District Court New South Wales Medium Neutral Citation: Degampathi Jayasekra [2018] NSWDC 59 Hearing dates: 27 February 2018, 6 March, further written submissions received 16 March and 21 March 2018 Date of orders: 23 March 2018 Decision date: 23 March 2018 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1. Appeal against conviction is dismissed. 2. I confirm the penalty imposed by the Magistrate Catchwords: CRIMINAL LAW – property offences - destroy or damage property – finding of guilt – presumption of advancement APPEAL – appeal and review – conviction appeal – test- balance of probabilities – review of evidence – review of magistrate's decision OTHER – domestic relationship - damage Legislation Cited: Crimes (Appeal and Review) Act 2001 s.18(1) Crimes Act 1900 s.195(1)(a) Cases Cited: AG v Director of Public Prosecutions [2015] NSWCA 218 Bandana v Director of Public Prosecutions [2016] NSWCA 140 Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 Gianoutsas v Glykis [2006] NSWCCA 137 Irons v Smallpiece (1819) 2 B & Ald 551 (106 ER 467) Nelson v Nelson (1995) 184 CLR 538 at 600 Silver v Silver [1958] 1 All ER 523 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts, Lexis Nexis Butterworths 7th ed, 2006 (Jacobs) Category: Principal judgment Parties: Degampathi Jayasekra (Appellant) Regina (Respondent) Representation: Counsel: Solicitors: Thomas Henry Bray Lawyer (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/00167498 Publication restriction: None Judgment 1. Degampathi Jayasekra (the appellant) appeals against the conviction entered by his Honour Magistrate Longly on 18 August 2017 at the Manly Local Court. 2. The appellant pleaded not guilty to one count of destroy or damage property contrary to section 195(1)(a) Crimes Act 1900. 3. The issue in the Local Court and on appeal was whether the property damaged was property of another or property of the appellant and another. Facts 1. The prosecution case, which was accepted by the appellant, was that on 4 June 2017, in the context of a domestic argument that he damaged a laptop computer and mobile telephone. 2. The appellant's case was that he was the sole owner of the items and thereby could not be found guilty of the offence. 3. It was common ground that the items had been purchased by the appellant and at the time of handing possession of them to his wife (the complainant) that he did not expressly say that they were gifts. 4. The complainant had possession of and day to day use of both items. The laptop was used by her for her studies and on occasions was made available to the appellant or their children. The mobile telephone was used by the complainant more exclusively. The relevant law 1. The applicable principles to be applied in determination of the appeal are as follows. 2. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]; 3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]. 4. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24]. 5. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 6. The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28]. 7. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]. 8. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG at [34] per Basten JA. 9. When dealing with real property, the purchase of property by the donor in the name of a recipient without consideration from the donee, usually gives rise to a resulting trust in favour of the donor: J D Heydon and M J Leeming, Jacobs' Law of Trusts, Lexis Nexis Butterworths 7th ed, 2006 (Jacobs) at [1220]-[1221]. 10. The law is unclear as to whether there is a presumption of resulting trust in relation to the voluntary transfer of chattels: Jacobs at [1221]. 11. Equity presumes that transfers between husband and wife are outright gifts (the presumption of advancement): Nelson v Nelson (1995) 184 CLR 538 at 600. The presumption is rebuttable, by evidence to show that the donor did not intend to make a gift, and intended some other arrangement. 12. The presumption of advancement has been held to apply to personal property purchased for the joint use of spouses, although in this context it may be easily rebutted: Silver v Silver [1958] 1 All ER 523. 13. A gift of chattels can be effected by words (a parol gift) together with delivery of the chattels to the donee: Irons v Smallpiece (1819) 2 B & Ald 551 (106 ER 467). Analysis of the magistrate's reasons 1. The Magistrate found that the items belonged to the complainant and the appellant, citing that there was no evidence to the contrary. 2. I agree with this finding for the reasons that follow. 3. First, it is unlikely that a resulting trust would be presumed from the facts of the case, or in relation to the voluntary provision of chattels in any case. 4. Second, if there was a resulting trust, then the presumption of advancement would apply. 5. Third, there is no evidence capable of rebutting the presumption of advancement. The fact that the items were purchased by the appellant is irrelevant to the rebuttal of the presumption, because that is required to invoke the presumption. Further, the lack of express words of gift is not evidence of the appellant's intention to enter into a different arrangement. The relevant intention in this exercise is the intention that can be inferred from the dealings between the parties and not the subjective intention of the appellant, at a time when he has a legal interest in having a particular intent. The circumstances of the delivery of the items to the complainant are consistent with an intention on behalf of the appellant that the ownership of them was to pass to the complainant. 6. Fourth, an analysis of the objective intention demonstrates a completed gift of the items by the appellant to the complainant. 7. I am satisfied beyond reasonable doubt that the items were the property of the complainant or the property of the appellant and the complainant. 8. For these reasons, the appeal must fail. Conclusion 1. The orders I make are as follows: 1. Appeal against conviction is dismissed. 2. I confirm the penalty imposed by the Magistrate. ********** 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: 26 March 2018