R v Woodside [2004] NSWCCA 375

New South Wales Court of Criminal Appeal

CITATION : R v Woodside [2004] NSWCCA 375 HEARING DATE(S) : 8 October 2004 JUDGMENT DATE : 3 November 2004

JUDGMENT OF : Studdert J at 1; Sully J at 81; Greg James J at 82 DECISION : Appeal dismissed.

LEGISLATION CITED : Crimes Act, ss 474C, 474L Criminal Appeal Act, ss 5, 6 Jones v The Queen (1997) 191 CLR 439 CASES CITED : M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 PARTIES : Regina v Dorothy Woodside FILE NUMBER(S) : CCA 2004/1956 CCAP COUNSEL : E. Wilkins (Crown) M. Thangaraj/C. Evans (Appellant) SOLICITORS : S. Kavanagh (Crown) S. O'Connor (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 97/62/0181 FILE NUMBER(S) : LOWER COURT Kinchington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1956 CCAP

STUDDERT J SULLY J GREG JAMES J

Wednesday 3 November 2004 REGINA v DOROTHY WOODSIDE Judgment 1 STUDDERT J: This matter has come before the Court by way of reference by the Attorney General pursuant to s 474C(1)(b) of the Crimes Act. Section 474B makes provision for a review of a conviction or sentence and s 474C provides relevantly: "(1) After the consideration of a petition: …… (b) the Minister may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912…" 2 Before considering the nature of the proceedings on this reference, it is appropriate to record something as to the case the subject of the reference. 3 On 30 May 1997 Dorothy Woodside, to whom for present purposes I shall refer as the appellant, was convicted on two charges of common assault in the Local Court at Bathurst. The appellant appealed against those convictions and the appeal was heard by his Honour Judge Kinchington QC in the District Court. That appeal was in the nature of a rehearing. The hearing occupied ten hearing days, the first of which was on 10 August 1998 and the tenth of which was on 21 August 1998. His Honour reserved his decision, and on 9 November 1998 he dismissed the appeal for reasons then given. To those reasons I shall return. 4 Section 5(1) of the Criminal Appeal Act confers a right of appeal to this court in criminal cases to a person "convicted on indictment". The appellant here was not so convicted. Section 6(1) of the same Act provides for the determination by this court of appeals under s 5(1). Section 6(1) provides relevantly: "(1) The Court on any appeal under s 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 5 This court is empowered to act under s 6 "on any appeal under s 5(1)". This is not such an appeal but rather it is a reference pursuant to s 474C(1)(b), and the decision here sought to be challenged is a decision of a District Court judge made on an appeal from a decision of the Local Court. However, the appellant relies upon s 474L of the Crimes Act, which provides: "On receiving a reference under s 474C(1)(b)…the court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act , and that Act applies accordingly." (Emphasis added)