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Mr Markou was arrested and charged with the offence of recklessly inflicting grievous bodily harm on Mathew Wylie whilst being in company. This offence is found in section 35(1) Crimes Act 1900 (NSW).
Following a trial, the Judge found that Mr. Markou was not guilty of the offence of grievous bodily harm but was satisfied that he was guilty of assault occasioning actual bodily harm whilst in company. Mr. Markou was then sentenced to 9-months imprisonment to be served by way of an intensive correction order.
On Sunday 9 August 2009, 24-year-old Mr. Markou was at a nightclub in Oxford St, Darlinghurst. He was there with a group of friends celebrating a 21st birthday. The alleged victim 19-year-old Mr. Wylie was also at the same place with a group of his friends. It was early hours of the Sunday when, following a scuffle between the two groups, Mr. Markou punched Mr. Wylie to the left side of his jaw in the lounge bar area of the club.
The CCTV footage captured Mr. Markou accompanied by another man known as ‘Lillas’ both approached Mr. Wylie. At this time, Mr. Wylie is seen on the footage to be standing with hands out on each side of his body pointing to the ground. Mr. Markou is seen to strike him.
The footage then depicts Mr. Wylie “to reel back after he was hit”. He is then seen to place his left hand up, when he is then punched towards the head by another person. We do not know who this other person is. It is not clear if it was Lillas.
There was thus, two assaults. The first assault was committed by Mr. Markou, and the second was committed by someone else.
The injuries caused to Mr. Wylie included a lacerated lip, a lost tooth, one loose tooth, and a broken jaw.
These amounted to ‘grievous bodily injuries’. But the Judge could not attribute who caused the grievous bodily injuries between Mr. Markou and the person who committed the second assault. The Judge was able to attribute at least the lesser serious injury of actual bodily harm as injuries attributed by Mr. Markou. And on that basis, Mr. Markou was found to be guilty of the lesser serious offence of assault occasioning actual bodily harm in company instead.
THE RESULT ON APPEAL
The initial Judge who made this finding actually applied the wrong test to determine whether Mr. Markou was in fact “in company” when occasioning actual bodily harm to Mr. Wylie.
Because the initial trial Judge mistakenly applied the wrong test for what amounts to ‘in company’, when this case was appealed to the Supreme Court of the Court of Criminal Appeal, the appeal court found that there was in fact no evidence that supported that Mr. Markou was “in company” at the time. There was no evidence that Mr. Markou and Lillas shared a ‘common purpose’ to assault Mr. Wylie.
This meant that Mr. Markou should not have been found guilty even of the offence of ‘assault occasioning actual bodily harm in company’. As a result, because Mr. Markou did not act ‘in company’ with Lillas, the appeal was successful on this basis. The conviction was accordingly quashed.
WHAT DOES ‘IN COMPANY’ MEAN?
For the ‘in company’ element to be satisfied at law, there must be evidence beyond reasonable doubt as to the following:
(1) A ‘common purpose‘ between two or more persons to commit a crime: This requires there to be an implied or express understanding or arrangement between the participants that amounts to an agreement to commit a crime, and
(2) each participant who shares that common purpose must be physically present, in the sense they are sufficiently close, to encourage or support the other to commit the crime, or to intimidate or coerce the victim in relation to the crime, and
(3) if the accused does not intend to physically participate, then he/she at least makes his/her presence known to the victim; or if the victim is unaware of the accused’s presence, the accused at least has an intention to physically participate in furtherance of the common purpose.
In effect, the coercive effect of the group must operate, to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission in order for the court to be satisfied that the accused was ‘in company’.
The meaning of what constitutes ‘in company’ was outlined in the case of R v Button  NSWCCA 159; 54 NSWLR 455 where Kirby J proposed guidelines to what may constitute ‘in company’.
Unless ‘in company’ is an element of the offence/crime, an offender’s sentence will generally end up being heavier if he/she commits the offence whilst ‘in company’ as an aggravating factor.