By Thomas Spohr -
Key decisions
- Parhizkar v R [2014] NSWCCA 240
- JWM v R [2014] NSWCCA 248
- Catley v R [2014] NSWCCA 249
Parhizkar v R [2014] NSWCCA 240
In Parhizkar, the CCA examined what it means to be “present together” as part of a riot. Although the judge’s decisions split in all sorts of exciting ways, the decision is at least of some assistance.
A detainee at Villawood Detention Centre, Parhizkar was a participant in a protest on a roof at the centre. Some protesters threw roof tiles at security, others protested without offering any violence or threats. Parhizkar admitted that he had been part of an affray but denied that he was part of a riot because he had not been “present together” with at least 11 other people at the time (riot requires 12 or more).
In explaining to the jury the element of “present together”, the trial judge used the analogy of fans of a losing sports team who were all violent in different grandstands of the same stadium. He said they might be “present together” although they were not in exactly the same place – or it might be different if some were violent a kilometre away at a tube station.
Price J (McCallum J agreeing on this point) said that “present together” does not mean that participants need to be in close proximity – the words are to be given their ordinary English meaning. However, Basten JA (McCallum J agreeing, but not all the way) said that the grandstand example was potentially misleading, because the central question was whether there was a common purpose. McCallum J nevertheless found that this potential did not lead to a miscarriage of justice, and, because Price J was of the view that the example wasn’t troubling at all, the appeal ground relating to the example was dismissed. The upshot (apart from a sense that the CCA is uncomfortable with sports analogies) appears to be that courts will take a common sense approach to what “present together” means, rather than a formalistic or technical one. The mere existence of some distance or even physical barriers between participants will not, on its own, prevent them from being guilty of the offence, if they are acting with a common purpose in (roughly) the same place.
