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District Court 8 September 2023

Preston v R

[2023] NSWDC 362

Assault & violence

Citation: Preston v R [2023] NSWDC 362
Court: District Court of NSW
Date: 8 September 2023
Judge: Scotting DCJ

Background

The appellant, a former police officer, was convicted by a magistrate of common assault under s 61 of the Crimes Act 1900 following an incident in a taxi in the early hours of 11 May 2019. A dispute arose after his female companion vomited during the journey, prompting the taxi driver (the complainant) to stop the vehicle and ask the passengers to leave. A disagreement over the fare then escalated into a physical altercation on the footpath, captured on good-quality CCTV footage from the taxi.

The footage showed the complainant reaching out and grabbing the appellant's arm as he walked away. The appellant turned, the complainant stepped back, and the appellant then pushed the complainant with an open hand, twice. A brief exchange of blows followed, with contact largely to each other's upper arms. The appellant's female companion intervened to end the altercation.

The appellant appealed his conviction to the District Court, arguing two alternative grounds: first, that the magistrate should have found he was acting in self-defence; and second, that the magistrate should have diverted the matter under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Forensic Provisions Act) rather than proceeding to conviction.

  • Whether the magistrate erred in finding that the prosecution had negatived the defence of self-defence beyond reasonable doubt.
  • Whether the magistrate should have exercised the discretion under s 14 of the Forensic Provisions Act to dismiss the charge and divert the appellant into mental health treatment rather than convict him.
  • Whether an appeal under s 18 of the Crimes (Appeal and Review) Act 2001 requires the demonstration of a House v The King-style discretionary error before the District Court can re-exercise a s 14 discretion.

Decision

Self-defence: Scotting DCJ conducted an independent review of the CCTV evidence and was not satisfied that the magistrate's conclusion on self-defence was wrong. The judge found that the appellant was the aggressor in the altercation and that, although the complainant physically initiated contact by grabbing the appellant's arm, he did so in a relatively unthreatening manner in pursuit of payment. The overall incident was characterised as a push-and-shove escalating into a brief exchange of blows, not conduct that established self-defence.

The s 14 diversion question: The Crown submitted that the District Court could only re-exercise the s 14 discretion if it first identified a House v The King discretionary error by the magistrate. Scotting DCJ rejected that submission. Drawing on McNab v DPP, AG v DPP, Costa v Public Trustee of NSW, and DPP v El Mawas, his Honour held that the broader conception of "error" applicable to s 18 appeals, which can include a miscarriage of justice even without error in the conventional sense, permitted the court to re-exercise the s 14 discretion afresh.

Applying s 14: Scotting DCJ found that the appellant had a mental health impairment. Medical evidence established the appellant had suffered from post-traumatic stress disorder and co-morbid depression, and that at the time of the incident his mental condition was significantly affecting his behaviour with a meaningful causal connection to the offending. In the four years since the incident, the appellant had engaged consistently with psychological treatment and had no relevant criminal history. Taking into account the s 15 considerations, including the relatively minor nature of the offence, the suitability of available sentencing options, and the risk of re-offending, the court concluded it was more appropriate to deal with the matter under Part 2 of the Forensic Provisions Act.

Orders Made

  • The appeal against conviction is allowed.
  • The conviction and penalty imposed by the magistrate are set aside.
  • The court finds the appellant has a mental health impairment.
  • It is more appropriate to deal with the appellant under Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 than otherwise according to law.
  • The Court Attendance Notice is dismissed and the appellant is discharged into the care of his treating psychologist for 12 months (8 September 2023 to 7 September 2024), on condition he continues to participate in treatment at times arranged between them.
  • If the appellant fails to comply with the conditions, he may be called before the court following notification of non-compliance, and the charge may be dealt with as if no discharge had been granted.

Key Takeaways

  • The District Court rejected the proposition that a House v The King discretionary error must be identified before the court can re-exercise a s 14 Forensic Provisions Act discretion on a s 18 appeal; the broader "error" standard, which encompasses miscarriages of justice, is sufficient.
  • A s 18 appeal to the District Court is a rehearing on the certified transcript, not a fresh hearing, and the appellate judge must form an independent view of the facts while acknowledging the magistrate's advantage in observing witnesses.
  • Under s 14 and s 15 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a court may divert a defendant where there is a significant causal connection between a mental health impairment and the offending behaviour, even where the charge has already resulted in a conviction at first instance.
  • Where CCTV footage constitutes the best evidence of an incident, it carries particular weight; the District Court here noted that some of the magistrate's factual findings differed from its own reading of the footage, though not to a degree requiring intervention on the self-defence issue.
  • Although the prosecution successfully negatived self-defence, that finding was compatible with the conviction being set aside through the s 14 pathway on the basis of the appellant's mental health impairment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 20, 28
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 14, 15

Cases:
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Confos v Director of Public Prosecutions [2004] NSWSC 1159
- Costa v Public Trustee of NSW [2008] NSWCA 233
- Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- House v The King (1936) 55 CLR 499
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298