R v GREENFIELD [2008] NSWDC 391

New South Wales District Court

CITATION: R v GREENFIELD [2008] NSWDC 391

HEARING DATE(S): 2 July 2008 EX TEMPORE JUDGMENT DATE : 2 July 2008

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Appeal against conviction is dismissed and the conviction is confirmed On severity of sentence, without proceeding to a conviction the appellant is released on a bond under s 10 of the Crime (Sentencing Procedure) Act to be of good behaviour for a period of two years from today.

CATCHWORDS: CRIMINAL LAW - Conviction Appeal

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

PARTIES: The Crown Bryan Dion Greenfield

FILE NUMBER(S): DC 2008/12/0072

SOLICITORS: Director of Public Prosecutions - Respondent

JUDGMENT

1 HIS HONOUR: Bryan Greenfield appeals against his conviction for an offence of common assault. The incident occurred some time ago, on 29 October 2005. I describe it as an incident because there is no doubt that something happened that night. The question is whether it amounted to a common assault. To be more precise, the question is whether the Crown has proved beyond reasonable doubt that that is what has occurred.

2 Let me begin by noting some significant features very much in the appellant's favour. He is a man of good character. He was thirty-five years of age at the time. The Crown says he assaulted his wife but there were no prior entries of violence or anything at all on his criminal history. That is a matter very much in his favour, both tending to suggest the unlikelihood that he committed the offence and his general credibility when he gave evidence denying it in court.

3 The next matter strongly in the appellant's favour is that there was a significant delay between when the complainant said she was assaulted and when she asked police to take action over the matter. Police did conduct some cursory investigations on 29 October 2005 but the evidence was that the complainant wished the matter to go no further because she was then pregnant and due to give birth shortly thereafter, and was returning to Perth from Sydney in any case. It was not until over a year later that the complainant, in effect, reactivated the matter. What happened in the meantime is the third matter pointing heavily in the appellant's favour.