Foley v R [2022] NSWDC 122

District Court New South Wales

Medium Neutral Citation: Foley v R [2022] NSWDC 122 Hearing dates: 11 April 2022 Date of orders: 22 April 2022 Decision date: 22 April 2022 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal dismissed; conviction confirmed. Catchwords: APPEAL – Assault occasioning actual bodily harm – in company. Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Supreme Court Act 1970 Cases Cited: Charara v R [2006] NSWCCA 244 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Kerry James Foley (Appellant) Representation: Solicitors: S. Amvrazis (Crown) J. McLoughlin (Appellant) File Number(s): 19/392929 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 13 May 2021 Before: Magistrate V Swain

Judgment on appeal 1. On 13 May 2021, the appellant was convicted of an offence pursuant to s 59(2) of the Crimes Act 1900 of assault occasioning actual bodily harm, following a hearing in the Local Court. That hearing took place over three days on 16 and 17 November 2020 and 26 March 2021. 2. The appeal is by way of rehearing based on the transcript of evidence before the learned magistrate and the exhibits in those proceedings. In determining the appeal, I am to apply the principles governing appeals for a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence and the exhibits (in this case, including the CCTV footage of the premises), recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18]. 3. In McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298, Bell P said in respect of an appeal pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 ("CAR Act") at [25]: "An appeal is from orders, not reasons, and such error will be identified, if at all, by the process of rehearing. The task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate… whether that evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant's guilt on the basis of evidence given in the Local Court, but without the error of law which tainted the result at first instance. Such a hearing will, however, not be a hearing de novo." 1. McNab was a case that concerned an application for judicial review of a District Court judge's decision to dismiss an applicant's appeal against conviction, pursuant to s 69 of the Supreme Court Act 1970. Notwithstanding that, the Court of Appeal reviewed both the history of the CAR Act and its judicial construction, holding that the reasoning of Mason P in Charara as set out above, should be accepted (at [77]). The Court also held that on an appeal pursuant to s 18, there was no prohibition on the appeal court having access to the reasons for judgment in the Local Court, including any findings by the magistrate as to a witness' credibility (see Bell P at [31] and Baston and McCallum JJA at [73]).