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Supreme Court 20 September 2023

Darlington v Director of Public Prosecutions (NSW)

[2023] NSWSC 1139

Assault & violence
CRIME A PPEAL AND REVIEW SELF DEFENCE DEFENCE ADEQUACY OF REASONS

Citation: Darlington v Director of Public Prosecutions (NSW) [2023] NSWSC 1139
Court: Supreme Court of New South Wales
Date: 20 September 2023
Judge: Dhanji J

Background

The appellant was found guilty of affray in the Murwillumbah Local Court on 10 November 2022, following a two-day hearing. The charge arose from a physical altercation on 26 March 2020 in which the appellant struck the father of his partner with a yabby pump (a pole approximately one metre in length). The other man had himself pleaded guilty to affray and common assault arising from the same incident, and the appellant had suffered serious injuries as a result of that man's violence.

The appellant's case at the Local Court was one of self-defence. He contended that he used the yabby pump in anticipation of further violence, given the other man's prior aggression and the disparity in their physical attributes. The Magistrate delivered reasons finding him guilty, and sentenced him to a two-year conditional release order without conviction under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The appellant appealed to the Supreme Court challenging the finding of guilt. He did not challenge the sentence. The Director of Public Prosecutions, having taken over the proceedings, conceded that the appeal should be upheld on at least one ground relating to the adequacy of the Magistrate's reasons.

  • Whether a bare finding of guilt, followed by an order without formal conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), constitutes a "conviction" for the purposes of the appeal rights in ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW)
  • Whether the Magistrate applied the correct legal test for self-defence
  • Whether the Magistrate adequately engaged with the submissions made for the accused
  • Whether the Magistrate's reasons were adequate

Decision

On the meaning of "conviction": The CAR Act does not define "conviction" as used in ss 52(1) and 53(1). Dhanji J noted that the term is well recognised as protean, carrying different meanings in different contexts. The Act's definition section makes specific provision for Children's Court findings of guilt to be treated as convictions, but provides no equivalent for Local Court findings not followed by a formal conviction. Reading "conviction" in ss 52 and 53 as requiring a formal order of conviction would leave a significant and apparently unintended gap, since it would allow a person to appeal the order made under s 10 (which is expressly included in the definition of "sentence") but not the underlying finding of guilt. His Honour held that "conviction" in those sections includes a finding of guilt even where no formal conviction is recorded.

On adequacy of reasons and engagement with submissions: The Magistrate delivered judgment within approximately five seconds of the conclusion of oral submissions, despite having been provided with seven pages of written submissions. His Honour found this suggested the written submissions had not been considered, or at least not properly. The reasons failed to engage with the defence case or explain why the submissions made for the accused were rejected.

On the self-defence test: The Magistrate's reasons also reflected error in the legal test applied to self-defence. Proper attention to the onus of proof, his Honour noted, could clearly have led to a different result, meaning the appeal could not be dismissed on the basis that the outcome was inevitable.

Dhanji J upheld the appeal and remitted the matter to the Local Court to be heard by a different Magistrate. The Court quoted Heydon J in AK v Western Australia to emphasise that the discipline of giving adequate reasons serves not only the parties but the integrity of the reasoning process itself: the process of composing reasons can expose fallacies that were not apparent when the conclusion seemed clear.

Orders Made

  • The appeal is allowed pursuant to ss 52(1) and 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW)
  • The decision of the Magistrate in the Murwillumbah Local Court dated 10 November 2022 is set aside
  • The matter is remitted to the Local Court to be dealt with according to law
  • Any further hearing is to be heard by a different Magistrate
  • No order as to costs

Key Takeaways

  • Under ss 52(1) and 53(1) of the Crimes (Appeal and Review) Act 2001 (NSW), "conviction" includes a bare finding of guilt even where the sentence imposed does not involve a formal order of conviction, such as a conditional release order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • A Magistrate's failure to engage with written submissions, or to give reasons for rejecting the accused's arguments, constitutes a reviewable error going to the adequacy of reasons and fundamental fairness.

  • Proceeding to deliver a guilty finding within seconds of the conclusion of a substantive address, without regard to seven pages of written submissions, demonstrated a lack of respect both to the accused's representative and to the accused himself.

  • Where an error in the self-defence test is combined with inadequate reasons, the appeal cannot be dismissed on the basis that the outcome would inevitably have been the same: proper application of the onus of proof could have produced a different result.

  • Remittal to a different decision-maker remains the appropriate course where a retrial is ordered following inadequate reasons and unfair treatment of a party's submissions.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 52, 53, 55
- Crimes Act 1900 (NSW), s 93C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
- Director of Public Prosecutions Act 1986 (NSW), s 10
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
- Keys v West (2006) 65 NSWLR 668; [2006] NSWSC 136
- Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Selkirk v Director of Public Prosecutions [2020] NSWSC 1590
- Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
- Health Care Complaints Commission v Robinson [2022] NSWCA 164