R v WC [2024] NSWDC 98

District Court New South Wales

Medium Neutral Citation: R v WC [2024] NSWDC 98 Hearing dates: 22 March 2024 Date of orders: 05 April 2024 Decision date: 05 April 2024 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [40] Catchwords: CRIME — Violent offences — Reckless wounding CRIME — Public order offences — Affray CRIME — Summary offences — Custody of knife in public place or school CRIME — Violent offences — Assault occasioning actual bodily harm Legislation Cited: Crimes (Appeal and Review) Act 2001 Cases Cited: Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy (2003) 214 CLR 118 Lunney v DPP [2021] NSWCA 186 Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 McNabb v DPP [2021] NSWCA 298 Category: Principal judgment Parties: Rex (The Crown) WC (The Offender) Representation: Solicitors: Buckner for DPP Winn for WC File Number(s): 2021/00134831 Publication restriction: NA

JUDGMENT

Introduction 1. This is an appeal pursuant to section 18 the Crimes (Appeal and Review) Act. 2. The nature of a s18 appeal has been subject of numerous Court of Appeal and Court of Criminal Appeal decisions. Based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 the approach to a section 18 appeal can be summarised as follows: 1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001, with fresh evidence permissible with leave. 2. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18] 3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24] 4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 5. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44]. 1. The approach may also be described in the way stated by Justice Gageler (as he then was) in Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 as the "correctness standard" which was his Honour's way of describing the standard being spoken of in Fox v Percy. With respect that approach is entirely in line with what was said by Bell P (as he then was) at paragraphs [25] through to [28] of McNabb [2021] NSWCA 298,which included at [25]: "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 (supplemented by any further evidence received pursuant to section 18(2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) 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." His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit "some legal factual or discretionary error", citing Allesch. 1. McNabb is authority for the proposition that an appeal under section 18 does require demonstration of a factual, legal or discretionary error in order to succeed. The judgment of Bell P in reaching that conclusion acknowledges that there is authority that no error is required. Conversely his Honour noted that upholding an appeal will occur because the judge on the rehearing will have concluded the appellant's guilt was not established beyond reasonable doubt which necessarily involves a conclusion that the magistrate committed some legal, factual or discretionary error. 2. In other words under section 18 the District Court judge will not interfere unless it is shown that the magistrate's decision is wrong and if that conclusion is reached there will certainly be an error of law, fact or discretion; so that what the District Court judge is doing is determining the correct result based on the material being considered.