Darin Christopher Martin v R [2017] NSWDC 82

District Court New South Wales

Medium Neutral Citation: Darin Christopher Martin v R [2017] NSWDC 82 Hearing dates: 5 April 2017 Decision date: 12 April 2017 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Conviction appeal dismissed Catchwords: Intimidation with intention of causing fear of physical or mental harm; specific intent Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, s 13 Criminal Procedure Act 1986 Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Charara v R [2006] NSWCCA 244 He Kaw Teh v R (1985) 157 CLR 535 McIlwraith v DPP (NSW) [2017] NSWCCA 13 Parker v R (1963) 111 CLR 610 R v Baden-Clay (2016) HCA 35 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown) Darin Christopher Martin (Appellant) Representation: Counsel: A Wright (Crown) B Fogarty (Appellant) File Number(s): 16/100784 Publication restriction: Nil

Judgment on appeal 1. The appellant appeals against his conviction for one count of stalk/intimidate, intend to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 ("the CDPV Act"). The section provides as follows: "13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the Prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed. 1. The maximum penalty given summary jurisdiction was a period of imprisonment of 2 years and/or a fine of $5,500.00. 2. The appellant was convicted on 19 August 2016 in the Local Court. The appeal was heard on 5 April 2017. 3. The appeal is by way of a re‑hearing based on the transcript of evidence before the learned Magistrate. In determining the appeal, I am to apply the principles governing appeals from a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18]. 4. I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of the learned Magistrate in her judgment of 19 August 2016. I note that I am bound to observe the "natural limitations" where the appeal is conducted by reference to the documentary record – see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [5] per Basten JA.