Braham v The Queen - [2020] NSWDC 809

District Court

New South Wales

Medium Neutral Citation: Braham v R [2020] NSWDC 809
Hearing dates: 03 November 2020
Date of orders: 03 November 2020
Decision date: 03 November 2020
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Appeal dismissed.

Catchwords:
CRIME – APPEAL FROM LOCAL COURT – A conviction of common assault of a bicycle rider and of recklessly damaging his bicycle – Inconsistency between evidence adduced by the prosecution and evidence given by the appellant – Magistrate had the advantage of hearing and seeing the witness – Minor inconsistencies of no substance – Inconsistencies between prosecution witness and appellant make appellant’s evidence implausible – Appeal dismissed.

Category: Principal judgment
Parties: Appellant – Tony Reuben Braham
Respondent – Regina
Representation: Appellant – J. Byrne
Crown – A. Poulos (DPP)

File Number(s): 2019/00140177
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 October 2019

Before:

Thompson LCM

File Number(s):

2019/00140177

Judgment

HIS HONOUR: This is an appeal against two convictions recorded by Magistrate Thompson sitting in the Downing Centre Local Court on 30 October 2019. The appellant was charged with the offence of common assault of Michael Ong on 22 November 2018 in this city at approximately 4.45pm. He was also charged with intentionally or recklessly damaging property, the property being a bicycle owned by Michael Ong. That is alleged to have occurred at the same time as the common assault.
At the hearing evidence was given in the prosecution case by Constable Lauren O’Dea, by Michael Ong and by Bruce Pyne Perry, a lay witness. In the defence case evidence was given by the appellant.
On Thursday 22 November 2018 Michael Ong was riding a bicycle in the northbound bicycle lane on Kent Street in the block behind St Andrew’s Cathedral and the Sydney Town Hall. He was driving in the direction of Druitt Street. He observed a silver coloured BMW emerging from the underground car park. Vehicular traffic is required to travel north in Kent Street. It is a one way street for vehicular traffic although bikes may travel in either direction on the bike lane.
In his evidence-in-chief Mr Ong said that when he observed the BMW it was about ten to 15 metres away from him. However, the BMW could not enter the vehicular traffic lanes because of a build-up of traffic. Accordingly it stopped, obstructing the bike lane. Mr Ong applied the brakes of his bicycle. From CCTV footage which is exhibit 2 both in the Local Court and in this Court, it can be observed that Mr Ong was braking his vehicle and managed to bring it to complete stop before it would have struck the BMW. His evidence then continued in this fashion:

“I mounted the front wheel onto the footpath behind the vehicle and…I have a road bike with clipped pedals, so I had to unclip both feet. So walked behind the vehicle and tapped the car, just to make sure that he doesn’t…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Braham v The Queen

Details

AGLC: Braham v The Queen [2020] NSWDC 809
Case: [2020] NSWDC 809
Decision Date: 03 November 2020

CaseChat Overview and Summary

In the matter of Braham versus The Queen, the appellant was convicted by a magistrate in the Local Court of assaulting a bicycle rider and damaging the rider's bicycle. The appellant sought to appeal the conviction on the grounds that the evidence provided by the prosecution was inconsistent with the evidence given by the appellant. The appeal was heard in the District Court, where the court was required to consider whether the inconsistencies in the evidence were sufficient to warrant a new trial.

The central legal issue for the court to decide was whether the inconsistencies between the evidence provided by the prosecution and the evidence given by the appellant were so significant as to undermine the reliability of the prosecution's case and necessitate a new trial. The court also had to consider whether the inconsistencies between the evidence given by the prosecution witnesses and the appellant's evidence were so substantial as to render the appellant's evidence implausible. The court noted that the magistrate who heard the case had the benefit of seeing and hearing the witnesses and was in the best position to assess their credibility.

The court found that while there were some minor inconsistencies between the evidence provided by the prosecution and the appellant, these were of no substance and did not undermine the reliability of the prosecution's case. The court also found that the inconsistencies between the prosecution witness and the appellant's evidence did not render the appellant's evidence implausible. The court held that the magistrate was entitled to prefer the evidence of the prosecution witnesses over that of the appellant and that the appeal should be dismissed. The court found that the convictions were properly based on the evidence before the magistrate and that there were no errors of law or procedure that warranted a new trial. The appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Braham v R [2020] NSWDC 809
Hearing dates:	03 November 2020
Date of orders:	03 November 2020
Decision date:	03 November 2020
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal dismissed.
Catchwords:	CRIME – APPEAL FROM LOCAL COURT – A conviction of common assault of a bicycle rider and of recklessly damaging his bicycle – Inconsistency between evidence adduced by the prosecution and evidence given by the appellant – Magistrate had the advantage of hearing and seeing the witness – Minor inconsistencies of no substance – Inconsistencies between prosecution witness and appellant make appellant’s evidence implausible – Appeal dismissed.
Category:	Principal judgment
Parties:	Appellant – Tony Reuben Braham Respondent – Regina
Representation:	Appellant – J. Byrne Crown – A. Poulos (DPP)
File Number(s):	2019/00140177
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 30 October 2019 Before: Thompson LCM File Number(s): 2019/00140177