations followed of joint enterprises which came into being spontaneously, or as a result of planning, in the course of which his Honour pointed out the ways in which the participants would become criminally responsible for the acts of those who were involved in the enterprise. His directions were explicit and correct.

It was at this point that his Honour applied these directions to the first count in the present case, with an explanation to the jury in the following terms: “You, if satisfied beyond reasonable doubt of the ingredients of the offence, can come to a finding of guilt in respect of the first offence in the indictment by different ways. Firstly, if you are satisfied beyond reasonable doubt that the accused personally and maliciously inflicted grievous bodily harm on Chris Wilson with the intention of causing grievous bodily harm, that is by causing the injuries personally.”

His Honour continued: “Now where you have got a number of people attacking another it may be difficult to show on the evidence that any one particular person in the attack inflicted a particular injury amounting to grievous bodily harm and you might well be justified in taking that view in this case as to either of these accused. There is then, and this is why the Crown relies on joint criminal enterprise, a different way in which you can come to a finding of guilt in this case in (sic) that is by finding beyond reasonable doubt that the accused was part of a group, some of whom individually or together, maliciously inflicted grievous bodily harm on Christopher Wilson with the intention of causing grievous bodily harm and others who assisted or encouraged that to take place, knowing it is occurring, that is that grievous bodily harm is being inflicted or that it will occur. There is the third possibility and that is much the same as in the second alternative I have just given you, but without the accused actually knowing that grievous bodily harm is being inflicted or will be inflicted, but having in contemplation that it may be occurring, it might be inflicted, or that it may occur, that it might be inflicted... When you come to consider that possibility it is not necessary for the Crown to prove that the precise injuries actually inflicted were within the contemplation of the accused, but only to prove to your satisfaction beyond reasonable doubt that it was within the contemplation of the accused that grievous bodily harm of some form might be occurring or might occur and you will remember what I said to you about grievous bodily harm, it is bodily injury of a really serious kind. So in order for you to find guilt on that basis it is not necessary for you to find that it was within the contemplation of either of the accused that Christopher Wilson suffer the precise injuries he did or necessarily to the extent that he did but, if you were to come to a finding of guilt on that basis, it is necessary that you find beyond reasonable doubt that it was within the contemplation of either of the accused that bodily injury of a really serious kind was being inflicted or might be inflicted."

These directions were then specifically related to the Appellant Duncan, as follows: “In respect of the accused Mr Duncan, just going to the evidence in respect of him and this all depends upon your findings as to fact of course, if you were to find that he took part in a group attack on Christopher Wilson on the basis that he was part of a group which together maliciously inflicted grievous bodily harm on Christopher Wilson with the intention of causing grievous bodily harm to him and that they all helped each other with the same intent as demonstrated by their actions towards Christopher Wilson, then you would be entitled to find the accused Mr Duncan guilty of that first offence. You would also be entitled to find him guilty if you were to find that any part of his behaviour from the time of making a phone call to Jason Kusonogovski through taking the mobile phone from Matthew Michael to, if you found it to be the case, luring the Sydney boys down to the car park to trying to run them down with the car, if that is what you find it to be, was with the intention that others of the group would fight the - for want of a better term what I will call the Sydney boys - and cause one or more of them grievous bodily harm with the intention of causing grievous bodily harm or with the intention that others of the group would fight the Sydney boys and in so doing might cause one or more of them grievous bodily harm with the intention of causing grievous bodily harm as I say, that will also be one way of finding guilt."

At the next break, in response to his Honour's invitation to counsel to raise any matters of concern, counsel for Duncan then sought a redirection based upon the proposition that the evidence might support a conviction upon the statutory alternative to the principal count, but not upon the principal count itself.

This involved a submission that there was a possible view of the evidence open which meant that, while Duncan may have initiated the altercation, he was unaware of the presence of any weapons in the possession of his associates, or of the possibility of their use, or of the ferocity of the attack upon which they embarked, such that the only count available would be in the alternative.

The Crown referred his Honour to the decisions in R v Esho and Sako [2001] NSWCCA 415 and Regina v Gilbert Adam (1999) 47 NSWLR 267, in relation to joint enterprise and the alternative count.

After the break his Honour revisited the directions previously given in relation to specific intention, malice, and the statutory alternative. In relation to the element involving specific intention, His Honour said: "You will recall that I said that one element of ‘malice’, or ‘maliciously’, was doing something intentionally, and I also said that intent or intention, intentionally had the same meaning as the word ‘intent’ and its associates as ‘intent’ is used later on in the charge where it reads ‘with intent thereby to do grievous bodily harm to the said Christopher Wilson’. Let me make it clear that the intent to do grievous bodily harm to the said Christopher Wilson, where it is used as the final words of that charge, referred to the specific intention to do grievous bodily harm to Christopher Wilson. As I have said to you, it dose (sic) not necessarily mean to the extent of the injuries actually inflicted but it does mean specifically to do grievous bodily harm to him."

After reminding the jury that the Crown also had to prove that the accused acted maliciously, his Honour first read to them the statutory definition of that expression and then said: " Maliciously , as used in count 1, does not precisely equate with the words ‘with intent to case grievous bodily harm’. In order to prove malice, it is sufficient for the Crown to prove indifference to human life or suffering, or intent to injure in some way, which might in fact fall short of grievous bodily harm, or recklessness, or wantonness. And the difference between count 1 in the indictment and the statutory alternative, of course does not lie in the use of the word ‘maliciously’ but lies in the presence of the words in count 1 ‘with intent thereby to do grievous bodily harm to the said Christopher Wilson’ and the absence of that element from the statutory alternative. So that in order to convict in respect of count 1 in the indictment, you would need to be satisfied beyond reasonable doubt, on the Crown case that the accused intended to do grievous bodily harm to the said Christopher Wilson. If you are not so satisfied of that but you were satisfied of the other elements of the charge beyond reasonable doubt, then you would be entitled to find the accused guilty on the statutory alternative."

No further complaint was made by counsel in relation to these directions. It was however submitted on appeal that the directions were misleading and deficient, in that there was a failure to apply the evidence that was available to support the elements of the primary count and of the statutory alternative, in a way which differentiated between them.

In essence, it was contended that: (i) The summing up was confusing, and blurred the concepts of malice, specific intent, and the elements of the statutory alternative; (ii) it did not provide sufficient direction upon the elements of the offences and the burden and standard of proof that was applicable to each; and that (iii) there should have been directions, although none were sought at trial, to the effect that mere presence as a bystander is insufficient to incur criminal liability: Regina v Doorey & Gage [1970] 3 NSWR 351 and Regina v Clarkson (1971) 1 WLR 1402, and that a person who is present at the commission of a crime is not liable as an accessory, unless he intentionally assists or encourages the principal offender to commit a crime: Regina v Stokes and Difford (1990) 51 A Crim R 25.

I am not persuaded that there is any substance in these submissions, or that his Honour failed to give the jury a sufficient explanation of the ways in which the Appellant could be held criminally responsible, upon the first count or the statutory alternative respectively, for the attack upon Christopher Wilson, in accordance with the principles identified in Osland v The Queen (1998) 197 CLR 316 and McAuliffe v The Queen (1995) 183 CLR 108. These directions did not, on a fair reading, obscure the difference between the principal charge and the alternative.

It is not clear what was intended by the submission that the directions were unclear as to the ingredients of the primary offence, or as to the burden and standard of proof applicable thereto. The elements of the first count, and of the alternative, were specifically and correctly identified. His Honour made it clear, from the outset, that the onus of proof of those elements rested upon the Crown, and that it was one requiring proof beyond reasonable doubt. At no time was anything said to derogate from that, or to blur the distinction between the elements required for the primary count and the alternative, respectively.

The submission that the concepts of malice and specific intent were blurred in the directions which were initially given, concerning the first count, is similarly without merit. The passages which I have extracted show that, when the summing up is considered as a whole, adequate and clear directions were given which separated the two elements. The jury could not have been left in any uncertainty in this respect, as was also made abundantly clear in the final two paragraphs of the last extracted section of the summing up.

I turn next to the submission that his Honour should have given a direction to the jury, in the terms that was sought by trial counsel, as to the circumstances in which the jury should convict on the statutory alternative rather than the primary count. The direction sought was to the following effect: "The Crown has relied on the presence and use of weapons such as machetes, iron bars, stakes, wheel braces and a wheel lock, as evidence of intention that really serious bodily harm would or could be inflicted. In respect of Paul Duncan if you are satisfied on the remaining elements required to make out count 1 of the indictment, but you are not satisfied beyond reasonable doubt that Paul Duncan knew of the presence or use of such weapons, you would convict on the statutory alternative, that is maliciously inflict grievous bodily harm in circumstances without intent to inflict grievous bodily harm."

In essence Duncan asserts that this involved a hypothesis, consistent with innocence, which should have been the subject of a specific direction. There are obvious problems with that submission. First a hypothesis consistent with innocence must be both reasonable and available on the evidence: R v Park [2003] NSWCCA 203 (at para 56) and R v Skaf and Others [2004] NSWCCA 74 (at para 190-191). In the present case the Appellant had made an inquiry of Gjoreski for a weapon before the incident began. He had also asked Ljubicic whether she had anything. He acknowledged to police that he saw some persons with a bat, and there was evidence previously mentioned as to his personal involvement in the fight, in the course of which it must have been patently obvious that weapons were being used.

In any event, the jury were not left uninformed in relation to the fact that this was an argument which had been advanced by the defence, in so far as his Honour said that counsel had: “submitted to you that, before that, you would find there was a verbal slanging match and that at the time that Paul Duncan got into the car no weapons had been produced by the group called the party goers and that you would be satisfied that there’s no evidence that Paul Duncan knew that such weapons were to be used or that there would be an overall stoush, as she put it, between the two groups."

Finally, in relation to this ground, is the submission that the directions were deficient in so far as there was no instruction that mere presence of a bystander was insufficient, and that a person who is present at the scene is not liable as an accessory unless he intentionally assists or encourages the principal offender to commit the offence.

I am not persuaded that this ground is made good. The prosecution case was always one depending upon the jury being satisfied beyond reasonable doubt of the Appellant’s active participation in a joint enterprise. Comprehensive directions were given in relation to joint enterprise and participation, and the suggested directions would not only have been superfluous but they risked complicating what was already a sufficiently complicated matter.

This ground is not made good. GROUND 6 – His Honour Failed to Direct the Jury with Respect to the Evidence of Siljanoski

This is essentially a repetition of Ground 3, which has already been addressed. It is not made good. ADDITIONAL GROUND 7 – His Honour erred in his directions to invite the jury to convict upon a basis apart from a proper evaluation of the evidence and its application to the ingredients of the offence (by leave)

The Crown Prosecutor offered ten reasons why, in her submission, the jury should find Duncan guilty. In summary they were as follows: (i) Sione Amone’s evidence of seeing Duncan chase the Sydney group up the hill; (ii) Carla Busuttil’s evidence of seeing Duncan, Big Chi and Jap hitting and kicking the man on the ground; (iii) Oliver Gjoreski’s evidence, before the attack, of Duncan asking if he had a baseball bat and then making a search of the boot of his car; (iv) Steven Siljanoski’s initial statement to police in which he described seeing Duncan and Perre in the group of men who were striking the victim; (v) Alana Ljubicic’s initial statement to police of Duncan getting out of her car, at a time when people were yelling out “get something” and of them seeing him and Jap in the fights. (vi) The fact that Duncan told lies in the ERISP to the effect that he had not been at the party, that he had not telephoned Jason Kusonogovski, that he left the park with Alana Ljubojevic, that he was near the car in which Christina Kusonogovski was seated when the fights started, and that the first thing he saw was Asians running down the hill towards him, that persons called “Vim” and “Huy” (whom no one else mentioned) were at the scene, that he was chased by two persons, one of whom had a bat, that he had not realised that Christina Kusonogovski was in the park until Jason Kusonogovski arrived and that he had not got into the red Laser or gone on to Lake Heights; (vii) The fact of his erratic driving which was only consistent with provocative conduct on his part, and inconsistent with an attempt to get away; (viii) The fact that blood having the same DNA profile as the victim was found on his shorts; (ix) the fact that Mathew Michael’s SIM card was found in the pocket of those shorts; (x) The evidence pointing to him being the last person to get into the red Laser that was driven away, initially by Jose Elbert and then by Big Chi.

This ground focuses on the following observations by his Honour, which preceded his summary of the ten points relied upon by the Crown: “Let me say, that if you were satisfied that the case had been made out beyond reasonable doubt by any one of those 10 reasons , then that would be sufficient to establish the guilt of the accused. The Crown does not argue, and does not have to argue, that it requires all of that evidence to be accepted by you in order for you to find the accused guilty, but taking into account the evidence that you do find established, you must, before coming to a conclusion of guilt be satisfied beyond reasonable doubt of that guilt."

The opening sentence was somewhat unfortunate, although properly understood I am satisfied that it did not bear out the connotation which is sought to be placed upon it, namely, that the Appellant's guilt could be established if any one of the 10 reasons was made good. That is not what was said. Read fairly, what his Honour was saying was that if any of the ten reasons left the jury satisfied beyond reasonable doubt of the Appellant's guilt, then it did not matter if some or even all of the others were not made good. It is obvious from the nature of the matters listed that no single one of them taken alone, save for item (ii), could prove the Appellant’s guilt. Nor did the Crown Prosecutor suggest that to be the case.

That this was the sense of what was conveyed to the jury emerges with crystal clarity from the additional observations which his Honour made.

At the next adjournment, Counsel pointed to the possibly misleading nature of the opening observations.

His Honour then put the matter beyond doubt by directing the jury: “HIS HONOUR: members of the jury, let me just return to what I was saying before lunch about the Crown's arguments in respect of the guilt of Mr Duncan. Just to make it clear. The Crown does not have to prove each and every one of those items of evidence beyond reasonable doubt. The Crown does not, in fact, have to prove any one of those items of evidence beyond reasonable doubt. You consider all of the evidence and you decide on the basis of all of the evidence whether you are satisfied beyond reasonable doubt that each of the ingredients or elements of the offence of count 1 in the indictment, are made out and only then would you convict Mr Duncan. If you are not so satisfied beyond reasonable doubt of each of the elements of that offence, then you would find him not guilty of course. And the same applies to each of the other offences. For instance, you may well think that if the only evidence in the case was that of Ms Busuttil, that you could have difficulty convicting on the basis of that. Similarly, if you had only the evidence of Mr Siljanoski, you may well think you would have great difficulty convicting on the basis of that, and so on with some of the other aspects of the evidence. It depends on what you think of it, and I am not trying to tell you what to think of any one particular witnesses evidence, that you make of it. It may be that on the basis of some other aspect of the evidence that you would be satisfied beyond reasonable doubt on that alone. But what the Crown says to you is when you take account of all of that evidence, you would be satisfied beyond reasonable doubt because those various aspects of the evidence buttress and support each other for you to come to the conclusion, in the end that the accused is guilty."

Subsequently, his Honour made it clear that in relation to Counts 3 and 4, the only evidence of Duncan smashing the motor vehicle was that of Carla Busuttil, and directed the jury that in order to convict him on those counts, they had to be satisfied beyond reasonable doubt that she was "telling the truth and accurately recounting what had occurred...so far as those particular aspects are concerned". This was accompanied by a direction to scrutinise her evidence carefully. This ground is also not made good.

For these reasons I am of the view that Duncan's appeal against conviction should be dismissed. DUNCAN SENTENCE APPEAL GROUND (a) - His Honour Made Erroneous Findings as to the Objective Circumstances of the Offence.

It was submitted that his Honour overstated the role, and the objective criminality, of the Appellant, in so far as he found that he had been “the architect of the night’s events”, and had “deliberately set about inciting an attack upon” the Sydney group. It was also submitted that he erred in finding beyond reasonable doubt that Duncan had been part of the group beating Christopher Wilson and in so far as he added: “You were very prominent this night. You were in the centre of attention for a number of reasons. You had summoned your troops. You drove the car dangerously. You got out of the car. There is not a single witness who says they saw you just standing by, watching what was going on, or, for that matter, doing anything else unconnected with the assault on Christopher Wilson. Not one of them says anything like “Babe was with me while Christopher Wilson was being assaulted. However I should also say that it seems to me to add or subtract little from your criminal culpability whether you were the person involved in beating Christopher Wilson. The alternative is that you stood by and watched all [the] people you had called up, and provoked, did so, and you did nothing to stop them… In the circumstances, having stirred up and unleashed your followers, if you did stand back, the only reasonable conclusion to reach is virtually letting them to (sic) your dirty work. In my view, there would not be a matter sounding in mitigation of this offence.”

These findings, it was submitted, were not properly open on the evidence, and that rather than the incident having involved a planned attack, it was one that unexpectedly developed and escalated, in the volatile circumstances of the night.

Further it was contended that although his Honour found that Carla Busuttil’s evidence was buttressed by that of Steven Siljanoski, there was still a deficiency of evidence to establish that this Appellant was one of the persons who had personally assaulted the victim, or alternatively that he knowingly stood by and encouraged those who were directly involved in the attack to beat and assault the victim.

This Court is a Court of error, it does not conduct a review of factual findings unless there was no evidence to support those findings: R v Vachalec [1981] 1 NSWLR 351, R v Kelly (1993) 30 NSWLR 64; House v The Queen (1936) 55 CLR 499; R v Crowley [2004] NSWCCA 256; R v Randell and McAlister [2004] NSWCCA 337.

In the present case there was evidence to support the findings that by his actions Duncan initiated the events that led to the attack upon the victim, and that he personally participated in the attack. There was no evidence of premeditation, and to that extent it may be accepted, in the Appellant’s favour, that the incident escalated somewhat quickly, and did not begin with any specific intention on the Appellant’s part to occasion grievous bodily harm, specifically to Christopher Wilson as distinct from someone in the Sydney group. The Appellant’s submission that there was no evidence to show that he was present when the victim was attacked, cannot be sustained, and at best comes very close to traversing the jury’s verdict.

In the particular circumstances of this case, while it was properly open for his Honour to find that the Appellant was an active participant in the violence inflicted upon the victim, I am also unpersuaded that the alternative scenario, which would still have involved the Appellant’s participation in a joint venture which he had initiated, would have involved any significant lessening in his objective criminality. GROUNDS (b) AND (c): b) His Honour Rejected or Failed to Adequately Take Into Account the Subjective Findings Favourable to the Applicant that were Available and Uncontested on the Evidence. c) His Honour Failed to Adequately Consider the Age of the Offender and the Evidence of Rehabilitation.

The Appellant was born on 26 November 1983 and was aged 17 years and 11 months at the time of the offence. He had a juvenile record which included entries for assault occasioning actual bodily harm, two counts of affray, which had attracted Community Service Orders only four months earlier, two offences of driving while disqualified, one offence of reckless driving and one offence of drive conveyance taken without consent. He was subject to a 2 year Order for Probation in relation the second drive while disqualified offence, at the time of the current offences.

He had been kept in detention for 9 months following his arrest, before being bailed. He had established a record of exemplary behaviour during that period.

There was also evidence in his favour that he had been of good behaviour, had been employed and was living in a steady domestic situation while he was on bail.

There were reports before his Honour from Juvenile Justice Officer Kilby, Dr Westmore and Associate Professor Susan Hayes. There was also a substantial number of character references.

His Honour was somewhat critical of Officer Kilby’s report in so far as the Appellant’s regret for his actions, and realisation of the wrongness thereof, which that officer recorded, were said to be inconsistent with his denial of any responsibility for the offence. His Honour also rejected this Officer’s suggestion that the situation got out of control due to peer pressure, immaturity, and alcohol, upon the basis that the Appellant had been in complete control of matters, and showed no difficulty in carrying out the physical and mental steps involved.

His Honour was also critical of Dr Westmore’s report, in so far as the history which the Appellant was recorded as giving was considered to have been “almost entirely at variance with the evidence given at the trial and with the jury’s verdict.” This account, his Honour found, demonstrated the emptiness and insincerity of the expressions of remorse which he had purportedly disclosed to Officer Kilby, indicating a lack of insight, and being suggestive of a habit of minimising his criminal culpability in defiance of the proved or admitted facts.

His Honour was similarly critical of the report of Professor Hayes in so far as the history which she was apparently given by the Appellant was said to be “far removed from the truth”, and also in so far as she had also offered an opinion that alcohol consumption, or the influence of the peer group, had been major factors in the commission of the offence, and had described the Appellant as remorseful.

While his Honour was dismissive of the reports from Dr Westmore and Professor Hayes in relation to their assessment of the triggers for the offences, it remains the fact that they did identify some favourable subjective circumstances, in so far as Dr Westmore saw it as a positive that he had been able to maintain a lengthy relationship with his girlfriend and had reduced his use of recreational drugs and alcohol during the period on bail. He excluded any sign of major psychotic illness, but drew attention to the Appellant’s earlier history of polysubstance abuse.

Professor Hayes noted that because of his below average intelligence, he might have been expected to have had limited insight into the causes of his own offending behaviour, in the past, and on this occasion. She also suggested that he may stay out of trouble if he could continue to receive the kind of sympathetic supervision which he had received from the Machan family. Additionally she drew attention to his somewhat dysfunctional background, which had involved abuse of alcohol and violence on the part of his father, and which had eventually led to the break up of the family. It was during this period, when he lacked family support, that his earlier offending had occurred. Psychotic disorders were excluded.

In the result his Honour dealt with this aspect of the sentencing exercise in the following way: “You were the ringleader in the perpetration of the terrible events of this night. I find no evidence of any genuine contrition or remorse, nor any acceptance of the jury’s verdict, or its ramifications. Youth is really the only matter in your favour, but considerations of giving greater weight to rehabilitation on that account cannot outweigh the factors to be attributed to the objective circumstances of the offences where there is little to support the youth factor. In your case, there is no contrition or remorse, and no real insight into the nature of what you have done and why.”

In general terms it was submitted that his Honour should have given greater weight to the expert opinions which had not been challenged by the Crown, and should have made a more positive finding as to the Appellant’s prospects of rehabilitation and also as to his remorse. Similar submissions to those that were advanced in relation to Perre were made, concerning the greater importance of rehabilitation in the sentencing of a juvenile offender.

In these respects it was argued that insufficient weight had been given to the mitigating factors referred to in s 21A(3) of the Crimes (Sentencing Procedure) Act as it applied at the relevant time.

I am not persuaded that his Honour erred in relation to his findings as to lack of remorse and contrition, or as to a lack of insight. While the Appellant is not to be additionally punished for defending the proceedings, his continued claim of innocence, and his distortion of the facts when providing histories to the expert witnesses, amply justified his Honour’s findings.

I am, however, of the view that his Honour somewhat understated the significance of rehabilitation for a young offender who had a relatively minor record, albeit that he was on Probation, and had only recently received a sentence involving community service, and who had shown some signs of behaving in an acceptable fashion between the time of the offence and the time of sentencing. The principles identified in R v GDP (1991) 53 A Crim R 112 were applicable as was the Appellant’s immaturity ( R v Hearne (2001) 124 A Crim R 451; see also s 3A(d) of the Crimes (Sentencing Procedure) Act 1999). This was subject to a suitable balance being struck in the light of the consideration that the case was one involving extreme violence, and was also one where the offender was approaching adulthood: R v Tran [1999] NSWCCA 109 and R v Pham and Ly (1991) 55 A Crim R 128 at 135 per Lee CJ at CL.

As these reasons later indicate I have reached the conclusion that the sentence was so far outside an appropriate range of sentencing discretion that at least latent error was disclosed. It may be that, in part, this was due to his Honour giving insufficient weight to these considerations. Ground (d) it is submitted that his Honour should have found special circumstances within section 44 of the C rimes Sentencing Procedure Act.

His Honour said, in this respect: “Although it is open to me to find special circumstances on account of youth, and perhaps other matters, in my view, the period of supervision available on parole will be sufficient in view of the structure of the sentences I propose. I take into account the eight months eighteen days spent in custody. A submission was made on your behalf that I should order that so much of your sentence as possible be served in a juvenile institution. You will be twenty this coming November. Most of your sentence will have to be served in an adult institution. In my view, the concerns about spending your time in an adult institution are not more than apply to most prisoners unfortunately. I see little point in making such an order.”

It was submitted that there were a number of factors that potentially qualified as special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act , including the Appellant’s age, his stable relationship and support within the Machan family, his prospects for rehabilitation, and the fact that this was to be his first prison sentence, being one that was to be served in an adult gaol.

It was also submitted that his Honour erred in apparently viewing the special circumstances to be relevant only in relation to the period during which the offender would be subject to supervision; whereas in R v Simpson (2001) 53 NSWLR 704, it had been made clear that the primary consideration should be the length of the minimum period of actual incarceration, and that this encompasses the full range of issues which are relevant to this period.

As in the case of Perre, the non-parole period was set at the statutory ratio, and similar considerations arise in relation to this ground, which overlaps with the final ground of challenge to the sentence, concerning whether or not sufficient weight was given to the subjective circumstances of the offender, when the sentence as a whole was constructed.

It is to be recalled that it was made clear, by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 (paras 63 and 65), that the ultimate constraint on the discretion of a sentencing judge to find special circumstances warranting a reduction of the non-parole period, is that the non-parole period must itself reflect the criminality involved in the offence, including the objective gravity of the offence and the need for general deterrence. His Honour continued (para 67): “Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence.”

In R v Fidow [2004] NSWCCA 172 the Chief Justice observed at para 18: “‘Double counting’ for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.”

It is self evident that the various matters identified by the Appellant were potentially capable of qualifying as special circumstances. The real question is whether they were given sufficient weight in accordance with the decision in Regina v Simpson , which inevitably also drew attention to the potential period of release upon supervision.

Two considerations weigh in relation to parole. First, release on parole does provide a constraint on poor behaviour and re-offending in view of the possibility of its revocation and return of the offender to custody to serve the balance of parole. Secondly, there are practical constraints in relation to the period of time for which supervision can be given, as well as questions as to its continued utility where rehabilitation has been achieved. As a result there may, sometimes, be no real purpose in structuring a sentence in a way that will potentially provide an unduly lengthy period of release on parole. In other cases a prolonged period of release on parole may be appropriate.

Essentially the same considerations apply in relation the absence of a finding of special circumstances in Duncan’s case, as applied in relation to Perre. The question is inextricably linked with the final ground of appeal. Ground (e) - Parity

The parity argument was largely confined to the comparison that was made with the sentence that had been imposed on Lamacchia.

The principle of parity was settled in Lowe v The Queen (1984) 154 CLR 606 and in Postiglione v The Queen (1997) 98 A Crim R 134 at 301. For the Court to intervene, it must be satisfied that the difference in sentences between co-offenders, after making sufficient allowance for any differences in their objective and subjective circumstances, would leave the Appellant with a justifiable sense of grievance. As was said in Postiglione at 303: “As between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender’s criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody.”

In the present case there were a number of differences of significance between Duncan and Lamacchia, in that Lamacchia had: (i) pleaded guilty at the first opportunity to an offence contrary to s 35 Crimes Act carrying a maximum penalty of imprisonment for 7 years, compared with the s 33 offence which carried a maximum penalty of imprisonment for 25 years to which the Appellant had pleaded not guilty; (ii) he had confessed to his part in the attack when first interviewed by police; (iii) he was genuinely contrite and remorseful; (iv) he was not armed; (v) he kicked Christopher Wilson twice towards the end of the assault, there being no evidence that his acts caused any particular damage; (vi) he did this on the spur of the moment without premeditation; (vii) whilst he had a criminal record it did not include any offences of violence; (viii) he had “glowing” testimonials and his Honour found violence was out of character for him; (ix) he had not been on Probation at the time of the offence.

In all of these circumstances, the parity argument provides little assistance to the Appellant. Ground (f) - The sentence imposed by His Honour was manifestly excessive.

Apart from the general submission that the sentence was significantly outside the general sentencing pattern for s 33 offences, and was said to crush all hope of rehabilitation, it was contended that deterrence had lesser relevance, in so far as the Appellant had been under a misapprehension as to the position of Christina Kusonogovski and had been fired up by alcohol, in circumstances where there was no evidence to show that he had known or expected that the friends, who he called in, would resort to the use of the weapons that were eventually deployed.

The same considerations as those that were identified in relation to Perre’s grounds 4, 5 and 6 apply to this Appellant. While the disastrous consequences that flowed to the victim, and the excessive violence which was displayed by Duncan, cannot be discounted, I have reached the conclusion that the sentence was so far outside the range for a legitimate exercise of sentencing discretion, that latent error has been established. Leave to appeal should be given, and the Appellant should be re-sentenced in relation to Count 1. No occasion arises to interfere with the sentence for the offence of affray, in respect of which error has not been asserted or shown.

The age and immaturity of the Appellant, his favourable prospects of rehabilitation, the fact that this will be his first period of custody, and the circumstance that the sentence will be served in an adult prison, were all factors to be taken into account in setting the head sentence, which would be reflected in the non-parole period.

Taking into account the fact that full credit should be given for the mitigating effects in this way, and the absence of any need for attention to be given to any special aspects of rehabilitation, I am of the view that only a minor adjustment should be made by reason of the special circumstances which related to the length of the sentence which I propose, and its significance for a young offender.

The sentence should be backdated to take into account the pre-trial custody.

In the case of Duncan I propose the following orders: 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted, confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, but otherwise refused; 3. Appeal in respect of the sentence for the s 33 offence allowed; 4. Quash the sentence imposed for that offence, and in lieu thereof sentence the Appellant to imprisonment for 13 years to date from 30 November 2002, and to expire on 29 November 2015, with a non-parole period set of 9 years to date from 30 November 2002 and to expire on 29 November 2011, that being the earliest date on which the Appellant would be eligible for release on parole.

ADAMS J: I agree with Wood CJ at CL.

HISLOP J: I agree with Wood CJ at CL.