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[2026] ACTSC 336
Supreme Court of the ACT
2026-09-04
Elkaim AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v A1 Citation: [2026] ACTSC 336 Hearing Date: 31 August - 3 September 2026 Decision Date: 4 September 2026 Before: Elkaim AJ Decision: See [75] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by judge alone – recklessly inflict grievous bodily harm by joint commission – statutory alternative of inflict actual bodily harm by joint commission – where insufficient evidence to establish grievous bodily harm – guilty of alternate charge Legislation Cited: Crimes Act 1900 (ACT), ss 20, 23 Criminal Code 2002 (ACT), s 45A Cases Cited: DPP v Barlow (No 2) [2026] ACTSC 217 R v Basha (1989) 39 A Crim R 337 Parties: Director of Public Prosecutions A1 (Accused) Representation: Counsel N Deakes (DPP) L Rowan (Accused) Solicitors ACT Director of Public Prosecutions Good Legal Lawyers (Accused) File Number: SCC 222 of 2025 ELKAIM AJ: Introduction
The accused came before me for a judge alone trial on 31 August 2026.
The accused was arraigned on the following charge: That on 27 February 2025 at Canberra in the Australian Capital Territory [A1] recklessly inflicted grievous bodily harm on C1.
The accused pleaded, “Not Guilty”.
A judge alone trial
The starting point for a judge alone trial is the recognition of a number of obligations. These obligations were stated by Burns AJ in DPP v Barlow (No 2) [2026] ACTSC 217, as follows: 9. In considering my verdicts, I am obliged to take into account any warning or direction which would have been given, or any comment which would have been made, to a jury in the proceedings should this matter have been tried before a jury. I will now briefly set out the directions which I have given myself in determining my verdict. 10. The prosecution bears the onus of proving the guilt of the accused on each of the charges. The accused is presumed innocent unless and until the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt. The accused does not have to prove anything in this trial, and in particular does not have to prove his innocence. He is presumed by law to be innocent until such time as the evidence which I accept satisfies me beyond reasonable doubt of his guilt on any particular charge. 11. My verdicts must be verdicts based upon the evidence that I saw and heard during the trial. I am not entitled to take into account any other material. I must view the evidence dispassionately and I must not allow sympathy or prejudice to affect my decision-making. 12. I am entitled to draw inferences from the facts which I find established on the evidence. Before I do so, however, I must examine any possible inference to ensure that it is a justifiable inference, and I must not draw an inference against the accused from the direct evidence unless it is the only rational inference that is available in the circumstances. 13. In this trial the accused did not give evidence. There was no obligation on him to give evidence because there was no obligation on him to prove anything in this trial. I must draw no adverse inference from the accused’s decision not to give evidence. I cannot take into account the accused’s decision not to give evidence in any way.
I adopt the above quoted passages as directions given to myself.
Because the trial was conducted on a judge alone basis, it was not necessary for there to be Basha inquiries (referring to R v Basha (1989) 39 A Crim R 337) in respect of the witnesses. Rather it was agreed that, with the exception of the complainant, the other witnesses who were said to have taken part in the bashing, were treated as giving evidence on a voir dire, with evidence to be later excluded either by agreement or by my ruling. For a reason which will be evident below, the exclusion of the complainant from her evidence being treated as in a voir dire was significant.
Ultimately, I was not asked to exclude any evidence.
The charges
The offence is alleged to have been carried in joint commission with one or more other persons.
The ingredients of joint commission are: (a) The accused entered into an agreement with at least one other person to commit an offence. (b) The accused and at least one other person to the agreement intended that an offence would be committed under the agreement. (c) Either: (i) an offence is committed in accordance with the agreement, in that: (A) the conduct of 1 or more parties “in accordance with the agreement” makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and (B) to the extent that a physical element of the joint offence consists of a result of conduct, the result arises from the conduct engaged in; and (C) to the extent the physical element of the joint offence consists of a circumstance, the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance; or (ii) an offence is committed in the course of carrying out the agreement, in that: (A) the accused is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement.
The ingredients of recklessly inflicting grievous bodily harm are: (a) The accused engaged in conduct. (b) The accused intended to engage in conduct. (c) The conduct resulted in grievous bodily harm being inflicted on another person. (d) The accused was reckless as to inflicting grievous bodily harm on the person.
Taken together, the elements needed to be established in this case by the prosecution (beyond reasonable doubt) are: (a) The accused entered into an agreement with at least one other person to commit an offence involving violently assaulting the complainant to cause her bodily harm. (b) The accused and at least one other person to the agreement intended that an offence would be committed under the agreement. (c) An offence was committed in accordance with the agreement, in that: (i) One or more of the parties to the agreement engaged in conduct towards the complainant. (ii) The conduct resulted in grievous bodily harm being inflicted on the complainant.
The evidence
The first witness was the complainant. She is now 15 years of age. She gave her evidence from a remote room. Her evidence consisted of a small amount of further evidence in chief, a recorded interview, and cross-examination.
Her version of the events is contained in the record of interview which was conducted in two parts. In her answer to Question 18 of the first part, the complainant gives a general description of what occurred: Q18 All right. Obviously, we met before on Thursday night. Can you tell me what happened on Thursday night, please? C1 Um, one of the [young persons] I live with, [A2], had asked me to come to Belconnen, and asked me if I could drop off one of her cousin’s AirPods. And has – I was very hesitant at the start about it, and didn’t think it was a good idea if I went, but instead of staying home, I decided, no, it will be okay. So I got on the bus and I decided to go to Belconnen. Um, [A2] has been with her cousin, [A3], and it was only us three that were there. We – when I got off the bus, I had spoken to [A2] because I had seen a group run into the mall when they had seen my bus coming. So I had asked her what if – if she knew who they were, and she, um, had stated that she did not know, and they were just yelling things out. For some reason, we started walking to the bottom interchange, near the carpark, and [A2] had grabbed my hand and had said, ‘I’m scared – [C1], I’m scared.’ I told her that she doesn’t need to be scared and there’s – we’re fine. And then in the corner of my eye, I see a group, but before I see the group, I see a little person running at me. Um, and then after that, I pretty much blacked out. Um, took a couple of hits from every single one of them, including [A2] and [A3]. Um, I reckon this fight had continued for maybe 20 minutes. I did get bottled, I think twice. There was definitely one bottle smashed over me. I only know that, but I think there was another one. I have to believe that there was a knife involved from [A4], um, because of my wound on my leg. I clearly do remember that someone had grabbed my foot because they –[A4] and [A5] had taken off my shoes, and someone had grabbed my foot and stabbed me. So the reason I’m in the cast is because I had got stabbed. Um, while I was being beaten, they had kicked me in the face. Um, I don’t know who it was, but someone had jumped on my head. Someone was grabbing my hair and punching me. Um, two of the other [young persons] were there kicking me in the back and everything like that. Um, so that went on for a little while. And then I had got up, and someone that was there had told me to run ones with her. At that point, I was bleeding from my mouth everywhere, and I was like, ‘If you just said run ones, I would’ve (indistinct) from the start, but I’m not going to fight you when I’m like this.’ Um, so then one of the – [A4] just kept going and going, and [A2] at one stage did say stop, but – but none of them stopped. Um, and then after, I think it was the last time I got knocked to the floor – because I got knocked to the floor, I think, four times – from what I recall, I think it’s four times I got knocked to the floor. Um, the last time I got up, I knew my leg couldn’t take it anymore because of the amount of blood that was coming out, and I legged it. I bolted and jumped through a pretty high distance to jump into the carpark. And the [young persons] that was there had – one of them chased after me, told me to stop. I stopped, and then she goes, ‘You’re cleaning up before you leave.’ She told me that I’m not to snitch, otherwise she’ll come after me. I said I’m not gonna open my mouth. Um, we went to the bathroom. We were walking through the mall, and we were trying to clean – she tried cleaning my foot, and we realised that my foot is literally cut in half, pretty much. And then I was trying to clean my face. [A2] and [A3] had come to the bathroom and were trying to help. I ended up throwing up a couple of times. Um, while we were there, the security had come to the bathroom and was asking what is going on, and then I told [A2] just to call (indistinct) ambulance or someone because I can’t walk. And then, yeah, that’s pretty much when everyone just – we went to lay down near Target – I don’t know, it’s just, like, on the seats – and that’s when you guys came, and you asked questions.
It will immediately be noticed that the accused is not mentioned in this answer. In fact, the accused does not surface in the interview until the answer to Question 51 and the answers following: Q51 You mentioned about the AirPods, how [A2]’s asked you to drop them off. Whose AirPods are they? C1 They were [A1]’s. Q52 [A1]. Do you know [A1]’s last name? C1 Don’t (indistinct) maybe. … Q53 Have you met [A1] before? C11 Yes. Q54 Okay. How long have you known [A1] for? C1 Same amount of time I’ve known [A2]. Q55 Okay, so about a month. C1 Yeah. Q56 Yeah. And how did you come to meet [A1]? C1 Um, I met [A1] when I was at my mate’s, [an unknown person] so yeah, it was at his house and she was there, and that’s how I met her.
Other than in the answers to Questions 100 and 109, there are no further references to the accused in the record of interview which would attribute any involvement of the accused in the assault. In these answers, the complainant is describing the group of people who had chased after her to assault her.
By the end of the record of interview there was, therefore, no evidence upon which the charge against the complainant could have been made out.
The accused was, however, identified by the complainant in two short videos as a person wearing a black hoodie with grey writing on it (Exhibits J and K). This person is seen striking the complainant. It was never suggested to the complainant that the accused was not the person in the hoodie or that that person had not struck the complainant.
It is to be recalled that the basis on which the complainant was called to give evidence was to treat her evidence in the ‘normal’ fashion and not as a voir dire susceptible to later questions of admissibility. The absence of any objection to the showing of the video to the complainant removes any suggestion that the video evidence was not admissible.
Following the assault outside the Belconnen Mall, the complainant, accompanied by two or three of the young persons that had assaulted her, went into a bathroom in the mall where efforts were made to “clean her up”. The complainant vomited in the bathroom. A security guard arrived and the police were soon called.
While waiting for the police the complainant lay on a bench in the mall. An ambulance took her to hospital where, on the following day, she was subjected to surgery under general anaesthetic to repair a cut tendon in her right foot. The injury to the right foot is the basis upon which the allegation of grievous bodily harm was made.
The complainant said she had scarring on her right foot but said very little about ongoing complaints in the foot, and she gave no evidence about any current limitations in her use of the foot.
The cross-examination of the complainant seemed to be an exercise to test her memory of various parts of her story. In my view, she answered the questions honestly and sometimes against her interest. For example, it was put to her that before she left the residence in which she was living she had mentioned to one of the carers that she might take a knife with her because she was uncomfortable going out. She did not, however, do so.
The complainant had said that the accused had left the scene after the assault and had not come into the mall. It was suggested to her that the accused might have been in the toilet. The complainant said that was possible, but she did not remember.
The overwhelming impression left by the cross-examination was, as I have mentioned above, the absence of any suggestion that the accused was not the person in the black hoodie.
Following the complainant, the prosecution called a number of witnesses from the ‘group’ that had been involved in the assault. These witnesses were A2, A6, A3, A5, A4, A7, A8 and A9.
With one exception, it could be said of these witnesses that the enthusiasm and bravado they displayed in the assault on the complainant was left outside the doors of the court where they appeared, in their role as witnesses, as a combination of reluctance, shyness and, overwhelmingly, without any memory of the assault.
They each hid behind forgetfulness and the passage of time to excuse their total incapacity to assist the court. This is despite the fact that each of A7, A3, A2, A6 and A5 have already pleaded guilty in the Magistrates Court to the charge of recklessly inflict grievous bodily harm by joint commission.
Their pleas of guilty, and the reasons they entered those pleas, had obviously fallen into the fog of old memories as they, in turn, denied any recollection of the events at Belconnen Mall. Such memory as did exist was limited to irrelevant facts such as being on a bus or seeing the complainant with security personnel. I had the impression that at least some of the witnesses were closer, in friendship, to the accused than the complainant, but I cannot say this was the reason behind their total inability to assist the court. I also accept that each, if not all, of the young persons were living in troubled circumstances, whether in care or foster homes, and the effect of these circumstances may have influenced their conduct in court.
The only exceptions to identification of assistance given by the witnesses was that A5 and A4 identified Instagram posts (Exhibits A and B), in which a bloodied complainant can be seen.
A4 is now 14 years of age. She was the only one of the group of young persons to display, in the witness box, a degree of energy, consistent with her having been the first person to assault the complainant. She treated what she regarded as obvious questions with disdain. Nevertheless, she joined her colleagues in having almost no memory at all of the events of the night.
The one witness who did seem to have a reliable memory was A9. A9 gave a recorded interview to the police, in Queensland, on 13 May 2025. The interview is a detailed description of the events of the night and at first sight seemed to fill in many of the gaps that had been left by the ‘forgetful’ witnesses. As far as the accused was concerned, A9 placed the accused squarely within the group and made a number of comments about the accused’s involvement in the assault. For example, she gave this answer: Q And what about [A1]? A9 Um, [A1] didn’t do a lot, but she - I think she did the most damage, if that makes sense. Like, she didn’t, like, her or anything as much as the others did, but she was the strongest, so she did the most damage…
Under cross-examination, the reliability of the record of interview was somewhat dented when A9 said that a number of her answers were a product of “overreacting a little bit”, and others contained elements of exaggeration. She accepted her descriptions of the accused’s activity as being exaggerated but she did state that she remembered the accused punching the complainant once.
The impression I had of A9 was that she was very keen to ‘walk back’ her allegations. I thought this might have been the product of threats against her of a similar type to those that had been made shortly after the incident. However, there is no evidence to justify this thought.
Ultimately, A9 was a disappointing witness in that her concessions about the record of interview made the version unreliable. Nevertheless, I do not discount her evidence entirely because she maintained the correctness of some of her answers and was not shaken on the presence of the accused, or that the accused had thrown at least one punch.
Four videos that had been taken by A9, via Snapchat, were tendered. These included the two videos that had been shown to the complainant and in which she had identified the accused.
The security supervisor on duty at the time, Mr Rao Khan, did not have a precise memory of the events. He did remember seeing a young woman bleeding badly from her left foot (although it was actually her right foot). Mr Kahn said he applied multiple bandages until paramedics arrived and took over. Mr Kahn thought the young woman had at least one friend with her when he was ministering to her wounds.
Mr Kahn described the CCTV footage at the mall. The footage, seen afterwards, revealed the group had met in the Bus Lounge opposite Target. He saw that they left the mall and went down Cohen Street but the CCTV view was cut off by a tree. Accordingly, the assault was not visible on CCTV.
Mr Kahn was cross-examined extensively about the CCTV. He could not remember if it had been requested by the police and he could not remember if any cameras were not working at the time. The relevance of the latter point is that continuous footage could be downloaded by accessing the relevant cameras ‘in a row’. The continuity could be interrupted by a broken camera. It later emerged that some fifteen minutes were missing from the footage.
Mr Kahn said a cleaner had noticed blood on the floor and CCTV was used to track the blood trail to the female toilets near Target.
A statement was tendered from another security guard, Mr Dajinder Singh, which does not take matters much further.
In relation to the complainant’s injuries, the medical report, with attached photographs, of Dr Sarah Quercini was tendered (Exhibit D). Dr Quercini, who is a staff specialist in clinical forensic medicine, first saw the complainant in the Canberra Hospital Emergency Department in the early hours of 28 February 2025. She continued to see the complainant until her discharge on 3 March 2025, and then again at the Outpatient Paediatric Fracture Clinic on 12 March 2025.
The complainant gave the doctor a history generally consistent with her record of interview, except that she said she did not know the assailants and that she thought they were aged about 16 to 17. I took this history as an attempt by the complainant not to put the group in trouble.
After the first consultation, Dr Quercini took 28 photographs, of which 23 are attached to the report. Dr Quercini identified: (a) bruising and swelling over the nasal bridge; (b) an abrasion to the inner aspect of the lower lip; (c) bruising, swelling and a laceration to the right upper lip; (d) grazing to the back of the right forearm; (e) an abrasion on the left elbow; (f) abrasions over the back of the forearm; and (g) an “irregular-shaped wound with subcutaneous tissue on view to the dorsomedial (top inner) aspect of the right foot measuring approximately 3 cm x 2 cm in size”.
In respect of the injury to the right foot, the complainant referred to, “broken glass bottle to feet”.
After the treatment to prevent an infection and the administration of painkillers, the complainant was discharged from the Emergency Department and told to report later that day to the Plastic Surgery Registrar Review Clinic. The complainant obeyed this instruction and was transferred by the clinic to the Orthopaedic Surgery team.
The Orthopaedic team observed a 4 cm jagged laceration, but no fracture was seen on x-ray. The complainant had no active movement in her toe.
On 1 March 2025, the complainant underwent a right foot extensor repair. The procedure was done under general anaesthetic. The right foot was dressed and a below knee plaster cast was applied.
On discharge on 3 March 2025, the complainant was told to take antibiotics for five days and keep the plaster cast on for six weeks.
The complainant was reviewed in the Paediatric Fracture Clinic on 12 March 2025. The sutures were removed and a shorter plaster was applied. She was told to come back after four weeks for removal of the plaster, but there is no record of this visit. I have no reason to believe it did not occur.
Importantly, at the review on 12 March 2025, the following was recorded: Has been weight-bearing in plaster, Wound healed, No signs of infection, Can actively dorsiflex great toe, Sensation intact.
The history recorded on 12 March 2025 is the most up-to-date commentary on the complainant’s foot injury. The complainant was not asked if her foot continued to give her any problem, nor was she asked if the scarring was sensitive, embarrassing or caused her to keep her foot covered.
The result of the absence of questions about her condition after 12 March 2025 is significant for the assessment of whether grievous bodily harm had been inflicted.
Evidence was given by Ms Eunice Amoh, who was a house supervisor in the residence where the complainant and A2 were residing. She said that it was her job to support the complainant during the evening, and when the complainant wanted to leave she tried to discourage her. She did not mention any suggestion that the complainant had considered taking a knife with her.
Ms Amoh said she was called to the Belconnen Mall during the night. She had received a call from A2 telling her that the complainant had been attacked. Ms Amoh went to the mall where she comforted the complainant and accompanied her in the ambulance to the hospital.
Constable Hicks, the informant, gave evidence about the collection of CCTV footage and how he obtained the videos taken by A9. As it turned out, these videos had already been sent to the police. The CCTV from the mall does not show any part of the assault on the complainant but does show the group of young persons walking, running and meandering through the centre. One of them seems to have an electric scooter.
Constable Hicks took some photographs of the complainant’s right foot after she gave evidence. The photographs are not overly helpful in providing a picture of the scarring.
The prosecution case was closed after the evidence of Constable Hicks.
The accused did not give evidence, or call or tender any evidence. Repeating the direction I gave myself at the outset, the accused was not obliged to give evidence and the absence of any evidence in her case cannot be held against her. I was informed the accused was a person of good character and therefore entitled to the benefit of that status.
The prosecution case involved these steps: (i) The complainant had been lured to the mall by the group, including the accused, in order to punish her for perceived wrongs. (ii) Once at the mall, and pursuant to the agreement, the complainant was attacked and very seriously injured. (iii) The accused, applying a subjective test, must have appreciated the risk of serious injury. (iv) The acting of the group in a joint enterprise meant that each member of the group was equally responsible for what occurred. (v) The injury to the complainant’s foot amounted to grievous bodily harm.
The accused’s counsel responded with three points: (i) The agreement, if there was one, to lure the complainant to the mall, did not necessarily involve the accused. (ii) While a cut to the bottom of the complainant’s foot might have been reasonably in the contemplation of the accused, because of the broken glass on the ground, the injury to the top of the foot was not foreseeable. (iii) If the first two points were rejected, the complainant had not suffered grievous bodily harm.
Merging the arguments of the respective parties, but remembering the onus to prove the case beyond reasonable doubt lay on the prosecution, the first point to be decided is the existence and nature of any agreement to lure the complainant to the mall and then assault her.
The accused pointed out these questions and answers from the record of interview with A9: Q 258 Okay. So just to going back to the meet-up where they said they were going to set her up, did they say what was going to happen to her at all once they met up with her? A9 Like, what - what do you mean, sorry? Q 259 So you said [A4] was planning on fighting her ---- A9 Yeah, yeah, yeah. Q 260 ----- just [A4]. So was their plan - or did they say what they were going to do to her, like, how they were going to hurt her? A9 Oh, no. Q 261 No. There was no plan, like---- A9 Yeah, if – I would have known they were going to do all that, I --- Q 262 Yeah A9 I would have, um, not went. Q 263 Yep. A9 I would have had nothing to do with it.
Adopting the above questions and answers from A9’s interview the accused submitted that, at best, the only evidence was that A4, and perhaps A2, had been behind the luring of the complainant. While initially attractive the submission has the following problems:
Q 258 of the record of interview begins with the words, “So just going back to the meet-up where they said they were going to set up”.
When one goes back to what A9 said about the meet-up this is to be found within the answer to Q 20 of the record of interview: And then they were, like, um, on all with her, setting her up, her friends. They weren’t actually her friends. And then they went to Belconnen mall.
And then in the next answer: And, um, they all took their turns, I guess, and throwing bottles at her and glass.
In my view, the overwhelming evidence is to the effect that it was not just A4 and, maybe, A2, who arranged for the complainant to come to the mall, but rather it was the group. This does not necessarily involve the accused, but she was a member of the group and part of the reason the complainant was asked to come to the mall was to return the accused’s AirPods.
Even if the accused did not enter an agreement to call, and lure, the complainant, she did join in the assaulting of the complainant, as is very evident from the videos, and so should be regarded as being in the company of the rest of the group that were carrying out the assault.
I am satisfied beyond reasonable doubt that, whether before the complainant came to the mall, or upon her arrival at the mall, the accused entered into an agreement with the rest of the assailants, to commit an offence involving violently assaulting the complainant to cause her bodily harm.
Turning to the next point raised by the accused, namely that stepping on broken glass might reasonably cause an injury to the bottom of the foot, it was not foreseeable that an injury to the top of the foot might be so caused. I think this point is quickly disposed of. As pointed out by learned counsel for the accused, the complainant is seen in the videos to be at times face down on the ground. This would bring the top of her foot into contact with glass already on the ground.
A submission that a person might step on glass but could not be seen to injure the top of the foot by contact with glass notwithstanding that the person was face down, in my view, has no basis. I am accordingly satisfied beyond reasonable doubt that, in the circumstances of the concerted attack on the complainant with the use and shattering of at least one bottle, the injury to top of the right foot was subjectively foreseeable by the accused.
The accused’s third point does, I think, have merit. The only injury asserted by the prosecution to justify a finding of grievous bodily harm was the injury to the complainant’s right foot. I have set out above the seemingly excellent recovery that had been achieved by 12 March 2025, only about two weeks after the assault. I have also observed that no questions were asked of the complainant to bring the court up to date on the status of her foot. Whether she is continuing to have problems, has any limitation of movement, and still suffers pain, would all have been very relevant factors. In addition, if the scarring was unsightly, perhaps keloid, or embarrassing, this type of information might well have elevated the injury from serious to very serious, the latter being grievous bodily harm.
Accordingly, I am not satisfied beyond a reasonable doubt that the complainant suffered grievous bodily harm. I am satisfied, beyond reasonable doubt, that the complainant suffered actual bodily harm, in particular by way of the injury to her right foot, and further that, the accused was reckless as to inflicting actual harm upon the complainant.
The descriptions of the concerted assault and the videos are powerful evidence to show that the assailants gave little thought to the harm they might inflict upon the complainant. They were reckless as to the infliction of such harm. My reference to “they” obviously includes the accused.
The result of the above is that the accused must be found guilty of the statutory alternative charge that on 27 February 2025, at Canberra in the Australian Capital Territory, A1 recklessly inflicted actual bodily harm on C1.
Orders
I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim.
Associate: Date:
DPP
A1
[2026] ACTSC 217