Davey v The The Queen

[2022] NSWDC 168

District Court

New South Wales

Medium Neutral Citation:

Davey v R [2022] NSWDC 168

Hearing dates:

9 May 2022

Date of orders:

19 May 2022

Decision date:

19 May 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   Appeal allowed.

(2)   The convictions and penalties imposed by the magistrate are set aside.

(3)   The associated ADO should be set aside.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act2001

Cases Cited:

AGv Director of Public Prosecutions [2015] NSWCA 218

Chararav R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

GianoutsasvGlykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

M v R (1994) 181 CLR 487

Mahmood v Western Australia (2008) 232 CLR 397

McNab v Director of Public Prosecutions [2021] NSWCA 298

R v Conlon (1993) 69 A Crim R 92

R vKatarzynski [2002] NSWCCA 613

R vViro (1978) 141 CLR 88

Texts Cited:

Macquarie Dictionary

Category:

Procedural rulings

Parties:

James Davey v ODPP

Representation:

Counsel:
C Soto (Appellant)

Solicitors:
ODPP (Prosecutor)
Joshua Blom Lawyers (Appellant)

File Number(s):

20/331110

Publication restriction:

None

Judgment

Introduction

1. James Davey (the appellant) appeals against the convictions entered by her Honour Magistrate Huntsman at the Waverley Local Court on 17 June 2021.

2. The appellant had pleaded not guilty to one count of intentionally suffocating a person without consent contrary to s 37(1A) Crimes Act 1900, one count of common assault contrary to s 61 Crimes Act 1900 and one count of assault occasioning actual bodily harm contrary to s 59(1) Crimes Act 1900.

3. At about 7.30pm on 19 November 2020, the appellant was at premises where he lived in a de facto relationship with the complainant, Talia Linsdell. An argument occurred in the context of the breakdown of their relationship, amidst a recently terminated pregnancy and allegations of infidelity. It was common ground that there was a physical altercation between the appellant and the complainant, before the appellant left the premises. The complainant called the Police and they attended and recorded the complainant’s statement about two hours after the alleged incident (the DVEC). The complainant alleged that during the course of the altercation:

1. the appellant had pinned her to the bed by placing his knees on her shoulder/bicep area and holding her hands above her head, at which time she sustained bruising. This allegation constituted the assault occasioning actual bodily harm charge.

2. that whilst she was pinned to the bed, the appellant covered her mouth with his hand and then pinched her nose for about 20 seconds making it difficult for her to breathe. This allegation constituted the intentional suffocation charge.

3. that after she got off the bed, the appellant side kicked her to the stomach when she was standing and then kicked her in the head while she was on the floor. This allegation constituted the common assault charge.

4. On 20 November 2020 the appellant…