DH v R [2016] NSWDC 214

District Court New South Wales

Medium Neutral Citation: DH v R [2016] NSWDC 214 Hearing dates: 7 September 2016 Date of orders: 15 September 2016 Decision date: 15 September 2016 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal upheld Catchwords: Assault with act of indecency Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Cases Cited: Charara v R [2006] NSWCCA 244 AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 R v Telfer (2004) 142 A Crim R 132 Category: Principal judgment Parties: DH (appellant) Director of Public Prosecutions (Crown) Representation: Counsel: Mr P Boulton SC (Appellant)

Crown Advocate: Mr S Makin File Number(s): 2014/00124762 Publication restriction: Order made pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 as to name of the appellant and complainant. All witness names have been anonymised to protect the identities of the appellant and complainant. Decision under appeal Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 23 February 2016 Before: Magistrate Milledge File Number(s): 2014/00124762

Judgment ON appeal

Introduction 1. The appellant appeals from his conviction on 23 February 2016 following a hearing at the Local Court at Sydney on a charge pursuant s 61L of the Crimes Act 1900 of assault with act of indecency. 2. Section 61L provides as follows: "Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years." 1. The offence is a Table 2 offence under the Criminal Procedure Act 1986 and is therefore to be dealt with in the Local Court unless an election is made for trial on indictment. 2. The appellant was also charged with an offence of assault which was alleged to have occurred on the same day, and involved a difference complainant. That charge was dismissed by the Learned Magistrate.