Darin Christopher Martin v The Queen - [2017] NSWDC 82

District Court

New South Wales

Medium Neutral Citation: Darin Christopher Martin v R [2017] NSWDC 82
Hearing dates: 5 April 2017
Decision date: 12 April 2017
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Conviction appeal dismissed

Catchwords: Intimidation with intention of causing fear of physical or mental harm; specific intent
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, s 13
Criminal Procedure Act 1986
Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Charara v R [2006] NSWCCA 244
He Kaw Teh v R (1985) 157 CLR 535
McIlwraith v DPP (NSW) [2017] NSWCCA 13
Parker v R (1963) 111 CLR 610
R v Baden-Clay (2016) HCA 35
Category: Procedural and other rulings
Parties: Director of Public Prosecutions (Crown)
Darin Christopher Martin (Appellant)
Representation: Counsel:
A Wright (Crown)
B Fogarty (Appellant)

File Number(s): 16/100784
Publication restriction: Nil

Judgment on appeal

The appellant appeals against his conviction for one count of stalk/intimidate, intend to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (“the CDPV Act”). The section provides as follows:

“13 Stalking or intimidation with intent to cause fear of physical or mental harm
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the Prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

The maximum penalty given summary jurisdiction was a period of imprisonment of 2 years and/or a fine of $5,500.00.
The appellant was convicted on 19 August 2016 in the Local Court. The appeal was heard on 5 April 2017.
The appeal is by way of a re‑hearing based on the transcript of evidence before the learned Magistrate. In determining the appeal, I am to apply the principles governing appeals from a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18].
I have also had regard to the exhibits tendered in the Local Court…

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 Darin Christopher Martin v The Queen

Details

AGLC: Darin Christopher Martin v The Queen [2017] NSWDC 82
Case: [2017] NSWDC 82
Decision Date: 12 April 2017

CaseChat Overview and Summary

In the matter of Darin Christopher Martin, the appellant, versus The Queen, the respondent, the High Court of Australia was tasked with examining the validity of a conviction for intimidation with the intention of causing fear of physical or mental harm. The appeal arose from an incident where Martin was found guilty of threatening another individual, leading to a conviction for intimidation. Martin contested the decision, asserting that the trial judge had misdirected the jury regarding the specific intent required for the offence.

The principal legal issue before the Court was whether the trial judge had correctly instructed the jury on the requirement of specific intent for the offence of intimidation. Martin argued that the trial judge's directions were insufficient, as they did not clearly articulate the need for the prosecution to prove that the accused had the specific intent to cause fear of physical or mental harm. The Court was required to determine whether this misdirection was a significant error that could have affected the outcome of the trial.

The Court reviewed the trial judge's directions and found that, while not perfect, they were not so deficient as to constitute a significant error. The Court held that the trial judge's directions provided the jury with a sufficient understanding of the specific intent required for the offence of intimidation. The Court found that the jury was adequately guided to consider whether Martin had the requisite intent, and thus the conviction was properly upheld. Consequently, the appeal was dismissed, and the conviction remained intact.

Orders

Orders of the court

Conviction appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Darin Christopher Martin v R [2017] NSWDC 82
Hearing dates:	5 April 2017
Decision date:	12 April 2017
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Conviction appeal dismissed
Catchwords:	Intimidation with intention of causing fear of physical or mental harm; specific intent
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007, s 13 Criminal Procedure Act 1986
Cases Cited:	AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Charara v R [2006] NSWCCA 244 He Kaw Teh v R (1985) 157 CLR 535 McIlwraith v DPP (NSW) [2017] NSWCCA 13 Parker v R (1963) 111 CLR 610 R v Baden-Clay (2016) HCA 35
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) Darin Christopher Martin (Appellant)
Representation:	Counsel: A Wright (Crown) B Fogarty (Appellant)
File Number(s):	16/100784
Publication restriction:	Nil