Director of Public Prosecutions v FD [2017] NSWSC 679

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v FD [2017] NSWSC 679 Hearing dates: 26 May 2017 Date of orders: 26 May 2017 Decision date: 26 May 2017 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The appeal is allowed.

(2) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001, the order of her Honour Magistrate JM Milledge made on 14 June 2016 at the Downing Centre Local Court dismissing proceedings against the defendant for an offence of assault occasioning actual bodily harm, s 59(1) of the Crimes Act 1900, is set aside.

(3) The proceedings against the defendant for the offence of assault occasioning actual bodily harm, s 59(1) Crimes Act 1900, referred to in order two above are remitted to the Local Court to be redetermined according to law.

(4) The defendant is to pay the cost of the appeal.

(5) The defendant is to be provided with an indemnity certificate pursuant to s 6(1) of the Suitors Fund. Catchwords: CRIMINAL LAW – assault – defence of lawful correction – onus of proof – standard of proof – whether onus is on prosecution to prove lack of lawful correction – where magistrate treated defence as element of offence – error of law – whether defence must be raised by accused – error of law conceded by respondent – appeal allowed

COSTS – application under Suitors Fund Act – application for indemnity certificate – where appeal allowed on error of law Legislation Cited: Crimes Act 1900 (NSW) ss 59, 61AA Crimes (Appeal and Review) Act 2001 (NSW) ss 56, 59 Evidence Act 1995 (NSW) s 141 Suitors' Fund Act 1951 (NSW) s 6 Cases Cited: DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] 67 NSWLR 402 Category: Principal judgment Parties: Director of Public Prosecutions (Appellant) FD (Respondent) Representation: Counsel: J E Davidson (Appellant) M D Farrar (Respondent)