AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 22 April 2022

Foley v R

[2022] NSWDC 122

Assault & violence
APPEAL ASSAULT OCCASIONING ACTUAL BODILY HARM IN COMPANY .

Citation: Foley v R [2022] NSWDC 122
Court: District Court of New South Wales
Date: 22 April 2022
Judge(s): Mahony SC DCJ

Background

The appellant was convicted in the Local Court on 13 May 2021 of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act 1900. The offence arose from an incident on 24 November 2019 at a venue in Manly, where the complainant was attending a birthday celebration at which he was also performing in a band.

According to the complainant, he entered the venue's bathroom and inadvertently disturbed two men in a cubicle. When those men emerged, one of them (identified as the co-accused) struck him several times, and the other man (the appellant) then punched him in the face two to three times with a clenched fist, causing him to fall against a wall and suffer head pain and severe ringing in the ears.

The appellant appealed his conviction to the District Court by way of rehearing on the transcript and exhibits from the Local Court proceedings, including CCTV footage of the premises.

  • Whether the District Court, on rehearing, was satisfied beyond reasonable doubt that the appellant assaulted the complainant and thereby occasioned actual bodily harm, while in company with another person
  • Whether inconsistencies in the evidence raised a reasonable doubt as to the appellant's guilt
  • How the District Court should approach an appeal under s 18 of the Crimes (Appeal and Review) Act 2001, including what weight to give the magistrate's findings on witness credibility

Decision

Mahony SC DCJ set out the applicable appellate framework, drawing on Charara v R [2006] NSWCCA 244 and McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298. The District Court's task on a s 18 appeal is to form an independent view of the facts on the basis of the evidence before the magistrate, while recognising the magistrate's advantage in having seen and heard the witnesses. The appeal is not a hearing de novo, and the District Court may have regard to the magistrate's findings on credibility.

His Honour assessed the complainant's evidence alongside complaint evidence from the complainant's sister, a friend, and venue staff, as well as contemporaneous entries in the venue's incident log and incident report. Those contemporaneous records recorded that the complainant had been assaulted by two people in the bathroom, which was consistent with the complainant's own account.

The appellant gave evidence that he had only pulled the co-accused away from the complainant during the altercation. His Honour rejected that evidence. The appellant's explanation for blood on his knuckles was found to be implausible, as he offered no account of how or when the injury occurred. His Honour found that injury instead supported the complainant's evidence of being struck by the appellant.

Inconsistencies relied on by the appellant were found to relate to peripheral matters and, both individually and collectively, did not give rise to a reasonable doubt. The appeal was dismissed and the conviction confirmed.

Orders Made

  • The appeal is dismissed.
  • The conviction of the appellant and the order made by the Local Court on 13 May 2021 are confirmed.

Key Takeaways

  • A District Court hearing a s 18 appeal under the Crimes (Appeal and Review) Act 2001 must form its own independent view of the facts on the transcript evidence, while giving appropriate weight to the magistrate's credibility findings arising from seeing and hearing witnesses in person.
  • Under the framework confirmed in McNab v DPP (NSW) [2021] NSWCA 298, an appeal of this kind is not a hearing de novo; error is identified, if at all, through the rehearing process itself.
  • Contemporaneous records such as venue incident logs can carry significant weight in corroborating a complainant's account of an assault.
  • Inconsistencies in witness evidence that relate only to peripheral matters will not necessarily generate a reasonable doubt sufficient to displace a conviction.
  • An implausible or incomplete explanation for a physical injury consistent with participation in an assault may support, rather than undermine, the prosecution case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1) and s 59(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Supreme Court Act 1970 (NSW), s 69

Cases
- Charara v R [2006] NSWCCA 244
- McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298