Sivaraja v R; Sivathas v R [2017] NSWCCA 236 | Case summary

Sivaraja v R; Sivathas v R [2017] NSWCCA 236 | Case summary | Zoe

[9]

A birthday party for Kabali at Seelan's house

On the evening of 19 April 2013, Kathis went to the home of a friend, Seelan, on the corner of Gilba Road and Pendle Way, Pendle Hill for a birthday party for Kabali. Kathis had met Kabali at Ranjanas Restaurant in Pendle Hill two or three months previously.
Kathis walked 15 to 20 minutes from his home to arrive at the party after 10.00pm. He went to work cooking in the kitchen with Seelan helping him. Kabali arrived at the party about 15 minutes after Kathis had arrived.
Kobi brought Kathis an alcoholic drink; something mixed with cola. Kathis knew Kobi by sight, having seen him in Pendle Hill over the past two months. He knew Kobi's name because other people referred to him by that name.
The party moved to the garage once the food had been prepared so that everyone could eat. It was about 1.30am. There were less than 30 people at the party and they were all of Sri Lankan origin. Kathis had consumed three or four glasses of spirits (Arrack) and three or four small bottles of beer. He said he was a "little bit intoxicated" but "was firm and steady". He said that since he had been in Australia he had consumed alcohol on no more than three or four occasions.
Suresh Sivathas was one of the guests at the party. Kathis had known him for two months but only knew his first name, Suresh. He knew him to be a cashier at Miruna's restaurant (which was next door to Ranjanas Restaurant) in Pendle Hill.
While everyone was in the garage, Suresh picked up a raw egg and cracked it on Kathis' head. Egg spread all over Kathis' head, down the side of his face and onto his clothes. Kathis did not know why Suresh did this but did not consider it to be a big issue. He told Suresh, "Don't hit on me". Suresh smiled and went to hit Kathis with another egg. Kathis tried to avoid this but was hit on the shoulder.
Kathis said he thought Suresh was "drawing [him] to certain misbehaviour" but he did not want to disturb the party and stayed where he was. Suresh attempted to hit Kathis with an egg for a third time, but missed. Kathis said Suresh got upset and he (Kathis) thought of going home.
Suresh went inside the house and returned with two more raw eggs. He approached Kathis from behind and squashed the eggs into each of Kathis' ears. Kathis had a bottle of beer in his hand and when he turned around the bottle hit Suresh in the forehead. Kathis felt sorry for this. The two men then hugged. Suresh asked Kathis to come and stay in his room above Ranjanas Restaurant in Pendle Way, which was a short distance away.
In cross-examination, Kathis said that Suresh was throwing eggs at a number of people that evening. He believed he was being bullied and thought Suresh was not showing him respect, but agreed that Suresh was not picking on him because other people at the party were also being "egged".
Kathis went with Kabali and Suresh by car to Suresh's apartment, leaving sometime after 2.00am. They went up the staircase behind Ranjanas Restaurant. Kathis gave two reasons why he went with Suresh: first, because if he went home he had a distance to walk and secondly, because he wanted to sort out their "issues" and to become friendly.

[10]

Count 1 (assault at Suresh's home) - Kobi and Kajan

Kathis said that he went with Suresh and Kabali to the room where Suresh slept. Kathis sat on a chair. Two men who had been at the party came in: Kobi and Kajan. Kathis had met Kajan for the first time at the party.
Kobi and Kajan started to hit Kathis, saying, "Are you a big man to hit Suresh?" They both punched him to the face and all over. Most of the hits were to his face. They also kicked him. This went on, intermittently, for five minutes. Suresh and Kabali sought to intervene, saying "No, this is our problem and we have solved this problem. You don't want to hit them [sic]." Kobi responded, "No, he hit you, so we have to hit him".
The assault ceased and Kobi and Kajan left. Kabali took Kathis to Kabali's room which adjoined Suresh's room. Mathan was sleeping in that room. Mathan was a man Kathis had met at Ranjanas Restaurant and at Pendle Hill railway station. Suresh and Kabali spoke to Kathis for about 10 minutes about settling the issues. Kabali asked Kathis to sit down but he did not want to and started to go home.
Kathis agreed in cross-examination that he had first told police that Kajan had beaten him at the unit in October 2013. He also ultimately agreed that he did not say in his statement made on 24 April 2013 (four days after the incident) that one of the men who had assaulted him at Suresh's house was Kobi.
Kathis accepted that in his statement of 15 October 2013 he had said that Mathan was present in Suresh's room when he was assaulted by Kobi and Kajan. He maintained that this was a mistake; Mathan was in fact asleep in his room. He agreed, however, that he had not said anything in his statements of 24 April and 15 October 2013 about Mathan being asleep in the adjoining room and that the first time he had said this was when giving evidence in the trial.
(The matters in the two preceding paragraphs, perhaps, explain the acquittals on Count 1. The Crown was reliant only upon the evidence of Kathis; there were no other witnesses or supporting evidence.)

[12]

Telephone calls as Kathis continues walking home

While walking home, Kathis tried unsuccessfully to call Maju (who he lived with) in order to ask him to come and give him a lift home; it was cold and he was tired. He then tried to call his nephew, Kukilan, who lived nearby and who had a friend with a car but there was no answer.
Kathis then received a call from Mathan's phone. He knew it was Mathan's phone because Kathis had Mathan's number stored in his phone. However, Suresh was the caller and the following conversation occurred: Suresh: "Why did you go to Seelan's house?" Kathis: "I went to Seelan's house to tell him that they hit me." Suresh: "You can't do anything against me. Everyone in Pendle Hill will stand for me. You go back home." Kathis: "If you have got people, I too have got friends and relations here." Suresh: "I have got people in Pendle Hill. You can't do anything to me." Kathis: "I have got my brother and friends." Suresh: "You can't do anything to me here. You go home." Kathis: "You are not a man to hit me alone by yourself. You call people and hit me."
When asked to repeat what was said in this conversation, Kathis added that he had said to Suresh, "If you say that you have got people, I also have got people. If you are prepared to fight, I am also prepared to fight, provided that you come alone, you come by yourself." Suresh then started using obscene words so Kathis terminated the call.
In cross-examination an alternative version of this conversation was put to Kathis but he rejected it. First, he agreed that it was his understanding that Suresh had just been phoned by Kobi about Kathis' attendance at Seelan's house. It was put to him that Suresh told him he needed to calm down and was trying to persuade him against wanting to fight Kobi. Kathis responded, "No. He rang me because he wanted to reassert that he was a big person" and "No, he did not pacify me at all". It was also put (and rejected) that Suresh said that he and Kathis needed to speak about what had occurred to sort it out before it went any further.
Kathis said that he was really angry at the end of the conversation with Suresh; angry for being beaten up.
Kathis kept walking home. He called his wife in Sri Lanka and was talking to her when there was another incoming call from Mathan's phone but he did not answer it.

[13]

Count 2 (assault at the roadside while walking home) - Kajan, Kabali and Suresh

Kathis continued walking as he spoke with his wife. After he had turned into Wyena Road a car stopped on the opposite side of the road. Suresh and Kabali got out and came running up to him, with one of them saying, "Are you a big man?" Kabali punched Kathis on the right ear which caused him to drop his phone. Suresh kicked him to the "backside" (meaning "above the hip" at the back) as he bent to pick up the phone.
Kajan, Mathan and Kobi also came from the car. Kajan had a cricket bat, holding the handle with both hands with the blade pointing to the sky. Kathis was fearful and started to run.
In cross-examination, Kathis agreed that in his statement of 24 April 2013 he had said that the three men who had got out of the car were Kobi, Mathan and "one other who I don't know his name, but could identify him if I saw him again". He confirmed that the latter was Kajan. He also agreed that he had said that Kajan had hit him in the left shoulder with a cricket bat. It was put to him that this was a lie and he replied, "Yes, it is a lie that he hit me at that place". He had started to run as soon as he saw the cricket bat.
During re-examination the trial judge asked Kathis some questions to clarify what he understood a lie was. He appeared to understand that it meant saying something that is incorrect, knowing that to be the case. The Crown Prosecutor asked him about the concession as to lying he had made in the cross-examination. He responded: "At that place he did not hit me, but because of some confusion in my mental state at that time to the police I did say that he did hit me. Even now I do not grasp as to why I did make that statement. But now I am making the correct statement."
He was asked what he meant by "mental confusion" and he said: "The first reason is that I am alone here so that results in some mental confusion. And another stress that I am confronting is that I have not been granted citizenship here so that is another reason. And I also face some issues after the events in the birthday party, and that also led to some discrepancies what I said and also resulted in some memory loss as to what had previously happened. Even now I keep recalling the blood stained white shirt which I was wearing at that time which is similar to what I'm wearing now. Even now when I walk along the street I - ." (The answer was cut off by an objection on the basis of unresponsiveness, which the trial judge upheld.)
Also in cross-examination, Kathis said that he did not identify Kobi or Mathan at the time he first saw the three men coming from the car. He was definite that there were three people (and five in all) but he did not identify Kobi or Mathan; "but finally I did see these two persons after being chased".
(The Crown relied solely upon the evidence of Kathis in respect of Count 2. The verdicts of not guilty may have been based upon the quality of his evidence and the lack of supporting evidence.)

[14]

Counts 3 and 4 (melee at Kathis' home) - all five accused

Kathis said that he ran "very speedily" towards his house but "they came chasing me in their car". By the time he reached his house the men had arrived and "they were turning the car in our lane". He explained that the car had turned into the driveway to his unit complex, reversed and was then parked on the opposite side of the road. By this stage, Kathis had entered his unit and was looking out the front window. He saw Kajan, Kabali and Suresh alight from the car. Kajan was holding a cricket bat. He knew that they were going to enter the house to assault him so he picked up a wooden chopping board and went outside.
Kathis did not call the police because there was no time. When he got outside he saw Kajan, Kabali, Suresh, Mathan and Kobi.
Kathis said that "Kajan came running and hit on my head. I blocked with the chopping board which got into pieces." The cricket bat came into contact with Kathis' head, "slightly". There was no wound, but swelling only.
Kabali came behind Kajan. He had a knife and "he was aiming to stab me". Kabali raised his hand above his shoulder. Kathis said that he "tried to grab the knife from [Kabali]"; "I clutched his hand, by the time he stabbed me". He explained and demonstrated that he had raised his right hand to block the knife. As a result the knife went through the fourth and fifth fingers of his right palm.
Kathis said that the knife went through his palm and the knife point came out the other side between his last two fingers. He started to bleed straight away. Kathis struggled with Kabali and forced Kabali to the ground. Kathis was above him and at this point Kajan came at him with the cricket bat. He hit Kathis in the left eyebrow. During the course of the struggle with Kabali, Kathis realised the knife was in his hand and he removed it.
Mathan came with an iron rod and hit Kathis "down the eye". When asked to explain he said, "Left eye. Above the eye Kajan beat me. Down the eye Mathan hit me." He pointed to underneath his left eye closest to his ear. He said, "After I was hit with the iron rod I started to bleed". When asked later in his evidence in chief to describe the rod he indicated that it was about a metre long and about an inch thick ("larger than my thumb"), but he was not really sure as he could not see it properly. He added, "I'm very sure that it was an iron rod".
Suresh pulled Kathis up by the shirt. Suresh and Kobi attacked him with pieces of wood from the broken chopping board. Kathis said he was beaten with these pieces "all over the body, hand, leg, and backside, on the knee, down the knee". He indicated and said that by "backside" he meant his back. He said the beating was "all over my body, but not broken, but there are bruises, bruise". While Suresh and Kobi were doing this he could not see what the other three were doing.
In cross-examination, Kathis agreed that he had said in his statement of 24 April 2013 that it was Suresh and Kabali who had hit him with the pieces of chopping board and he did not mention Kobi being involved. He conceded that "there is discrepancy" between his statement and the evidence he had given in court. He was asked if the reference to Kabali hitting him "with the chopping board" in his statement was a lie or the truth and he answered, "The reference to Kabali is a lie".

[17]

Other matters arising in cross-examination

It was put to Kathis that his memory of the night was not very good because he was very intoxicated. He said that he could remember everything that was done to him during the party very well. Information was put to him that his blood alcohol reading when tested at 5.50am, about three hours after his last drink, was 0.15. He accepted that but could not accept a proposition that at the latter stages of the party he was "very drunk".
It was put to Kathis that it was he who took the knife out to where the incident occurred outside his unit. He maintained that he had only taken a chopping board. It was put to him that after the incident a knife and a chopping board were both missing from his kitchen. He insisted that only a chopping board was missing.
Kathis was told that the only person's DNA which was found on the knife police recovered from the scene was his and he replied, "Because… I took the knife after I was stabbed". He denied a proposition to the effect that he was lying about this and other issues because he was concerned about his visa.
It was put to Kathis that a knife had been with the chopping board in the kitchen and that both were missing after the incident. He again denied taking the knife and said that the knives were kept in a drawer in the kitchen.
It was put to Kathis that, if he had been concerned for his personal welfare as he had claimed, there was no way he would have gone outside the unit knowing that there were five people, one of whom was armed with a cricket bat. He replied: "I was fearful, but I hated the fact that they were repeatedly assaulting and bashing me and it did not seem that it's going to stop. I came out, thinking 'let them bash as they could and then leave'. They were angry because they wanted to assault me, but it is also possible that at that time, to surrender. If I remained inside, the others will also be adversely affected. And the other factor is that I was a new tenant in that house and if there were to be some problem, I will be eliminated from the house. And in addition to all this, there is another important reason. My elder brother was there and he cannot simply sit and watch when I am beaten up and I came out because I thought that he will also be a victim. This is the true state of mind at that time."
It was also put to Kathis that he had gone outside the unit in the company of other flatmates and that he was lying about this out of concern because they were also on bridging visas. He denied this. He said that Ruban and Sata already had permanent residency; it was Ruban who came out first; and then the others came out (later) at the same time.
Kathis was asked a number of questions about being on a bridging visa. He agreed that it was a condition that he could not work. He agreed that he had been working at Ranjanas Restaurant for about two months prior to 19 April 2013 in breach of his visa conditions. He also agreed that it was because of his work at that restaurant he had come to know some of the accused. He was reminded of his earlier evidence concerning the basis of his connection with Aunty and agreed that he had not volunteered information about working at the restaurant because he was trying to conceal it from the jury.
Kathis also said that he had not told the police officer in charge of the investigation that he had worked at the restaurant; that was because "he did not ask from me". Later in the cross-examination he agreed with a proposition that "you lied to police when you didn't tell them you were helping or working" at the restaurant. Kathis sought "pardon from the jury" for concealing this from the police. However, this concession was mistaken; the pardon sought was unnecessary. The police officer in charge of the investigation gave evidence that Kathis had told him that he had worked at Ranjanas Restaurant. It would seem that Kathis had forgotten.

[18]

Evidence of Anthony Thushanthan (Ruban)

Anthony Thushanthan (referred to as Ruban) was born in Sri Lanka and became a permanent resident of Australia in 2011. In 2013 he was living with Kathis at Pendle Hill. Also living in the same home unit were Kathis' brother Yoganthiran (also referred to by the police officer in charge of the investigation as Kathiravelan), Mayuran (referred to by Kathis as Maju), Kutty, Naguleswaran Subramaniam (referred to as Sata), Kukelan (Kathis' nephew) and another person who Ruban thought was also a nephew or son of Kathis'. He was not sure whether the latter two were there on the morning of 20 April 2013.
Ruban woke at about 4.00am and went to the kitchen to cook some roti. (He was hungry because he had gone to bed without having a meal.) He heard Kathis call out, "Ruban, come, Ruban come". He looked out the kitchen window but it was dim. He saw Kathis with the chopping board. There were two or three people standing there. Ruban went outside. Kathis was holding the chopping board at, or above, shoulder height.
Kathis was standing in the driveway. There was an argument going on. He saw Kobi, Kajan and Suresh, who he knew, coming from the other side of the street where their car was.
Ruban said that there were five or six people (including Kathis), all male Sri Lankans, but he did not know all of their names. He said, "Don't fight", possibly twice. Suresh had a small pipe, about one metre. He did not see that the others had anything. Suresh held Ruban by the shirt for a short period of time. He said, "Fuck boat people". Ruban did not think much of that because it seemed like Suresh had had drinks; that is why he was talking like that. He feared that Suresh might hit him. Kobi approached and intervened, saying that Ruban should not be beaten up.
As this was happening, Ruban could hear "noise to the effect that the board was hitting something"; "either a stick or the board hitting something". Suresh let go of Ruban when Kobi intervened. Ruban then saw Kathis with two or three persons. They were wrestling, rolling around on the footpath and grassed nature strip. Kobi told Ruban that Kathis had caused problems. Suresh stood near to the place where the wrestling was going on. He still had the pipe but Ruban could not remember if he did anything with it. Kajan had a bat but Ruban did not know "whether he hit or not". Kobi remained standing with Ruban; he did not get involved.
The Crown Prosecutor made an application pursuant to s 38 of the Evidence Act 1995 (NSW) which was opposed but granted. Cross-examination ensued in which Ruban agreed with the following accounts set out in statements he had made on 4 June 2013 and 2 June 2014. 1. Ruban saw Kathis standing on the grass nature strip and five men on the road near their car. Ruban called out, "No fighting, no fighting". Suresh grabbed him by the shirt collar and started pushing him. Ruban told him that his problem was with Kathis. Suresh said, "Fucking boat people". Kobi came and intervened. Ruban saw Suresh holding a metal pole and Kajan holding a cricket bat. 2. Ruban said that when he got closer to the five men he could see that they were all attacking Kathis who was lying down on the grass. They were punching and kicking; no weapons were used at this stage. It was at this point that Suresh grabbed Ruban and forced him back in the direction he had come from. He was very scared because he thought Suresh would hit him with the pipe and the other men would also attack him. 3. Kathis managed to get to his feet but the men continued to attack him. He saw Kajan hit Kathis with the cricket bat, although he could not be sure how many times. When Suresh let Ruban go, he joined in with the others in the attack upon Kathis. He saw Suresh strike Kathis with the metal pole. Kathis was yelling to Ruban to help him. Kobi and the two men whose names he did not know were punching and kicking Kathis while he was on the ground. 4. Ruban decided to call triple-0 because "he was serious … I saw blood. I was fearful whether something might happen." (The police officer in charge gave evidence that Kathis' brother had called triple-0, using Ruban's phone, but gave Ruban's name as the person to contact.)
The evidence in chief then resumed without cross-examination by the Crown Prosecutor.
Ruban went inside to wake everyone up and they came outside. The five men left in their car.
Ruban said that when he first came outside he took a photograph and he "gave that to police and showed it, but it was dark and dim" (which he later explained was because it was dark and no flash was used so the photo was not clear).
Ruban said that later in the morning when time came to cook, people were complaining that the chopping board was missing. He did not notice anything else missing from the kitchen.

[19]

Cross-examination by counsel for Suresh Sivathas

In cross-examination, Ruban agreed that in his statement of 2 June 2014 he had said that "our home knife was missing after the incident" and that he remembered it had been with the chopping board the night before. When asked to explain why he had not mentioned this in his statement of 4 June 2013 he gave this rather confusing response: "Only later did we come to know that the knife was missing, and the board belonged to Sata Naguleswaran Subramaniam who was at home at that time. Because it was his thing we came to know about it. Because he called me out by mentioning my name. So he might have come in, he might have come in and taken it, he might have asked. So subsequently when we kept asking, we came to know about it."
When asked essentially the same question a short time later he said: "I was aware of the board. But in relation to the knife, Sata said that it was our knife, Sata said that it was our knife, and that's how I came to know that it was our knife."
During cross-examination on the following day of the trial there was the following evidence on the subject of a missing knife: "Q. And where we got to yesterday, and which is where we'll now pick up is, I asked you a question about why it was that you didn't include that recollection in your June 2013 statement, but included it in your June 2014 statement. Are you able to answer that? A. INTERPRETER: Because there I made statements about what happened at that time. It was later when we made queries from others as to what had happened, we really came to know what happened and it was later when police came and interviewed, I included this episode of the history at that time. Q. Do I understand what you say is, it is a point later in time that you came to realise that the knife had gone missing? Is that what you are saying? A. INTERPRETER: Yes."
It became apparent in further cross-examination that Ruban did not have direct knowledge of there being a missing knife. He was relying upon what he had been told by Sata. He eventually agreed with a proposition that he did not tell the police about the knife in his statement made in June 2013 because he did not want to get Kathis into trouble.
Ruban said that the five men had left in their car by the time he had woken up the flatmates. It was incorrect to say that flatmates were outside during any stage of the incident.
It was Ruban's impression that all of the participants in the events were affected by alcohol. He agreed that Kathis was "well affected" and was aggressive.
He said he never saw Kathis inside the home unit before the incident.
Ruban agreed that his evidence in chief of looking out the kitchen window and seeing Kathis with a chopping board was false. When asked if he had made up his earlier evidence he said: "If that is the case, I might have said without having a very good memory. Every issue when it is raised, I am able to recall gradually, little by little. I don't have a good recollection of it. This is what I reassert. I do not have any memory about all this."
Ruban's continued cross-examination had not progressed very far after it resumed on Friday 29 April 2016 when he complained of being tired. It emerged that this was because he had been working night shifts. He was excused until the following Monday. The jury was told the reason.
During his further cross-examination the following week, Ruban said that he could not say that all five of the men were involved in the fighting with Kathis. He said that he could not remember Kobi getting involved at any stage. When he said in his statement of 4 June 2013 that "the five men then attacked Kathis" it was an approximation; he did not count.
Contrary to his evidence in chief that he saw Kajan strike Kathis with a cricket bat and Suresh strike him with a metal pole, by this stage of the cross-examination (his fifth day in the witness box) Ruban said that he did not remember Kathis being hit with either object.
A number of propositions were put at the end of the cross-examination by counsel for Suresh (which took place over four days, although not entire days). Ruban said that he did not know of Kathis having a knife, only the chopping board. He agreed that when he gave his first account to police he held back on certain pieces of information, such as the fact that Kathis was working. He also did not want to tell the police that he had made an observation about a kitchen knife that was missing. He was asked if Kathis was in fact the aggressor and he replied: "To the effect that yes, because I can't remember well. But how can I say, because my name was called suddenly, I came out, I was panicking."
The trial judge then asked whether he was accepting or rejecting that Kathis was the aggressor and he replied, "I don't know what to say".

[24]

Other evidence

Navaraman Nagakumar (also known as Ramanan) gave evidence confirming that there were incidents involving eggs at the party. He also gave evidence of Kathis being in paid employment (a breach of his bridging visa conditions).
Dr Annaleise Howard-Jones treated Kathis in the emergency department at Westmead Hospital. Kathis gave a history of returning from a night out with friends at a pub when a car had pulled up, five men had alighted and he had sustained injuries as a result of impact from a cricket bat and a knife. There was no mention of a metal rod or pole. However, the ambulance notes recorded, "Query assaulted by multiple people with cricket bat/stumps/pipe". She could not recall if an interpreter was used; she had not made a note as she usually would if that was the case.
Dr Howard-Jones said there were three laceration wounds; one above the left eyebrow, one to the side of the left eye and another on the right palm close to the fifth finger (which did not penetrate through the hand as Kathis had claimed). She also noted some mild tenderness in the abdomen, reduced power on flexion and reduced range of movement of the right hand fifth finger, and some tissue swelling around the wounds to the head. She considered that the wounds and other injuries were consistent with the history provided. She was unable to offer an opinion as to the mechanism by which they were caused; the facial injuries could have been caused by a blunt object such as a cricket bat or a closed fist but also by a fall to the ground.
Police arrived at the scene in Wyena Road, Pendle Hill at about 4.33am. It had been raining heavily. An officer found three pieces of wood about 30 cm long and 15-20 cm wide (pieces of the chopping board) on the driveway to the units in which Kathis lived. The officer also found a kitchen knife near the roadway.
Other police arrested the five accused in Pendle Hill a short time after the incident. A cricket bat was found in the back seat of their car.
The officer in charge, Detective Senior Constable Lee Oudenryn, and another officer attempted to speak with Kathis at the hospital but were unable to because he appeared heavily intoxicated and either falling asleep or in and out of consciousness.
Detective Oudenryn said that an interpreter was not used when he took statements from Ruban because he assessed his English "as being fine".
A statement was taken from Naguleswaran Subramaniam (Sata) on 2 May 2016. He was not called as a witness but relevant matters in the statement were led from Detective Oudenryn. Sata had told police that he knew nothing about a missing knife (which was contrary to the evidence of Ruban).
Detective Oudenryn also gave evidence that none of the accused had any prior convictions.
A number of exhibits were subjected to forensic examination. The handle of the knife recovered at the scene yielded DNA consistent with Kathis'. Kobi's shirt and Kajan's singlet and T-shirt had stains that were positive on a presumptive test for blood and which yielded a mixture of DNA consistent with theirs and Kathis'. Kabali's jumper was presumptively positive for blood with DNA consistent with Kathis'.
The forensic biologist gave evidence that rain washes off DNA. He could not say whether somebody else had touched the knife.
None of the accused gave evidence or called any witnesses.

[25]

The Crown case on Count 3

One criticism made in relation to ground 2 of the appeal by Suresh is that the Crown imprecisely formulated his liability on count 3. His written submissions complained that: "It was put that the appellant was liable because he knew that members of his party were armed with at least one weapon, so that by the time the group confronted Kathis and launched a joint attack on him he was party to an agreement to cause grievous bodily harm." In ensuing submissions it was suggested, in part, that the jury needed to be satisfied that each individual wound had been accompanied by an intention to cause grievous bodily harm.
As the formulation of the Crown case on count 3 is of importance to both grounds of the conviction appeal, it is appropriate that this complaint should be dealt with at the outset. Ultimately, Suresh's complaint about how the Crown initially formulated its case against him travels nowhere as there is no criticism of how the trial judge put the Crown case to the jury, which in turn was based upon how the Crown had put its case in closing address, namely: "As to proving the intent to cause grievous bodily harm, the Crown submitted that the use of weapons such as a knife, a bat, and an iron rod as alleged that you would easily be satisfied of an intention to cause grievous bodily harm. The Crown took you to the concept of joint criminal enterprise, and that is relied upon for counts 1 to 4. As the Crown stated, by the time the five accused got to Wyena Road, some armed with weapons, they all got out of the car and launched what the Crown submits was a joint attack on Kathiravelu Thirukatheeswaran. They had agreed, submits the Crown, to wound him with intent to cause a really serious bodily injury. She submitted that it was a simple and fundamental proposition that each of these men clearly knew that others in their party were armed with one or more weapons by the time they confronted Mr Thirukatheeswaran, and they all intended to wound him with the intent to cause a really serious injury. And that, of course, was regardless of what role each individual played." (emphasis added)
It was clearly the case that the Crown contended there was a joint criminal enterprise in existence from the commencement of, and throughout, the events outside Kathis' home and that the objective of the enterprise was the wounding of Kathis with intent to cause him grievous bodily harm. It was not a case in which the asserted joint criminal enterprise commenced or ceased during the course of the melee, thereby requiring the jury to examine whether it was in existence at the particular moment any wound was inflicted.
The jury were not required to isolate each of the three wounds and determine whether they were, individually, accompanied by an intention to cause grievous bodily harm. The Crown case depended upon there being at least one wound that was inflicted by a participant in a joint criminal enterprise which had as its object the wounding of Kathis with the relevant intent. Each party to that joint criminal enterprise was liable regardless of whether he, or a fellow participant, actually inflicted the wound(s).
The artificiality of breaking up a violent incident that occurred quickly into discrete components and asking whether an intention to cause grievous bodily harm attended one or more of the components is illustrated by Sharp v R [2012] NSWCCA 134. In that case there was evidence that the appellant had punched a man a number of times to the head; threw him to the ground as he was attempting to get back on his feet; held him down and continued to punch and knee him; punched him again after he had got to his feet and was stumbling away; and then, after the victim had fallen to the ground again, stomped on his head. The issue on appeal was whether the grievous bodily harm was caused by the stomping, by which time it was alleged that the appellant had formed an intention to cause that level of harm. Hidden J (Whealy JA and Schmidt J agreeing) said: "[27] In my view, there is an air of unreality about focusing upon a particular act of the appellant during the incident and determining whether he had the requisite intent at the time of that act. On the evidence in the Crown case, this was an attack of some ferocity from the moment it was initiated, involving repeated punches to Mr Arnold's head and culminating in the stomping action. It was a brief episode of continuous violence. It was well open to the jury to conclude that the appellant intended to cause grievous bodily harm throughout the incident, and, in that event, it was unnecessary to determine precisely which act or acts of his caused the serious injury. [28] Viewing the matter in that way, it was also unnecessary for the trial judge to direct the jury that they had to decide which act caused the grievous bodily harm and determine whether that act was accompanied by the requisite intent. Yet, in my view, that was the effect of his Honour's directions. In the passage from the summing-up which I have quoted at [18], his Honour referred to the issue of whether the grievous bodily harm was the result of the stomp or of a punch, clearly in the context of directing the jury about the requisite intent. At the conclusion of that passage he told the jury that it was entirely a matter for them, saying that if they were not satisfied it was the stomp but were satisfied it was the punch, they would "then go on to consider against that background whether the intent has been made out." Later in the summing-up, in the course of summarising the Crown case, his Honour said that the jury would "have to look at what mechanics on this night do you find beyond reasonable doubt caused the injury, was it the punch, was it the stomping, that is an issue for you and it is against that basis you work out the issue of the intent." [29] These directions were adequate and, on the view of the matter which I have expressed, were more than was required."
These observations apply with equal force to the Crown case on count 3 (and count 4).

[27]

Raising Self-Defence

Self-defence is governed by ss 418 and 419 of the Crimes Act which provide: "418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 419 Self-defence - onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence." (emphasis added)
The operation of these provisions was explained by Howie J in R v Katarzynski [2002] NSWSC 613 at [22] to [23]. His Honour stated that they require the jury to ask two questions, namely "is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself" and "if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them". His Honour stated that the first issue "is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct" and the second question "is determined by an entirely objective assessment of the proportionality of the accused's response to the situation the accused subjectively believed he or she faced". This analysis has been repeatedly endorsed by this Court (eg Oblach v R [2005] NSWCCA 440; 65 NSWLR 75 at [50] to [54]; Elias v R [2006] NSWCCA 365 at [22] to [23]).
Before the Crown assumes the burden of disproving self-defence beyond reasonable doubt the defence must be "raised" (s 419). In Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 at [19] Hodgson JA stated that "all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence" and in particular evidence capable of supporting a reasonable doubt in relation to both of the questions set out in the preceding paragraph. His Honour added that the "evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation" (at [19]).
In considering whether the evidence is so capable it must be "taken at its highest in favour of the accused" (Braysich v The Queen [2011] HCA 14; 243 CLR 434 at [36] per French CJ, Crennan and Kiefel JJ) without the trial judge making any assessment of whether the evidence should be accepted (Viro v The Queen [1978] HCA 9; 141 CLR 88 at 117 per Gibbs J). In Colosimo at [19], Hodgson JA described the approach to be adopted in approaching this issue where an accused does not give evidence as follows: 'It is not essential that there be evidence from the accused as to the accused's beliefs and perceptions: evidence of circumstances from which inferences may be drawn as to the accused's relevant beliefs and perceptions may be sufficient. However, if the accused does not give evidence of his or her beliefs and perceptions, then generally, in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances." (emphasis added)
Further in Colosimo at [19] Hodgson JA addressed the circumstance in which a person who was the initial aggressor in a conflict might nevertheless raise self-defence: "A finding that an accused "wanted to fight" does not of itself exclude self-defence; but is relevant to whether the accused could have believed his or her conduct to be necessary for defence or to prevent unlawful deprivation of liberty. Furthermore, if a person believes that any risk of harm can be dealt with by withdrawing, then generally that belief would be inconsistent with a belief that conduct of the nature of an assault was necessary for defence." (emphasis added)
As further explained, both of these passages from Colosimo are especially apposite to each of Kajan and Suresh. Neither of them gave evidence and the evidence was unequivocal that they were either the initial aggressors or at least in a position to (easily) withdraw from any risk to themselves from the confrontation that was the subject of counts 3 and 4. In such circumstances the task of pointing to evidence capable of supporting, even by a process of inferential reasoning, a reasonable doubt in relation to both questions noted in [122] is particularly difficult.

[28]

Her Honour's refusal to direct on self-defence

At the close of the Crown case, counsel for each of the accused applied to the trial judge for an "indication as to whether, on the evidence led in the Crown case, [Her Honour was] prepared to direct on the issue of self-defence". Her Honour heard argument and then gave reasons for refusing the application. An application was then made to discharge the jury on the basis that counsel for the accused had opened to the jury on self-defence. This application was refused by the trial judge. There is no complaint made on appeal in respect of that decision. None of the accused called any evidence. Instead the jury heard closing addresses and the trial judge summed up. The jury were not directed in relation to self-defence.
In her reasons for refusing to direct the jury on self-defence her Honour made extensive reference to Colosimo. Her Honour then addressed a document containing 13 facts and circumstances that counsel for Kajan pointed to as sufficient to satisfy the approach stated in Colosimo as to whether self-defence was "raised" (MFI 24). The first seven of those concern the circumstances that lead to Kajan, Kabali, Suresh, Mathan and Kobi travelling to Kathis' house, which are summarised above and further considered below. The effect of those matters was to suggest that by the time they arrived Kathis was angry over his treatment and highly intoxicated. The other six circumstances relied on were as follows: "8. At the time that [Kathis] left the house [Kathis] was carrying two dangerous weapons [ie the chopping board and the knife] 9. At the time that [Kathis] left the house the car containing the Accused's [sic] was driving away from the house and none of the accused had alighted from the car … [according to a prior statement by Kathis]… 10. [Kathis] advanced quickly a distance of 25-30m from his house in [the] direction of the Accused's [sic] while armed … 11. The manner in which [Kathis] held the chopping board was objective[ly] aggressive and not defensive … 12. The accused had not entered onto the property of [Kathis]. 13. [Kathis] was described as the aggressor during the incident …"
In her reasons, the trial judge accepted that "there is clear evidence from [Kathis] that he [went] outside his home armed with a chopping board" and that it was "open on the evidence for the jury ... [to] find that he was the person armed with the knife which he took from the kitchen of the premises", being the knife that stabbed him in the hand. However, her Honour also stated that there was "no evidence" that Kathis was seen in possession of this knife outside the premises or that he used it or threatened to use it. Her Honour noted that Kathis stated he held the chopping board to the right of his face above his shoulders as he walked out of the house but noted there was no evidence it was used "in any attempt to strike any of the accused" and that it was found broken into three pieces which was unlikely to have happened "unless subject to a fairly substantial blow or blows from another object". Her Honour also noted that all the accused were arrested within hours and none of them had any injuries or marks to suggest bruising.
Her Honour then returned to the test in Colosimo noted above and found that it "would be mere speculation as to what might have been done with the chopping board and the knife". Her Honour also referred to the part of Hodgson JA's judgment in Colosimo at [19] noted in [125] above concerning an accused who "wanted to fight" nevertheless seeking to raise self-defence. Her Honour then found: "In this matter it was the five accused who arrived at the premises in a car. It is clear on the evidence that they were in possession of at least one mobile telephone. They had not only the means to withdraw, they also had the means to contact the police, to be in a motor vehicle and to get away from the situation."
Her Honour concluded that it "would not be open on the evidence to give a direction to the jury in relation to self-defence".

[29]

Submissions on Ground 1

As noted, the written submissions filed on behalf of Kajan adopted the submissions made on behalf of Suresh on this issue. Understandably the written submissions filed on behalf of Suresh that supported this ground of appeal focused on her Honour's reasons for refusing to direct the jury in relation to self-defence. Those reasons provide a useful reference point to address this issue. However, given that the ultimate question is whether there was a miscarriage of the justice by reason of the failure of the trial judge to direct the jury in relation to self-defence, the critical question is not whether her Honour's reasons disclose some error of approach but whether her Honour was ultimately correct in refusing to direct the jury on self-defence.
Suresh's written submissions in support of this ground contend that her Honour erred in "failing to adopt a view of the facts most favourable to the accused" (or more correctly, in failing to take the evidence at "its highest in favour of the accused": Braysich supra) The written and oral submissions in support of the ground develop this by pointing to the necessity to identify the "conduct" of the accused that is being excused under s 418. The submissions asserted that the Crown case was that Kajan and Suresh were parties to a joint criminal enterprise to wound with intention to cause grievous bodily harm "by the use of; (i) the knife [used] by Kabali; (ii) the cricket bat by Kajan (on the second occasion outside the unit); or (iii) the metal pole by Mathan"). The submissions pointed to the trial judge's acceptance that the evidence was capable of supporting a finding that Kathis was "armed with the knife" that ended up stabbing him in the hand and submitted that it was also open to be concluded that there was no metal pole used at the scene as none was found.
Ultimately the submissions contended that "[o]n this basis a reasonable possibility …. is that the wounding (with the cricket bat) was inflicted in the belief it was necessary to wound Kathis with intent to cause him grievous bodily harm by striking him with a cricket bat, in circumstances where Kathis had rushed towards the accused whilst armed with a chopping board and a knife". This contention is developed by pointing to aspects of the evidence concerning the events prior to the arrival of Kajan and Suresh at Kathis' home and then isolating aspects of Kathis' evidence concerning his departure from his home upon their arrival and his possession of the chopping board (and alleged possession of a knife) in an endeavour to identify the evidence "at its highest in favour of the accused" (Braysich supra).
The Crown contended that the trial judge was correct to conclude that there was no evidence capable of establishing self-defence. The Crown placed particular emphasis on the damage to the chopping board which it contended "underscored the ferocity of the blow" administered to Kathis and his "real need to defend himself from attack".

[30]

Consideration

It can be accepted that a consideration of this ground directs attention to the "conduct" of the accused as referred to in s 418(1). The manner in which the trial judge put the Crown case in this respect is outlined above at [115]. A consideration of whether self-defence was raised focuses upon the conduct of the accused in "jointly attack[ing]" Kathis while armed with "one or more weapons" or knowing that another person in their group was so armed and, in the case of count 3, possessing an intention to cause really serious injury (or in the case of count 4 having an intention to commit an assault). The Crown case was not tied to the establishment beyond reasonable doubt of an assault on Kathis using a specific weapon.
Further, it follows from Braysich that the evidence must be taken at its highest in favour of the accused although it must be remembered that the premise of the argument over self-defence is that the accused engaged in the joint attack just referred to which necessarily involves an acceptance of some parts of Kathis', and possibly Ruban's, evidence.
In relation to the events that preceded the arrival of the five accused at Kathis' premises it can be accepted that evidence was capable of supporting a finding that Kathis was angry at his treatment and had displayed aggression towards some of the accused. Under cross-examination by Kajan's counsel, Kathis agreed that at the conclusion of his telephone call with Suresh referred to at [38] he was "really angry". As noted during that call he said that if Suresh was "prepared to fight, I am also prepared to fight" (see [36]).
Further, for the purposes of considering this argument we will proceed on the same basis as the trial judge and the applicants' argument, namely that the evidence was capable of supporting a finding that not only did Kathis leave his home with a chopping board held at his head level, he also took a knife and it was that knife that ended up stabbing his own hand. Given the matters noted at [63] to [65], and [80] to [83] and [109] this appears to be a generous inference to draw. No one at the trial asked Ruban whether the knife found in Kathis' hand was the same or similar to a kitchen knife used at their home.
Kathis' evidence in chief as to the events which unfolded from the time he ran to his home is set out in [47ff]. Given the test to be applied, it is necessary to supplement that description by reference to those parts of Kathis' evidence in cross-examination which the applicants rely on concerning the location where Kathis was assaulted with the cricket bat. Kathis agreed that in a police statement he said that the car reversed into his driveway and then "as I came out [of his home], they drove back on the road and got out". He agreed in his oral evidence that this suggested that the accused only alighted from the vehicle after he left his home whereas in his evidence in chief he stated that he left his home after the accused alighted from the vehicle. (Kathis maintained that the latter was correct).
Kathis also agreed that the accused's vehicle was parked on the other side of the road immediately in front of his premises. He said he walked a distance of some 25 to 30 metres down the driveway and onto a grass verge between the footpath and the road. He said he was carrying the chopping board. On the present hypothesis, he was also carrying a knife. Kathis also agreed that the accused "came across the road" to the grass area where he was hit with a cricket bat and pole. In doing so they walked a distance of "perhaps 20" metres. Kathis was then asked: "Q. But it's the case that they walked across the road to that point; that's the case, isn't it? INTERPRETER. Yes."
The written submissions in support of this ground also point to Ruban's evidence that he was "aware" that Kathis "had taken drinks because I got the smelling from him" and his acceptance that Kathis was "aggressive when you saw him out there". They also point to Kathas' evidence that when Ruban was being attacked by Suresh "all occupants of my house came out".
As noted, the reasonable possibility that the applicants contend was raised by the evidence is that they believed that it was necessary to wound or assault Kathis by striking him with a cricket bat "in circumstances where Kathis had rushed towards the accused whilst armed with a chopping board and a knife". The difficulty with that contention is that, even if the material raised the possibility that Kathis appeared to Kajan and Suresh to be "armed" with a chopping board and a knife, the circumstance that they and other accused alighted the vehicle and crossed at least 15 metres across the road before they confronted Kathis excludes the reasonable possibility that any of them formed a belief that it was necessary to assault him with a weapon in order to defend themselves. On any view of the evidence, they had travelled to the scene. Each of them had the easiest of means to avoid any confrontation, namely, leave the scene or stay in the car on the opposite side of the road. Instead they all chose to leave the car in circumstances where, on this hypothesis, at least one of them was armed with a weapon and all knew of that fact.
These circumstances are an illustration of Hodgson JA's observation in Colosimo at [19] that "if a person believes that any risk of harm can be dealt with by withdrawing, then generally that belief would be inconsistent with a belief that conduct of the nature of an assault was necessary for defence". Given the absence of any evidence from Kajan, Suresh or any other accused, it follows that the present analysis involves a consideration of the "beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances." No such person could reasonably have held the belief or perception that any risk to their own safety that pertained could be dealt with by doing anything other than withdrawing from the scene (or at least staying in the car). The applicants' conduct in failing to take either step, and instead crossing the road as a group while at least one of them was armed, excluded the reasonable possibility that they held a belief that assaulting Kathis with a weapon was necessary for their self-defence.
As noted, Colosimo also contemplates the circumstance that persons who were the initial aggressor may nevertheless raise self-defence because of subsequent events. Thus it is possible that, even if when they crossed the road the applicants did not have a belief that it was necessary to assault Kathis with a weapon in order to defend themselves, they may have formed that belief during the course of the confrontation that ensued. However there is no evidence capable of supporting that scenario "as a matter of legitimate reasoning" (Colosimo at [19]). Even accepting that the evidence is capable of supporting an inference that Kathis had a knife in his possession, it is "mere speculation" to theorise that he produced it during the course of a confrontation with the accused such that it resulted in the accused forming the belief that it was necessary to assault him with a weapon. Nothing in Kathis or Ruban's evidence supports such a finding. Even if their evidence is wholly put aside, which is problematic for the reason noted in [137], the Court is still left with the circumstances that: Kathis ended up with a stab wound in his right hand; he received the other injuries noted in [104]; the chopping board was discovered broken into pieces and there were no injuries to any of the accused. None of those matters assist in converting pure speculation about the applicants' acting in self-defence to evidence capable of raising a reasonable doubt about that matter.
Self-defence was not raised by the evidence in the trial. Her Honour was correct to refuse to direct the jury on self-defence.
Ground 1 is rejected.

[32]

Principles

The principles that apply to a ground asserting that a verdict is unreasonable are well settled. They were summarised in the submissions for the applicant Sivathas as follows: "[126] The principles applying to a ground of appeal alleging that a verdict is unreasonable are settled: M v The Queen [1994] HCA 63; 181 CLR 487, followed in Jones v R [1997] HCA 56; 191 CLR 439, MFA v The Queen [2002] HCA 53; 213 CLR 606 and SKA v The Queen [2011] HCA 13; 243 CLR 400. [127] An appellate court is required to consider whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt. This is a question of fact: Raumakita v R [2011] NSWCCA 126 at [31]. [128] In approaching the task, an appellate court is required to make 'an independent assessment' of the 'nature', 'quality' and 'sufficiency' of the evidence and 'its reliability as well as its credibility': R v Cao [2004] NSWCCA 61 at [42]-[45] (per Greg James J; O'Keefe [J] agreeing). See also Morris v R [1987] HCA 50; 163 CLR 454; Chidiac v R [1991] HCA 4; 171 CLR 432. [129] An appellate court is not to consider 'as a question of law whether there is evidence to support the verdict': M v The Queen [1994] HCA 63; 181 CLR 487. An appellate court is also not to approach the task in a piecemeal fashion: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435. Rather, the court is required to consider the totality of the evidence before the jury. [130] The court must also give full weight to the primacy of the jury as the fact finder. However: If, after giving full weight to the primacy of the jury as the fact finder, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt, that the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; 213 CLR 606 at [26] and [55]-[56]: Hawi v R [2014] NSWCCA 83 at [308] (per Bathurst CJ; Price J agreeing)."

[35]

Insufficient evidence to prove the mental element beyond reasonable doubt

The primary contention of the applicant Sivathas, adopted by the applicant Sivaraja, is that "the nature and quality of the evidence in the Crown case was insufficient to prove the mental element of the offence beyond reasonable doubt".
The relevant offence in s 33(1)(a) of the Crimes Act is wounding with intent to cause grievous bodily harm. The type of harm intended, "grievous bodily harm", has been referred to as "really serious injury" (Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 at [129]) or "really serious bodily injury" (Swan v R [2016] NSWCCA 79 at [71]).
Wounding, the physical element of the offence, is not something that must be established to any degree. Either there is a wound or there is not: Chen v R [2013] NSWCCA 116 at [51]. As Button J there pointed out, "It matters not whether it is a small cut or a gaping one".
The written submissions for Suresh Sivathas pointed out, correctly with respect, that the wounding must occur at a time when the assailant had an intention to cause grievous bodily harm. They also pointed out that in some cases the nature of the wound might provide a basis for inferring that the person who caused it thereby intended to inflict grievous bodily harm. A jury could be directed that a person's act may itself provide the most convincing evidence of intention: R v Stokes & Difford (1990) 51 A Crim R 25 at 30. But, in a case where the wound is relatively minor, it would not provide a basis for that inference and one would have to focus on the other circumstances of the offence.
The victim, Kathis, sustained wounds to the palm of his right hand as well as above and beside his left eye. On his evidence, they were caused, respectively, by stabbing with a knife and being struck with a cricket bat and a metal pole.
The Crown submitted that it was well open to the jury to be satisfied of the intention to cause grievous bodily harm. For example, there was an attack by five men upon a sole victim, with three of the attackers armed with offensive implements. It was submitted that indicative of this intention was the first attempt to strike Kathis with a cricket bat to the head which, fortuitously, was deflected by the chopping board.
It was noted that, as the Crown relied upon the evidence of Kathis concerning the three acts of wounding, it was necessary for the jury to be satisfied of such evidence beyond reasonable doubt. However, it was submitted that the quality of his evidence was not such that it was possible to exclude several different reasonable possibilities that the wounds were caused in ways other than as he claimed.

[42]

Determination

There were a number of difficulties to which the jury needed to have regard when assessing the credibility and reliability of the evidence of Kathis. They included his blood alcohol level (0.15 at 5.50am) and various inconsistencies between what he said in his police statements and his evidence in court. There were at least three matters about which he conceded that he had told "lies". One was about working at Ranjanas Restaurant but the jury may have doubted that the concession he made about this was necessary. The others (saying in a police statement that Kajan hit him with a cricket bat (Count 2) and Kabali hit him with pieces of the chopping board (Count 3)) should have caused the jury to approach his evidence with some circumspection.
It may well be that the jury could have had a reasonable doubt about the guilt of the applicants. However, that is not the test. The High Court of Australia has made it clear that the test is whether upon its own independent assessment of the whole of the record of trial this Court is persuaded that the jury must or ought to have entertained a reasonable doubt. The principles in the earlier authorities cited above were recently reaffirmed in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at 329-330 [65]-[66]: "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (Citations omitted) (Section 668E of the Criminal Code (Qld) is a counterpart to s 6(1) of the Criminal Appeal Act.)
McCallum J described the task befalling this Court in determining a ground of appeal asserting an unreasonable or unsupportable verdict in Hawi v R [2014] NSWCCA 83; 244 A Crim R 169, in part, as follows: "[479] The demonstration of a doubt which ought to have been experienced by the jury will not necessarily be achieved by demonstrating doubt on paper. What is required is a disciplined analysis of the forensic course of the trial pointing persuasively to some real inconsistency or weakness in the Crown case which this Court can conclude, on the strength of its own assessment of the evidence, the jury with all its advantage must have overlooked or ignored such that the verdict reached was "unreasonable" or is unsupportable. [480] The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function."
The present case is one in which the jury had a considerable advantage in seeing and hearing the witnesses give evidence, particularly Kathis and Ruban who were cross-examined at extraordinary length. Even though their evidence was given through an interpreter, the jury would still have been aided by visual clues in forming a view as to their credibility.
The inconsistencies, concessions and various other shortcomings which have been at the forefront of the applicants' case in this Court were fully exposed in the cross-examinations and the jury were reminded of them during the course of the five closing addresses by defence counsel, which were summarised by the trial judge in her summing up. At its request, the jury were provided with a transcript of the entirety of the evidence.
The jury were told by the trial judge in clear terms of the need to carefully assess the evidence of Kathis. The trial judge gave a direction derived from R v Murray (1987) 11 NSWLR 12 at 19 which included: "With counts 1 and 2, the only witness is Kathiravelu Thirukatheeswaran. And in relation to aspects of counts 3 and 4, he is the only person who says certain things happen. You must exercise caution before you convict the accused, because the Crown case largely depends on you accepting the reliability of the evidence of a single witness. That being so, unless you are satisfied beyond a reasonable doubt that Mr Thirukatheeswaran is both honest and accurate as a witness in the account that he has given you, you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of Mr Thirukatheeswaran very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial." (SU 11.5.16 at 23)
The judge immediately proceeded to remind the jury of Kathis' intoxication; the inconsistency between his evidence and that of Dr Howard-Jones about the knife wound to his hand; and that "he deliberately withheld information from the police, and that he lied on oath to you".
In addition to the Murray direction, the jury were also directed that they were required to give separate consideration to the individual counts (and accused) and that it was open to them to return verdicts of guilty on some counts and not guilty on other counts "if there is a logical reason for that outcome". Importantly, there was also a direction derived from R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82: "If you were to find the accused not guilty on any count, particularly if that was because you had doubts about the reliability of Mr Thirukatheeswaran's evidence, you would have to consider how that conclusion affected your consideration of the remaining counts. So if you found him to be unreliable in relation to one count, you have got to consider that unreliability and how it affects your determination of any other count in the indictment."
By their acquittals on Counts 1, 2 and 5 it can be seen that the jury understood that the Crown bore the onus and standard of proof, and were discriminating in their assessment of the accuracy, reliability and credibility of the evidence upon which the Crown relied in relation to those counts but, nonetheless, were satisfied to the required standard of the guilt of each of the accused in respect of Count 3. Inconsistency of verdicts is not directly raised by the applicants. In any event, a logical basis for the acquittals on Counts 1 and 2 is that there were no witnesses and no injuries, and for the acquittal of Suresh on Count 5 doubt could well be caused by the different accounts given by Kathis and Ruban, as well as the lack of any evidence supporting either of them.
In relation to Count 3, in carrying out the independent assessment required of this Court, it is to be noted that there were a number of significant matters that were not in dispute. They included: ● Kathis was a relatively small man (5'6" tall and 70-75 kg). ● Five men turned up at his home at around 4.00 in the morning and immediately alighted from their car. ● One of the men was armed with a cricket bat. ● The five men crossed the road in order to approach Kathis. ● Retreat to their car was a readily available option for any of the men if they felt they were in imminent danger of Kathis. None of them took that option. ● Kathis sustained a number of injuries including three wounds. ● None of the five men sustained any injuries (notwithstanding the suggestion that Kathis was armed with a knife and that he smashed the chopping board on one of the men, thereby breaking it). (The trial judge described the chopping board as being of "reasonably thick timber … which would be unlikely to break unless subject to a fairly substantial blow or blows from another object or being struck against a hard surface with considerable force".) ● There was no evidence of anyone seeing Kathis with a knife. He denied it. Evidence suggesting a knife was missing from the kitchen of his home was hearsay from a source who did not confirm it. ● Presumptive blood with Kathis' DNA was found on clothing of three of the five men. ● It is human experience that victims of violence usually complain to authorities whereas offenders often flee the scene. In the aftermath of the melee, Kathis and the five accused conformed with this experience.
Although there were problems with the evidence of Ruban, the jury were entitled to take from it the broad proposition that Kathis was the victim and the five men were the aggressors. They were also entitled to regard his evidence of seeing one of the men with a cricket bat and another of the men with a metal "pipe" as being consistent with what Kathis had said (despite any doubt about the identity of those men).
In light of the above evidence about the events outside of Kathis' home, considered in conjunction with the preceding aggression (physical and verbal) and no matter that there were acquittals on Counts 1 and 2, it was open to the jury to accept Kathis' evidence in its broad tenor that he was the victim of a joint assault by five men during which he sustained a number of injuries.
There is, however, reason to doubt the use of a metal pole. Such an item was not found at the scene nor later when the men were apprehended and the cricket bat was found. Moreover, although it was alleged that a wound to the left lower eye was caused by a metal pole, the nature of the wound was not one that would be uniquely associated with such a weapon.
It was not necessary for the Crown to prove that grievous bodily harm was in fact caused. However, there is force in the argument that if the men were armed with a knife, a cricket bat and a possibly a metal pole, the fact that more serious harm was not caused provides reason to doubt the existence of an intention to cause grievous bodily harm. This was an attack by five men upon a sole victim who was relatively small in height and stature. By the various descriptions of what occurred it may be gleaned that the attack was not momentary or fleeting, but relatively sustained. If grievous bodily harm was intended it is somewhat remarkable that it, or something close to it, was not achieved.
It must be concluded that the jury ought to have had a reasonable doubt about the intention element of the offence.
That is not the end of the matter, however, as it was accepted at the hearing that it would be open to this Court to substitute a verdict of guilty for a lesser offence: s 7(2) of the Criminal Appeal Act.
It can be said "to the point of certitude" (Spies v The Queen [2000] HCA 43; 201 CLR 603 at [49]) that the jury did find (and we are satisfied that it was open to the jury to so find) that each of the accused were parties to a joint criminal enterprise to use an offensive weapon (at least a cricket bat) with the intention of assaulting Kathis whilst they were in the company of each other: s 33B(2) of the Crimes Act. This was the offence in Count 4 of the indictment which was in the alternative to Count 3. The conclusion reached in relation to ground 1 that self-defence was not raised applies equally to both counts 3 and 4.
Leave to appeal should be allowed. The convictions on Count 3 for wounding with intent to cause grievous bodily harm should be quashed and there should be substituted verdicts of guilty in respect of each applicant on Count 4.
An offence against s 33B(2), while serious in itself, is significantly, less so than the offence against s 33(1)(a) given the prescribed maximum penalties of imprisonment for 15 years and 25 years respectively. Further, a standard non-parole period is prescribed for offences against s 33 (7 years) but not for offences against s 33B.
It follows that the grounds of appeal against sentence do not arise. Further no submissions were made in this Court as to the appropriate sentence to be imposed for any lesser offence. In these circumstances it is appropriate to proceed as the Court has done in similar situations in the past and remit the matter to the District Court for sentencing pursuant to s 12(2) of the Criminal Appeal Act: Tonari v R [2013] NSWCCA 232; 237 A Crim R 490 at [219]; Cuzman v R; Bucataru v R [2014] NSWCCA 222 at [105]; and Alhassan v R [2017] NSWCCA 73 at [26].

Sivaraja v R; Sivathas v R

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Judgment (44 paragraphs)

Legislation Cited (4)

Cases Cited (29)

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