Palazo v DPP [2008] NSWDC 184

Reported Decision : 7 DCLR (NSW) 274

New South Wales District Court

CITATION: Palazo v DPP [2008] NSWDC 184

HEARING DATE(S): 21 August 2008 25 August 2008

JUDGMENT DATE: 4 September 2008

EX TEMPORE JUDGMENT DATE : 25 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Williams DCJ at 1

DECISION: Appeal upheld. Conviction set aside and quashed.

CATCHWORDS: appeal from Local Court - alternative verdicts - act of indecency - indecent assault - meaning of "with" or "towards" - distinction between "indecent assault" and "act of indecency" - facts amounting to an indecent assault can't constitute and act of indecency

LEGISLATION CITED: Crimes Act ss 61J, 61K, 61L, 61M, 61N, 61O & 61Q

R v Beserick (1993) 30 NSWLR 510 CASES CITED: R v Cameron [1983] 2 NSWLR 66 R v Crampton (2000) 117 A Crim R 222 R v Saraswati (1990) 172 CLR

PARTIES: Roger Allan Palazzo Director of Public Prosecutions

FILE NUMBER(S): 2007/00009996

COUNSEL: Mr Livingstone Mr Diggins

SOLICITORS: Gordon Naylor and Associates Solicitor for Public Prosecutions

1. On 25/8/2008, I indicated that I had come to the view that the appeal in this matter should be upheld and the orders of the Local Court quashed. Those orders were made and indicated that I would provide written reasons. These are those reasons.

2. Mr Palazzo appealed against his conviction for an offence of indecent assault contrary to section 61L of the Crimes Act. Mr Palazzo had been charged with an offence of aggravated act of indecency contrary to s. 61O(1A) of the Crimes Act which carries a maximum penalty of 3 years. His Honour found that the circumstance of aggravation alleged by the complainant, namely that the victim was under authority, had not been made out. His Honour applied s. 61Q, alternative verdicts, to then convict Mr Palazzo of an offence under s. 61L which carries a maximum penalty of 5 years. The principal dispute in the Local Court trial related to the issue of consent as well as a matter of law in regard to the appropriateness of the charge. The consent issue was resolved against Mr Palazzo and has not been re-litigated before me.