Supreme Court New South Wales Medium Neutral Citation: Sinden v Director of Public Prosecutions (NSW) [2017] NSWSC 1719 Hearing dates: 8 December 2017 Date of orders: 08 December 2017 Decision date: 08 December 2017 Jurisdiction: Common Law Before: Bellew J Decision: (1) To the extent necessary, the plaintiff is granted leave to appeal pursuant to s. 54(1) of the Crimes (Appeal and Review) Act 2001 (NSW). (2) The appeal is allowed. (3) Pursuant to s. 55(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), the conviction recorded against the plaintiff in the Wagga Wagga Local Court in respect of the offence of assault is set aside. Catchwords: Criminal Law – Appeal against conviction – Where plaintiff charged before the Local Court with assault occasioning actual bodily harm – Where back up charge laid of common assault – Reliance by the plaintiff upon self-defence – Where Magistrate found in respect of the principal charge that the prosecution had failed to negative self-defence beyond reasonable doubt – Where Magistrate then convicted the plaintiff of the back-up charge – Where Crown conceded error – Appeal allowed – Conviction set aside Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW) Category: Principal judgment Parties: Michael Andrew Sinden – Plaintiff Director of Public Prosecutions (NSW) – Defendant Representation: Counsel: J Styles (Solicitor) – Plaintiff B Baker - Defendant Solicitors: Aboriginal Legal Service – Plaintiff Director of Public Prosecution (NSW) – Defendant File Number(s): 2017/241338 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 23 February 2017 Before: Magistrate Crompton Judgment – ex tempore (revised) 1. By an amended summons filed on 27 October 2017, the plaintiff appeals, pursuant to s. 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Act") against a decision of Magistrate Crompton sitting in the Local Court at Wagga Wagga, convicting the plaintiff of what has been described as a "back-up" charge of common assault. 2. The parties have prepared a Court book which has been tendered without objection and marked as Exhibit A. Within that Court book are two affidavits, the first of Jeremy Styles, solicitor, of 8 August 2017 and the second of Keisha Hopgood, solicitor, of 25 October 2017. Those affidavits annex the relevant evidentiary material, including a copy of the transcript of the proceedings before the Magistrate. Both parties have also helpfully provided the Court with written submissions. 3. An issue has arisen as to whether the proceedings raise a question of law alone (in which case the plaintiff has an appeal as of right under s. 52 of the Act) as opposed to a question of mixed fact and law (in which case the plaintiff would require leave pursuant to s. 53 of the Act). Essentially, the issue for determination by me is whether it was open to the Magistrate to find the plaintiff guilty of a "back-up" charge of common assault, in circumstances where his Honour had determined that in respect of the principal charge of assault occasioning actual bodily harm, the prosecution had not negatived self-defence beyond a reasonable doubt. 4. In the circumstances, it is not necessary for me to finally resolve whether that raises a question of law alone on the one hand, or a question of mixed fact and law on the other. The Director of Public Prosecutions has conceded, if I might say so quite properly, that the appeal brought by the plaintiff should succeed and that, to the extent necessary, the plaintiff should be granted leave. THE CHARGES 1. The plaintiff was charged on 31 May 2016 with offences arising out of an assault allegedly committed upon his partner. It was alleged, in particular, that such assault caused an injury to the victim's finger. As is often the case in matters of this nature, two charges were laid arising out of the one set of circumstances. The first was a charge of assault occasioning actual bodily harm contrary to s. 59 of the Crimes Act 1900 (NSW). A charge of common assault contrary to s. 61 of the same Act was also laid. That latter charge was what is known as a "back-up" to the more serious charge. THE PROCEEDINGS BEFORE THE MAGISTRATE 1. The plaintiff pleaded not guilty to both charges and the matter proceeded to a hearing before Magistrate Crompton in the Wagga Wagga Local Court on 23 February 2017. Because of the narrow issue which is raised in these proceedings, it is not necessary for me to canvass the evidence at any length. The important fact is that in the course of that evidence the plaintiff raised the issue of self-defence. The Magistrate, in the course of his reasons, properly adverted to that issue. For the purposes of the more serious charge of assault occasioning actual bodily harm, his Honour concluded that the prosecution had not negatived self-defence beyond a reasonable doubt. In those circumstances, his Honour dismissed that charge. However having done so, his Honour concluded that he was satisfied that the back-up charge of common assault was made out and proceeded to convict the plaintiff of that charge. 2. In the course of articulating his reasons for reaching that conclusion, his Honour made reference to having taken into account the evidence of the complainant, as well as the evidence of the plaintiff. In separate proceedings, he also made a final apprehended violence order against the plaintiff, although that part of the Magistrate's determination is not the subject of any challenge in these proceedings. THE SUBMISSIONS BEFORE THIS COURT 1. Before this Court, the plaintiff's position was that the Magistrate erred in finding him guilty of the offence of common assault in circumstances where he had dismissed the more serious charge of assault occasioning actual bodily harm on the basis of a failure by the prosecution to negative self-defence. The plaintiff argued that the issue of self-defence was necessarily relevant to both charges and that once the Magistrate had found, in respect of the more serious charge, that self-defence had not been negatived by the Crown, it necessarily followed that the same conclusion would have to be reached in relation to the back-up charge of common assault, leading to the dismissal of that charge as well. 2. In my view, the submission advanced on behalf of the plaintiff must be correct. The evidence in support of the two counts was largely identical. Importantly, once self-defence was raised by the plaintiff, it became a matter that the Crown was required to negative beyond reasonable doubt. If the Crown failed to negative self-defence in respect of one of those charges, it necessarily followed that the Crown had failed to negative it in respect of the other, in which case both charges should have been dismissed. In those circumstances, I am of the view that the Magistrate erred in convicting the plaintiff of the back-up charge. 3. I have noted the agreement of the parties that there be no order as to costs. Bearing in mind the observations that I have made regarding whether or not the issue raised by the plaintiff does or does not constitute a question of law alone, I make the following orders: 1. To the extent necessary, the plaintiff is granted leave to appeal pursuant to s. 54(1) of the Crimes (Appeal and Review) Act 2001 (NSW). 2. The appeal is allowed. 3. Pursuant to s. 55(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), the conviction recorded against the plaintiff at the Wagga Wagga Local Court in respect of the offence of assault is set aside. ********** 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: 13 December 2017