R v ZF; R v AJH

OUTLINE OF THE CROWN CASE AND THE COURSE OF THE TRIAL

1. To summarise the Crown case as I can best do in a nutshell as the cases was conducted and also to perhaps reflect upon the defence case, although no evidence was given by the accused, the two "victims" as I may call them, John and Joel Shortland were brothers. John was older than Joel. Joel Shortland had a problem with two young men, who are identical twins, called "The Brearleys" who had a number of associates in their company on 4 December 2012. There was some exchange of insults between the Brearleys and Joel Shortland that afternoon or early evening and ultimately after Joel Shortland had thrown a bottle at one of the cars of the Brearleys, Joel Shortland, O'Connor, John Shortland, Melissa Smith and a man called Jacob Shortland, another brother, went to a BMX track, in Bathurst in the middle of a public park, and some conversations or a meeting occurred between Joel Shortland at least and the Brearleys and some other people.
2. When Joel Shortland left the BMX track, being driven away by Fergus O'Connor, O'Connor most unwisely, in my view, manoeuvred his car in a manner which was interpreted as intimidating some of the people there. It was the catalyst for subsequent events and although Mr Fergus O'Connor was a quietly spoken witness, it is quite clear on the evidence that he bears at least some responsibility for what subsequently happened.
3. Because after that the group that had been at the BMX track associated with the Brearleys, including as I have concluded the two accused, went to George Street Bathurst and there was a confrontation near the corner of Piper and George Street, some few blocks from this Court House, an area that I have had to walk past and through at least two or three dozen times in the last week and a half as I am staying nearby.
4. The confrontation involved a man armed with a sword, another man or men, one possibly armed with a knife, and Ms Fitzpatrick armed with a golf club confronting the Shortlands, John Shortland was struck a number of times with the sword and in defending his head with his forearm had his forearm struck twice causing both lacerations and a compound fracture to his arm. Joel Shortland intervened to protect his brother and in fact knocked the first person with the sword down. I will call that person the 'first' swordsman. A second person intervened, picked up the sword ('the second swordsman') and he struck Joel Shortland a number of times causing the wounds the subject of counts 3 and 4. The acts constituting counts 1 and 2, in my view were completed before the acts constituting counts 3 and 4 were committed not withstanding some evidence to the contrary. The assailants ran away.
5. Ultimately Ms Fitzpatrick apparently was charged with assault occasioning actual bodily harm. On the basis of the Crown case in this matter why she was not deemed to be part of the same joint criminal enterprise that ZF and AJH were concerned with is a mystifying question. Maybe it reflects matters that I have ultimately concluded in relation to the case. Again this is no criticism of the Crown or the DPP for that matter. It would seem that she was prosecuted summarily before the matter ever came to the attention of the learned Director.
6. In any event she pleaded guilty to assault occasioning actual bodily harm and came to this Court ultimately to give evidence as a witness who had not provided a proof of evidence but apparently provided some information to a police officer well after the event. Another unsatisfactory situation. It is quite unsatisfactory in my view for police to be going off and interviewing potentially vital witnesses and taking "bullet point" summaries of what they say. It puts the Crown in an impossible position. The later it is done, of course, the less satisfactory it is. She had a conference with the Crown before she gave evidence, but I had to conduct a Basha inquiry to ascertain what evidence she would give.
7. In the summary of this case I will refer to the 'Shortland group' if I may call it that, which will be Joel, John, Melissa and Fergus. I will refer to the 'Brearley group' which will include the twins and a number of other witnesses who I will identify and I will refer sometimes to the 'Bettles group'. I include within that Shanaya Fitzpatrick and the two accused.
8. I should also say as a preliminary point, to better understand the detail of the evidence that I address, that it seemed to be without dispute that ZF, AJH and JM at various times are known by the name Bettles. Nobody bothered to assist me with any information of a legal or factual character in relation to the basis for that to be. But the case proceeded on that assumption because instead of having a jury trial as I told I would have after the call-over of the Bathurst list last Thursday week, a fortnight ago, I was confronted at the last moment with an application for trial by Judge alone in circumstances where, given the fact the Crown consented to the application, subject to not granting leave for the late application to be pursued, I was bound to conduct a trial by Judge alone.
9. The basis of that application, I do not mean this in any unkindness of ZF or AJH and I certainly have ignored it for the purposes of the fact finding in this matter as their characters are not in issue, was evidence to suggest that the name 'Bettles' was well known in the Bathurst area for a range of reasons. Most of those reasons had nothing to do with these two accused, I hasten to say. The 'family' was alleged as having involvement in criminal activity in Bathurst. Thus, it was submitted a fair trial could not be obtained with a local jury.
10. I pointed out to learned counsel for AJH, Mr Chhabra, who led the charge in relation to this application, that it seemed to me that the matters to which he referred were properly matters to be considered in determining whether there should be a change of venue, which should have been attended to many, many months before. It turned out, as I understood although it was not expressly stated at the time, that if it transpired that of the 43 members of the panel we had available to us 20 put up their hands to say that they had heard the name Bettles in one way or another I would have been left with the position of not having enough jurors in the panel and would have been confronted with the reality that I would need to grant a trial by Judge alone.
11. Something has got to be done about s 132 and 132A Criminal Procedure Act 1986 to give trial Judges greater discretion to determine whether a trial should be a trial by Judge alone, even where the parties consent. Our criminal justice system has proceeded for hundreds of years on the basis that when citizens are charged with serious criminal offences, the accused is entitled to a trial by Judge and jury, the Judge being the Judge of the law, separated from the constitutional tribunal of fact, the jury, and those separate functions being recognised by the trial Judge and the jury and the parties throughout the trial.
12. I appreciate the legislation provides some discretion to a Judge if the parties do not agree and the discretion not to grant leave should an application, such as the one that confronted me, be made on the day of the trial. Bearing in mind the legislation ostensibly provides for at least 28 days notice. It seems with respect that not to grant leave where the parties agree would be ultimately an improper exercise of discretion. The leave issue really to my mind is more concerned with the question of convenience to the parties, convenience to the Court and other matters. The legislature should address the question of giving a Judge in all circumstances some residual discretion to deal with the matter, even if it involved such as in this, ordering a change of venue. This was to my mind, a pure jury case in many respects and should have been properly considered by a jury.

LEGAL PRINCIPLES

1. I turn now to the legal principles to be applied. It is a trial by Judge alone, according to the provisions of the Criminal Procedure Act 1986 as I have pointed out. It requires the Judge in his or her judgment not just to state the principles of law which have been applied, but the finding of facts that were made and to expose what is described "the reasoning process" justifying the findings of fact and ultimately the verdict or verdicts returned.
2. All principles of law which are relevant and are required to be applied and considered, should be identified in the judgment, including any necessary warnings that the trial Judge is required to apply in the assessment of the evidence. Where particular warnings are applied, a Judge must state where appropriate, the relevant warnings and the consequences of them, and why a particular verdict has been reached. This was so held by the High Court in Fleming v The Queen (1998) 197 CLR at 250, a judgment of the High Court arising from a judgment of a Judge of my Court, the late Judge Luland QC.
3. So far as the onus and standard of proof is concerned, the prosecution bears the burden of proving the guilt of the accused. That burden or onus rests upon the prosecution in relation to all matters requiring proof by the prosecution. The prosecution is required to prove each and all essential ingredients or elements, sometimes referred to as essential facts, going to the proof of relevant ingredients or elements. The prosecution is of course not required to prove every fact in the case and there may be in a particular case, as is here, many conflicts in relation to facts in the case, but ultimately the Crown by reference to the evidence must establish all relevant essential ingredients germane to the proof of guilt of an accused person in respect of a particular charge.
4. The accused bears no onus of proof in respect of matters requiring proof by the prosecution. An accused person is presumed to be innocent of any charge or charges, brought against him until such time as that presumption is displaced by the Crown proving his guilt. Proof of guilt requires proof of the essential ingredients or elements beyond a reasonable doubt. If the Court has a reasonable doubt about the guilt of the accused in respect of a matter requiring proof by the Crown, the Court is obliged to return a verdict of not guilty.
5. The words "beyond reasonable doubt" are to be given their ordinary English meaning. Reasonable doubt is sometimes referred to in a particular case as being present when there is a reasonable possibility that a circumstance or situation inconsistent with guilt emerges from the evidence. This is a case as I will refer to later, where the issue of drawing inferences to establish guilt, or relying upon a combination of direct and circumstantial evidence matters, are central to the way in which the Crown seeks to prove its case.
6. Furthermore the cases against each of the accused, even though in this case there are allegations of being in company, or alternatively, is argued by the Crown that they were involved in a joint criminal enterprise particularly in relation to counts 1 and 3, are matters requiring proof by the Crown. There is of course in the case much common evidence in the cases against each of the accused. But a Court must be astute to ensure that evidence that is only admissible in relation to one accused is not used in relation to the issue of whether another accused is guilty or not of a particular crime alleged against him.
7. I also bear in mind that there are alternative counts pleaded. I am, firstly, in respect of count 1, to consider that if I determine that a particular accused is not guilty of that count, I turn to the alternative count. I then turn to count 2, and determine whether the accused is guilty or not guilty of that count. And then give separate consideration to the relevant evidence in relation to count 3. If I find one or other of the accused not guilty of count 3, I turn to the relevant alternative count for that accused. Count 5 requires separate consideration, although with much common evidence to the other counts.
8. If I may deal with the elements of the charges they are required to be set out in the judgment. Here there is no issue in relation to the elements of the charges in this matter. The law is well settled in respect of each of the charges and the directions I give myself are in accordance with the Trials Bench Book.
9. Count 1, contains these essential elements, that the relevant accused caused grievous bodily harm to John Shortland, and secondly, did so with intent to cause grievous bodily harm. The relevant intent must exist at the time of the infliction of the grievous bodily harm. The Crown must prove in relation to each accused that the relevant act that it relies upon was a voluntary act. The Crown must prove, of course, that the relevant accused, either personally or as part of a "joint criminal enterprise", caused grievous bodily harm to John Shortland. With regard to the word 'cause' that means simply to inflict or bring about by voluntary act. 'Grievous bodily harm' means really serious bodily harm. There is no dispute in this case, that the compound fracture to the arm, associated with the wounding, was grievous bodily harm.
10. With the intention to cause grievous bodily harm, the prosecution must prove that the relevant accused acted with the relevant intent, subject of course to application of the joint criminal enterprise direction I will outline soon, in that it was an event that the particular accused wished or wanted to cause. That is the relevant accused intended in the way that that word is ordinarily understood to cause really serious bodily harm to John Shortland. Intention is concerned of course with the state of mind of the particular accused at the time of the relevant infliction of grievous bodily harm.
11. In relation to the alternative count the prosecution must prove the causing of grievous bodily harm, secondly, that each of the accused were in company with each other, and thirdly, that each of the accused in company were reckless as to causing actual bodily harm to John Shortland.
12. I do not need to deal with the issue of causing grievous bodily harm. The expression 'in company' is concerned with an allegation that he accused have committed the offence jointly with one another and/or with others and that the relevant accused was immediately present for the purposes of committing the offence of causing grievous bodily harm. He must relevantly intentionally participate by assisting or encouraging a particular person said to be inflicting grievous bodily harm upon the complainant in the manner pleaded in respect of count 2. The presence of more than one person, including the accused, and the ability of those people present to assist in the infliction of grievous bodily harm upon the complainant if called upon, must be known to the relevant complainant.
13. In relation to that direction I give myself, it is the same direction to be given in respect of count 4, save for the fact that what is required to be established in count 4 is the relevant presence for the intention of assisting or encouraging persons to 'wound' the relevant complainant.
14. With regard to the issue of recklessness in order to establish that a particular accused was reckless, the prosecution must prove that the relevant accused, in conjunction with of course the joint criminal enterprise directions, foresaw the possibility of actual bodily harm being inflicted, but nevertheless participated in the events giving rise to the injuries caused. Actual bodily harm means real bodily harm. They are words to be given their ordinary meaning and can include any hurt or injury that interferes with health or comfort. It need not be permanent but it must be more than trifling or transient.
15. With regard to count 3, the relevant elements to be proved against each of the accused that they did wound Joel Shortland, secondly with intent to cause grievous bodily harm. 'Wound' is an injury involving the breaking or cutting of both exterior, that is the epidermis or outer layer of the skin, and the interior dermis layer of the skin. There is no dispute in this case that Joel suffered relevant wounds. With regard to the intention to cause grievous bodily harm, that has of course the same meaning as it does in relation to count 1.
16. In relation to count 4, the relevant elements in respect of that matter, require proof of a wounding of Joel Shortland, done so, in company and that each of the accused was reckless as to causing actual bodily harm to Joel Shortland. I have already given a definition for wounding, the issue of in company is, save for reference to wounding rather than grievous bodily harm, the same as for count 1, and being reckless as to whether each of the accused caused actual bodily harm has the same meaning of course as it does in respect of count 2, relating to John Shortland.
17. With regard to the issue of affray, in order to establish count 5, the prosecution must prove that a particular accused, each or in company with each other, used or threatened actual violence against John and Joel Shortland. That each caused a person of reasonable firmness present at the scene to fear for his or her personal safety, and intended to use or threaten violence or was aware that his conduct maybe violent, or threaten violence. The words 'in company' so far as they may pertain to the case in question have the same meaning as I have earlier identified.
18. In relation to the use and or threat of unlawful violence against the two complainants, where two or more persons use or threaten unlawful violence, the conduct of those persons must be taken together and considered for the purposes of determining whether this element has been established. In relation to the second element I identified, I am concerned there with whether objectively a person of reasonable firmness, who was present at the scene, would fear for his or her personal safety. In the circumstances as I find them of the altercation, as the Crown alleges between the two accused and others, and the Shortland brothers. No person of reasonable firmness need actually be or likely to be present at the scene.
19. In relation to this count the prosecution has to establish that the relevant accused intended, that is had the state of mind that he wanted or was endeavouring to use or threaten unlawful violence, or understood that his conduct may be violent or threatened violence.
20. In relation to each count, where it arises on the evidence, the prosecution must establish beyond reasonable doubt that the accused did not act in self defence. Of course no submissions were put to me in relation to the issue of self defence. It realistically was not an issue in the case. In one sense it had a potential, bearing in mind the case was really fought on identity, to arise in relation to the second swordsman in the sense that on the Crown's own case the second swordsman became armed after Joel Shortland had effectively disabled the first swordsman. But one would have thought that even if raised it could not realistically be considered or would be easily proven not to exist, having regard to the circumstances of the confrontation, the alleged violence used and the reasonableness of any actions of the second swordsman in the context of the case.
21. I turn now to the issue of joint criminal enterprise, which is very much central to this case in respect of counts 1 and 3 and of course, is of some significance in one sense to a consideration of the alternative counts in the context of the pleading that the offences were committed "in company".
22. In relation to the issue of joint criminal enterprise, the law is that where two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity, this is so regardless of the particular role played in that enterprise by any particular participant. The Crown must establish both the existence of a joint criminal enterprise and participation in it by the accused. A joint criminal enterprise exists where two or more persons reach an understanding or an arrangement amounting to an agreement between them, that they will commit a crime. The agreement need not be expressed in words and its existence maybe inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
23. The agreement need not have been reached at any particular point of time before the crime is committed provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by anyone of them. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish that at some point in time an agreement has been reached between them, that the crime should be committed. For example, if two people at the very same time are punching a third person, the tribunal of fact could infer or conclude that they have agreed to assault that person. It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active role in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.
24. The Crown must prove beyond reasonable doubt that the crime which was the subject of joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients which make up the crime was committed, regardless of who actually committed them. I have already outlined the relevant ingredients of the particular counts specifically concerned with joint criminal enterprise. Further, in respect of a particular accused, the Crown must prove beyond reasonable doubt that he or she was a participant in the commission of the crime as part of the joint criminal enterprise with one or more persons.
25. There are of course other aspects to be taken into account in relation to the issue of joint criminal enterprise. Joint criminal enterprise or joint criminal liability, may be established by the Crown in different ways. It may be established where the crime charged is the very crime that each of the participants agreed to commit. For example in a very clear cut case, where two men go with an agreement to kill another man unlawfully, one might think that that is clear evidence, if established, of an agreement to commit the crime of murder or manslaughter. That is the specific crime that the men were intending. Secondly, it may be so where the crime committed fell within the scope of the joint criminal enterprise agreed upon as a possible incident in carrying out the offence the subject of the joint criminal enterprise.
26. A third matter where joint criminal enterprise may arise but not here, is where the crime committed was one that the accused foresaw might have been committed during the commission of the joint criminal enterprise, although the crime was outside the scope of the joint criminal enterprise.
27. Some other matters of a legal nature I need to take into account are as follows. The accused did not give evidence. I direct myself as I am required to do, that each accused bears no onus of proof, each of the accused is presumed to be innocent, until such time as his or her guilt is proven by the Crown. I cannot draw any inference adverse to either of the accused because each accused exercised his right to silence in Court. I cannot interpret it in anyway as being an acknowledgment on his part of the accuracy, veracity or strength of the Crown case. And I cannot be tempted to reason that the accused has remained silent in Court because he is guilty. Such reasoning is prohibited and I must not engage in it. Such a process or means of reasoning is entirely inconsistent with the burden of proof resting upon the prosecution. I cannot speculate as to why the accused has not given evidence. Furthermore, I must not treat the accused election not to give evidence, as being capable of filling any gaps in the Crown case that I may perceive to exist.
28. In relation to this case I have referred to the issue of inferences. In relation to this case, as I understand the way it is argued, firstly, the Crown would argue and has argued of course, that the participation of each of the accused is established by a combination of direct and circumstantial evidence, from which a conclusion or inference maybe drawn that the identify of a particular accused has been established beyond reasonable doubt. That will require me to give a direction to myself in respect of circumstantial evidence where it is to be considered in conjunction with direct evidence.
29. It seems to me and again, this is a legal issue not debated at great length, but on my understanding of the case that in respect of one aspect of the case, that is the issue of the alleged joint criminal enterprise, the Court in conjunction with the reliance upon circumstantial evidence is required to consider the matter from the standpoint of whether in fact an inference of agreement, such is required to be established by the Crown has been established. The directions given in respect of inferences and circumstantial evidence where those two concepts are separate in a legal sense are very much the same.
30. The tribunal of fact is entitled to draw inferences or conclusions from other facts established from the evidence, it is something we do every day. I cannot draw an inference or conclusion unless it is a reasonable inference that can be rationally drawn from the evidence I accept. I must be careful about drawing inferences, especially where the inference is about guilt, or the proof of an element or essential ingredient of the charge, when drawing a conclusion about guilt, or existence of an element required to be proven by the prosecution, that is an inference or conclusion adverse to the relevant accused, I cannot draw that inference unless it is the only reasonable inference that can be drawn beyond reasonable doubt. There may be a number of inferences that can be reasonably drawn, some adverse to the accused, some not adverse to the accused. In other words, some consistent with guilt, some inconsistent with guilt, or consistent with the existence of a particular element of the offence, or not consistent with a particular element of the offence, in such a situation I cannot draw the inference adverse to the accused, unless I am satisfied of two things.
31. Firstly, I am satisfied beyond reasonable doubt that all the inferences favourable to the particular accused can be excluded, and secondly, the only inference that can be drawn beyond a reasonable doubt is the one adverse to the accused that is consistent with guilt. Unless I reach the point where I am so satisfied I cannot find that the relevant element or essential ingredient or guilt has been made out and therefore the accused must be found not guilty. But in circumstances where of course the proof of guilt is dependent upon drawing a relevant inference, so long as there remains an inference reasonably open that is favourable to an accused person that cannot be excluded beyond reasonable doubt, I must find the charge not made out and the accused must be found not guilty. Inferences are particularly relevant here to establishing matters concerning the intention and/or state of mind of each accused or the existence of a particular agreement to commit a crime.
32. In this case the Crown relies upon, particularly in respect of the issue of identity, a combination of direct and circumstantial evidence. In relation to the circumstantial evidence the Crown seeks to draw from basic facts it says exist, other facts that are circumstances pointing towards guilt. For example, from the fact that the Crown would allege that ZF was present at the BMX track, it submits I should draw an inference that ZF was moved by the conduct of Mr O'Connor in his vehicle, to become concerned to chase the 'Shortland group' and ultimately confront them at the place of relevant events near the corner of Piper and George Street. The Crown used the expression motive. It might so described.
33. Circumstantial evidence where it is relied upon by the Crown can be stronger than direct evidence, as has been demonstrated in this case. Some direct evidence can be of very dubious quality, including identification evidence. However, in a case involving direct and circumstantial evidence, no particular circumstantial matter can prove the guilt of the accused. Where the Crown's case depends either wholly or partly in circumstantial evidence, then I am asked to reason in a staged approached the Crown asks me to find certain basic facts established from the evidence, these facts do not have to be established beyond reasonable doubt, save for one matter in this case, taken by themselves standing alone they cannot prove the guilt of the accused and then I am required to draw the relevant inferences or conclusions.
34. As I said a case based on circumstantial evidence maybe just as convincing and reliable as any case based on direct evidence. This will depend on a range of considerations including the nature of the basic facts concluded - looked at as a whole not individually or in isolation - and whether all the evidence leads to the avoidable conclusion that the Crown has established the guilt of the accused. Thus, I am required to determine basic facts and then determine whether the inferences to be drawn are reasonable ones and whether ultimately they are the only reasonable and rational conclusions that can be drawn excluding any conclusions inconsistent with guilt.
35. There is one matter averted to in the submissions of Mr Coleman that I concede. It seems to me, whether it is to be seen only as "direct evidence" or in someway relevant in a circumstantial evidence way and/or drawing inferences, bearing in mind the witness herself does not give any direct evidence of any specific conduct of ZF and AJH, there is evidence from a source other than the Shortland group directly consistent with the allegations brought by Joel and John Shortland. This is the evidence of Ms Fitzpatrick of the presence of the two accused ZF and AJH with her in the car that went to George Street and their presence with her at the time of approaching the Shortland brothers. I accept the submission of Mr Coleman that her evidence in that regard must be established beyond reasonable doubt. As I will indicate later I am satisfied beyond reasonable doubt of the truth of that evidence having regard to the totality of the evidence and the quality of the evidence given by that witness.
36. In respect of this matter it is worthy to point out some aspects of the case. The direct evidence the Crown identifies is of course of the evidence of if I may call it, them again, the Shortland group of the circumstances of the attack upon Joel and John Shortland.
37. There is the evidence of their claimed identification of relevant participants. There is the evidence of the observations of the injuries relevant to establishing wounding and grievous bodily harm. There is direct evidence of the conduct of the car driven by Fergus O'Connor and the events at the BMX track. There is direct evidence of course from other people. O'Connor and the 'Brearley group' saw a group of people approaching where the Shortlands were. Some people observed with various weapons in the manner I will outline shortly.
38. When I refer to the issue of identification evidence, I bear in mind these fundamental matters which I will need to reiterate. With the exception of Joel Shortland, amongst the Shortland group none of the group knew any of the people who were alleged to be involved in the attack upon Joel and John Shortland. Joel Shortland had some familiarity with the man known as JM, the former accused. Their association was brief and transient, although I accept his evidence in general terms that he had a familiarity with him. It could be fairly said that ultimately Joel Shortland's evidence as to what JM did could be regarded 'technically' as recognition evidence.
39. However Joel Shortland did not know anybody else in the group, save for of course Shanaya Fitzpatrick with whom he was a Facebook friend but apparently with whom he had little other contact. She knew him as her evidence revealed. I am putting aside the issue of Shanaya Fitzpatrick's 'identification' by him if I could call it that for the moment. There is no dispute that Shanaya Fitzpatrick was not only identified by members of the Shortland group. There is no dispute obviously from her evidence and what she admits that she did, that that identification was accurate, reliable and honest.
40. However in relation to Joel Shortland, apart from recognition of JM , the Crown as I would have understood it would have relied upon the totality of the evidence to amount to a "identification" of the other two people, the two accused now here, in circumstances where those people were not known to Joel Shortland.
41. Ultimately, as a matter of logic and common sense and understanding of matters by reference to the warnings I give myself, I cannot be satisfied notwithstanding the self satisfaction of particular people, and I do not mean this unkindly of Joel and John Shortland or Ms Smith, that relevant people have been "identified" in a manner that would satisfy any court beyond reasonable doubt that the identities have been established. Putting aside the issue of recognition of JM, it seems to me that as best it can be quantified is that by reference to the claimed 'identification' and the process by which that identification came about, the Crown case is one where in reality what the witnesses are saying, making allowance for all the limitations and restrictions upon the reliability of their accounts, is that AJH is a person "similar" to the person that has been identified, at least in some evidence, as the second swordsman and ZF is "similar to" the person identified as the first swordsman.
42. I hasten to say again that is not what they say in their evidence in this Court but for reasons that I will outline I cannot accept the "identification" of the accused as such having regard to the fact that they were strangers to all and sundry.
43. This brings me back to what I see in summary from both the Crown's submissions and my analysis of the matter, the circumstances that have to be considered in conjunction with the direct evidence, bearing in mind I accept that the supposed identification and/or recognition is part of the Crown's direct evidence case.
44. First of all, the similarity of people is a circumstance to be taken into account. Secondly the supposed motive, particularly the threat made to ZF and Ms Fitzpatrick as she described it by the movement of O'Connor's car, is a circumstance to be taken into account. Thirdly, there is the issue of the descriptions given by the witnesses, unsatisfactory as they are and as contradictory as they are. Fourthly, there is intimately involved bound up with the claimed motive the evidence of presence of the accused at the scene at the BMX track where the meeting took place between Joel Shortland and others.
45. Another circumstance relied upon by the Crown, if not available as an admission against interest, are the statements of attackers either before or after the relevant events in which words were said and I am paraphrasing the detail of the language, "Don't mess with the Bettles". Or references to "the Bettles" as having been responsible for what happened or being present in order to confront the Shortlands. I will deal with the detail of that evidence later. I hasten to say of course evidence of an admission if established would be direct evidence. I will indicate shortly when I deal with the legal character of the matter that I could not be satisfied of a relevant admission being made by either of the accused on the basis of the evidence in this case as to the statements allegedly made before or after the relevant events.
46. Another piece of circumstantial evidence of significance is the location of the injuries and the character of the injuries insofar as inferences may be drawn about the intention of a particular person. I hasten to say that the issue of inferences arises in relation to establishing intention as it relates to an intention to inflict grievous bodily harm. These matters overlap.
47. This brings me to the issue of identification evidence, both by reference to s 116 Evidence Act and 165 Evidence Act and the circumstances of this case. Having been asked by Mr Chhabra and Mr Coleman to give myself a 's 165( Evidence Act)' direction I am required to direct myself concerning the reliability of the supposed identification evidence and consider matters that may render that evidence unreliable. I am also required to warn myself of the dangers of acting upon identification evidence where it is sought to be established. This is an important direction because it is well known, as juries are told all the time, that injustices have occurred from the failure to properly identify or accurately identify particular persons as having committed crimes.
48. I pause for a moment to deal with one other aspect of the matter that came into sharper focus during the course of this trial. One of the matters that arose in the course of the examination of the Shortlands and to a lesser extent Ms Smith was the fact that certain matters were added to the recollection of those witnesses over a period of time, moving inexorably to conclusions the witnesses reached about the actions of particular people or the identity of particular people.
49. The matter was discussed between myself and the learned Crown Prosecutor during the course of Ms Smith's evidence in light of a particular answer Ms Smith gave to a question asked of her in cross-examination. The issue arose of course in relation to whether memory is reliable and circumstances in which people will believe that they can remember something happening, when in fact there are reasons for them to be mistaken about happened in their memory, or where an initial memory has been transplanted by another memory caused by the intervention of a third party providing further information. The example of that, that brings sharp focus to a consideration of the issue, was the recent statement by the Honourable Peter Garrett, former Federal Member of Parliament, that an allegation in a book that was published that he had received a sum of cash in an envelope from a representative of the Hotels Association or the Clubs Industry was, in fact, what he described as a "mis-memory".
50. I pause for a moment to point out that in the interview which was on national television within the last week, Mr Garrett specifically said that he had a memory at one point of being given a sum of cash in an envelope. He put that in his book which he not only wrote but had been typecast or set in type. Then after it had been placed in his book, ready for publication or already published I do not know, he spoke to one of his staffers. That staffer gave him certain information which caused him to doubt the memory that he had originally had. In fact not only did he doubt it but he changed his memory to allege that in fact it was not a sum of cash it was a cheque and it was not a bribe, nor could be construed as a bribe, but it was a legitimate campaign donation.
51. There we have a man of intelligence rationally considering the matter and committing it to writing. How many drafts he wrote of that particular part of his book we do not know. The book was printed. That was his memory until he spoke to a third person and then he changed his memory of what had occurred most significantly. This type of situation is very much at the heart at the need for caution in considering the supposed 'identification' of the two accused in this matter.
52. A witness of course may be honest but that does not necessarily mean the witness will give reliable evidence. Because a witness who gives evidence of identification honestly and sincerely believes that his evidence is correct, that evidence can be quite impressive, even persuasive. So even if I thought a witness was entirely honest in the evidence that he or she gave in relation to identification I must approach the task of assessing the reliability of that evidence with special caution.
53. Special caution is necessary before accepting identification evidence because of a possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience that criminal courts over the years both here in Australia and overseas has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted, in some cases executed. I must be careful to consider the circumstances in which a witness made observation of a person, their prior familiarity or not with that person and the circumstances in which the person came to conclude that a particular person was identified as having committed a particular act.
54. There are a number of matters I am required to take into account in relation to the matter. Summarising them now, although the Bench Book sets them out in greater detail , whether a person identified was a stranger and that seems to be a common aspect of the matter so far as these accused are concerned. The opportunity to make observation of a person. It is clear relevant events happened very quickly and suddenly and were no doubt very shocking to both the "victims" and those looking on. The issue of focussing attention. Whether a witness was distracted or the like is another matter and it is quite clear that there were various events occurring, sometimes at the same time that would rightly distract people. I am reminded of Ms Smith's evidence of walking away, talking on a mobile phone and not seeing relevant events occurring in relation to Joel Shortland. Perhaps the only witness who might be said in one way to have not been particularly distracted, beyond telling her to move away, was O'Connor. But of course his account of what happened does not seem to fit in very neatly with the accounts of what Joel Shortland and John Shortland saw.
55. I have regard to the fact that this happened at night. There was street lighting available but I am mindful of the fact that the people at the other end of the block, if I can call them the Brearley group, were looking down the street in circumstances where the lighting available to them might not have been the same as the lighting available to the people close to the action. I bear in mind of course that what was the light available was not even light, but street lighting.
56. There are matters concerning any distinctive features of people including tattoos, a matter about which I will comment shortly as it affects JM, any special reason for remembering the person, whether a person was under stress or pressure at the time, whether a person was trying to identify someone of the same "racial background" with which they may or may not have had familiarity. I have got to have regard to the descriptions that a particular person who claims to identify someone has given and compare that to reliable evidence of description that can be identified. One of the problems in relation to the description evidence in this case, as I will point out later, is that not only are the descriptions all over the place and in some places contradictory, but there is no consistent evidence of any description, if I could call it consistent (it may be better expressed as objective evidence of description) of either of the accused such as to provide some sort of template or guidepost or yard stick for assessing the descriptions that were made. I do not have any description from anybody that can be said to be an objective, considered description of clothing. Often when a person is arrested shortly after the event police officers will make observation, in fact even take photographs of a suspect and his or her clothing. Their appearance can be established quite independently. But in this case there is no such evidence.
57. There is also the question of how the identification came about which is a critical matter in this case. How long it took to identify a person, how long after the relevant events and the like that this occurred.
58. Of course the same problems can arise in relation to evidence of recognition where more than one witness has identified an accused person. This is a matter I can take into account in determining how strong the evidence is but that does not mean necessarily that there is less chance that a mistake has been made. Two or more honest witnesses can be just as mistaken as one, even if they reach the conclusion of identification quite independently of each other. But as the evidence unfolded of course that was not the case in this matter.

THE EVIDENCE AT TRIAL

1. In relation to the evidence largely from Joel Shortland, dealing with that in some little detail at this point to summarise matters largely not in dispute, on the afternoon of 4 December 2012 Joel Shortland was at a flat at 110 George Street, Bathurst. It was a ground floor flat apparently occupied by John Shortland and his older brother. At the time of relevant events as I understood the evidence Joel Shortland was seventeen years of age. His brother John was twenty-two years of age. Ms Smith was approximately two years older. John and Joel Shortland had at least two other brothers Jacob and Jed, a sister Jessie and some younger half siblings. There may have been other siblings, they did not figure in the evidence.
2. John Shortland's girlfriend was Melissa Smith. Jessie Shortland's boyfriend was Fergus O'Connor. He was a man at the relevant time in his twenties. Although Jacob Shortland was present at the BMX track and apparently was present at or near the events giving rise to the charges, he did not give evidence.
3. Joel Shortland had previously 'problems' it would seem, or they had had problems with him it is not abundantly clear, with the Brearley twins. Those two brothers drove more or less identical modelled Ford vehicles, one silver and one black or dark blue. Associated with the Brearleys were a number of people including people who gave evidence in this trial. The people who gave evidence in this trial were Brandon Pringle, otherwise known as Brandon Hahn, who was known to Joel Shortland and in fact was apparently friendly with them for one reason or another. Cameron Southwell was another associate of the Brearleys who gave evidence.
4. Sometime before sunset on 4 December the Brearleys apparently were just driving aimlessly around Bathurst in their cars and yelled some abuse towards Joel when he was in John's flat, which was heard by Mr O'Connor. This led to Mr O'Connor going out in a motor vehicle and trying to find them which led to him saying: although he was very coy about the matter, he "noticed" him throwing a glass bottle at one of the cars of the Brearleys. Joel was contacted in due course and arrangements were made for them to meet at what was described as the BMX track. I have a Google map of Bathurst. The BMX track as I understand it is part of a complex of parks and sporting fields on the other side of the Macquarie River from the CBD.
5. Joel Shortland went over there to meet the Brearleys and was driven there by Fergus O'Connor in his Holden utility which was described respectively as a Rodeo or Colorado. They may be the same model, it does not matter. They were joined at the BMX track by John Shortland, Melissa and Jacob in a vehicle that as I understand it belonged to John, of a similar character but different make. There was a meeting between Joel and at least the Brearleys. The numbers of people that were not part of the Shortland group that were present varied. Some estimates of ten and more were given and there were at least as I understand it two motor vehicles there, the Brearley's vehicle and a silver Astra.
6. It is alleged that the two accused were associated with the silver Holden Astra in the context of evidence from which an inference could be drawn, that the occupants of the silver Astra were the people who later confronted the Brearleys. I am mindful of the fact that Ms Fitzpatrick, who admits to being at the BMX track although apparently with no real interest in the events, said she travelled to George Street to confront the Shortlands in a blue car, the model of which he does not know.
7. The silver car was seen there by a number of people including Southwell and Hahn. There was also reference in the evidence to a green Lancer, being present or associated with the Brearleys. Not much turns upon this.
8. Joel Shortland's evidence was that there were three or four cars there, quite a number of people, perhaps more than were mentioned by the Brearleys. There is evidence from Ms Fitzpatrick, which I accept, that she came to be at the BMX track because she understood, although from what I understood of her evidence it was not abundantly clear as she did not receive the phone call, that the Brearleys were in some way fearful for their safety, having regard to the meeting at the BMX track. It is interesting that Joel Shortland went over to the BMX track not only accompanied by Mr O'Connor, but was joined shortly after by his brothers John and Jacob, John being considerably older than any of the other people involved on the Brearley side as I understand it. She used the expression that the Brearleys were "distressed".
9. I hasten to say when they gave evidence the Brearleys seemed to downplay the matter but for various reasons I do not believe that they were truthful witnesses. There are important matters that they did not disclose in their evidence, because it appears to me there is direct evidence to suggest that they knew the "Bettles" group, although they denied knowing who the people were that they said pursued the Shortlands after Mr O'Connor's conduct of his vehicle.
10. When Mr O'Connor drove away his movement of the vehicle apparently on various views of the evidence threatened people that were nearby. The way the Brearleys gave evidence it would seem that the group with Shanaya Fitzpatrick were people that they did not know and really gave no explanation for their presence. It seemed strange when I look at the photographs that in a darkened field the Brearleys would be there and there would be another car parked almost alongside for no reason according to the Brearleys. That just does not make any sense at all.
11. The Crown case is that ZF was threatened by Mr O'Connor's vehicle and that in high dudgeon, angry at what O'Connor had done, ZF accompanied by AJH and JM and perhaps another male drove off with Shanaya Fitzpatrick and chased the Shortlands back to the residence at George Street where the Shortland vehicles were parked and picked a fight with them.
12. The Shortland group returned to outside 110 George Street where John lived. They were standing on the footpath apparently talking to one another not far from the intersection of Piper Street and George Street and the intersection itself was well lit, but the lighting further down the street was not very good. Ms Smith had started to leave the group to walk to the flat which was on the ground floor by walking up what I understand to be a grass embankment, apparently to prepare a meal.
13. At this stage to the north, bearing in mind George Street runs north-south, of where the Shortlands parked, a number of cars pulled up including the Brearleys car and the silver car earlier referred to. Ms Fitzpatrick called it a "blue" car. The distance they are away is not entirely clear, but I accept on the evidence that the other cars parked almost a block away from where the Shortland cars were parked and it would seem the relevant silver car and/or dark blue car, as Ms Fitzpatrick described, was parked closer to the Shortlands than the Brearleys' cars. There may have been another car there.
14. Mr John Shortland referred to the cars pulling up about twenty-five metres away but nobody supports that view. In any event it does not fit in with description of the physical relationship of cars, one to the other.
15. The Crown case was, on differing versions of the evidence, that a group of people got out of the cars parked down the street or up the street and a group of up to six people approached on foot led by one person who had something behind his back. The Crown case was this was the person carrying the sword and Ms Fitzpatrick was carrying a golf club. The primary weapons observed by the majority of witnesses were a sword, described as a Samurai sword by most witnesses and the golf club, although some witnesses referred to the possibility of one person having a knife or the fact that one person did have a knife. There is no definitive evidence as to who had the knife except perhaps a third man other than the second swordsman. There is no evidence that the second swordsman as I have earlier described him carried a weapon into the affray.
16. Of course as one would expect there are differing versions of what then ensued. There are different versions within the Shortland group let alone from the perspective of the people further away who clearly could not see as much as the Shortland group.
17. There are however two fundamental assertions made by the eye witnesses at close range that is common in the evidence. Firstly, that the first swordsman struck John Shortland either on the body or the neck or the head and then on the right forearm as he sought to defend himself by holding his forearm up, causing the grievous bodily harm pleaded in counts one and two.
18. There is some minor dispute, if I might call it that, within the Shortland group as to whether Joel Shortland was struck first. Joel Shortland said he intervened. He punched the person who I described as the first swordsman and knocked him to the ground. The evidence is clear on the Shortland side that the first person played no further role in proceedings. Whether he was knocked unconscious or simply disabled or knocked to the ground I do not know.
19. A second person, who on the evidence as I understand it was unarmed, picked up the sword and then struck Joel with the sword, causing wounds to him. Joel Shortland says that the first swordsman had also struck him with a sword. I am not satisfied of that matter beyond reasonable doubt because there are not consistent accounts that happened form the 'Shortland' group who gave evidence.
20. Joel's version also was that a third person came up towards him and had made gestures with his hands consistent with what I understood to be a stabbing motion, although he did not see a knife. On the Crown case it was that this person was the person who was seen with a knife by some people. The Crown case was that this was JM. It is Joel Shortland's belief that the wound to his elbow described in the medical evidence was caused by this third person. The third person being a person with whom Joel was previously familiar on his account. After that event the woman carrying the golf club struck Joel Shortland about five or six times and on differing versions was either dragged away or walked away of her own accord.
21. I will deal in some little detail later with the respective versions of the specific witnesses. John gave evidence that he saw a group of people coming from the cars. I am dealing now specifically with the events that occurred when what I could call the "Bettles group" and the Brearley group had parked in George Street some distance from the Shortland group. He saw a group of people coming from the cars, they were yelling and led by one man holding something behind his back. John focussed on that one person. When that person approached John who was sitting on the back of the tray of a utility, as I understand it of Mr O'Connor's 'Rodeo', he saw that the person had a sword in two hands and demonstrated the person holding the sword upwards, more or less perpendicular to the ground. He said this person had "brown hair" and was "a bit shorter than me". John Shortland was six foot or thereabouts. He could not remember the clothing. The man held the sword up and hit him on the side of the head and the neck and the collarbone with the flat side of the sword, then turned the blade around to the sharp side and then hit John on the right forearm twice in the location where injuries were subsequently observed.
22. I have already said he put the arm up to protect himself. These were the blows that caused the injuries giving rise to grievous bodily harm. He fell back. He said his' little' brother stepped in and punched the attacker, knocking him to the ground. Then John walked or turned away. He then saw Joel fighting a different attacker who he then knocked to the ground. I took the different attacker to be, in the context of certainly his first version, the second swordsman.
23. As I said he did not know any of these people. He said the second attacker at one stage, nominated to be "JM", was a person shorter than Joel with dark hair. He noticed tattoos on that person but nothing in particular about the tattoos. It needs to be fairly said from what I have seen of Facebook photographs that JM is heavily tattooed on one of his arms and has a tattoo on his neck. John then saw a girl hitting his brother with a golf club, then the group left. He heard a voice say or someone say, "We'll be back with guns, don't fuck with the Bettles family".
24. He said initially in his first account that only two men were involved in the attack upon him and his brother. There were two other men who were standing at one point as he would estimate it seven to eight metres away, one of them grabbed the girl and dragged her away. He said in his first account in his evidence-in-chief the two people standing seven and eight metres away did not become "involved with the incident". Later in his evidence-in-chief he changed his evidence to suggest that one of those two people became involved.
25. Fergus O'Connor saw multiple cars parked down near the Catholic school, which as the evidence establishes, is to the north of where the Shortlands were parked. He described them being parked "at the end of the block". By reference to the geographical layout of Bathurst the next cross street of George Street to the north of Piper and George Street is Keppel Street, one of the main streets of Bathurst that leads eventually down to the east to the Railway Station. He saw ten to fifteen people jump out of the cars and start yelling and running towards him. Ultimately five ran towards him and the others. Four males and one female.
26. He said that he was about three or four metres away from the man who was verbally challenged by Joel. He said this person pulled a sword out from behind his back. He described this person as being about five foot nine. He, Mr O'Connor, was six foot six. He described this person as being "blonde wearing a shirt". He said he saw this person raise the sword and go down on Joel and then John and JJ intervened and then he saw the sword hit John in the arm as he raised it. He could not see what part of Joel was struck. In fact he said he did not know if it hit Joel. I hasten to say that account is not the same as the account given by Joel and John in terms of the order of events.
27. He said he was about three or four foot away from where John was hit. Apart from the man with the sword he did not pay much attention to the others, but a second male he described as having "a rat's tail" and was wearing
28. "a t-shirt" and about the same height as the first man on the scene and there was a third male that he described as "shorter". The males were all of the same build. One of the males was wearing a red cap. He said in his first statement that the blonde person dragged away the girl that he had seen with the golf club. He said at one stage the first person had a "white shirt". He also described Ms Smith as being in a somewhat different position than she described herself.
29. Ms Smith says that she was told, when the group from down the road approached, to ring the police. She at that point as I earlier said was moving towards the flat on the ground floor. She said she saw the group coming along the footpath. She said when the vanguard of the group, to use my words, approached John she was about ten metres away. She saw about five or six people coming in her direction, probably about three males and two girls from memory. She saw one person with a sword and a girl with a golf club. She saw no other weapons. John was leaning on the back of one of the cars. She saw one man mouthing off with a light coloured shirt and darker bottoms and with a very square haircut. That person's hair was "mousy brown" and he was shorter than John. She described his build as "quite fit".
30. She saw John struck by the sword on the torso first and then the swordsman went for John's head. John put his arm up to protect himself and John was hit twice. Then, she was "not sure" what happened. She did not know where others of her group were although she felt Joel was nearby. She then saw the guy with the sword as she described it on the ground and then she saw two other guys "rustling around". She said in evidence that one of those person had a tattoo "like writing" on his neck. That person had dark brown hair and was shorter than John. The other person who I take to be consistent with the other versions of the second swordsman had brown hair. She was not sure if that person was taller or shorter than John. She then saw the girl with the golf club hit Joel repeatedly. She at that point was in a position towards the movie theatre called 'The Metro' complex which is to the south of where the relevant events occurred, perhaps slightly south-east. She walked she said towards what she would call the 'Anytime Fitness Centre', which is on the other side of the road of George Street from where the incident occurred. Thus, she walked in what I take to be a ninety-degree or 120 degree angle from where she made the initial observations. She was making a phone call to the police and she was trying to get away from the girl. I have all ready as I said in the earlier general summary referred to details of Joel's account which I have taken into account.
31. Ms Fitzpatrick in her evidence before me admitted hitting Joel Shortland, who she knew, with a golf club and as I have earlier pointed out she had pleaded guilty to assault occasioning actual bodily harm at the Local Court some time in 2013. She knew ZF, JM and AJH. She had had her eighteenth birthday about a month or so before these relevant events and met ZF at about that time and as I understood her evidence had got to know AJH and JM at the same time or about the same time.
32. On 4 December she said she went to a house in West Bathurst. She was involved in some type of friendship with ZF. ZF, AJH and JM were there. She said a phone call was received apparently from the Bettles by one of the people there. As I said earlier they were "distressed". She said she left the house at West Bathurst to go to the BMX track with AJH and ZF and an "unknown" person who drove. She could not remember whether that person was male or female. At the BMX track she and ZF were standing together and were not involved in any of the discussions between the Brearley brothers and Joel Shortland who she saw.
33. After the discussions when Joel was leaving in one of the vehicles, she said she and ZF were- "Leaning against the bonnet of the car when their car had come speeding towards us and we ran out to the right. The car followed us, they pretty much tried to run us over".
34. She said she stuck her arm out, as she demonstrated, as a diversion or an indication for them to stop. They stopped and she stopped running and they skidded off to follow the car apparently occupied by John Shortland. She described the Brearley brothers as chasing after the Shortland cars, she was "pretty sure", in one car to follow the Shortland vehicles. She claimed she followed in the blue car with AJH, ZF and the driver who she said "she did not know was either a male or female". She could not remember any other cars being present.
35. The car she was in drove to George Street. She described where they stopped as being "just to the end of George Street across from the cinema". She got out of the car and saw the Shortlands "coming towards us", one holding what appeared to be a "car tool". One of the Shortland group was holding "something behind his legs" but she did not know what it was. She, ZF and AJH got out of their car and she said the Brearley boys "popped" their boot open and handed out golf sticks, one of which was handed to her. She said she had then gone into a fury. She decided to smash the windscreen of one of the cars that tried to run her over. Her specific evidence was this- "Q. At that point did you see if ZF and AJH were still in the cars? A. Yes. Q. What did they do if anything? A. Once they realised the boys were walking towards them they started to walk and meet in the middle. Q. At that time did you see whether they had anything in their hands? A. No they didn't. Q. As I understand your evidence then you had gone towards one of the Shortland brothers' cars? A. Yes. Q. With a golf club? A. Yes. Q. And you've indicated that you're in a fury or whatever, now what happened next from what you did? A. I was then ready to swing the club when I was approached by I think it might have been Joel and he tried to grab the golf stick from my hand and I had by that time - I had struck and I had realised I had struck him (that was Joel)...about three or four (times)".
36. She was then asked, "Now at that time do you know where ZF and AJH were?" She replied "No".
37. She went back after she had struck Joel to the car and then went back to a house with AJH and ZF. She believed she left the golf stick at the scene and did not see it or the Brearleys later in the night. She said she did not see anybody with a sword and did not see anybody with a knife.
38. That was her evidence in‑chief during the course of a voir dire/Basha inquiry admitted as evidence in the trial. She was not asked any questions at all after that. She was not challenged as to whether she was truthful or not in nominating ZF and AJH as there, a matter discussed in submission but which I would not hold against the accused. No issue was raised with her of any type to raise a question as to why she would falsely implicate ZF or AJH in relevant events.
39. I have some medical reports as I said earlier in relation to the treatment of the two Shortland brothers. In relation to John Shortland the examination of him revealed that he had "two incise wounds on the dorsal aspect of his forearm". One was two centimetres in length and involved deeper tissue. The incision closest to the wrist was six centimetres in length and showed underlying "muscle belly" in the wound. An x-ray showed "a segmented compound fracture that is multiple bone fragments fracture of the ulna ( the forearm bone) these fractures were at six and fifteen centimetres above the wrist joint". Such injuries are referred to by the medical practitioner as "night stick injuries" and are commonly seen as "defence injuries" consistent with the account that John Shortland gave. I have another report with more detailed information from Dr Baird who treated John Shortland at Royal North Shore Hospital. Dr Marshall who reported in relation to John Shortland also treated Joel Shortland. He presented at the Base Hospital about 10.40pm. I should point out of course that all relevant events at the BMX track and at George Street occurred after sunset as the photographs in exhibit A make clear. There are a number of photographs apparently taken by Ms Smith which show that the only illumination is from artificial lighting, particularly the headlights of cars.
40. Joel gave a history to Dr Marshall, which was not the subject of any cross‑examination of Joel, that he had been "in a brawl and initially attacked with a golf club sustaining injuries to his forearm and had then been attacked with a large knife sustaining injuries to his elbow and back". In the context of no cross‑examination of him on this history I could not conclude necessarily that it is inconsistent with the essential account he have in this Court. It does at face value to be inconsistent. The doctor was not called to give evidence as to the accuracy of the history recorded in the statement.
41. Joel had a large bruise over the posterior of his forearm with a small puncture site in the middle of the haematoma. This was consistent with a blow from the golf club. He had an incised wound on the inner aspect of his left elbow immediately adjacent to the bony prominence. This wound was full thickness laceration with exposure of deeper tissues. He had two longer incised wounds on his left upper back, one five centimetres in length and the other six centimetres in length. The respective wounds were sutured and there is no doubt there were wounds.
42. There was other evidence from the Brearley group. This group was associated with the twins, Lucas and Mitchell Brearley. As I said, they came from Blayney and were known to Joel Shortland, who had apparently lived in Blayney for some period of time although they went to a different school and as I understand it, were slightly older than him. The evidence seems clear from that of Joel Shortland and other witnesses, that there was some bad feeling between Joel Shortland and some members of the Brearley group. The Brearley group included these people. John Malvicino, Brandon Hahn or Pringle, Jasmine McCarthy, Jamie Clark, Cameron Southwell, Mickey Cole, Jayden Sargent and Vaughan Hart. Only some of that group gave evidence.
43. Mr Chhabra at one point of his submissions sought some direction as to the failure of the Crown to call some of these people that I have named. However the problem with that submission was that on the facts of this case apart from some involvement in earlier events, although that was unclear as it turned out, such as perhaps shouting abuse at Joel Shortland when they were driving around Bathurst, such as perhaps throwing rocks at O'Connor's car as he drove away, perhaps seeing a bottle thrown by Joel Shortland, none of these people had any involvement in any key events. If they knew the accused beforehand they may have been able to provide evidence as to either their presence or absence at relevant times.
44. However, the difficulty with the submission made by Mr Chhabra was there was no attempt made in the examination of witnesses to ascertain matters that might have been considered relevant to either their availability or their capacity to make relevant observation. There were no applications made to me for the Crown to call witnesses or make them available. There was no evidence called from any police officer, no police officers actually gave evidence in the case such was the police involvement in this matter, to ascertain the availability of people that were not called whether they provided statements before or whether legal representatives of the parties had been provided with any points in relation to these people that might shed some light on the proceedings and give some realistic foundation for considering the implications of these people not being called. No issue was raised with me by the parties for any direction in relation to the calling of witnesses.
45. I am mindful of the decision of the Court of Criminal Appeal Kneebone [1999] NSWCCA 279, I am not saying of course there is any impropriety on the part of the Crown in this case. Kneebone was a case that emanated from Bathurst, setting out details in relation to the obligation of the Crown. No suggestion has been made the Crown has not fulfilled his full obligation to make available those persons that he believes are relevantly concerned with matters. Here no suggestion was ever put to a particular witness that any of the other persons named, but not called, were in a position to see relevant events.
46. There is nothing before the Court to indicate there was any deliberate decision by the Crown not to call any particular witnesses and it was acknowledged, I thought ultimately from the submissions of Mr Chhabra, that really no groundwork had been laid and no basis existed for concluding that any of these witnesses had any better view of the fight with the Shortlands by their attackers than the Brearleys, Southwell and Hahn. Ultimately on the state of the evidence I could not draw any conclusion one way or the other as to what evidence may have been given by these people or what assistance they may have been given and I could not conclude any prejudice to the accused whatsoever.
47. The Brearley group I must say as a general group were not particularly impressive witnesses. To my mind, the Brearley twins themselves in their evidence revealed a failure to disclose information which one might have thought was available to them. For example, Mr Pringle on the version of Joel Shortland, knew members of the Bettles family. According to Mr Shortland, which I accept, he was contacted by Brandon Hahn or Pringle and was told by him that he believed the Bettles were involved in the fight and said that he himself was not involved. Of course, that may have been second hand hearsay, I appreciate. But having said that to Mr Shortland his evidence at this trial is he did not know the people in the car. This is to be understood in the context of Ms Fitzpatrick's evidence that she was in company with two people who might reasonably be regarded as part of the Bettles group in the general sense.
48. Lucas Brearley gave evidence that he had a black XR6 Ford sedan driving around as I said earlier with his brother. There is no need to go into the detail of his confrontation. He did not give any evidence that he had contacted anyone to "back him up" in his meeting with Joel Shortland down at the BMX track, although it seems that in the context of Ms Fitzpatrick's evidence, that was precisely what happened. I cannot be positive on that however. He remembered when Joel Shortland was leaving that there were people standing in front of the car which he described as light coloured car later as a white or silver car. These people he said he did not know but he did say that these people were menaced by the manner of driving by Mr O'Connor, "barely missing them".
49. He heard screams and yells that followed that car as it drove away and saw another car chasing the Shortland's vehicle, the light coloured car to which I referred, and he followed that car to George Street. He said that he parked near the corner of Keppel and George Street. He said that the other car, that is the light coloured car, was parked twenty or thirty metres closer to where the Shortlands could be seen in George Street.
50. He thought there were probably five people, a mixture of males and females, leave that car. He heard a lot of screaming but he was too far away and it was too dark for him to see anything but he thought there were a lot of fist fights and stuff. He did not know either the girl or the male as he described them who jumped out of the way of O'Connor's car. But he was pretty sure that the same girl got out of the car at George Street and approached the Shortlands. He described her as dark skinned or tanned. I understand Ms Fitzpatrick is an Aboriginal person although I would not have necessarily have described her as dark skinned.
51. He described one male who got out of the silver car, as he then described it in George Street, as "tall and bulky" wearing a "t-shirt and jeans I think". That person had short hair. The girl was short with black hair. He confirmed that he had golf clubs in the boot of either his car or of his brother's car. He said that what happened in George Street happened pretty quickly and he said in his statement to police that he gave in early December that he had never seen the people involved in the fight before that night.
52. Mitchell Brearley gave the same general account although he was more clear that it was a silver car at the BMX track and he confirmed that Mr O'Connor's car "almost hit a girl" and she had to move out of the way. He did not know the name of the girl. He also said that the car driven by Mr O'Connor "went to hit my car". He confirmed he followed the silver car and parked outside the Park Hotel in George Street. The Park Hotel, I hasten to say, is on the opposite side of Keppel Street from the Piper Street/George Street intersection. He said the silver car or the Holden Astra, as he described it, "parked forty metres in front of me". I took that to mean further south of his position closer to where the Shortlands were.
53. He confirmed that he had golf clubs of his father either in his car or they were in Lucas' car. He believed that one of the group associated with the silver car took a golf club from the boot of his care unbeknownst to him at the time at BMX track. This was a fact that emerged I think from a question that I asked him about golf clubs. He said he saw a number of people run from the silver car. He thought it was four but he could not remember, either one or two females. One of the group had a sword. They ran towards the Shortlands. The person with the sword was holding it behind his back, as was stated by John Shortland, and he could hear a lot of screaming and yelling and then he heard that "the cops were coming" and he went off to Jade's house. He saw the people that had run up to the Shortlands running back, he did not see anything in their hands. He did not then see the sword and he did not see a female with a golf club.
54. He confirmed, as Lucas did, that where he was watching the events he was a fair way away and he could not see because it was dark. In his statement of early December 2012 he said the person carrying the sword was wearing black Canterbury track pants, was wearing a t-shirt, he estimated his height to be about five foot six and he was of skinny build. He also recollected the guy with the sword had "short black hair". I point out, although I was not led in evidence to the height of the Brearleys, that they seem to me to be relatively short men themselves.
55. Pringle or Hahn was present at the BMX track. He knew the Shortland brothers as I said. He saw the silver Astra, he thought there were five or six people in it. He thought it was a female driver who he did not know. He followed in Lucas' car, the silver car, to outside the Park Hotel in George Street. He saw the Astra closer to the Shortlands' residence about seventy metres from where Lucas parked his car. He thought about five or six people got out of the Astra. He was positive there was at least one female. He saw a sword, a golf club and he thought someone had a knife. The female had the golf club and the male had the sword. He did not know any of the people that were walking towards the Shortlands. He said there was a lot of yelling and screaming and he described the action outside of the Shortlands house as "a bunch of like blurs ... human blurs". He could not recognise anyone outside the Shortland residence, including Joel or John.
56. He went to McDonalds, walking there. He gave evidence that he heard as the group walked towards the Shortlands one of that group say, "You want to have a go at me to try and run me over, you don't know who you're messing with, we're the Bettles". As it transpired it turned out that which he had told the police he heard was not what he actually heard, but what he and others he was with had agreed that they had heard. They had reconstructed the conversation. His evidence in this Court was that he heard the words, "Don't mess with me, you don't know who you're starting or messing with". The reference to'the Bettles' was apparently heard by somebody else. Clearly it was second hand hearsay in that instance.
57. Mr Southwell was also travelling with Lucas, he confirmed the silver Astra at the BMX track, he did not know anybody associated with it. He went to George Street, he saw the people from the silver car go up the street more than a hundred metres away from where he was. One of the people had a sword but you could not see much because he saw the group running up the street and it was dark and one could only see figures moving around in the dark he said. He heard the words "You don't know who you're messing with". He heard a lot of yelling. He thought there were five or six people who ran up the street and that a male had a sword. He thought he heard Mitchell say something about the "cops coming" and they left the scene. Lucas said, in probably an understatement, "It's a bit messed up lets go".
58. Southwell went to a house elsewhere in Bathurst. He claimed that all of the cars went back to that address, a version that nobody else gives. He said the occupants of the silver car were there and he saw the sword taken out of the silver car. After an examination on the voir dire the witness was permitted to give evidence that he actually saw a golf club, a Samurai sword and a knife taken from the silver car towards the confrontation on George Street. I accept that that was his memory at an earlier time. He was also refreshed from his statement that he gave on 16 July 2013 about other matters. He said he had not discussed the events of 4 December with members of the Brearley group before he gave that statement.
59. I am going to take a break for ten minutes, I will resume at 12 o'clock. The accused's bail continues until 12, thank you.
60. SHORT ADJOURNMENT
61. HIS HONOUR: As I have earlier indicated, the Crown case was that the first swordsman was ZF, the second swordsman was AJH and the third person to assault Joel Shortland was JM, the people generally regarded as the "Bettles". There was other evidence relied upon by the Crown particularly from the Shortland group.
62. Evidence was given that the words were heard by John Shortland for example to the effect, "You don't fuck with the Bettles boys". There were other words said concerning coming back with "guns", as I have earlier indicated, from John Shortland. I have already pointed out Joel Shortland claimed to be familiar with JM and their association was casual, having only met twice before and the man JM having been identified by a third person.
63. Joel Shortland was interviewed on 5 December and 6 December 2012. I gather, without having been provided with those interviews as part of the evidence in the case, the interviews which were electronically recorded were quite extensive. On 6 December 2012, during the course of the second interview conducted with him, when asked about the person JM, who he had claimed to already know in one way or the other, and whether he was one of the "boys" that was there, he said "He was just hanging around with them". He also said JM "Did not touch (him) in any way," nor did he touch his brother. On 5 and 6 December 2012 he said nothing about a distinctive tattoo on the accused's neck and as I understand the way the case has been conducted it is the case that JM had a tattoo with writing on his neck in the terms of some evidence given by Ms Smith.
64. As I said earlier, on the evening of 4 December, Joel Shortland agreed in his evidence in this Court that Brandon Hahn had supplied him with the name of the Bettles group. As a result of that Joel Shortland said in this trial and elsewhere that he undertook a Facebook search digging up the name of JM and ultimately obtaining a photograph of three people which he claimed he recognised as being involved, or identified as being involved. Those three people being the three accused. I am certainly satisfied that he has given evidence to the effect that he sent a copy of that photograph to Melissa Smith in this Court or the committal proceedings. I should point out in his first interview on 5 December, having been given the name Bettles by Brandon Hahn, he had told police in answer to a question asked of him that he did not know whether "JM was trying to get the sword off him" (the first swordsman).
65. John Shortland had to be airlifted from Bathurst Hospital to Royal North Shore Hospital. He remained at Royal North Shore Hospital until 7 December 2012, approximately three days later. Ms Smith went down to Sydney on 7 December 2012 and brought him back to Bathurst. She had in her phone, as I would understand it having it sent to her by Joel , the photograph of the three men. She also gave evidence that she in conjunction with Joel Shortland on the evening of 5 December did some searching of Facebook photographs.
66. There was a lot of confusing evidence about this matter and in fairness to the witnesses I do not believe any of the witnesses are now in a position to give me any clear evidence of precisely what they did, when they did it and how they did it. Ultimately, as I would understand it, a number of photographs were downloaded from Facebook some of which were produced to the police by Melissa Smith. She said she did so on or about 21 December. Various Facebook photographs were produced to the Court and they show various people including the three accused, some are group photographs, some are individual photographs of individual accused.
67. What is clear from the evidence of the Shortland group is that before they were able to identify or recognise people in photographs and ascribe to those particular people particular tasks relevant to the assaults committed upon John and Joel Shortland for police purposes, they had a number of discussions focussing upon the name Bettles and of course the names of the three accused as they appeared in Facebook posts. At various times they discussed the various photographs of the accused and other people, as I have earlier pointed out, the detail of which is lost in time. I appreciate as part of the background of this matter, although it is not evidence in the case, that sometime in the middle of 2013 there was some attempt to undertake some form of video recorded photograph identification with members of the Shortland group. What the outcome of that is I do not know.
68. I am assuming from what I was told for what it is worth that there was some identification that occurred in that circumstance. But that exercise was hopelessly compromised notwithstanding any good intent on the part of the Shortlands to find out who was involved, by the deeply flawed circumstances of their searching of Facebook photographs, discussions with one another about which there is absolutely no independent or reliable record. As I pointed out to the learned Crown Prosecutor in the course of the discussion in Ms Smith's evidence, when the prosecution leads evidence of identification obtained by the police in the modern era, we usually have videotaped recording of the precise comments made by the identifying witness. This is very, very important in ascertaining the certainty or otherwise and the accuracy or otherwise of any identification occurring. The extent to which any of these witnesses were influenced by one another's recollection is impossible to identify with precision, but there is absolutely no doubt that their recollections were influenced by each other's discussions and that was made abundantly clear in the cross‑examination of Joel Shortland.
69. There is a body of evidence within the Shortlands' accounts that suggests that only two men not three, were involved in the respective assaults upon John and Joel Shortland. There is evidence that clearly indicates at least from some witnesses, that the person who was regarded as JM dragged the woman with the golf club away with, on one version, at least at one point of time no participation by him in the fight. That was the initial version of Joel Shortland, the only person who was familiar with him. I have already pointed out the evidence of John Shortland about the third man standing at one point with a fourth man seven or eight metres away.
70. There is no evidence on any version of anything being said in the course of the assaults by any of the men involved, or the woman for that matter, evidencing a particular person's participate on in a particular joint enterprise or any specific intent. The intention to inflict grievous bodily harm must be inferred on the Crown case from all the circumstances of the matter including the weapons, the location of the injuries, the use of force and the like.

SUBMISSIONS

1. I turn now to the submissions. The Crown submissions were essentially that a lot of matters were not in dispute and that is true. There was grievous bodily harm suffered by John Shortland and wounding suffered by Joel Shortland and there was no issue of self defence.
2. The Crown said squarely it relied upon the evidence of Ms Fitzpatrick to establish the presence of the two accused in conjunction with the other evidence in the manner I have outlined and went on to detail a number of matters most of which I have already referred to. He particularly relied upon the use of the expression, coming from Mr Pringle's evidence, concerning the group leaving the 'fray' with the Shortlands injured behind, to the effect that someone said "Don't fuck with the Bettles boys" or "We'll be back with guns, don't fuck with the Bettles".
3. He said that if this evidence was not available for a hearsay purpose it was relevant to the issue of identity as a non‑hearsay issue relying upon the decision of Georgiou [2005] NSWCCA 189 and to explain the conduct of the person as relevant to inferring an agreement, relying upon the single Judge decision of Lodhi [2006] NSWSC 648 of Whealy J.
4. The Crown also referred the Court to the decision of Landini a decision which I will refer to in a moment of Hall J, sitting as a single Judge. The prosecution relied upon it as evidence of recognition. It also relied upon particular circumstances, including the statements made and the like, the location of the injuries, the descriptions, the various matters which I believe I have already outlined.
5. Mr Chhabra took the Court to four essential matters. He firstly said that the Court could not be satisfied beyond reasonable doubt that there was a second swordsman, which is alleged to be his client, AJH, and thus, AJH ought be acquitted. If the Court was satisfied there was a second swordsman, then the Court could not be satisfied that the accused AJH was identified as such. Thirdly, he identified many problems in the evidence relied upon by the Crown reflecting upon the reliability of supposed identification or recognition and/or similarity of the accused with the assailants. He also made submissions about the use to be made of representations that the Crown said had a hearsay purpose. He conceded they could be used for a non hearsay purpose, as submitted by the Crown, but that would require limiting the evidence under s 136 Evidence Act.
6. The submission was also made about the failure to call witnesses and reflected upon aspects of the evidence that rendered the accounts of the Shortland group as being unreliable, such as the conflict as to where Melissa Smith was at relevant times. He pointed to the facts of the matter that things happened quickly, it was dark and other aspects of the matter that I have taken into account in warning myself in respect of the so called identification evidence.
7. Mr Coleman's oral submissions centred around an aide memoir, that I have marked for identification, and which I have read in detail, setting out reasons for concluding that the Court could not prove beyond reasonable doubt ZF was present. He said as Mr Chhabra had said, there was no dispute as to the injuries, and there was generally no challenge to the honesty of the witnesses called except for Ms Fitzpatrick. He made the submission which I accept, that the genuine belief of witnesses that events occurred is not the same as establishing the truth of that evidence.
8. He referred to the surrounding circumstances in which the event occurred, sudden, sharp, short, in unfavourable lighting conditions. He noted the relationship of Joel Shortland to Ms Fitzpatrick and his general knowledge of Mr Bettles. He said that the reference to 'the Bettles' and 'messing with the Bettles' and the like was a matter of no great weight. It did not follow in any event that it was hearsay, because no one could establish who said the words. He said there was no credible identification of either of the accused.
9. He submitted that Ms Fitzpatrick was not to be accepted as a witness of truth and the Court could not be satisfied beyond reasonable doubt of the truthfulness of her evidence, particularly in relation to the presence of the two accused. He said there were numerous possibilities of persons, other than ZF, being involved. The existence of these as reasonable possibilities or a reasonable possibility in a particular case was sufficient to raise a reasonable doubt.
10. I do not propose to put on the record the various matters identified in page 2 of his 'aide memoire' concerning Ms Fitzpatrick's evidence. He pointed out where her evidence was completely at odds with a number of witnesses, such as the colour of the car in which she travelled, the order of cars chasing the Shortlands, the failure to be unable to know or remember the gender and name of the person who drove the blue car. He at one point, it was the weakest part of his argument, suggested that she stuck up her arm and that had the effect of stopping Mr O'Connor's car as being 'unbelievable'. In fairness to Ms Fitzpatrick it is a minor matter. She was just demonstrating what she did to protect herself, the way in which of course John Shortland sought to protect himself, against the man with the sword. It was probably a hopeless gesture. I have got no doubt by the way that Mr O'Connor was not intending to run over anybody. But I also have got no doubt on the evidence available to me that he was trying to scare the people that were present.
11. Mr Coleman submitted that even if I was minded to accept the evidence of Ms Fitzpatrick, as to the alleged presence of the accused, I would not reject her evidence that the accused ZF did not have anything in his hands whilst in the vicinity of the Shortland's residence. He said, as I earlier mentioned, that he did not submit that the Crown's witnesses were other than essentially honest. He went through details of the evidence of Joel Shortland, Fergus O'Connor, John Shortland, Mel Smith, the unreliability of the recognition evidence which I accept, and other matters from that material as well as evidence of Brandon Pringle and Cameron Southwell, which I have taken into account, some of which I have already identified.
12. He took me through the evidence of description and the conflicts in that, which I have taken into account. He pointed to, most importantly, the many descriptions of the first swordsman, none of which seem to be reconcilable. He said that the identification by the Shortlands of Ms Fitzpatrick, given her admitted presence at the scene, did not enhance the credibility of their recognition of the other two men, a submission with which I ultimately agree.
13. Following upon the submissions, it is clear that on the application Mr Chhabra, supported by Mr Coleman, that I am required to warn myself as to the potential unreliability of particular evidence. In relation to any evidence that might said to be hearsay evidence or admissions, I am required to warn myself of the potential unreliability, because of the fact that the supposed hearsay representations and/or admissions, if they be that, are not proven independently of the say so of witnesses and maybe regarded as imprecise. There is a need for caution in relation to any such evidence in the terms of determining what weight should be given to it in any event.
14. I am required to warn myself in relation to identification evidence. I am also required to warn myself as to the reliability of the evidence from a person suffering injury and the effect of that injury upon the person's capacity to make observations, have a memory of relevant events and the like, which I do.
15. Of particular importance arising under s 165, is the warning I am required to give myself particularly concerning Shanaya Fitzpatrick as a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. There is absolutely no doubt that that is so, I appreciate that evidence maybe unreliable. A reason that it may be unreliable, amongst a number of reasons is that she could be regarded as a person lacking credibility, because she admits to criminal conduct of that type. Secondly, she may have an agenda either secret or open, to tell falsehoods in relation to a particular accused. She also would have intimate knowledge of the relevant events which would give her the capacity to invent matters that would implicate the accused from that personal knowledge. There could be matters arising that are not known to the accused or to the Court, that might provide a motive for her to give a false story, or provide a basis for her to tell falsehoods about each of the accused. I have taken all those matters into account.

CONSIDERATION

1. In the context of all the evidence and the submissions and the legal directions I am required to give myself, I am required to consider these fundamental issues. Has the prosecution proven beyond reasonable doubt that what occurred in the attack upon the Shortlands involved specific things done by particular people, without necessarily establishing identity? In other words, established the facts of what happened, causing injury to both men, beyond reasonable doubt.
2. Has the prosecution proven beyond reasonable doubt the identify of a particular person who performed particular acts? If satisfied as to the involvement of a particular person, having committed particular acts, has the Crown satisfied the Court beyond reasonable doubt in relation to that particular person, the relevant elements, that relate to each of the counts and where needs be, participation of that person in a joint criminal enterprise?
3. At the end of the Crown case I acquitted JM of all counts. In the matter of the Crown case against him, the evidence did not establish beyond reasonable doubt that he performed any particular act towards any particular person, or was even necessarily present participating in a joint criminal enterprise and/or in company. There was a reasonable doubt as to his presence as I have pointed out briefly before, given particularly the unreliability of Joel Shortland's evidence on his involvement and the evidence of Ms Fitzpatrick, which I accept on this matter.
4. For reasons elsewhere described it became apparent that the one person who was previously familiar with JM, that was Joel, initially ascribed no involvement of him, although presence. He subsequently changed his version of events to implicate him in performing acts evidencing at least his participation in a joint criminal enterprise to wound Joel. He is contradicted, as I said, by evidence from John. The subsequent 'identification' was almost valueless, or was so deeply flawed and contaminated by subsequent events that no evidence of recognition of him as present and/or participating could be regarded as reliable from Joel Shortland or from any other witness.
5. In assessing this matter there was a truth in respect of the accounts of the Shortland faction which emerged in response to the question from Mr Coleman that I earlier referred to. That is, the memory of the witnesses of relevant events was better closer to the event.
6. The accounts of Joel and John gave either at the first opportunity to give an account, or on subsequent occasions in either interviews with the police statements or evidence at committal, is in many respects substantially at odds with the detail of their evidence at trial. Not only as to what occurred, but as to who did what to whom, and the role of two or three people in the events I have described. Of course these witnesses appear to have no uncertainties about what they now believe in various ways. Their now stated certainties have to be tested against their previous certainties or uncertainties.
7. It is clear from the cross-examination of Joel that his recollection of the events of the evening when he spoke on 5 December and 6 December, were the two men had attacked him and his brother with a sword. A woman had attacked him with a golf club. He had no recollection and did not nominate JM as being directly involved.
8. On 21 December, 14 days after release from hospital, John Shortland had obviously had a number of discussions with Joel Shortland, Melissa and others, in the presence of one another. They were entirely frank about that, because as far as I was concerned they had nothing to hide. They did not appear to have been given any instruction by police not to discuss the matter. They had discussions as to the identity of the assailants are shown in Facebook photographs available to them all.
9. John said in his first interview that two men had attacked him and his brother, and a woman had attacked Joel. As I said earlier, in the first part of his evidence at trial, he described five people approaching, and two people attacking him, two people standing some distance away, a third man not involved but for pulling the woman away. I bear in mind what Joel's evidence about the identity of the person who pulled the woman away was the person who struck him with the golf club.
10. Joel in his evidence at trial said he was not 'a hundred per cent' sure what JM did. But he did believe JM had confronted him and he was involved in injuring him, because he made "an assumption" arising out of what he saw concerning the movement of his hands, although he did not see him with a weapon. On 15 July 2013, as I understood the date, John Shortland nominated JM, a person he did not previously know as being at the scene, but said in that account he did not see him do anything apart from possibly dragging a woman away.
11. I go back to the issue of how all this unfolded. I am satisfied that Joel and John heard words to the effect "Don't fuck with the Bettles boys" or something along those lines. I have the evidence of Joel that Brandon Hahn rang him and nominated "the Bettles" as being involved when he was not sure who was involved. I also have his evidence that he went searching for the name JM, either before he was interviewed on 5 December 2012 or probably after, "I initially thought he was a relation so I went to Facebook".
12. That statement was a reference to the fact that he believed JM may have been a relation to the people who assaulted him. He also gave evidence that he knew as at 4 December, that JM had a tattoo on his neck with the word "Faith" on it. He made no mention in his accounts on 5 December of any attacker or person having a distinctive tattoo on his neck of a particular type.
13. I bear in mind some of the descriptions of the attackers as wearing T-shirts. Although other people refer to them wearing shirts. If the man JM was one person wearing a T-shirt, one might have thought the tattoo would be easily seen. Certainly in the Facebook photographs there is a photograph of JM with a clear tattoo on his neck. It could be writing. I am unable to say whether it says the word 'Faith'. Joel accepted that this feature would have been important to mention when he gave his account to police, but he did not do so.
14. I go back to the conversation he had with Brandon Hahn. He gave evidence or accepted as having given evidence before, that he had asked Brandon Hahn "Who might've been involved?" And it was Brandon who said "JM, and I didn't know the others." This representation was not given by Brandon in evidence. It could not serve a hearsay purpose given one could not be satisfied it was first hand hearsay. But the purpose it does serve for a non hearsay purpose, is that it shows a basis for concluding that Joel did not know who had assaulted him and secondly, it provides a basis for understanding how it came to be that he went searching for the name JM.
15. The evidence is overwhelming that Joel went to Facebook as I said and found the photograph of the three people. This led to the other photographs on Facebook. I point out the photograph of the 'three people' together has never been produced to this Court. I do not know whether it was ever produced to the police. I have seen the various photographs taken from Facebook. I am aware they found a photograph of Shanaya Fitzpatrick who was known to Joel Shortland as a Facebook friend. They all successfully identified her.
16. There is no doubt the critical witnesses who the Crown rely upon to identify or recognise people as performing particular tasks, discussed all this between themselves and I have got no way of knowing, nor could any tribunal of fact know precisely when they came to the relevant conclusions as to who did what. This is of great significance in considering the assumption, if I might call it that, of everybody in the Shortland camp side that ZF was the first swordsman and AJH was the second swordsman.
17. I note the evidence of Joel at the committal where he said that when relating what occurred about the incident when he discussed the matter with John and Melissa after John's release from hospital: "He (John) didn't know what happened, but then after I went on Facebook and I said "John this might - (I emphasise the word might) - be the bloke". And he asked me to send a picture of him and he...and then he said "Yeah that's him.""
18. Later on in that same evidence at the committal proceedings last year, he said, "I might've seen the name and then we got home I might've shown him the picture."
19. At the committal, as he also agreed at trial, he said that he had spoken to Melissa Smith about the matter and shown her either a photograph or photographs and said "Yes...this may have been the person that done it." Those statements of 'might' and 'may' are not statements of confident identification in their own terms. I pause to point out that I understood this evidence at committal adopted for the trial was evidence of the identification, so to speak of the person with a sword, a person who was unknown to Joel, John and Melissa before 4 December.
20. John Shortland at the committal agreed they had gone through "heaps" of Facebook photographs. They had gone through photographs randomly, "looking for the attackers on the night." He said at the committal, "He had no idea" how he ended up settling upon ZF as the person who first assaulted him.
21. Ms Smith at the committal proceedings and in the trial confirmed the joint discussions between herself and/ or Joel, John and possibly "Jake" Shortland who I take to be Jacob, at various times before and after John Shortland returned from hospital on 7 December. She appears to have had other conversations with Joel Shortland. She also drove John Shortland back from Sydney as I said. She believed that they went through the Facebook photographs together. That is she and Joel on 5 December, after she finished work. This would have been after Joel had first been interviewed. She said that she believed this was facilitated by Joel because she did not have a Facebook page. She confirmed the first name they were told was "JM", so they went from there. And she also confirmed flicking through photographs collectively.
22. When she was interviewed by police in late December 2012, after this exercise, she did not indicate that she recognised any of the people that were in the photographs. She told the police that she was producing the photographs which I have to assume are part of exhibit A, because they were the photographs that had been "used by the boys" in the identification process. She also gave evidence that people shown in the photographs she had been told were there.
23. In July 2013 having attended the identification exercise with the police, she told the police "She could not recognise" two of the men that were supposedly there, being AJH and JM inconsistent accounts lend no credibility to a claimed recognition of ZF as being the first sword wielder. As for the tattoo that she gave evidence of in this Court on the neck, when first interviewed on 21 December 2012, she did not mention seeing a tattoo. This was at a time as I said, when she was in possession of a photograph showing JM name in the Facebook entry with a tattoo on his neck. The first mention of a particular tattoo was in July 2013. One might have thought in any event that of all the people in the Shortland group that claimed to have seen relevant things she was the greater distance away from the scene than the others.
24. There are no means of unscrambling the mechanism by which one or other of the Shortland group contaminated the other's recollection beyond the candid concession by Joel that his recollection of events was assisted by suggestions made to him of the participation of particular people in the context of hearing a reference to "the Bettles".
25. As was obvious from the submissions there is no issue of relevant identification. I have dealt with the issue of similarity. It is important to remember that statements that people "look like" a person involved in a criminal act, are not statements of identification or could even be regarded as statements of "recognition". I refer particularly to the High Court judgment of Pitkin v The Queen [1995] 69 ALJR 612, particularly at [8].
26. That was a special leave application in Sydney where the point was taken about the fact that the active identification in the presence of police, was a statement made by one of the witnesses that an accused person "looked like" the assailant. The High Court held in Pitkin, having granted special leave and then heard the appeal on the spot rather than referring it to Canberra, "That to surmise when someone says that someone looks like a particular offender means the same as identification is wrong. Look like is not an expression of identification and is insufficient to sustain a conviction that an accused committed a particular crime." (see also [9]).
27. In conjunction with this deeply flawed method of seeking to recognise particular people in the absence of any prior knowledge of them, except for Joel's prior knowledge of JM and Facebook friendship with Fitzpatrick, there are the issues I have earlier pointed out of the contradictory descriptions, some of which I have already identified. Putting aside the fact that Mr O'Connor was 6 foot six inches and everyone appears smaller than him, it was pointed out by Mr Coleman that in respect of the first swordsman, purportedly ZF, there were a number of different descriptions, including markedly different descriptions of the colour of his hair and his build. There were also different descriptions as to clothing as there were in relation to the second person and even to some extent the third person.
28. There was one fundamental problem however in relation to the issue of descriptions and the weight one can give to that evidence. Putting aside any question of whether the descriptions given accorded or did not accord with the appearance of a particular accused in Facebook photographs, posted in about September 2012, there was no evidence of any descriptions of the three accused as at 4 December in circumstances other than that given by people watching the fight. With no contemporaneous description of ZF and AJH, noting the inconsistencies in descriptions, there was no basis for concluding that the descriptions were accurate or even close to reliable.
29. Ms Fitzpatrick who was a person who was able to identify each accused as present, was not asked any questions about how tall they were at the time, what clothing they were wearing, the style of their hair, or any other matter. It is all well good for one person to say an offender had a 'rats-tail', but if there is no evidence that a particular accused had a 'rats-tail'. The description is of little value whatsoever.
30. Of course when the descriptions vary so much and lack consistency it raises the question of whether one can have any confidence, or should at least be reserved in one's confidence, about the capacity of witnesses to describe the same person having done particular acts. In that regard I particularly refer to the marked differences and description between Joel Shortland and John Shortland as to the colour of the hair of the first person.
31. I turn now to the issue of the representations or statements made either before the assault, by the attacking group, or from someone within the attacking group and after the assault, and particularly the reference "the Bettles" in one form or another.
32. As to the statements before the event, ultimately Mr Pringle's evidence was he did not know who said the words and he did not know himself that the expression "the Bettles" was actually said. I have already dealt with the evidence he gave on that matter. His assertion that somebody else told him that they were the words, renders that evidence second-hand hearsay, it is not admissible as second-hand hearsay as the Evidence Act makes clear. But as to the fundamental proposition of whether the representations made could be regarded as hearsay, the evidence of what was said before and after suffers a fundamental problem. There is no identified person having made the representation.
33. In order for the evidence to be receivable as an admission (see Georgiou [2005] NSWCCA 189 which the Crown referred to as of assistance in relation to the non hearsay purpose) one needs to know who was the person making the representation in order to be able to be reasonably satisfied it was an admission. I am also mindful of what was said by Hall, J in Landini, a case to which the Crown referred me, ([2007] NSWSC 259), particularly at [25], that: "A representation will usually be more than a narrative statement of some past event to satisfy s 87(1)(c)."
34. S 87 (1)(c) is the provision that the Crown relied upon to admit the evidence as hearsay evidence. The Crown said the statements made, ascribed to Mr Pringle before the event, or the statements made after the event, may be relevant for a 'non hearsay purpose'. Ultimately Mr Pringle's evidence would leave the statements as possibly available as statements of discussions, evidencing agreement or alternatively, in relation to representations that serve the non hearsay purpose of establishing identity in accordance with the decision of Lodhi.
35. With regard to the purported statements that might evidence agreement or intention to do a particular act, the terms of what was said provide little evidence of agreement. The statements made before are general and certainly are not sufficient in my view to even in conjunction with other evidence, establish a relevant joint criminal enterprise. The statements made after the event, in their terms are more an ex-post facto reflection, coupled with a threat, rather than a representation evidencing intention or agreement at the time of the relevant acts. Bearing in mind they do not serve a hearsay purpose, their probative value is further diminished.
36. Likewise, in relation to the supposed evidence reflecting upon identity. In Lodhi the evidence, although not available for a hearsay purpose, was very specific. Here the representations are very general. It is of very little assistance in identifying specific offenders. I should bear in mind that there is no reason necessarily to conclude that the statement had been made by someone who was an accused person in any event. It could have been a commentary of a 'non Bettles' person, deflecting attention from their own conduct or seeking to blame others. The matter is just unclear from the evidence.
37. So I come to my conclusions. Ultimately as was submitted by the Crown and not in dispute by the defence, the Court is satisfied that John Shortland relevantly suffered the grievous bodily harm and pleaded and Joel Shortland suffered the wounding. There is no doubt in my mind that the wounding and grievous bodily harm were unlawfully inflicted, no issue of self defence arises.
38. I am satisfied beyond reasonable doubt that ZF and AJH were two of the group, who left the motor vehicle parked in George Street and walked up to confront the Shortlands.
39. I am satisfied beyond reasonable doubt that one of that group was carrying a sword and Ms Fitzpatrick was carrying a golf club.
40. I am satisfied beyond reasonable doubt that that was Shanaya Fitzpatrick, because not only does she say so, but what she says about her own involvement is confirmed by the observations of the Shortland group.
41. I cannot exclude the fact that there were at least four people in the group, not three. I will come back to the significance of the identification if I can call it that of Ms Fitzpatrick and its implications for the recognition, identification/similarity of the accused as the attackers.
42. In coming to the conclusion that the two accused were part of the group taking into account all the matters identified in the written submissions and the oral submissions of counsel for the accused and the Crown, I am satisfied that Shanaya Fitzpatrick was truthful, not withstanding the fact that there are matters about which she is either not truthful, inaccurate or has a poor recollection. So far as her observations concerning neither of the men having anything in their hands, that could be untruthful or inaccurate. One feature of her evidence that I divine both in the manner in which she gave her evidence and the form of it, was that she clearly was concentrating on wreaking her own revenge against people that she had aggrieved her. The fact that she does not see items in the hands of the two accused is to be weighed up against the evidence - by the overwhelming evidence that one man was carrying a sword. She saw no weapons in anybody's hands. She is at least mistaken as to the nature of the car that she travelled from BMX track to George Street.
43. There is no reason however that arises from the evidence, not that the accused have an obligation to put it to her, I that I can find her to deliberately misdescribe the car, or the circumstances of her travelling in the car. As to whether she is truthful or simply unable to recollect the identity of the person driving the car, I cannot say. Her recollection of the number of people in the car could be inaccurate. Certainly I do not regard it as untruthful. The evidence of the number of people in her car as I have earlier pointed out is in its terms from other sources is rather general.
44. Bearing in mind the conclusions I have reached in relation to the Brearley twins, particularly in my view they have not been truthful, concerning their prior knowledge of the 'Bettles group', I accept her evidence that she obtained a golf club from the Bettles group at one point for the purposes of assaulting someone associated with the Shortland group. She may have been mistaken as to where she obtained it. If it came to a question of preferring her version to the Brearleys I would prefer her version. Again, she has not got any reason to invent the precise circumstances in which she obtained the golf club, bearing in mind one of the Brearleys reluctantly conceded that she had obtained a golf club from the boot of one of their cars.
45. Notwithstanding a number of matters earlier referred to as being matters where she was contradicted I can find no reason in the context of her frank evidence against her own interest, admittedly under the protection of a s 128 Evidence Act certificate, which I have taken into account and have warned myself about, for her to mistakenly or falsely implicate ZF and AJH. She knew them both reasonably well. There is no question that she could "identify them". She was in some form of relationship, not particularly serious, with ZF who, had known them for a number of weeks. She had travelled to a house where they were present.
46. She had ample opportunity it would seem over time to make observation of them during the course of the evening of 4 December to be able to identify them. She said she was with ZF at the BMX track for a period of time. Perhaps with some exaggeration in a description of the movements Mr O'Connor's car, there is other evidence, including evidence from Joel Shortland and Mr O'Conner themselves, regarding their departure from the scene which supports the essence of her claim that she believed she and ZF were menaced by the car in which Joel Shortland was present. Her arm being held up, as I said earlier, was an act of self preservation.
47. In this context she frankly admitted that a motive for eventually confronting the Shortlands arose out of her anger and rage. I have taken that into account as it may have concentrated her mind as she approached the Shortlands. Her evidence clearly identifying ZF as present at the BMX track, provides evidence, or a reason as the Crown says, for ZF to be upset with the Shortlands and for ZF later to confront the Shortlands. Bearing in mind I accept her evidence that AJH was present and bearing in mind I accept what is clear from the evidence that AJH and ZF had a relationship through either blood or friendship there are reasons for AJH to be involved.
48. There are reasons thus available from the evidence to conclude that ZF would have been aggrieved by the conduct of Mr O'Connor's car. I bear in mind in that regard that the evidence is clear that ZF had no role to play in the direct negotiations between the Brearleys and Joel Shortland. It is clear that the young people at the BMX track associated with the Brearleys felt threatened by the presence of the Shortlands in their various forms.
49. I am satisfied that ZF and AJH were there in support of the Brearley group, not necessarily to commit any criminal act. Ms Fitzpatrick's evidence as I said earlier about the Brearleys being distressed had a ring of truth. It was not without some significance that all of the Shortland group from what I understand of the evidence, with the exception of Melissa Smith, were bigger than the people they confronted, and most of them were older. In the case of John Shortland substantially older.
50. I paid very close attention to the manner in which Ms Fitzpatrick gave her evidence. In fact I stopped taking notes very early in her evidence, given that I would be provided with a transcript, and watched her evidence very closely. One of the problems with conducting a trial, where you are both Judge of the law and the fact, is that sometimes you can be distracted by the note taking involved. In my view, her evidence as to the presence of the two persons, and the way she gave her evidence, in conjunction with other evidence was truthful evidence, and given as such.
51. What is interesting about her evidence is her claim, apparently without any ulterior motive disclosed, that JM was not present. That claim is in my view somewhat supported having regard to other evidence of a contradictory nature concerning his presence and/or involvement. I cannot find any motive for her to falsely implicate the two accused but exculpate JM. I am mindful the accused bear no onus in relation to this. There is certainly no obligation of counsel for the accused to put to her a motive, or to question her in relation to the matter. But it seemed to me that I am not assisted in this respect by her not being cross-examined about matters within the ethical duty of counsel that might reflect adversely upon her credibility in this regard. Of course counsel rely upon other aspects of her evidence that could not be accepted as reflecting upon her lack of credibility. Of course, what is to be balanced against that submission is her fundamental account of being present wielding a golf club is true. It is not a case of a witness putting themselves at the scene in circumstances where there is a real doubt that they were there. As I said, I am mindful that she did not see anybody armed with a weapon. This evidence may be in correct, it may be deliberately untruthful, it may be truthful given as I said her concentration on what she was doing.
52. Even assuming that evidence is deliberately untruthful, warning myself in relation to the matter pursuant to s 165(1)(d) Evidence Act, and having given the evidence as I have noted under the protection of the 'certificate', the evidence itself does not, in the context of other evidence, render her essential account of their presence as untruthful or unreliable. Of course, every tribunal of fact, as I have warned myself, is entitled to accept some or other of the evidence of a particular witness. There is evidence of Joel Shortland and John Shortland that I have rejected. It is not because I found that they are untruthful, but I found that they are unreliable. If anything, in this matter concerning Ms Fitzpatrick, there was no element in her evidence concerning the attack upon the Shortlands of 'gilding the lily' or exaggerating the role of anybody else to in someway diminish her role in the matter.
53. One of the reasons or rationales behind the warnings given in relation to people that are criminally concerned in a particular enterprise is that a person participating in a criminal enterprise has intimate knowledge of the facts, not only to falsely implicate others, but to diminish their own role, or in someway shift blame to others. This did not occur in her evidence. In any event I formed the view that she lacked the guile to invent a motive for the two accused to be present. Perhaps she thought by not nominating them as being in possession of any weapons that that would assist to exculpate them for all I know. There might be other reasons for her not seeing them with weapons or seeing anybody else with weapons in circumstances where clearly a sword was present.
54. To get back to the absence of any reason to implicate the two accused falsely, she had absolutely no reason for exculpating JM falsely either. There is no suggestion she was in a relationship with Jm at any relevant time. Clearly at one particular time she was in the camp of ZF. That is the reason she armed herself with a golf club. Whether that relationship continues or not, I do not know, nothing has been raised about that matter.

CONCLUSION

1. I cannot conclude definitively, how many men were involved in the assault upon the Shortlands. There were at least two. All present were there to confront the Shortlands, some armed, the others must have known they were armed. There is evidence establishing the possibility of other woman being present. But nobody seems to be identified or described with any confidence.
2. I am satisfied beyond reasonable doubt that one person armed with a sword inflicted the injuries on John Shortland relevant to counts 1 and 2. I am satisfied beyond reasonable doubt that a second person took up the sword after the first person was knocked out or knocked down and that person wounded Joel Shortland. I am not satisfied beyond reasonable doubt, notwithstanding Joel Shortland's evidence and some evidence from Mr O'Connor, that Joel Shortland was relevantly wounded by the first person. Although he says the first person struck him with a sword before he knocked him down. There is no reliable evidence to support his account of that event even in the evidence of Mr O'Connor.
3. I am also mindful in assessing his credibility in that regard, the contradictory accounts he has given in relation to the role of JM. I have to bear in mind in relation to him and John Shortland that in their recollection of events, apart from their various discussions about what happened and who did what to whom, the events happened in a rush.
4. There can be no doubt as a starting point that the character of the infliction of grievous bodily harm upon John Shortland was unlawful, as was the wounding of Joel Shortland. No issue of self defence arises. There can be no doubt that there was an unlawful confrontation with Joel and John Shortland at the relevant time. I am mindful of the number of blows struck against John Shortland and the number of blows struck against Joel Shortland, there were three distinctive wounds. Whether those wounds were caused by two or three blows I cannot conclude Joel Shortland says that they were three separate blows.
5. The recognition of Shanaya Fitzpatrick by the Shortland group, with the exception of O'Connor, is confirmed by her subsequent admission of guilt of assaulting John Shortland. It may bolster the credibility of the recognition or identification or the similarity of the attackers with ZF and AJH. This is an aspect I raised with the Crown myself. It was a matter taken up by defence counsel. But it has to be borne in mind that so far as it might reflect upon the credibility of the observations made by John and Joel and Melissa, that aspect of the matter is considerably weakened when one considers that only one woman was directly involved and clearly performed separate recognisable acts towards Joel Shortland with a distinctive weapon. On the various versions of John and Joel up to three men were involved and thus for the purposes of identifying particular people performing particular acts there is potential for greater confusion.
6. As the tribunal of fact sitting in Court seeing the three accused sitting in Court over a number of days it has not escaped my attention, as it would not escape a jury, that the three accused have some differences in appearance but they also have a number of similarities in appearance and height. Although I would have considered JM, no longer in the dock, as being shorter than the other two.
7. In circumstances where one can have no confidence to the point of being satisfied beyond reasonable doubt that a particular witness is individually without contamination or suggestion reached a conclusion as to the description and/or recognition and/or identification or similarity of a particular person performing a particular act. It comes to pass that in accepting the presence of the two accused at the scene I could not conclude beyond reasonable doubt that even in conjunction with other circumstantial evidence identified by the Crown, that ZF was the first person with a sword and that AJH was the second swordsman. As I have said when I refer to the availability of evidence of similarity I am prepared to accept the process of the Shortlands satisfying themselves of that similarity, arises from a belief that the people shown in the photographs that they examined were at least similar in appearance to the people who participated in the attack.
8. This brings us to the issue of the presence of one or other and possibly two other people at the scene. John Shortland's evidence is of some significance in this regard. His evidence at one point is of two attackers that he saw and two people not participating in the attacks, except one person from those other two pulling the girl away. In fact this was the account given by Joel and John in December 2012.
9. All this in my view establishes the reasonable possibility at least and in fact the probability, that there has been in the ascribing of responsibility to particular individuals a jump to conclusions which has contaminated the reliability of the distribution of blame. There is no admission available in the evidence of participation by the two accused. There is obviously no independent scientific evidence ascribing to an individual accused connection with any particular item. Thus, in all the circumstances I cannot be satisfied beyond reasonable doubt as to who was the first swordsman and who was the second swordsman. I have come to the conclusion beyond reasonable that the two accused were present and that having been said, bearing in mind I am satisfied in the circumstances of the case with their presence and other evidence, I am satisfied that they were relevantly involved in an affray given the essential account of assaults by the Shortlands, Ms Smith and O'Connor.
10. I have turned to the question of whether having regard to the respective allegations I could conclude whether they were participating in a joint criminal enterprise, or being relevantly in company, as required to be proven to establish the charges. Joint criminal enterprise in relation to counts one and three, being in company primarily in relation to counts two and four.
11. I am satisfied beyond reasonable doubt the man with the sword was intending to use it either to threaten or strike one of the Shortland group. In the circumstances of the matter I am not satisfied beyond a reasonable doubt that that person had at the time an intention to cause grievous bodily harm.
12. I am satisfied beyond reasonable doubt that John Shortland was struck first simply because he was the one who the group came across. However, I could not be satisfied beyond a reasonable doubt that the second person was relevantly in company for the purposes required to be established in relation to, count two, or was participating in a joint criminal enterprise as required in relation to count one.
13. As I understand the evidence there is a reasonable possibility, in fact a very high probability, that the 'second' person was unarmed. There was no evidence of any agreement amongst the group to do any particular act of any reliance. If the second person went with the intention of backing up the first person it does not necessarily mean that he entered into an agreement required to be established or contemplated the relevant possibility that particular crimes would be committed relevant to counts one and two.
14. What has not been removed beyond a reasonable doubt is the fact that the second person's participation was prompted by the fact that Joel Shortland in effect disabled the first swordsman by knocking him to the ground. I am mindful of the fact that by picking up the sword the second person may not evidence his agreement to participate in a joint criminal enterprise, or was relevantly in company for the purposes of causing grievous bodily harm. But on the facts of this case at the time that he picked up the sword, counts one and two were completed offences. His reaction whether lawful or not was reasonably possible a response to an unforeseen event.
15. I am not satisfied that relevantly his presence in all the circumstances proves beyond reasonable doubt what is required in respect of those matters to establish he was a participant in a joint criminal enterprise or being in company to commit the crimes identified in Courts one or two.
16. As it transpired that person did not attack John with the sword, but turned his attention to Joel. He then struck Joel in the manner that Joel described, causing the wounding, after the events giving rise to count one and two were completed.
17. I note also in relation to the first person that once the second swordsman picked up the sword the first person did not participate any further. Perhaps he was unconscious for a period of time. Perhaps he was temporarily disabled, it does not matter. The only person who definitely further participated on the facts of the matter concerning events of course happening very quickly was Ms Fitzpatrick. She earlier has never been charged or at least convicted of participating in a joint criminal enterprise or acting in company to inflict grievous bodily harm or to wound Joel Shortland. I am satisfied in relation to the wounding of John Shortland that the wounding of him by the second man was a response to what happened to the first swordsman. The fact that it was a response subsequent to the unlawful act by the first swordsman does not necessarily prove beyond reasonable doubt the existence of the relevant agreement or relevantly acting in company in respect of counts one and two.
18. It does not necessarily establish a relevant joint criminal enterprise to commit counts three and four or alternatively to be in company for the purposes of committing count four, that is because the second swordsman acted on his own without the assistance of the first swordsman. A reasonable possibility is the second swordsman was present, but embarked into the affray in circumstances where it emerged by committing a criminal act of his own volition in retribution for what Joel Shortland had done to his friend or relative.
19. The first swordsman in my view in these circumstances could not be in company in respect of count four, or participating in a joint criminal enterprise in relation to count three if he was out of action, bearing in mind the circumstances of his confrontation with John Shortland.
20. The same cannot be said of course of Shanaya Fitzpatrick. But her account demonstrates the reasonable possibility of several and separate criminal acts being committed in a short period of time connected by circumstance but separate as to liability.
21. I am satisfied beyond reasonable doubt on the combination of circumstances and the direct evidence that both AJH and ZF were involved in the confrontation with John and Joel, performing separate roles. Ultimately, however, in respect of the offence of affray I am satisfied by their presence, by the evidence of yelling coming from the group generally, the clearly aggressive approach as evidenced by Shanaya Fitzpatrick, the fact that weapons were being carried by Shanaya and a male person and that weapons were used in the circumstances that they were present, that the elements required to be established in respect of the affray have been made out beyond reasonable doubt are sufficient to return verdicts of guilty in relation to count five.
22. There can be no doubt given the evidence not disputed from John and Joel Shortland that there were acts of unlawful violence being used against John Shortland and Joel Shortland and the conduct that would cause a person of reasonable firmness as I have defined it, present at the scene, to fear for his personal safety, that matter not depending upon whether any of the Shortland group so feared for their personal safety.

VERDICTS

1. ZF and AJH, in respect of count one, that is that you on 4 December 2012 at Bathurst in the State of New South Wales, caused grievous bodily harm to John Shortland with the intent to cause grievous bodily harm to him, I find you each not guilty.
2. In respect of count two, the alternative count, that you too on 4 December 2012 at Bathurst in the State of New South Wales, whilst in company of each other, caused grievous bodily harm to John Shortland and were reckless as to causing grievous bodily harm to him, I find you each not guilty.
3. In respect of count three, alleging that you both on 4 December 2012 at Bathurst in the State of New South Wales, wounded Joel Shortland with an intent to cause grievous bodily harm, I find you each not guilty.
4. In relation to count four, alleging that you on 4 December 2012 at Bathurst in the State of New South Wales, while in the company of each other, did wound Joel Shortland and were reckless as to causing actual bodily harm to Joel Shortland, I find you each not guilty.
5. In respect of count five alleging that you each on 4 December 2012 at Bathurst in the State of New South Wales, used unlawful violence towards John Shortland and Joel Shortland, by conduct that would cause a person of reasonable firmness present at the scene to fear for his personal safety, I find you ZF guilty, I find you AJH guilty.

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