R v WM [2020] NSWDC 714

District Court New South Wales

Medium Neutral Citation: R v WM [2020] NSWDC 714 Hearing dates: 13/10/2020 Date of orders: 18/11/2020 Decision date: 18 November 2020 Jurisdiction: Criminal Before: H. L. Syme DCJ Decision: Appeal Dismissed Catchwords: Parental Correction; Assault; Self Defence Legislation Cited: 61AA of the Crimes Act Cases Cited: Mannix [2020] NSWDC 34 AG v DPP [2015] NSWCA 218 Category: Principal judgment Parties: WM The Crown Representation: WM (In Person) R. Sharma (ODPP) File Number(s): 2019/00238390 Publication restriction: Yes. Non publication order on any material that may identify the Complainant Decision under appeal Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 14/02/2020 Before: Magistrate Goodwin File Number(s): 2019/00238390

Judgment 1. By Court attendance Notice dated 6th August 2019, the appellant was charged that between 8:00 PM and 8:30 PM on 31 July 2018 he assaulted NM (a pseudonym), a 6 year old child, the biological son of the appellant. The matter proceeded for hearing in the Local Court at Manly on 15 October 2019 and 14 February 2020. At the conclusion of the hearing he was found guilty and the Magistrate set out reasons on that day. It is from that decision that the appellant appeals. 2. The Crown appeal bundle contained the following material: * Notice of Appeal; * CAN Master Cover sheet; * Local Court Transcripts; * Paragraphs 1 - 9 of Statement of Alexander Hjorth NSW Police; * Exhibits of Local Court Proceedings (exhibits 1 - 8) * Material Marked for Identification (MFI A - E). 1. The appellant has provided the court with the following documents without opposition from the Crown: * Police body worn camera footage; * Written submissions (undated and received by this court on 3 July 2020); * Written submissions dated 11 August 2020; and * New South Wales Police photograph of leg of NM headed Point of Impact of kick, left leg above knee. * Photocopy of Law Degree and enrollment documents from various institutions. 1. The appellant has also provided me with a decision of His Honour Judge Hatzistergos DCJ in an appeal in the matter of Mannix [2020] NSWDC 34. In that decision His Honour referred to the requirements for an appeal to be successful. I respectfully agree with his interpretation of what is required. He said: "Specifically, in AG v Director of Public Prosecutions (NSW), Basten JA stated that the Appellant is required to demonstrate some legal, factual or discretionary error for the appeal to succeed. The term "error", however, has no precise meaning and requires the appellate Judge to be satisfied that the judgment under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to the specific cases. Simpson J, following an extensive review of authorities, stated that in her view it was not necessary, before the appellate power of the District Court is exercised, that there be error of law, fact or discretion shown". 2. In the context of this appeal it is difficult to discern what the complaint of the appellant really is. The difficulty included my difficulty in understanding his English communication. The appellant appeared to speak and write English in a satisfactory fashion, and told the court that he had a law degree from an Australian university, a copy of which he gave to the court. He said that he had passed his law degree in the English language, however I had difficulty in understanding the sense or sequence of some of his written submissions, and also had difficulty in understanding him speaking in the English language. For that reason I requested that an interpreter in the Mandarin language (which the appellant said was the language he spoke) be made available. The Interpreter, who is a highly qualified accredited interpreter, and a regular interpreter for proceedings in this court, reported that he similarly had difficulty in understanding the strong accent and dialect of the appellant. He occasionally sought and obtained clarification. Throughout the hearing the appellant insisted on using both Chinese and English languages, some times in the same sentence. The matter proceeded in that way and the communication was satisfactory. 3. The difficulty I had in making sense of the appellant's written legal submissions had nothing to do with language difficulties. He repeated or read out those submissions as his oral submissions. Some of those submissions simply did not make legal sense. For example, he insisted that the appeal be heard before a jury notwithstanding it had been explained to him on several occasions that such a hearing was not possible under the Act. His written submissions seemed to acknowledge that a jury "trial" on appeal was not a possibility, however, this did not deter him from continuing to make reference to it and quoting from cases referencing the need for a jury in murder trials. 4. A further difficulty was that his evidence and his submissions often appeared to be in conflict. He either failed to understand or refused to acknowledge the difference between factual issues and legal submissions. For example he said to this court he could not have possibly assaulted the complainant because there simply was not room for him physically to do so. He then insisted that he was justified in kicking the complainant because it was a lawful parental correction. He relied heavily on s 61 AA Crimes Act and gave lengthy oral and written submissions as to the requirement for the court to consider it. When the court attempted to point out the inherent conflict in those submissions the appellant either did not hear or not understand the difficulty. 5. This difficulty was also encountered in the Local Court proceedings. It is difficult to know if his sworn evidence clearly addressed what he wanted to say actually occurred. His oral evidence confused what actually happened, according to him and what defenses technically might exist if evidence existed to support these defenses. 6. I will therefore deal with the appeal on the basis of a review of the evidence before the court and as best as I can deal with the "legal submissions" from the Appellant.