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District Court 14 December 2021

R v Trisic

[2021] NSWDC 687

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL CREDIBILITY APPEAL DISMISSED

Citation: R v Trisic [2021] NSWDC 687
Court: District Court of New South Wales
Date: 14 December 2021
Judge: Abadee DCJ

Background

The appellant was convicted in the Parramatta Local Court on 10 May 2021 of three offences said to have occurred on 26 December 2020 at Rydalmere: two counts of common assault (domestic violence related) against his estranged wife and adult son, and one count of stalking or intimidating his estranged wife with intent to cause fear of physical or mental harm.

The Crown alleged that the appellant, following an argument with his son, told his estranged wife he was going to "slit her throat," struck her on the shoulder causing her to fall back against a wall, and then struck his son on the head when the son intervened. The appellant denied that any of the alleged conduct occurred.

At the Local Court trial, the Magistrate preferred the evidence of the two complainants over that of the appellant and entered convictions on all three counts. The appellant then appealed to the District Court.

  • Whether fresh evidence of the appellant's prior good character, admitted on the appeal, gave rise to a basis for setting aside the convictions
  • Whether the Magistrate made any demonstrable error in assessing the credibility and reliability of the complainants
  • Whether inconsistencies in the complainants' evidence were significant enough to undermine the convictions
  • Whether the Magistrate correctly applied the principles from Liberato v The Queen (1985) 159 CLR 507, concerning the burden of proof where a complainant's evidence conflicts with that of the accused

Decision

Abadee DCJ confirmed that the District Court's jurisdiction on a conviction appeal from the Local Court is enlivened only upon demonstration of error, whether legal, factual, or discretionary. The approach, shaped by the Court of Criminal Appeal's recent decisions in McNab v DPP (NSW) [2021] NSWCCA 298 and Lunney v DPP [2021] NSWCCA 186, is not a rehearing entirely fresh (de novo) but requires the appellate judge to form an independent view of guilt beyond reasonable doubt, with appropriate recognition of the Magistrate's advantage in observing witnesses firsthand.

On the fresh character evidence, the District Court accepted the material but found that it did not disturb the overall assessment of guilt. The evidence did not displace the weight of the complainants' accounts or the contemporaneous body-worn camera footage, which showed both complainants appearing distressed and confirming the assaults shortly after the events.

On the credibility challenge, Abadee DCJ found that the Magistrate had not simply preferred the Crown witnesses on demeanour alone. The Magistrate had considered all evidence, including the appellant's version of events, and had assessed consistency with incontrovertible and undisputed facts. Inconsistencies between the complainants' accounts, including some differences in sequencing, were considered but did not undermine the core findings.

The District Court was satisfied beyond reasonable doubt that the offending conduct occurred and found no error in the Magistrate's reasoning, including his application of the Liberato principles regarding burden of proof. The appeal was dismissed.

Orders Made

  • The conviction appeal was dismissed.

Key Takeaways

  • The District Court confirmed that conviction appeals from the Local Court require demonstration of error and are not full rehearings from scratch, though the appellate judge must independently assess guilt beyond reasonable doubt.
  • Fresh character evidence admitted on appeal does not automatically undermine a conviction, particularly where contemporaneous evidence and the overall weight of proof support the original findings.
  • No error was established in the Magistrate's credibility assessment simply because two complainants gave evidence with some inconsistencies in sequencing, provided the core of their accounts was consistent with other evidence.
  • Under the Liberato principles, mere preference for a Crown witness over an accused is insufficient for conviction, but that threshold is met where the evidence is evaluated holistically and not resolved on demeanour alone.
  • In dismissing the appeal, the District Court observed that where there are two complainants against one accused, the case is not reduced to a simple "one on one" credibility contest, and the circumstances may render one party's evidence inherently plausible and the other's inherently implausible.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61 (common assault)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 (stalking and intimidation)

Cases
- McNab v DPP (NSW) [2021] NSWCCA 298
- Lunney v DPP [2021] NSWCCA 186
- Liberato v The Queen (1985) 159 CLR 507
- De Silva v The Queen (2019) 268 CLR 57