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District Court 24 November 2022

Day (a pseudonym) v R

[2022] NSWDC 594

Sexual offencesAssault & violenceDomestic & family violence
APPEAL APPEAL AGAINST CONVICTION DID MAGISTRATE ERR “SELF SERVING EVIDENCE” CRIME COMMON ASSAULT

Citation: Day (a pseudonym) v R [2022] NSWDC 594
Court: District Court of New South Wales
Date: 24 November 2022
Judge(s): Haesler SC DCJ

Background

The appellant (referred to as "Day" by pseudonym) was convicted by Magistrate O'Brien at Wollongong Local Court on 4 April 2022 of three domestic violence-related offences: common assault, intimidating another person with intent to cause fear, and sexually touching another person without consent. The offences arose from an altercation on 3 November 2020 at the home the appellant shared with his partner, the complainant, following a day at the races where both had consumed alcohol.

The complainant alleged the appellant yelled at her, aggressively kissed her without her consent, pushed her onto a lounge, exposed her breast and squeezed her nipple hard, twisted her leg, and licked her face. The appellant denied most of this account, though he accepted that at one point his finger had become caught in her singlet top and her breast was exposed.

Importantly, the same hearing in the Local Court also dealt with a separate set of charges involving an alleged assault on the appellant's daughter (the "pillow incident"). The Magistrate acquitted the appellant of all charges arising from that separate incident. The appellant appealed his three convictions to the District Court, arguing the Magistrate had erred in both reasoning and credibility findings.

  • Whether Magistrate O'Brien erred in law, fact, or discretion in convicting the appellant of the three offences
  • How a District Court judge conducting a rehearing under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) should approach credibility findings made by the Magistrate below
  • Whether the acquittals on the pillow incident charges necessarily required acquittals on the race day incident charges
  • Whether the Magistrate's reasoning, including his assessment of the complainant's credibility, was consistent with applicable judicial directions
  • Whether the complainant's credibility was undermined by the acquittals on the pillow incident, given her evidence on that incident was not accepted

Decision

Haesler SC DCJ dismissed all three appeals against conviction. His Honour conducted an independent assessment of the whole of the evidence from the Local Court proceedings, including viewing the complainant's original body-worn video interview, and reached his own view on the sufficiency of the evidence.

On the approach to the rehearing, his Honour confirmed that a District Court judge must form an independent judgment on the facts based on the Local Court evidence, rather than simply reviewing the Magistrate's reasoning for error. The task is to determine whether the appellant's guilt was established beyond reasonable doubt. Error by the Magistrate is not a necessary precondition for upholding an appeal; it is simply a consequence of concluding that guilt was not properly established.

On credibility, his Honour acknowledged the "generic difficulty" in reviewing credibility findings from a transcript. The Magistrate had the distinct advantage of seeing and hearing both the complainant and the appellant give evidence and be cross-examined. However, his Honour found that even without the Magistrate's credibility findings, the prosecution case on the record carried considerable and determinative probative force.

On the argument that the acquittals on the pillow incident required acquittals on the race day charges, his Honour rejected this. He noted the complainant's forceful belief that what occurred in the pillow incident was more serious than the Magistrate ultimately found, and factored in whether she may have exaggerated or misstated matters in that context when assessing her credibility on the race day events. After that analysis, he remained satisfied beyond reasonable doubt of the appellant's guilt on each of the three charges.

Orders Made

  • The appeals against conviction are dismissed on each matter.

Key Takeaways

  • A District Court judge hearing a conviction appeal under s 18 of the Crimes (Appeal and Review) Act 2001 must form an independent judgment on the evidence from the Local Court, not merely scrutinise the Magistrate's reasons for identifiable error.

  • Acquittals on separate charges arising from a different incident do not automatically require acquittals on the remaining charges, even where the same complainant gave evidence on both sets of allegations.

  • Where a Magistrate had the advantage of seeing and hearing witnesses, the District Court on appeal can have regard to credibility findings, though it is not bound by them; the ultimate question remains whether guilt is established beyond reasonable doubt on the record.

  • In dismissing the appeals, the District Court confirmed that the Magistrate's credibility findings reinforced, rather than undermined, an independent conclusion that no miscarriage of justice had occurred.

  • Under the Filippou principle (as applied in McNab), where a significant possibility exists that an innocent person has been convicted due to deficiencies in the evidence itself, an appellate court is bound to intervene; here, no such deficiency was found.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1A), 61, 61KC(a)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 19
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Evidence Act 1995 (NSW)

Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- BM v R [2017] NSWCCA 133
- Browne v Dunn (1893) 6 R 67
- Dansie v The Queen [2022] HCA 25
- De Silva v The Queen [2019] HCA 48
- Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
- Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Harper v R [2022] NSWCCA 211
- Hodgson v R [2022] NSWCCA 72
- Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
- Lunney v DPP [2021] NSWCA 186
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298
- Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92
- O'Connell v DPP [2021] NSWSC 1519
- R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529
- R v Markulevski [2001] NSWCCA 290