McKinnon v R [2019] NSWDC 432

District Court New South Wales

Medium Neutral Citation: McKinnon v R [2019] NSWDC 432 Hearing dates: 13 August 2019 Decision date: 23 August 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal Dismissed Catchwords: Assault; domestic violence related offences Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 215 Charara v R [2006] NSWCCA 244 R v Markuleski (2001) 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Jason McKinnon (Appellant) Representation: Counsel: A Webb (Crown) S James (Appellant)

Solicitors: File Number(s): 18/267996 Publication restriction: Nil

Judgment on appeal 1. The appellant appeals against his conviction on the following four counts: 1. H70820251 – Sequence 2 – Assault occasioning actual bodily harm – domestic violence related. This is an offence pursuant to s 59(1) of the Crimes Act 1900. 2. H70820251 – Sequence 3 – Common assault – domestic violence related. This is an offence pursuant to s 61 of the Crimes Act 1900. 3. H70820251 – Sequence 4 – Stalk/intimidate – domestic violence offence. This is an offence pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 4. H70820251 – Sequence 5 – Intentionally or recklessly damage property – domestic violence related. This is an offence pursuant to s 195(1)(a) of the Crimes Act 1900. 1. The appellant was convicted on 23 April 2019 at the Coffs Harbour Local Court after a hearing that took place over three days on 31 October 2018, 12 December 2018, and 14 March 2019. 2. The appeal is by way of a re-hearing based on the transcript of evidence before the learned Magistrate, and the exhibits that were before his Honour. 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]. 3. I have also had regard to the exhibits tendered in the Local Court which form part of the Crown bundle on the appeal (Ex A). I have also viewed in open court a DVEC of the complainant's statement to the police on 30 August 2018. I have also read the reasons of the learned Magistrate in his judgment of 14 March 2019. 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 215 at [5] per Basten JA.