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8
District Court 21 July 2023

R v Scott

[2023] NSWDC 271

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEALS AND REVIEWS APPEALS AGAINST LOCAL COURT CONVICTIONS DOMESTIC VIOLENCE AND RELATED OFFENCES

Citation: R v Scott [2023] NSWDC 271
Court: District Court of New South Wales
Date: 21 July 2023
Judge(s): Abadee DCJ

Background

The appellant was convicted in the Local Court (Downing Centre) by Magistrate Covington of three offences arising from separate incidents during a domestic relationship: assault occasioning actual bodily harm at Sylvania in October 2018, common assault at Lake Conjola in December 2018, and intimidation at Sylvania in March 2019. The intimidation charge related to an alleged death threat directed at the complainant. The relationship between the appellant and the complainant spanned approximately 2017 to March 2019.

The appellant appealed all three convictions to the District Court. His appeal against sentence was not pressed. He maintained throughout that he had never assaulted the complainant and had never threatened to kill her.

  • Whether the Magistrate erred in convicting the appellant of assault occasioning actual bodily harm (sequence 3, the Sylvania incident)
  • Whether the Magistrate erred in convicting the appellant of common assault (sequence 7, the Lake Conjola incident)
  • Whether the Magistrate erred in convicting the appellant of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (sequence 8, the break-up allegation)
  • The correct approach on a Local Court conviction appeal under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW), including the weight to be given to the Magistrate's credibility findings

Decision

Abadee DCJ confirmed and applied the established framework for conviction appeals from the Local Court. The appeal proceeds as a rehearing on the transcript and exhibits, not as a fresh trial. The appellate judge must form an independent view of the facts, but the Magistrate's advantage in seeing and hearing witnesses is recognised. In practice, the focus falls on whether disputed evidence is consistent with incontrovertible or undisputed facts and other relevant evidence, following McNab v DPP (NSW) (2021) 106 NSWLR 430.

The appellant relied heavily on evidence from other witnesses to challenge the complainant's credibility, arguing she had grossly exaggerated the nature of the relationship. His Honour reviewed this relationship evidence and the accounts given at the Local Court proceedings. On the Sylvania and Lake Conjola incidents, His Honour reached the same conclusions as the Magistrate, finding no error in the guilty verdicts.

On the intimidation count, the court addressed the mental element under s 13(1), noting that the offence requires either an intent to cause fear of physical or mental harm or knowledge that the conduct would likely cause such fear, following McIlwraith v R [2017] NSWCCA 13. His Honour found the appellant was in a vengeful and punitive state of mind toward the complainant at the relevant time. The court drew an inference from the appellant's silence at trial, noting, consistent with Weissensteiner v The Queen (1993) 178 CLR 217, that hypotheses consistent with innocence may cease to be reasonable where evidence about the accused's mental state, if it exists, is peculiarly within that person's knowledge. The appellant offered no contrary account of his intentions.

His Honour was satisfied beyond reasonable doubt that the appellant both intended to cause fear in the complainant and knew his death threat was likely to do so. All three appeal grounds failed.

Orders Made

  • The appeal against the conviction for sequence 3 (assault occasioning actual bodily harm) is dismissed and the conviction is affirmed.
  • The appeal against the conviction for sequence 7 (common assault) is dismissed and the conviction is affirmed.
  • The appeal against the conviction for sequence 8 (intimidation) is dismissed and the conviction is affirmed.

Key Takeaways

  • In dismissing all three appeal grounds, the District Court confirmed that a Local Court conviction appeal under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) requires the appellate judge to form an independent view of the facts but does not require a free-standing review of all evidence in the absence of guidance and submissions from the parties, following Lunney v DPP (2021) 105 NSWLR 236.
  • Credibility findings made by a Magistrate are not conclusive on appeal, but the appellate judge recognises the Magistrate's advantage in seeing and hearing witnesses, with the practical focus on whether disputed evidence is consistent with incontrovertible or undisputed facts.
  • Under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the mental element for intimidation can be established either by proof of an intention to cause fear or by proof of knowledge that the conduct was likely to cause fear, as clarified in McIlwraith v R [2017] NSWCCA 13.
  • Where the mental state of an accused is at issue and any relevant evidence would be peculiarly within that person's knowledge, an accused's failure to give evidence may render innocent hypotheses unreasonable, consistent with Weissensteiner v The Queen (1993) 178 CLR 217.
  • Demonstrating error on a conviction appeal does not reverse the prosecution's onus; it means satisfying the appellate judge that the Magistrate should not have been satisfied beyond reasonable doubt as to guilt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61, 428
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5, 7, 13
- Criminal Procedure Act 1986 (NSW), s 16

Cases
- Fantakis v R [2023] NSWCCA 3
- Fox v Percy (2003) 214 CLR 118
- Lunney v DPP (2021) 105 NSWLR 236
- McIlwraith v R [2017] NSWCCA 13
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- R v Kennedy (2000) 118 A Crim R 34
- R v Stringer (2000) 116 A Crim R 198
- The Queen v Baden-Clay (2016) 258 CLR 308
- Weissensteiner v The Queen (1993) 178 CLR 217
- WGC v The Queen (2007) 233 CLR 66