Brown v The King

[2024] NSWDC 227

District Court

New South Wales

Medium Neutral Citation:

Brown v R [2024] NSWDC 227

Hearing dates:

7 June 2024

Date of orders:

19 June 2024

Decision date:

19 June 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [Order]

Catchwords:

APPEALS — Procedure — Orders on appeal

CRIME — Violent offences — Reckless grievous bodily harm

CRIME — Violent offences — Stalking or intimidation

Legislation Cited:

Crimes (Appeal and Review) Act

Crimes (Appeal and Review) Act 2001

Crimes (Personal & Domestic Violence) Act

Cases Cited:

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

Charara v R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

Lunney v DPP [2021] NSWCA 186

Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1

McNabb [2021] NSWCA 298

Allesch v Maunz (2000) 203 CLR 172

McIlwraith v R [2017] NSWCCA 13

Category:

Principal judgment

Parties:

Rex (The Crown)
Stephen Brown (The Appellant)

Representation:

Cranney counsel for The Appellant
Wiggins for the Director of the Office of the Department of Public Prosecutions

File Number(s):

2022/00075786

Publication restriction:

NA

JUDGMENT

Introduction

1. On 27 September 2023 Stephen Brown, the appellant, was convicted of three offences. Those convictions were of stalking or intimidating with the intention to cause fear which was alleged to have occurred on 15 March 2022, and then on 16 March 2022 of recklessly causing grievous bodily harm and of reckless wounding. There seems to be something of a grey area as to why there were the two offences the subject of the proceedings arising from 16 March 2022. Nothing however turns on this as the issue in this appeal in relation to the events of that day is whether the Crown has demonstrated beyond reasonable doubt that the actions taken by the appellant on that day were not reasonable in the circumstances as he perceived them.

2. The conduct of this appeal is governed by section 18 of the Crimes (Appeal and Review) Act (“CARA”). The approach to take in respect of such appeals is not in issue between the parties with the Crown accepting the submissions of the appellant as set out in the written submissions. Those submissions accept that error needs to be shown by an appellant in such an appeal; it may well be there remains room for argument in that regard but that is not an issue that needs to be determined in this matter. Other than for that observation the parties have undoubtedly taken the correct approach. Given the lack of contention about it the position can be summarised as follows, with the principles being drawn from cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows:

1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001.

2. The appellate judge is to form their own judgment of the facts while…