District Court New South Wales Medium Neutral Citation: Alfred TIGHE v R [2011] NSWDC 231 Decision date: 14 September 2011 Before: Cogswell SC DCJ Decision: Appeal against conviction determined by setting aside the conviction. Catchwords: CRIMINAL LAW - appeal against conviction - unreliable evidence - inconsistency between evidence given in Local Court proceedings and admissions in later proceedings. Legislation Cited: Crimes (Appeal and Review) Act 2001, s 20(1)(a) Category: Principal judgment Parties: Alfred TIGHE (Appellant) Regina (Respondent) Representation: Counsel: C P Taylor (Appellant) File Number(s): DC 2011/378518 Judgment 1Alfred and Geoffrey Tighe were each charged with assault occasioning actual bodily harm. Charges arose from an incident that was said to have happened on the night of 6 November 2010 here at Moree. 2The charges arose because a Mr Joshua James Kenneth Nichols complained that he was walking past where the two men (who are brothers) were when they started to throw bottles and rocks at him and he was injured. Part of the case against the brothers comprised photographs of the injuries. 3Geoffrey and Alfred Tighe were prosecuted in the Local Court before his Honour Magistrate Holmes who, on 24 May 2011, found them both guilty of the offence. 4They both have appealed to this Court against those convictions. When a person appeals to the District Court from being convicted of a crime in the Local Court, the District Court judge rehears the evidence in the sense of reading a transcript of what happened before the Local Court and the exhibits. Permission can be given to admit fresh evidence. 5In this case Mr C P Taylor of counsel who appears for Mr A Tighe applied for that leave which was not opposed. He tendered some material which I will refer to in a moment. I have read the transcript of the evidence before Magistrate Holmes and the exhibits and the material which Mr Taylor tendered which became exhibit AT1. 6As I said, it was Mr Nichols' account that he had been attacked by two brothers. In the Local Court Mr Raymond Tighe, the father of the two men, was called as a witness. His account was that it was Mr Nichols who threw bottles at him and in fact hit him in the shoulder that night. Mr Raymond Tighe went on to say not only that, but some hours before - at about 1.00am that same morning - Mr Nichols had been in the area again and threw a bottle at Mr Raymond Tighe's car and it broke the window in the car. 7When Mr Nichols gave evidence in the Local Court he denied smashing the car window earlier in the same day and denied throwing any bottle towards Raymond Tighe which hit him in the shoulder. 8The only witness in the prosecution case was Mr Nichols. Exhibit AT1 tendered by Mr Taylor which, although admitted in Mr Alfred Tighe's appeal will also be relevant to the appeal of Geoffrey Tighe for whom Mr P M Schmidt appears, comprises court documents. 9The relevance of those documents is this. When Mr Nichols was giving evidence he acknowledged that he had been charged with some offences arising out of what had happened on both occasions on 6 November 2010. The Court documents in AT1 demonstrate that Mr Nichols pleaded guilty to two charges in the Local Court since giving evidence against Alfred and Geoffrey Tighe. One of the charges he pleaded guilty to was damaging property and the other was common assault. It is apparent from the facts which were part of the Court documents that the malicious damage was throwing a bottle at Mr Raymond Tighe's car at 1.00am in the morning of 6 November 2010 and the common assault was throwing a bottle towards Mr Raymond Tighe that same night which hit Mr Raymond Tighe in the shoulder. 10Two other things appear from the facts. One is that they indicate that Mr Nichols appeared to start the disagreement on that night by some verbal abuse. The second is that the events that night ended by Mr Nichols running away and falling over. That scenario - Mr Nichols falling over - was put to him and denied in the case against the Tighe brothers as the explanation for his injuries. 11Without making any specific finding about the evidence which Mr Nichols gave, it appears clear to me that I can find there are clear inconsistencies between the evidence he gave in the proceedings in which the brothers Tighe were convicted and what he admitted to in the later proceedings. Based upon that his evidence is in my opinion unreliable and certainly cannot form the basis for a finding of guilt. I am not satisfied beyond reasonable doubt of the guilt of either Geoffrey or Alfred Tighe of these offences. 12Accordingly the formal orders which I make in each appeal are these. Under s 20(1)(a) of the Crimes (Appeal and Review) Act 2001, I determine these appeals against conviction by setting aside the convictions. 13The exhibits will go on the Court file. 14ADJOURNED ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2012