May v R

District Court of NSW|2024-07-29

conviction appeal judgment

This is an appeal by Mr Giriwa May against his conviction in the Local Court for an offence of affray.
The appeal is a rehearing based on the evidence in the court below, and I am required to form my own judgment based on that evidence, but recognising any advantage that the Magistrate had in seeing and hearing the witnesses. That of course includes taking into account the Magistrate's assessment of the credibility of witnesses who gave evidence before him. As will become clear however, questions of credibility are in this matter of no great consequence.
In McNab v DPP [2021] NSWCA 298, it was said that it is necessary in an appeal such as this for error of some kind be demonstrated.
In this matter, Mr Michael Stone of the Aboriginal Legal Service, in very comprehensive and well drafted submissions, points to two alleged errors by the learned Magistrate.
Firstly, that evidence (arising from the seizure of a mobile phone) was wrongly admitted.
Secondly, that the Magistrate erred in his conclusion that the evidence amounted to an "affray".
Before turning to consider those submissions, I note that at all times it is the Prosecution who bears the onus of proof. The Appellant is presumed to be innocent, and retains that presumption unless or until the Prosecution establishes beyond reasonable doubt the elements of the offence.
The Appellant was charged with a single count of affray under s.93C of the Crimes Act 1900. Section 93C is in the following terms: 93C Affray (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) For the purposes of this section, a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as in public places.

Relevant facts

The incident took place on the evening of 30 November 2022, at Bidwill in western Sydney. The lead up to the incident is described in the statement of a Mr Williams who lived in a house nearby, and whose statement was admitted without objection in the Local Court proceedings. He described the following events.
During the afternoon, there was the sound of a "baby" who was "screaming crying". As a result, Mr Williams went into his backyard trying to see what was going on. After returning to his house, he could still hear the baby crying, and also heard a lot of "banging". He went out for "another look" but could not see anything. After having a shower, he could still hear the baby crying, and estimated that it had been going on for "two hours at least".
Mr Williams said that subsequently, he heard the voice of his neighbour "Scott" (Wellington) saying that he had "had enough" of the child screaming and was going over to see the people. Mr Williams says that at the same time, Scott Wellington's partner was on the phone to police, and that when Scott went over to the house, he (ie Mr Williams) heard a woman (who he believed to be the mother of the screaming child) say "Wait until my man gets home, and he'll deal with ya".
Some time later, according to the statement of Mr Williams, "the bloke had come home" and Mr Williams heard him yelling out in the "back paddock" for Scott to come outside. (It is agreed that the "bloke" doing the yelling was Jerome Doolan). When Mr Williams "got up to have a look" (at the back paddock) he saw "two blokes there", and saw or heard that one of them was calling out to Scott, calling him a "pussy" and a "dog" and demanding that he come outside. Shortly after this, Mr Williams looked over his back fence again, and saw "the bloke" (ie Doolan) and Scott Wellington in the "back paddock" with their shirts off, and "both starting to swing at each other".
Mr Williams' statement gives a description of the fight between the two men, which resulted in Scott Wellington falling to the ground, after which "the bloke" (Doolan) started slapping and then punching him to the face, while Scott was "out cold". Mr Williams called out "Enough, enough, enough, enough. Leave him alone", but Scott was punched to the face about another four times, before "the bloke" (Doolan) started kicking him in the stomach three or four times.
Mr Williams' statement notes that he then saw a male (who the Prosecution says was the Appellant) come running across the paddock and "started stomping on" Scott's head, while the original bloke (Doolan) was kicking him in the stomach. In his statement, Mr Williams said about the incident "It was brutal. I couldn't believe it". According to Mr Williams' statement, Scott Wellington's partner then asked two guys who knew Scott to go and pick him up, and when these two men approached, the other two men involved in the fracas walked back towards a house. He said that the two associates of Scott Wellington picked him up and basically carried him back to his house. After that, police and an ambulance were called, and Wellington was taken to hospital.
The Prosecution case also included the contents of two video recordings of the incident.
One of these was the video recording that was found by police on a mobile phone seized by police, being a phone that belonged to the Appellant. It is apparent that this video was taken from a point quite close to the initial "fight" between the two men. That recording shows the two men, with their shirts removed, engaging in a "fist fight", which ultimately ends with Wellington on the ground being punched and then kicked by Doolan.
The second piece of video footage, which was given to police by another person near to the scene, is slightly longer, and shows the incident from a different perspective, and from slightly further away. It shows Doolan and Wellington arriving at "the paddock", removing their shirts, and then approaching one another, and engaging (at least initially) in what appears to be a "consensual" fist fight. As in the first video, this ends with Wellington on the ground, where he is hit and punched to the head by Doolan, and then kicked to the body by Doolan, while Wellington was either unconscious, or semi-conscious. The video then however, shows another male (which the Prosecution says was the Appellant) running into the scene and "stomping" on the head of Scott Wellington, while he is still being kicked by Doolan. As this third person walks away (with Doolan), he appears to look at his hand, in an action consistent with his having a mobile phone in that hand.

Conduct of the proceedings in the Local Court

The evidence in the Court below commenced with a voir dire hearing. That hearing related to the question of whether a mobile phone seized by police when executing a search warrant was evidence that had been obtained improperly or in contravention of law. The seizure of that mobile phone was very important evidence in the Prosecution case. That was because it was the Appellant's phone, and it contained text messages sent to another person, which said - "Oi my cousin bashed someone before";. "I might be getting locked up"; "Cause I ran over and stomped on his head". The phone also contained a video of "the fight" between Doolan and Wellington, up to the point where Wellington was on the ground, being kicked by Doolan. The evidence of the phone's contents was therefore (as the Appellant's solicitor concedes) evidence that established beyond reasonable doubt that the "third person" was the Appellant.
During the voir dire, a number of statements were admitted into evidence, and oral evidence was also given by Senior Constable Tillott.
In the voir dire hearing, SC Tillott gave evidence about the basis on which he had seized the phone (a phone which ultimately was agreed to belong to the Appellant). The search warrant on which the police were acting nominated a number of specific items which were targets of the search. One of the items was a "black hat with light colour print on the front". The warrant however, did not nominate a mobile phone.
A video recording was made of the search warrant being executed, which included a recording of things said by police during the process. During the search, an officer found a dark coloured hat under or near a bed, and asked SC Tillott if this was the hat they were looking for. In response, SC Tillott said "We'll call it a find, I don't think that was it, from memory, I thought it was more like a bucket hat". At about the same time, and while still searching the same area, an officer said "We also found a phone as well", to which SC Tillott replied "We'll call both of them a find…". A couple of minutes later in the recording, one of the searching police mentioned that there were "no phones" on the search warrant, but SC Tillott responded "That's alright…I've seen it and I can see that one of them…is clearly holding a phone. Yeah so take it". (I infer that SC Tillott's assertion "I've seen it" is a reference to his having previously seen the video recording referred to above, which had been supplied to police by an onlooker). Some time later in the search video, SC Tillott spoke to the Appellant (who was present in the premises), with SC Tillott saying "We seized a phone from upstairs. I'm confident that its yours". When the Appellant challenged why his phone was being taken, SC Tillott replied "I'm of the opinion, I reasonably believe that it's connected to the offence. Basically, if I'm right, and you're the second bloke…as you're walking off you're looking at your phone, straight away you started using it".
SC Tillott gave evidence about the basis on which he seized the phone. In essence, he said as follows. That the phone was found at the same time as the hat, which was suspected of having been worn by "the third person". He said that (on the video given to police by an independent person) "the third person" looked at a phone in his hand, and that (in the view of SC Tillott) the phone "could go towards identification evidence". SC Tillott also referred to paragraph (h) of the search warrant, which permitted the seizure of an item which the police officer "believes on reasonable grounds is connected with any offence". That paragraph of the warrant reflects the effect of s.49(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). Paragraph (b) of that subsection provides (in summary) that in executing a search warrant issued under LEPRA, a person may seize (in addition to any thing mentioned in the warrant) any item that "the person has reasonable grounds to believe is connected with any offence".
After hearing submissions, the learned Magistrate ruled that the evidence (viz., the phone and its contents) had not been obtained by reason of any impropriety, or contravention of law, and admitted the evidence obtained during the search. The hearing then proceeded on the agreed basis that the evidence already admitted on the voir dire was to be evidence in the hearing proper.

Did the Magistrate err in concluding that the seizure of the phone did not involve impropriety?

The Appellant argues that the Magistrate committed an error in admitting the evidence relating to the mobile phone and its contents. More specifically, it is argued that the Magistrate applied the wrong test in determining the issue. The argument is that, instead of directing himself (as required by s.49 of LEPRA) to the question of whether there were reasonable grounds to believe that the phone was connected with any offence, the Magistrate found that there were "reasonable grounds to suspect that the phone …was connected to an offence".
The following matters appear to have formed the basis for this finding by the Magistrate:- 1. Firstly, the phone was located in a house where Doolan had been arrested that day; 2. Secondly, SC Tillott suspected that the Appellant was the "third person" in the footage (and the Appellant was present in the house at the time of the search); 3. Thirdly, the third person (appeared on the video footage supplied to police) to produce a phone (which he held in his hand) immediately after his attack on Scott Wellington; 4. Fourthly, SC Tillott was told by others present at the search that the phone belonged to the Appellant; 5. Fifthly, SC Tillott was aware that mobile phones contain metadata; 6. Sixthly, (and most importantly, according to the Magistrate) the phone was located at the same time/location that the hat was located; 7. Seventhly, SC Tillott said that he had a "reasonable belief" (that the phone was used in connection with the offence).
The Appellant submits, in effect, that while these matters might have justified a finding that there were reasonable grounds to suspect that the phone was connected to any offence, they did not support a conclusion that there were reasonable grounds to believe.
In support of this submission, the Appellant points to a number of parts of the evidence, but it is unnecessary to go these at present, because I accept that the learned Magistrate did not apply the correct test. In coming to that view, I have had regard to the fact that the Magistrate gave his reasons for this ruling ex tempore, in time pressured circumstances, and without the luxury of reflection. I also have had regard to the fact that, in the first half of the Magistrate's reasons he (correctly) recited the terms of s.49 of LEPRA and the relevant paragraph of the search warrant, which refer to "belief" rather than "suspicion". However, the fact remains that in pronouncing his ultimate finding, the Magistrate said "…I do find that there were reasonable grounds to suspect…". In these circumstances, the only reasonable conclusion is that the Magistrate incorrectly applied the lower standard of "suspicion", rather than (as required by s.49 of LEPRA), the higher standard of "belief" on reasonable grounds.
Having been satisfied that error is made out, it is appropriate that I myself consider the question of whether the evidence arising from the phone was obtained improperly or in contravention of law, and if so, whether the evidence ought to have been admitted.
Given that the mobile phone was not nominated on the search warrant, this involves a question of whether, in seizing the phone, police believed on reasonable grounds that it was connected with any offence: LEPRA s.49(1)(b).
As I noted earlier, SC Tillott said on the search video, and also in evidence on the voir dire, that he held a "reasonable belief" that the phone was connected with the affray offence. However, this assertion conflated two separate concepts - one subjective, and the other objective. In order for the actions of SC Tillott to fall within s.49(1)(b), he needed to form the (subjective) personal belief that the phone was connected with the offence. If that subjective aspect was met, then there arose the question of whether his belief was held on reasonable grounds. This second question was an objective one - and one for the Court to decide.
Having regard to the fact that SC Tillott said (on the search video) that he held the relevant belief, and given that in evidence on the voir dire he maintained that position (and gave reasons why) - I am satisfied that he did in fact hold that (subjective) belief that the phone was connected with the offence.
The question then is (the objective one of) whether there were reasonable grounds for that belief. I have earlier set out seven matters which were relied on by the Magistrate in coming to the view that there were reasonable grounds to suspect that the phone was connected with the offence. I agree with the learned Magistrate's conclusion that these matters supported such a reasonable suspicion. However, I do not accept that they supported a reasonable belief. In coming to that view, I note in particular the evidence of SC Tillott that while he suspected that the Appellant was the "third man", and believed that the phone belonged to the Appellant, he did not at the time of the search hold the belief that the Appellant had committed the offence. In these circumstances, as I have said, I think there were reasonable grounds for SC Tillott to suspect that the phone was connected with the offence, but the circumstances did not rise to the level of reasonable grounds to believe that the phone was connected with the offence.
It follows from this finding, that the seizure of the phone was outside of the authority granted by s.49 of LEPRA, and was obtained "in consequence of … a contravention of an Australian law": Evidence Act 1995, s.138.
Section 138 of the Evidence Act provides that such evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way that the evidence was obtained. It is for the Prosecution to satisfy me that the evidence ought to be admitted.
Subsection 138(3) sets out a non-exhaustive list of matters that the court is to take into account in deciding that question.
Firstly, the probative value of the evidence. As is correctly conceded by the Appellant's solicitor, the evidence derived from the phone is highly probative.
Secondly, the importance of the evidence in the proceeding. In my view, the evidence is important, and indeed critically important, because without it the Prosecution case would fail.
Thirdly, the nature of the relevant offence…and the nature of the subject matter of the proceeding. In this regard, and as conceded by the Appellant's solicitor, the alleged offence is serious, which is a matter tending towards the admission of the evidence.
Fourthly, the gravity of the impropriety or contravention. As was submitted on behalf of the Appellant, the improper execution of search and seizure powers has traditionally been regarded as serious. That is in part because of the sanctity of a person's physical person, home and belongings. However, the gravity of the contravention needs to be assessed having regard to all of the circumstances. In this case, that includes the fact that police were on the premises pursuant to a valid search warrant, and it includes also my findings (set out below) that the actions of police were neither deliberate nor reckless. In my view, the gravity of the contravention was of relatively limited seriousness.
Fifthly, whether the impropriety or contravention was deliberate or reckless. It was submitted on behalf of the Appellant that "It is clear that SC Tillott believed his actions were justified at law, and as such could only be regarded as reckless". In my view this concession that any unlawfulness was not deliberate, was appropriately made. However, and having considered all of the evidence, I am satisfied that the unlawful seizure of the phone was neither deliberate nor reckless. The concept of "recklessness" for the purposes of s.138 has been considered in a number of cases. In some of those cases, recklessness has been equated to a "careless" or "don't care" attitude, while in others, it has been described as the deliberate taking of a risk, and various other formulations have also been suggested. Having considered all of the evidence, I am of the view that SC Tillott's actions in unlawfully seizing the phone might best be described as inadvertent or misconceived. I do not however consider that he was acting carelessly, in the sense that he did not care whether or not his actions were lawful, or that he was acting with careless disregard of powers and responsibilities.
Sixthly, whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights. Under this heading, it was submitted that Article 17 of the International Covenant provides that "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation". It was further submitted that seizure and search of a person's mobile phone clearly involves an interference with privacy. I accept these submissions, but of course there is some overlap between this consideration and the fourth and fifth considerations which I have examined above.
Seventhly, whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention. There is no evidence that any action (eg disciplinary action) is likely, or ought to arise from the unlawful seizure of the phone. This is a matter which speaks in favour of excluding the evidence, in the sense that the only likely sanction that can be imposed is the refusal to admit the evidence. However, and as was said in Wu v R [2020] VSCA 94, this consideration will be of lesser significance where (as here) the breach is regarded as neither deliberate nor reckless.
Eighthly, the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. It was submitted on behalf of the Appellant that it would have been "administrative and simple for SC Tillott to obtain proper authority to seize the phone". However, I do not agree with the Appellant's submission that this factor "tends towards exclusion". This question will very much depend on the circumstances of the case. As was said in Bunning v Cross (1978) 141 CLR 54, a deliberate cutting of corners would tend against admitting illegally obtained evidence. But, in some cases, the ease of obtaining the evidence lawfully might mean that the breach is of little significance. While Bunning v Cross is a pre-Evidence Act case, this observation of general principle is still pertinent. In my view, the fact that, if SC Tillott had been aware that the search did not extend to seizure of the phone, another warrant, or a different type of warrant could have been sought (perhaps by phone) is a matter that reduces to some degree the gravity of the contravention. It makes the contravention in this case more amenable to being seen as "technical" or "inadvertent": see Wu v R (above) at [96].
Having considered all of these matters, I am of the view that the evidence ought to be admitted. Of particular relevance is the fact that the evidence relates to relatively serious criminal conduct, the evidence is highly probative, the evidence is essential to the Prosecution case, and in my view the illegality was inadvertent and not deliberate. I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it, having regard to the manner in which it was obtained.

Did the Magistrate err in finding that the proven facts involved an "affray"?

In written submissions for the Appellant, Mr Stone concedes that there is no dispute that the Appellant intentionally used unlawful violence towards another person.
The only element of the offence that is in contest is whether the Appellant's conduct "is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety".
In Colosimo and Ors v DPP [2005] NSWSC 854, 64 NSWLR 645, Johnson J noted (at [21]) that while s.93C had been in existence since 1988, it did not (in 2005) appear that the proper construction of the section had been given a lot of consideration in the context of an appeal against conviction. (The decision of Johnson J was in fact taken to the Court of Appeal - see Colosimo & Ors v DPP [2006] NSWCA 293 - but that appeal was focussed on the question of "self defence", rather than a consideration of what might amount to an affray). In Mann v R [2016] NSWCCA 10, Davies J cited the decision of Johnson J in Colosimo in terms that suggest that at that time it remained a useful authority on the topic of affray.
Based on my own research, and that of the legal representatives in this appeal, it appears still to be the case in 2024 that there is little Australian authority that assists in determining the range of conduct capable of falling within s.93C.
An examination of statutes from other parts of Australia shows that a variety of different approaches have been taken to the offence of affray and similar public order offences. The offence of affray in South Australia adopts the same test as in NSW: s.83C Criminal Law Consolidation Act 1935 (SA). Similarly in the Australian Capital Territory: s.35A Crimes Act 1900 (ACT). In other parts of Australia there are a variety of public order offences, some of which are described as affray, or which contain similar elements. In the Northern Territory, the offence of affray relates to fighting in a public place of such a nature as to "alarm a person of reasonable firmness and courage": s.47AA Summary Offences Act (NT). The offence of affray in Victoria has a similar test, except that it requires that the person of reasonable firmness be "terrified": s.195H Crimes Act 1958 (Vic). Also, Tasmania has an offence of affray which applies to fighting in a public place "to the terror of His Majesty's subjects": s.80 Criminal Code Act 1924 (Tas). In Queensland, a different formulation of affray has been adopted, which in part applies to fighting in a public place of such a nature to "alarm the public": s.72 Criminal Code 1899 (Qld). A similar offence applies in Western Australia: s.71 The Criminal Code (WA).
In Colosimo, Johnson J noted (at [22]) that the offence in s.93C of the NSW Crimes Act has its origin in the statutory offence of affray contained in s.3(1) of the Public Order Act 1986 (UK) (which is expressed in essentially similar terms to s.93C). His Honour noted (at [14]) that because of this similarity, authorities concerning the proper construction of the UK provisions will be of assistance in the construction of the NSW provisions.
The House of Lords considered the construction of s.3 of the (UK) Public Order Act 1986 in I v Director of Public Prosecutions (2002) 1 AC 285. In that case, Lord Hutton noted that the offence, both at common law, and under the statute, was "primarily intended to punish a person or persons who engaged in a face-to-face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear". As can be seen, this description of the (UK) offence is fairly consistent with the terms of s.93C of the NSW legislation. In that same judgment, Lord Hutton said that the words "present at the scene" (which appears both in the UK and the NSW legislation) suggests the concept of a "notional bystander" being in the presence of both the offender and the victim. At [28] in that same judgment, the offence was essentially described as requiring proof that a person "uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness".
The Appellant in the case before me has cited a number of other English cases in which it was found that the offence of affray was not made out.
The case of DPP v Cotcher (1993) WL 964519, involved an incident at the Emperor Hadrian Public House. The two Cotcher brothers entered the pub and one of them waved his finger at a young man and then hit him in the face. An older man tried to intervene and a scuffle broke out next to a pool table, during which three men were punched and or kicked by one or other of the Cotcher brothers. There was evidence that a chair had been broken in the melee, but no evidence as to how this happened. The charge of affray had been dismissed by magistrates, who then stated a case to the Queens Bench Division of the High Court of Justice, as to "Whether a reasonable bench of Justices…could reasonably come to the decision to dismiss the said information". In agreeing that it was open to the magistrates to reach that conclusion, it was noted that the court had to imagine a "notional person of reasonable firmness" present at the scene, and that regard must be had to the nature of the premises and the circumstances in question. This was described as an objective test. The Court on appeal noted that an important part of the evidence was that there were other members of the public present, but who remained calm and unaffected by the incident, and "simply carried on with what they were doing". MacPherson J noted - "Ordinarily where there is violence and there is no other evidence in connection with other persons present it may be that public interest, and questions of public interest, require that magistrates should look at a case of this kind with care, when it is argued that a person of reasonable firmness would not have been affected. But in our judgment there must be cases where the surrounding circumstances show that the fight was, so to speak, limited to those involved, and entirely limited to them, and where in some cases there is direct evidence that people were not affected by what took place. It seems to us that this is a case of that kind. The use of the word "clinically" in connection with the assault is unusual, but it may be that the magistrates were indicating that this was a fight, plainly and solely concerning those who were involved. Furthermore, there was the evidence of the inactivity of those who were in the public house to show that certainly they showed no signs of fear themselves. If people burst into a public house showing violence generally and all round, it may be necessarily that persons of reasonable firmness would be affected; but that is not this case. These three (sic) men were focussing solely upon the three victims who were not prepared to give evidence." Ultimately, the Court in Cotcher found that it was open to the magistrates to reach the conclusion that there was insufficient evidence to prove beyond reasonable doubt that a person of reasonable firmness at the scene would fear for his or her personal safety. The Court stressed however that this was an "unusual case upon its own facts", but that the conclusion reached by the magistrates was "reasonable".
Another case cited by the Appellant is R v Sanchez [1996] Crim LR 572. That was an appeal from a conviction for affray of a woman who had tried to attack her ex-boyfriend with a knife. She arrived, shouting and swearing and affected by alcohol, and when the ex-boyfriend approached the car in which she was sitting, she jumped out and lunged at him with a knife. The man deflected her arm, pushed her aside and ran off, and the Appellant started to follow him, but tripped and fell. When police arrived they found the Appellant sitting in a car, having slashed her wrists. The Court on appeal accepted that the trial judge had not directed the jury correctly, because the directions had overlooked the need for the jury to have regard not only to those immediately involved in the use or threat of violence, but also to the notional bystander - whether or not one was there, or was likely to be there. The Court noted that it is this hypothetical, reasonable bystander who must be put in fear for their personal safety, not the victim himself. The Court noted as helpful the commentary of Professor John Smith on an earlier case of R v Davison [1992] Crim LR 31, which involved a knife swipe at a police officer in a small room, with others present. In that commentary it was noted that the definition of affray is very wide, but that care has to be taken to avoid extending it so widely that it would cover every case of common assault. It was noted that some assaults may be very trivial, so that they would not cause anyone to fear for their personal safety, but where the assault threatens serious harm to the victim, there may be evidence of affray, depending on the circumstances. The person of reasonable firmness present in a small room…might fear for his personal safety whereas the same person, observing the same conduct in an open space, would not. In Sanchez however, the court ultimately concluded that the violence between the woman and her ex-boyfriend was personal to them, and took place outside the block of flats, with every opportunity for the hypothetical bystander to distance themselves.
There is also the decision in R v Blinkhorn [2006] EWCA Crim 1416. In that case, Blinkhorn was appealing against his conviction for affray which arose from the following facts. The Appellant's girlfriend had slashed his face with a razor. Shortly after this, and after realising how badly he had been wounded, the Appellant chased after the girlfriend, pushed her to the ground, and then banged her head against the pavement a number of times, which resulted in some bruising and a small laceration. Part of the incident had been observed by a passing motorist, who said he had some apprehension, but was more concerned about the woman. The witness said however that it was a one-on-one fight and there was no general violence. In allowing the appeal, and setting aside the conviction, the Court noted that the motorist did not in truth fear for his own safety, and described the case as a one-to-one assault in daylight, and that any bystander would have had ample opportunity to distance themselves.
I have also considered R (on the application of Leeson) v DPP (2010) 174 JP 367. In that case, the appellant, who was drunk, had entered the locked bathroom where her partner Mr O'Keefe was having a bath. She had a knife with her and said "I am going to kill you", but was disarmed of the knife very quickly by her partner. Her conviction for affray was overturned on appeal, with Rafferty J noting that the events took place within a matter of seconds in a room which had previously been locked and with no expectation of any third party entering the house, let alone the room. Her Honour said that the threat in that case was "personal", was restricted to turbulence between the two parties involved, and concerned exchanges that were "essentially private". Her Honour added that "Even if a notional bystander had found entry to the bathroom, in my view any fear he may have exhibited could arguably be not for his own safety but for that of Mr O'Keefe and of the appellant".
Closer to home, another case of some relevance is Khanwaiz v R [2012] NSWCCA 168. That was an appeal against sentence for offences which included affray. In dealing with one of the grounds of appeal, Beech-Jones J (as his Honour of the High Court then was) noted the reference by the sentencing judge to the fact that the events occurred in a "multi-share" set of apartments, and that it was relevant that one of the neighbours - a male with young children - had been scared by the events. Beech-Jones J observed (at [39]) that "In this matter the 'scene' embraces the neighbours referred to in the statement of facts. It follows that the agreed facts meant that, if one of the neighbours was a 'reasonable person', then they would have so feared for their safety…"

Determination

Based on my consideration of these cases, and also (most importantly) the words used in s.93C, there are, in my view, a number of propositions that emerge.
Firstly, the offence of affray is very much "fact specific". In other words, the question of whether conduct amounts to an affray will depend on the facts and circumstances of each particular case.
Secondly, in considering the offence, regard should be had to various matters, including the following:- 1. Affray is a public order offence, aimed at protecting the public. 2. The "typical affray" involves a melee between many participants in which many blows are given and received (Johnson J in Colosimo at [70]). 3. However, an affray can arise from violence or threats of violence by a single person, and there is no need for a "common purpose" between two or more: (Johnson J in Colosimo at [19]). 4. If the unlawful violence is used or threatened by two or more persons, then it is the conduct of them taken together that must be considered: s.93C(2). 5. In determining whether conduct is such that a "person of reasonable firmness present at the scene" would "fear for his or her personal safety", regard should be had to the "hypothetical notional bystander": I v DPP. 6. The Prosecution however, does not have to prove that a person of reasonable firmness was actually present, or likely to be present at the scene: s.93C(4). 7. The offence requires a focus on whether the hypothetical person of reasonable firmness would "fear for his or her personal safety", but does not require (as in some parts of Australia) proof that the hypothetical person would be "terrified". 8. The offence of affray is "very wide": Commentary of Prof Smith on R v Davison. 9. Care must be taken to avoid extending the offence to cover every case of common assault: Commentary of Prof Smith on R v Davison. 10. In considering the "hypothetical notional bystander", one matter of relevance is whether the conduct occurred in a confined space, or in an open space, where a person may be more able to distance themselves from the risk of harm: R v Davison; R v Sanchez. 11. Another matter of relevance is any evidence as to the reactions of persons who were in fact at the scene: Khanwaiz v R; DPP v Cotcher.
Applying these principles, but most importantly, the words of s.93C to the case presently before the Court, I make the following observations and findings.
First, it should be noted that the focus of the alleged affray, on the Prosecution case, is the actions of the Appellant, in combination with those of Doolan, from the point in time when Wellington had been knocked to the ground, and was either unconscious or semi-conscious. As I have earlier set out, the video evidence shows that, even though the initial "consensual fist fight" had at that time ended, Doolan continued to slap, punch and kick Wellington while he was on the ground, and was then joined by the Appellant who stomped on Wellington's head. This, as the Magistrate observed, went well beyond anything that had either been agreed or contemplated in the initial encounter. At that point, it amounted to an unlawful joint attack on a man who was completely helpless, due to his compromised state of consciousness.
Secondly, the video evidence demonstrates in clear terms that at this point, the violence being inflicted on Wellington by Doolan and the Appellant involved a vicious assault that any reasonably minded person would regard as brutal and cowardly, and which had no purpose other than to inflict pain and injury on a helpless person. As the Magistrate observed "the video speaks for itself". But of course there is also the evidence of eyewitness Mr Williams, who said "It was brutal. I couldn't believe it".
Thirdly, and while I must consider this case of alleged affray in the context of its own facts and circumstances, I have been taken to a number of English cases where it has been held that an offence of affray had not been made out. I have summarised these cases above. Of course, none of them is decisive of this case, because they each depend upon their particular facts. Nonetheless, I have given them careful attention.
However, as the learned Magistrate observed, most of those cases involved altercations which took place between two individuals, and essentially were one-on-one assaults. It was only in the case of Cotcher where the altercation involved unlawful violence by more than one person. It is also of note that in Cotcher there was evidence that the other people at the scene were apparently unaffected by what went on, remained calm, and carried on with what they were doing. Furthermore, it must be remembered that in Cotcher the appeal Court was considering, on a stated case appeal, the question of whether it was reasonably open to the magistrates to reach the conclusion (on the facts) that the offence of affray was not made out. In finding that it was reasonably open to the magistrates to reach that conclusion, the appeal Court was not saying that the facts of the case were not capable of supporting a finding of guilt for the offence of affray. The decision in Cotcher therefore is not authority for the proposition that a pub brawl such as occurred in that case is not capable of amounting to an affray. And, as already noted, the appeal Court stressed that the case was "an unusual case upon its own facts". Furthermore, in my view the decision of the magistrates in that case was somewhat surprising, and it is probable that in the majority of cases involving a melee like that in Cotcher, the offence would be made out.
In any event, the facts in Cotcher can be contrasted with the current case, where there is evidence that more than one person either at or near the scene was affected by the incident.
There is the evidence of Mr Williams, who described the attack as brutal, and one that he "couldn't believe". There is also the video/audio recording that was provided to police by another witness to the events. That video shows a boy of probably 9 or 10 years of age, initially in the foreground, watching the start of "the fight". It also records the end of "the fight" where a person/s near to the person doing the video recording can be heard shouting, apparently to a child to "go away" and to "get in". It also records a person calling out "Oooh, Oooh" in apparent horror or fear, and also saying "Oh my God", at a time coinciding with Wellington being punched and kicked to the body and head while unconscious or semi-conscious on the ground.
I have had regard to the fact that the events in this case occurred in a public space, with no person (apart from the Appellant) in very close proximity. As the case law says, such a situation may have the effect that the hypothetical person of reasonable firmness might not hold fears for their personal safety, given their potential ability to distance themselves from risk.
I have also had regard to the fact that the Prosecution did not call evidence from a number of potential eye witnesses, other than Mr Williams. In accordance with the decision in Mahmoud v Western Australia (2008) 232 CLR 397 - while I do not speculate about what those persons might have said, the absence of their evidence is a matter I have taken into account in deciding whether I can be satisfied of the Appellant's guilt beyond reasonable doubt.
As I have said more than once, each case must be considered on the basis of its particular facts and the circumstances in which those facts occurred.
This is a case involving extreme and indiscriminate violence, and violence delivered in circumstances indicating that the two assailants (Doolan and the Appellant) were effectively out of control, and had abandoned responsibility for the potential consequences of their actions.
In my view, the hypothetical person of reasonable firmness present at the scene would have been well justified in fearing that this type of mindless and out of control aggression could easily have been visited upon others at the scene, including themselves.
I am therefore of the view that the finding by the learned Magistrate that the Appellant's conduct was such as to cause a person of reasonable firmness present at the scene to fear for their personal safety, was well open on the evidence, and did not involve any error.
Furthermore, and for the reasons that I have set out, the Magistrate's finding accords with the finding that I have myself reached, having considered all of the evidence.
I dismiss the appeal against conviction. I confirm the finding of guilt for the offence of affray.

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Criminal Code Act 1924(Tas)

International Covenant on Civil and Political Rights Law Enforcement (Powers and Responsibilities) Act 2002(NSW)

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