West v R [2023] NSWDC 213

District Court New South Wales

Medium Neutral Citation: West v R [2023] NSWDC 213 Hearing dates: 8 June 2023 Date of orders: 22 June 2023 Decision date: 22 June 2023 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [60] Catchwords: APPEAL – Apprehended Violence Order Legislation Cited: Crimes (Personal & Domestic Violence) Act Crimes (Appeal & Review) Act Cases Cited: Lunney v DPP (2021) 105 NSWLR 236 Gianoutsos v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 Texts Cited: NA Category: Principal judgment Parties: Police (Respondent) Madeline West (Appellant) Representation: Fernon for West Breward for the Office of the Director of Public Prosecutions File Number(s): 2022/00144230 Publication restriction: NA

JUDGMENT 1. On 28 March 2023 in the Local Court at Byron Bay a final apprehended domestic violence order was made under s16 of the Crimes (Personal & Domestic Violence) Act ("the Act"). The person in need of protection was Mr Benny Bennett, and the defendant, subject to the order, was Ms Madeleine West. 2. Ms West appeals that decision. By section 84(2) of the Act the appeal is brought in the same way as a conviction appeal is brought under s18 of the Crimes (Appeal & Review) Act. The approach to such an appeal as stated by s18 is a rehearing on the evidence given in the original hearing, with provision for fresh evidence to be led if leave to do so is sought and granted. The parties proceeded on the appeal in line with the fairly recent decision of Lunney v DPP (2021) 105 NSWLR 236, though it is to be noted there is other Court of Appeal authority that differs; see for example Gianoutsos v Glykis [2006] NSWCCA 137. Nothing turns on this in this case, and the approach set out in Lunney is followed.