R v GRAEME JOHN LEE [2021] NSWDC 65

District Court New South Wales

Medium Neutral Citation: R v GRAEME JOHN LEE [2021] NSWDC 65 Hearing dates: 22 February 2021 Date of orders: 11 March 2021 Decision date: 11 March 2021 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [78 - 79] Catchwords: CRIME — Violent offences — Discharge firearm manner likely injure persons/property Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW) Cases Cited: Gianoutsos v Glykis [2006] NSWCA 137 Eaton [2021] NSWDC 33 Katarzynski [2002] NSWSC 61 Decision Restricted [2016] NSWCCA 268 Santow in R v Trevenna [2004] NSWCCA 43 R v Cicekdag [2004] NSWCCA 357 Fingleton v The Queen (2005) 227 CLR Hudd v R [2013] NSWCCA 57 R v Howe (1958) 100 CLR 448 Texts Cited: Nil Category: Principal judgment Parties: Regina (Crown)

Lee (Appellant) Representation: Carter Solicitor for the NSW DPP Conwell Counsel for the Appellant File Number(s): 2019/00373085 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Citation: Unreported Date of Decision: 23 October 2020 Before: His Honour Dakin LCM File Number(s): 2019/00373085

Judgment 1. This is a conviction appeal from a decision of a Local Court Magistrate. Such an appeal is conducted pursuant to s18 of the Crimes (Appeal and Review) Act, and is a rehearing and not a hearing de novo. There is authority to the effect that no error needs to be found; Gianoutsos v Glykis [2006] NSWCA 137. The preponderance of authority however is that there is a need for some error to be found. Recently I considered the position in Eaton [2021] NSWDC 33, and from [6] set out the following, which I adopt here: 2. The appeal process under section 18 has been described as being akin to an appeal to the Supreme Court under section 75A of the Supreme Court Act. Adopting that approach would require error to be found in order for this appeal to be successful. There is however a conflict in the Court of Appeal authorities as to whether error does need to be found. Gianoutsos v Glykis [2006] NSWCA 137 says no error is necessary; the judgment of McColl JA in Engelbrecht v DPP [2016] NSWCA 290 clearly supports that error is necessary and Basten JA in AG v DPP [2015] NSWCA 218 considers error is required. In AG v DPP only Basten JA expressed this view. 3. In Engelbrecht which was decided after Gianoutsos, and after section 18 had been amended appears the following passage at [89], which adopts the reasoning from Charara v R [2006] NSWCCA 244 which was decided on the same legislation as Gianoutsos but with a different outcome: 4. The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth,[68] as follows: [26] As 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] – [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P's reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing). [27] The approach to be taken on as 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 ('McKellar') (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The 'judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court': Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise, the appellate function cannot properly take place: Charara v R (at [23]). [28] ] The powers of the District Court on as 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ." (emphasis added). 1. In Vok v DPP [2019] NSWCA 242 at [29] the Court of Appeal stated in respect of a conviction appeal that the nature of the appellate function of the District Court is as stated at [5] of AG v DPP and at [10](3) of Bandara v DPP [2016] NSWCA 140. The first of those passages set out what was said to be three well established principles as follows: The appeal, described as "by way of rehearing", does not involve a hearing de novo (or fresh trial) as if the original trial had not occurred; The appeal is not an appeal "in the strict sense", so as to be limited to the evidence before the magistrate, to be determined on the law as it then applied; and The judge on appeal is bound to observe the "natural limitations" which arise where the appeal is conducted by reference to a documentary record. 1. The second passage, being from Bandara was as follows: 2. The appeal to the District Court is not a hearing de novo, but is analogous to a civil appeal under s 75A of the Supreme Court Act 1970 (NSW), insofar as it is an appeal by way of rehearing, and the judge is to form his or her own judgment on the facts recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court: see Crimes (Appeal and Review) Act 2001 (NSW), s 18 and Dyason v Butterworth [2015] NSWCA 52 at [26]-[28] and the cases there referred to. 3. I approach this appeal as a rehearing, not a hearing de novo. I recognise the benefit enjoyed by the Magistrate in his assessment of the oral evidence, which is a crucial matter in this case. I also consider that for the appeal to succeed the appellant needs to identify some error of fact, law or discretion, or at the very least show that in some way the decision is wrong, before I can then proceed to make the decision that I consider is correct. 4. In the hearing under appeal, the Magistrate heard from two key witnesses, a Mr Clay, and the appellant. The magistrate made some findings about their evidence, and about their credibility. I need to recognise the advantage of the Magistrate of having seen the witnesses, and there was no challenge by either party to the preference of the magistrate for the evidence of the appellant, save that the Crown argued, contrary to the ultimate finding of the magistrate, that it was implausible that the shots were fired when the appellant was in his Landcruiser. 5. I will proceed as follows: 1. To identify the factual findings of the magistrate. 2. To then refer as may be relevant to some other factual matters emerging from the evidence. 3. Identify the basis on which the magistrate found that the prosecution had negatived beyond reasonable doubt the issue of self defence, raised by the appellant. 4. To set out the arguments of the parties on this appeal, including the submission of the appellant to raise a matter that was not raised before the magistrate. 5. To determine the matter.