DW v R [2019] NSWDC 809

District Court New South Wales

Medium Neutral Citation: DW v R [2019] NSWDC 809 Hearing dates: 14 August 2019 Date of orders: 14 August 2019 Decision date: 14 August 2019 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Appeal allowed. Set aside conviction. Catchwords: CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction CRIME — Attempted armed robbery EVIDENCE — Standard and onus of proof — Criminal cases EVIDENCE — Circumstantial case — Identification evidence — photo board — DNA evidence EVIDENCE — Reliability of witness — witness cousin of accused — witness statement given 18 months after alleged incident Cases Cited: Fox v Percy [2003] HCA 22 Category: Principal judgment Parties: DW Director of Public Prosecutions Representation: Solicitors: E Freelander (ODPP) B Le Comte (ALS NSW) File Number(s): 2019/00022530 Publication restriction: Statutory non-publication order – appellant's identity not to be published Decision under appeal Court or tribunal: Local Court Jurisdiction: Children's Court Crime Date of Decision: 28 June 2019 Before: Magistrate D Covington File Number(s): 2019/22530

Judgment 1. HIS HONOUR: The appellant appeals against a conviction for an attempted armed robbery of Ian Thompson on 14 October 2017. The summary trial took place over a number of days in the Local Court. 2. As always it is appropriate that I briefly mention the nature of the jurisdiction this Court exercises when hearing an appeal from a conviction recorded in the Local Court. The nature of the appeal has been considered in a number of cases in both the Court of Criminal Appeal and in the Court of Appeal. The appeal is not a hearing de novo, the approach to be taken is analogous to that taken to a civil appeal as explained in Fox v Percy [2003] HCA 22. 3. I am to form my own judgment of the facts so far as I am able to do so from the transcript, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the Local Court. While the magistrate's reasons are not part of the transcript of the evidence, I can have regard to them on the appeal. The powers of the District Court are exercisable where the appellant demonstrates that the order, the subject of the appeal, is a result of the legal, factual or discretionary error in which event I can substitute my own decision based on the facts and law as they then stand, it is unnecessary for the appellant to demonstrate a legal error as such.