Shahzad v R

Citation: Shahzad v R [2023] NSWDC 421
Court: District Court of NSW
Date: 13 October 2023
Judge(s): Newlinds SC DCJ

Background

The appellant was convicted by Magistrate Boulos on 15 December 2022 of seven offences alleged to have occurred between March 2019 and November 2020. The offences related to violent conduct against his former wife and arose in the context of what both parties described as a catastrophic marital breakdown.

The appellant gave sworn evidence denying the assaults. His defence was that the allegations were products of the breakdown rather than genuine accounts, and he offered innocent explanations for each incident, including that one episode involved a massage rather than choking, and that arm bleeding had resulted from a prior medical procedure rather than any assault by him.

The appellant appealed both conviction and sentence to the District Court, challenging the magistrate's reasoning in rejecting his evidence and contending that lesser penalties were warranted.

Legal Issues

• Whether the appeal under s 18 of the Crimes (Appeal and Review) Act 2001 required the District Court to identify error in the magistrate's decision, or to form its own view of guilt beyond reasonable doubt
• Whether the magistrate erred in identifying inconsistencies in the appellant's evidence, including by treating a discrepancy between counsel's cross-examination of a Crown witness and the appellant's own evidence as an inconsistency attributable to the appellant
• Whether the magistrate erred in holding against the appellant that certain matters were not put to Crown witnesses during cross-examination
• Whether the sentences imposed by the magistrate were excessive in light of the appellant's personal circumstances

Decision

Nature of the appeal

The District Court confirmed that an appeal under s 18 of the Crimes (Appeal and Review) Act 2001 is a rehearing, requiring the court to determine whether it is itself satisfied beyond reasonable doubt of the appellant's guilt, rather than simply identifying error in the magistrate's reasoning. However, consistent with the principles in Fox v Percy (2003) 214 CLR 118, the court gave appropriate weight to the magistrate's advantage of having seen and heard the witnesses give their evidence (at [3]-[5]).

Alleged errors in the magistrate's reasoning

The court found that the magistrate was entitled to identify inconsistency in the appellant's evidence about the duration of his wife's arm bleeding, noting there was a fair reading of the transcript supporting that conclusion, and that the magistrate was better placed than the appellate court to assess it (at [12]-[14]).

The court accepted, however, that the magistrate erred in treating as an inconsistency attributable to the appellant the discrepancy between his counsel's reference to "eucalyptus oil" in cross-examination of a Crown witness and the appellant's own reference to "mustard oil." The appellant had given no inconsistent evidence on this topic himself, and the matter was never put to him so he could respond (at [15]-[16]). The Crown also conceded at the hearing that the magistrate was wrong to use the failure to put certain matters to witnesses as a basis for doubting the appellant's evidence (at [21]).

Independent assessment of the evidence

Despite identifying those errors, the court conducted its own assessment of all the evidence. It noted an additional internal inconsistency in the appellant's description of how he massaged the neck, which changed significantly between evidence in chief and cross-examination on a topic central to one of the charges (at [18]). The court independently rejected the appellant's evidence, stating it would have done so even without the magistrate's assessment, and was satisfied beyond reasonable doubt that the appellant committed the offences for which he was convicted (at [28]).

Sentence

The court acknowledged the appellant's lack of prior convictions, the context of marital breakdown, his loss of a taxi licence, and his separation from his family. Nonetheless, it found that the offences were objectively extremely serious, with aggravating factors including that they were committed in the presence of children and in the family home, and that general and specific deterrence and retribution weighed heavily in the sentencing balance (at [35]-[36]). The court was not satisfied that any lesser penalties than those imposed by the magistrate were appropriate (at [37]).

Orders Made

• The appeal dated 15 December 2022 is dismissed.
• The decision of Magistrate Boulos made 15 December 2022 is confirmed.

Key Takeaways

• Under s 18 of the Crimes (Appeal and Review) Act 2001, the District Court's task on a conviction appeal is to determine whether it is itself satisfied beyond reasonable doubt of the appellant's guilt, not merely to identify error in the magistrate's reasoning, although the magistrate's advantage in assessing witnesses remains a significant factor (at [3]-[5]).

• A discrepancy between what defence counsel put to a Crown witness and what the accused later said in evidence cannot fairly be treated as an inconsistency attributable to the accused, particularly where the matter was never raised with the accused to allow a response (at [15]-[16]).

• Errors in a magistrate's reasoning on individual credibility points do not necessarily undermine the overall conviction where the appellate court, conducting its own rehearing of the evidence, independently reaches the same conclusion of guilt beyond reasonable doubt (at [28]).

• In dismissing the sentence appeal, the court emphasised that domestic violence offences committed in the family home and in the presence of children attract significant weight in general and specific deterrence, retribution and aggravation, and that anger in the context of marital breakdown provides no mitigation (at [35]-[36]).

• An appellant who maintains his innocence and demonstrates no remorse or insight provides the sentencing court with no basis for confidence in rehabilitation, a factor that weighs against reducing an otherwise appropriate penalty (at [36]-[37]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 , s 114(1)(a)
- Crimes (Appeal and Review) Act 2001 , s 18

Cases
- Browne v Dunn (1893) 6 R. 67
- Charara v R [2006] NSWCCA 244, and Wood v DPP [2006] NSWCA 240.
- Fox v Percy (2003) 214 CLR 118
- Hoffer v R [2021] HCA 36
- R v Pakis (1981) 3 A Crim R 132
- Liberato v R (1985) 159 CLR 507 at 520