Brown v R [2024] NSWDC 227

District Court New South Wales

Medium Neutral Citation: Brown v R [2024] NSWDC 227 Hearing dates: 7 June 2024 Date of orders: 19 June 2024 Decision date: 19 June 2024 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [Order] Catchwords: APPEALS — Procedure — Orders on appeal CRIME — Violent offences — Reckless grievous bodily harm CRIME — Violent offences — Stalking or intimidation Legislation Cited: Crimes (Appeal and Review) Act Crimes (Appeal and Review) Act 2001 Crimes (Personal & Domestic Violence) Act Cases Cited: Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Lunney v DPP [2021] NSWCA 186 Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 McNabb [2021] NSWCA 298 Allesch v Maunz (2000) 203 CLR 172 McIlwraith v R [2017] NSWCCA 13 Category: Principal judgment Parties: Rex (The Crown) Stephen Brown (The Appellant) Representation: Cranney counsel for The Appellant Wiggins for the Director of the Office of the Department of Public Prosecutions File Number(s): 2022/00075786 Publication restriction: NA

JUDGMENT

Introduction 1. On 27 September 2023 Stephen Brown, the appellant, was convicted of three offences. Those convictions were of stalking or intimidating with the intention to cause fear which was alleged to have occurred on 15 March 2022, and then on 16 March 2022 of recklessly causing grievous bodily harm and of reckless wounding. There seems to be something of a grey area as to why there were the two offences the subject of the proceedings arising from 16 March 2022. Nothing however turns on this as the issue in this appeal in relation to the events of that day is whether the Crown has demonstrated beyond reasonable doubt that the actions taken by the appellant on that day were not reasonable in the circumstances as he perceived them. 2. The conduct of this appeal is governed by section 18 of the Crimes (Appeal and Review) Act ("CARA"). The approach to take in respect of such appeals is not in issue between the parties with the Crown accepting the submissions of the appellant as set out in the written submissions. Those submissions accept that error needs to be shown by an appellant in such an appeal; it may well be there remains room for argument in that regard but that is not an issue that needs to be determined in this matter. Other than for that observation the parties have undoubtedly taken the correct approach. Given the lack of contention about it the position can be summarised as follows, with the principles being drawn from cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is 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. 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]. 6. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 as the "correctness standard" which was his Honour's way of describing the standard being spoken of in Fox v Percy. 1. I would also note the view of Bell P, as he then was, from the case of McNabb [2021] NSWCA 298 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." 1. 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 v Maunz (2000) 203 CLR 172.