Mark Jonathan Wright v Regina [2013] NSWDC 157

District Court New South Wales

Medium Neutral Citation: Mark Jonathan Wright v Regina [2013] NSWDC 157 Hearing dates: 19 August 2013 Decision date: 23 August 2013 Before: Judge MJ Finnane QC Decision: See paragraph [24] Catchwords: CRIMINAL LAW - appeal against conviction - self defence - no error of law - no error in findings of fact by the magistrate - offences proven beyond reasonable doubt ASSAULT - possession of prohibited weapon - use of prohibited weapon - common assault OTHER - police officer off duty at time - no use of weapon in ordinary course of duties as police officer Legislation Cited: Crimes (Local Courts Appeal and Review) Act 2001 Weapons Prohibition Act 1998 Cases Cited: Charara v the Queen [2006] NSWCCA 244 Harmer v Hare [2011] NSWCCA 229 Gommesen v R [2012] NSWCCA 226 Category: Procedural and other rulings Parties: Mark Jonathan Wright (Appellant) Regina (Respondent) Representation: B Vasic (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/324251

Judgment 1The appellant appeals against two convictions for possessing and/ or using a prohibited weapon, to wit oleosorin spray and one count of assault. The appeal proceeded on my examining the transcript of the evidence and the exhibits and my considering the reasons of the learned magistrate.

The Law 2The law relating to appeals from a magistrate concerning conviction is to be found in sections 18 and 19 of the Crimes (Local Courts Appeal and Review) Act, 2001 and Charara v the Queen [2006] NSWCCA 244 and in particular at paras 20- 22 per Mason P). "20 In Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 208-9 Windeyer J described the difference between an appeal by way of rehearing on the one hand and a retrial or hearing de novo on the other in the following terms: The rule ... provides that all appeals shall be 'by way of rehearing'. This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing on the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred....[A power to draw inferences of fact and to give any judgment that ought to have been given] does not ... curtail the recognition or respect that an appeal should accord to the decision of a trial judge. 21 These principles apply equally to an appeal by way of rehearing in a criminal matter where the appeal court has not seen the witnesses (Bell, Barendse v Comptroller-General of Customs (1996) 93 A Crim R 210 at 219-220). 22 The appellate role of the District Court in the present context is further reinforced by the references to "appeal" in ss18 and 19 and by the power, conferred by s20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal. It is true that the Court moves to the disposition of the appeal by considering the totality of the material before it, including any "fresh evidence" that has been admitted, and making up its own mind on the critical issue of guilt. The prosecutor continues to carry the onus (Gianoutsos at [42]-[43]). But, as indicated in the passages quoted from Fox and Da Costa, the District Court must of necessity observe the "natural limitations" stemming from proceeding wholly or substantially on the transcript record." 3In Harmer v Hare ([2011] NSWCCA 229)Whealy J.A, speaking of the duty of an appellate court reviewing factual findings of another court said this: "165. I am not persuaded that any of the challenges to the factual findings have been made good. This court has the obligation to reverse primary findings of facts where those findings are not supported by the evidence, or where the inferences drawn by the primary judge are not available (see Devries v Australian National Railways Commission (1993) 177 CLR 472, at 479 per Brennan, Gaudron and McHugh JJ). It is not, however, the task of the court to reverse findings of fact where those findings were open on the evidence, or where equally available inferences are available as to the probabilities of the occurrences found. In particular, where findings have been made regarding the credibility or reliability of witnesses based on their demeanour (and this extends to experts as well as lay witnesses), the court will be reluctant to intervene unless the findings are glaringly improbable. 4An appellate court must also look at the substance of what is said and not get into minute exercises of parsing and analysis. See Gommesen v R [2012] NSWCCA 226 esp at para 37 per Garling J "37 It is necessary, in considering these submissions, to keep in mind, as this Court has often said, that it is inappropriate to take an overly critical approach to reasons contained in ex tempore judgments. What is relevant is the substance and essence of the Judge's remarks, rather that the result of any exercise of parsing and analysing closely, in an unduly technical way, the words and phrases used in the Remarks on Sentence"