Francisco v R [2019] NSWDC 720

District Court New South Wales

Medium Neutral Citation: Francisco v R [2019] NSWDC 720 Hearing dates: 22 November 2019 Decision date: 29 November 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Conviction appeal dismissed: Confirm orders of Local Court. Catchwords: CRIME - Appeal and review - Appeal from Local Court to District Court – By person convicted against conviction- District Court's powers on rehearing - application of principle - identification evidence – alibi. Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1900 District Court Act 1973 Evidence Act 1995 Cases Cited: Charara v The Queen (2006) 164 A Crim R 39 Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218 Dyason v Butterworth [2015] NSWCA 52 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 Gianoutis v Glykis (2006) 65 NSWLR 539 Category: Principal judgment Parties: Marcio Rogerio Francisco (the appellant) Director of Public Prosecutions (Respondent) Representation: Counsel: Mr B Loukas (for the appellant)

Solicitors: Good Legal (for the appellant) Ms T Lasschuit, Director of Public Prosecutions File Number(s): 2018/00155548

Judgment

Introduction 1. On 1 July 2019, Magistrate McGowan, sitting at Wollongong Local Court, heard evidence in relation to a number of charges against Marcio Rogerio Francisco. Her Honour reserved her decision and on 16 July 2019 found Mr Francisco guilty of each count. 2. As is his right, Mr Francisco appealed each decision to the District Court: s 18 Crimes (Appeal and Review) Act 2001. Mr Francisco, now the appellant, has advised the court that, after receiving legal advice, he wishes to contest only his convictions for two offences - Sequence 1 Intentionally or recklessly damage property: s 195(1)(a) Crimes Act 1900 and Sequence 2 intentionally damage property by fire: s 195(1)(b) Crimes Act 1900. 3. Mr Loukas, who also appeared for the appellant in the Local Court, has narrowed the issues to be determined in helpful and comprehensive written submissions: Appeal MFI 1. 4. Ms Lasschiut, Solicitor for the Director of Public Prosecutions provided the Court with: * a summary sheet containing formal court papers and the notice of appeal: Appeal Exhibit A; * the transcript of the proceedings in the Local Court: Appeal Exhibit B; * the exhibits from the Court below, including discs of DVED evidence with the principle Crown witness, the appellant's former partner Ms Janceski and CCTV of the street where the incident occurred: Appeal Exhibit C. 1. I viewed, in court and again in chambers, a Domestic Violence Evidence in Chief Statement (DVEC) disc of a police interview with Ms Juli Janceski and the CCTV of the street where the events occurred. 2. After evidence and submissions were received I adjourned until today, 29 November 2019. There was insufficient time to conclude the matter last Friday due to the pressure of other matters in a busy list.