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District Court 6 November 2018

VY v R

[2018] NSWDC 490

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW ALL GROUNDS APPEAL APPEAL FROM LOCAL COURT APPLICATION TO ADDUCE FRESH EVIDENCE REFUSED

Citation: VY v R [2018] NSWDC 490
Court: District Court of New South Wales
Date: 6 November 2018
Judge: Wilson SC DCJ

Background

The appellant had been convicted in the Local Court on three charges arising from an alleged domestic incident: contravening an apprehended violence order, assault occasioning actual bodily harm, and entering premises without lawful excuse. He was legally represented at the Local Court hearing in February 2018. The victim was a nine-year-old child, who had been placed into the care of the Director of Community Services following the appellant's conviction.

The appellant brought an all-grounds appeal to the District Court, encompassing both conviction and sentence. Two of the three matters required leave to appeal, which had previously been granted. At the appeal stage, the appellant sought to introduce three new pieces of evidence that had not been relied upon in the Local Court.

  • Whether leave should be granted under s 18(2) of the Crimes (Appeal and Review) Act 2001 to adduce fresh evidence on appeal
  • Whether each of the three proposed pieces of fresh evidence satisfied the "interests of justice" test required for leave
  • Whether delays in bringing the application and repeated failures to comply with court orders were relevant to the interests of justice assessment

Decision

The proposed fresh evidence comprised: a statutory declaration from a witness (YB) stating the child appeared uninjured on the day of the alleged offence; a statutory declaration from a henna/body painting practitioner (SC) suggesting that marks visible in photographs may have resulted from a henna procedure rather than assault; and an anticipated medical report from a general practitioner (Dr Garg) expected to offer a favourable opinion on the cause of the marks.

Wilson SC DCJ found significant difficulties with each piece of evidence. YB's statutory declaration was dated August 2017, well before the February 2018 hearing, and the explanation for its non-use (that the barrister originally retained had it in his possession and could not appear due to a conflict) was not satisfactory. The henna practitioner's proposed opinion on whether marks in photographs were consistent with her procedure raised serious doubts about her qualifications to give such opinion evidence, and the issue had in any event been live at trial. The medical report from Dr Garg was not even available at the time of the hearing, and no reliable estimate of its availability was provided.

The court applied the principles from Charara v R [2006] NSWCCA 244 and Landsman v R [2014] NSWCCA 328, confirming that fresh evidence under s 18(2) is the exception rather than the rule, and that the interests of justice test involves balancing multiple considerations beyond the interests of the appellant alone. Four factors weighed against granting leave: the appellant had ample opportunity to bring the application promptly but failed to do so, missing two specific court-imposed deadlines; the appellant was legally represented in the Local Court and had made deliberate forensic decisions about what evidence to call; there must be finality to litigation, particularly in matters involving children and alleged domestic violence; and the welfare and living arrangements of the child, including related Family Court proceedings involving the child's mother in the United States, would be further delayed if the appeal was not resolved promptly. The application was refused.

Orders Made

  • The application for leave to adduce fresh evidence under s 18(2) of the Crimes (Appeal and Review) Act 2001 was refused.

Key Takeaways

  • Under s 18(2) of the Crimes (Appeal and Review) Act 2001, fresh evidence may only be adduced on a District Court all-grounds appeal where the court is satisfied it is in the interests of justice, and the authorities confirm this is an exceptional step rather than the norm.
  • Where evidence existed and was available before the original Local Court hearing, a failure to deploy it at that time will generally be held against the appellant seeking to rely on it for the first time on appeal.
  • Repeated failures to comply with specific court orders directing an appellant to file a fresh evidence application will weigh against the interests of justice being satisfied.
  • The interests of justice test extends beyond the appellant's own interests and can encompass broader considerations, including the finality of litigation, the welfare of children involved, and related proceedings in other jurisdictions.
  • A legally represented appellant is generally held to the forensic decisions made in the court below, including decisions about what evidence to call and whether to retain experts to challenge the other side's expert evidence.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1) and s 18(2)

Cases
- Charara v R [2006] NSWCCA 244
- Landsman v R [2014] NSWCCA 328