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District Court 27 July 2022

Neupane v R

[2022] NSWDC 598

Assault & violence

Citation: Neupane v R [2022] NSWDC 598
Court: District Court of New South Wales
Date: 27 July 2022
Judge: Bennett SC DCJ

Background

The appellant was convicted in the Local Court at Burwood on 10 November 2021 of two offences arising from an incident on 11 November 2019. The first charge was common assault under s 61 of the Crimes Act 1900, and the second was assault occasioning actual bodily harm under s 59(1) of the same Act. Both offences were alleged to have been committed against two complainants, one of whom was temporarily residing at accommodation made available by the appellant.

After a defended hearing spanning two sitting dates, the magistrate found both offences proved and convicted the appellant. The appellant then appealed against both conviction and sentence to the District Court within the 28-day statutory period, giving rise to appeals as of right under s 11(1) of the Crimes (Appeal and Review) Act 2001.

On the appeal, the critical factual question was the credibility of the complainants, particularly the complainant who was the alleged victim of the more serious assault. The appellant had participated in a police interview and given evidence at the hearing below.

  • What is the correct approach for a District Court judge hearing a conviction appeal under s 18 of the Crimes (Appeal and Review) Act 2001, and must an appellant demonstrate error to succeed?
  • Whether the prosecution had established the elements of each offence beyond reasonable doubt on a rehearing of the evidence from the Local Court.
  • If the offences were established on appeal, what was the appropriate sentence, and whether a conditional release order without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 was appropriate.

Decision

The applicable appellate framework. Drawing on Charara v R [2006] NSWCCA 244, Dyason v Butterworth [2015] NSWCA 52, and McNab v DPP [2021] NSWCA 298, the District Court confirmed that an appeal under s 18 is not a hearing de novo. The judge must form an independent view of the facts on the basis of the evidence before the magistrate, while recognising the advantage the magistrate enjoyed in seeing and hearing witnesses. Consistent with McNab, the Court confirmed that an appellant must demonstrate some form of factual, legal, or discretionary error to succeed, though this does not reverse the onus of proof, which remains on the prosecution throughout.

Credibility findings. The Court agreed with the magistrate's assessment that the appellant's credibility was wanting. However, the Court emphasised that even where an appellant's account is rejected, guilt can only be found where the prosecution evidence independently establishes each element of the relevant offence beyond reasonable doubt. The court also noted that no adverse inference arises simply because the appellant chose to participate in a police interview or give evidence.

Findings on the charges. On the rehearing, the Court found both offences established beyond reasonable doubt. Each charge was considered separately on the evidence relevant to it, consistent with the principle that a global approach across multiple charges is impermissible.

Sentencing. Having found both offences proved, the Court turned to sentence. The Court took into account the appellant's otherwise good character, absence of prior convictions, the context in which the offences occurred (including that the victims were temporarily housed by the appellant), and the extended delay caused by the COVID-19 pandemic. While the Court declined to characterise the assault occasioning actual bodily harm as trivial, it determined that s 10 of the Crimes (Sentencing Procedure) Act 1999 applied. The Court found both offences proved but discharged the appellant without proceeding to conviction, substituting conditional release orders for the sentences imposed below.

Orders Made

  • Appeal against conviction: dismissed (both offences found established on rehearing).
  • Appeal against sentence: allowed.
  • In substitution for the sentences imposed in the Local Court, the appellant was found guilty of both offences but discharged without conviction under ss 9 and 10 of the Crimes (Sentencing Procedure) Act 1999.
  • A conditional release order was imposed for each offence, each of two years' duration from the date of judgment, requiring the appellant to be of good behaviour.
  • An existing apprehended violence order was noted to continue until 9 November 2023.
  • Exhibits ordered to remain on file.

Key Takeaways

  • Under s 18 of the Crimes (Appeal and Review) Act 2001, an appellant must demonstrate factual, legal, or discretionary error for a conviction appeal to succeed, following the approach confirmed in McNab v DPP [2021] NSWCA 298. This requirement does not shift the burden of proof, which remains on the prosecution to establish guilt beyond reasonable doubt.

  • A District Court judge hearing a s 18 appeal must independently assess the facts from the Local Court evidence while giving appropriate weight to the magistrate's advantage in observing witnesses. The rehearing is neither a hearing de novo nor a purely deferential review.

  • Where an appellant gives evidence or participates in a police interview, rejection of that account does not, of itself, establish guilt. The prosecution must still independently prove every element of each charge beyond reasonable doubt.

  • Multiple charges must each be assessed separately on the evidence relevant to them. A court is not entitled to apply a global approach across charges, and the outcomes on individual charges need not be identical.

  • A finding of guilt does not preclude a discharge without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999. Factors such as good character, absence of prior offending, contextual circumstances, and litigation delay may together support that outcome even where the offending is not characterised as trivial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 18, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
- Evidence Act 1995 (NSW)
- Supreme Court Act 1970 (NSW), s 75A
- Justices Act 1902 (NSW)

Cases
- Charara v R [2006] NSWCCA 244
- Dyason v Butterworth [2015] NSWCA 52
- McNab v DPP [2021] NSWCA 298