R v Death [2019] NSWDC 682

District Court New South Wales

Medium Neutral Citation: R v Death [2019] NSWDC 682 Hearing dates: 24 October 2019 Date of orders: 24 October 2019 Decision date: 24 October 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: I allow the appeal and I find the appellant not guilty. Catchwords: CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction Legislation Cited: Crimes (Appeal and Review) Act 2000 Crimes Act 1900 Supreme Court Act Cases Cited: Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hughes v R [2017] HCA 20 Category: Principal judgment Parties: Anthony Death (Appellant) Regina (Respondent) Representation: Solicitors: M Cronin (Appellant) R Endacott (Respondent) File Number(s): 2019/00057365 Decision under appeal Court or tribunal: Local Court Jurisdiction: Albury Date of Decision: 11 September 2019 Before: Magistrate Brender File Number(s): 2019/00057365

Judgment 1. Mr Death appeals against a finding of guilt of assault occasioning actual bodily harm, domestic violence related, contrary to s 59(1) of the Crimes Act 1900 by Local Court Magistrate Brender on 11 September 2019. 2. The appeal is brought pursuant to s 18 Crimes (Appeal and Review) Act 2000. An appeal against conviction is a rehearing based on the transcript and exhibits in the court below. A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244 at [16] – [24]; Dyason v Butterworth [2015] NSWCA 52 at [26]. 3. The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 where the judge is to form his or her judgment of the facts recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court: Dyason at [27]. The powers of the District Court on a s 18(1) rehearing 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 the event the appellant can substitute its own decision based on the facts and law as they then stood: Dyason at [28] 4. It is submitted by Mr Cronin who appeared below and appears on this appeal that the decision of the Court is based on a factual error by the learned magistrate.