Affray Conviction Quashed Due to Insufficient Evidence

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On the evening of 15 June 2013, Sogeat “Jet” Ouch and Caine Little met in a park in Canley Vale to have a fight. Mr Little owed Mr Ouch a long outstanding debt, and the confrontation was arranged to settle the matter.

Little travelled to the park with his two friends, Bill Nguyen and Jimmy Chovnlamontry. Soon after they arrived, two cars pulled up at the opposite side of the park. Mr Ouch, Tristan Khannara, and a number of other men emerged from the cars.

Mr Ouch and some of the other men entered the park. The fight broke out and, moments later, a gun was fired. Mr Little sustained a gunshot wound to his right wrist. Mr Ouch and the other men ran back to their cars and fled the scene.

Mr Nguyen told police that he saw ten men near the cars and that, at the time of the fight, the men were spread throughout the park. He assumed the men were “against” Mr Little.

Nguyen identified one of the men as Kim Sean Mann. He told officers that he’d said to Mann, whilst standing in the park, “Don’t get involved.”

Mr Chovnlamontry also said there were ten men in the park “scattered around everywhere.” He told police that Mr Mann accompanied Ouch into the park, along with Mr Khannara. Mr Little recalled that Ouch arrived with five other men, who stood at the edge of the park watching.

Both Nguyen and Chovnlamontry identified Mann as the shooter.

The charges before the court

Mr Mann appeared in the NSW District Court in 2014 on an indictment consisting of three counts.

The first count was discharging a firearm in a public place, contrary to section 93G(1)(b) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment.

The second count was discharging a firearm with intent to cause grievous bodily harm, under section 33A(1)(a) of the Act. The maximum penalty for that offence is 25 years behind bars.

The third charge was affray under section 93C of the Act, which provides that:

“A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray.”

Affray is a public order offence. A two-sided brawl involving two or more people can be classified as affray. Such an incident can take place either in a public or private place and, importantly, an element of the offence is that a bystander – whether there was one present or not – would reasonably be expected to feel afraid.

In the state of NSW, the offence of affray carries a maximum penalty of 10 years prison time.

“The shifting sands of evidence”

The Crown’s primary charge was that Mr Mann shot Mr Little. However, if that couldn’t be established beyond a reasonable doubt, the alternative charge was that he was a participant in a “joint criminal enterprise” with Mr Ouch in an affray.

District Court Judge Jennifer English explained to the jury that the alternative case involved Mann accompanying Ouch to the pre-arranged fight, and that he was “willing and able, or encouraging and enabling, the fight to occur.”

During the trial, both Mr Nguyen and Mr Chovnlamontry provided differing accounts of what happened on the night of the incident, than they had previously told to police. Neither of them testified that Mann had fired the weapon.

In providing evidence, Nguyen prevaricated about speaking to Mr Mann in the park, although at one point he acknowledged that it was a truthful account. Mr Chovnlamontry said he couldn’t remember whether Mann was close to the fight, even though he’d already told officers that he was.

Mr Little also changed his account by stating that Ouch entered the park alone, and the other people present stood at some distance from the fight. He testified that he was unsure whether the others were Mr Ouch’s friends.

According to Mr Ouch and Mr Khannara, Mann hadn’t been in the park. Nor had he travelled with them in the car. Nguyen, Chovnlamontry and Ouch also testified that their memories had been affected, as they’d been taking drugs on the day of the incident.

The jury found Mr Mann guilty of affray, but acquitted him of the other two counts.

An unreasonable verdict

Judge English sentenced Mann to a short term of imprisonment on 29 August 2014. By the time he appeared in the NSW Criminal Court of Appeal (NSWCCA) on 19 October 2015, he’d already served his time. The appeal was about clearing his name.

Mr Mann appealed his conviction on the ground that the jury’s verdict was unreasonable.

As NSWCCA Justice Peter Hidden explained, it was up to the appeals court to determine whether the verdict of the jury should be set aside because it was unreasonable, as in accordance with section 6(1) of the Criminal Appeal Act 1912.

The justice pointed to the 1994 High Court of Australia case M versus the Queen, where the court elaborated on this principle, stating that “in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.”

Referring to an authority

Justice Hidden outlined that the main focus of the appeal was – assuming that Mr Mann was present in the park – whether it was “open to the jury to be satisfied that he was complicit in the offence.”

In making this determination, the appeals court turned its attention to the 1882 British case R versus Coney, which was an appeal involving two spectators at a bare-knuckle prize fight, who’d been convicted of assault as principals in the second degree.

A principal in the second degree is an individual who is present at the scene of a crime, and in some way aids, abets or encourages the crime, as well as holds the required criminal intent.

The two spectators’ appeal was allowed as it was found that the jury had been misdirected to consider that those present at a prize fight were guilty, as their presence encouraged it.

This ruling established the principle that an individual is not under any duty to prevent a crime, and failure to do so doesn’t make them an accomplice.

So, in Mr Mann’s case, the jury had to have found that the defendant was more than just a spectator.

The ruling of the NSWCCA

Justice Hidden “let it be accepted” that Mr Mann actually attended the park and entered it with Mr Ouch, and that Mr Nguyen had counselled him in the park, suggesting that he not get involved in the fight.

However, his Honour pointed out there was no evidence Mr Mann had fired the gun, nor was there any evidence regarding where he was standing during the fight, or what he did at the time. There was absolutely no evidence he encouraged the participants in the fight, or that he was ready to assist.

The evidence “could establish no more than that he was a spectator,” Justice Hidden reasoned, adding that “[w]hen the assertion that he shot the victim fades away, the offence of affray fades away with it.”

He concluded that the jury’s verdict was therefore unsupported by the evidence. On 12 February 2016, his Honour ordered that the verdict be set aside, and that Mann be acquitted of affray.

“I would allow the appeal, quash the conviction, and would direct that a verdict and judgment of acquittal be entered,” Justice Hidden ordered.

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