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Day (a pseudonym) v The The King

Day (a pseudonym) v The The King

Case [2022] NSWDC 594 24 November 2022

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District Court

New South Wales

Medium Neutral Citation: Day (a pseudonym) v R [2022] NSWDC 594
Hearing dates: 7 October 2022; 26 October 2022
Date of orders: 24 November 2022
Decision date: 24 November 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
On each matter the appeals against conviction are dismissed.

Catchwords:
APPEAL - Appeal against conviction - did Magistrate err - need to review all evidence from the Local Court - need for precise application of judicial directions - assessing complainant’s credibility given there was an acquittal of a count in the Local Court - reviewing credibility findings on an appeal - challenge to Magistrate’s credibility findings - can a judge ignore a Magistrate’s credibility findings - resolving “oath on oath” domestic violence on appeal- “self-serving evidence”
CRIME – Common assault - Intimidate intending to cause fear - Sexually touch another without consent - Domestic violence related

Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Domestic and Personal Violence) Act 2007
Evidence Act1995

Cases Cited:
AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
BM v R [2017] NSWCCA 133
Browne v Dunn (1893) 6 R 67
Dansiev The Queen [2022] HCA 25
De Silva v The Queen [2019] HCA 48
Dyers v The Queen {2002] HCA 45; (2002) 210 CLR 285
Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Fox v Percy 2003) 214 CLR 118; [2003] HCA 22
Harper v R [2022] NSWCCA 211
Hodgson v R [2022] NSWCCA 72
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Lunney v DPP [2021] NSWCA 186
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298
Mulder v Director of Public Prosecutions(Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92
O’ Connell v DPP [2021] NSWSC1519
R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529
R v Markulevski [2001] NSWCCA 290
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Category: Principal judgment
Parties: Peter Day (the appellant)
Director of Public Prosecutions (the respondent)
Representation:
Counsel:
Mr S Boland (for the appellant)
Solicitors:
McAneny Lawyers (for the appellant)
Ms J Walshe (for the respondent)

File Number(s): 2020/00315147
Publication restriction: In this judgment the appellant is referred to by a pseudonym.
The name of the complainant is not to be published, nor is any other material that could lead to the identification of the complainant or a child: s578A of the Crimes Act 1900; s15A Children (Criminal Proceedings) Act 1987.
Decision under appeal

Court or tribunal:

Wollongong

Jurisdiction:

Local Court, Crime

Date of Decision:

4 April 2022

Before:

M O'Brien LCM

File Number(s):

2020/00315147

JUDGMENT

Introduction

On 4 April 2022, Magistrate O'Brien convicted Peter Day (a pseudonym) of three…

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 Day (a pseudonym) v The The King

Details

AGLC: Day (a pseudonym) v The The King [2022] NSWDC 594
Case: [2022] NSWDC 594
Decision Date: 24 November 2022

CaseChat Overview and Summary

The case of Day (a pseudonym) v The King involved an appeal against the conviction of the appellant, Day, by the District Court. Day was convicted in the Local Court of common assault, intimidating with intent to cause fear, and sexually touching another without consent, all of which were related to domestic violence. The appeal was dismissed by the District Court, and Day sought further review in the Court of Appeal. The appellant argued that the Magistrate had erred in the review of evidence, particularly in relation to the credibility of the complainant.

The central legal issues in this appeal revolved around whether the Magistrate had erred in the review of the evidence presented at the Local Court. Specifically, the appellant contested the Magistrate's credibility findings regarding the complainant. The appellant contended that the Magistrate had failed to properly apply judicial directions, particularly in light of the acquittal on one count in the Local Court. The appellant also argued that the Magistrate had incorrectly disregarded the complainant's self-serving evidence. The Court of Appeal was required to determine whether the Magistrate's findings were legally sound and whether the appeal should be allowed.

The Court of Appeal considered the evidence and the legal principles applicable to the review of credibility findings. It was noted that the Magistrate had conducted a thorough review of the evidence, taking into account the acquittal on one count and the complainant's credibility. The Court found that the Magistrate had correctly assessed the evidence and applied the appropriate legal standards. The Court held that the Magistrate's findings on the credibility of the complainant were sound and that there was no basis to overturn the conviction. Consequently, the appeals against conviction were dismissed, and the convictions stood.

The final orders of the Court of Appeal were that the appeals against conviction were dismissed on each matter. The convictions in the District Court were upheld, and the appellant's challenge to the Magistrate's credibility findings was rejected.

Orders

Orders of the court

On each matter the appeals against conviction are dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Day (a pseudonym) v The The King [2022] NSWDC 594

Most Recent Citation

Overberg v Director of Public Prosecutions [2025] NSWDC 18

Cases citing this decision · 1 of 1 shown

Overberg v Director of Public Prosecutions
[2025] NSWDC 18 Para 11

…The principles applicable to such appeals have also been helpfully set out by Haesler SC DCJ in Day (a pseudonym) v R [2022] NSWDC 594 at [10] to [22] which I gratefully adopt and incorporate by reference.…

View all 1 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Abdaly; R v Hosseinishoja (No 4)
[2022] NSWSC 1529 Para 68

…any flaws or idiosyncrasies in the way they give evidence and their demeanour in the courtroom: see for example R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529 Hamill J, at [46]-[49].…
Harper v R
[2022] NSWCCA 211 Para 74

…s remains whether, on consideration of all of the evidence, the jury is satisfied beyond reasonable doubt of the guilt of the appellant: Harper v R [2022] NSWCCA 211 at [147].…
Dansie v The Queen
[2022] HCA 25 Para 16

…when dealing with a conviction for an indictable offence following a trial by judge were recently reinforced by the High Court in Dansie v The Queen [2022] HCA 25. The advantage that a trial judge might have over a court of appeal by reason of having seen and heard the evidence at trial will vary from case to c…
Hodgson v R
[2022] NSWCCA 72 Para 70

…n, seek to evaluate the conflicting testimonial evidence against those matters: see Leeming JA’s summary of the relevant authorities in Hodgson v R [2022] NSWCCA 72 at [94]-[98].…
McNab v Director of Public Prosecutions
[2021] NSWCA 298 Para 11

…at the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 at [90].…
Lunney v DPP
[2021] NSWCA 186 Para 50

…s divided on the question of whether it is necessary for the appellant to establish error in the Local Court to succeed on appeal citing Lunney v DPP [2021] NSWCA 186 at [24]. He accepted that that question did not need to be resolved here as error was asserted. The appeal proceeded on the basis that the jurisdicti…
De Silva v The Queen
[2019] HCA 48 Para 2

…When I directed myself in accordance with De Silva v The Queen [2019] HCA 48, would at the very least find the appellant’s version might be true.…
BM v R
[2017] NSWCCA 133 Para 67

…ng that a doubt entertained in respect of one count may support a doubt with respect to other counts tends to undermine that other direction : BM v R [2017] NSWCCA 133 at [24].…
Filippou v The Queen
[2015] HCA 29

…(1893) 6 R 67 Dansie v The Queen [2022] HCA 25 De Silva v The Queen [2019] HCA 48 Dyers v The Queen {2002] HCA 45; (2002) 210 CLR 285 Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Fox v Percy 2003) 214 CLR 118; [2003] HCA 22 Harper v R [2022] NSWCCA 211 Hodgson v…
AG v Director of Public Prosecutions (NSW)
[2015] NSWCA 218 Para 11

…eeded on the basis that the appellant needed to, and could establish error, on the part of the magistrate: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218. The need to demonstrate error does not reverse the onus of proof. Demonstration of error can mean no more than satisfying the District Court judge t…
Mulder v Director of Public Prosecutions (Cth)
[2015] NSWCA 92 Para 18

…as sufficient to demonstrate the appellant’s guilt beyond reasonable doubt: Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92 at [28]; McNab at [25]…
Mahmood v Western Australia
[2008] HCA 1 Para 62

…ut the pillow incident. He submitted that if his Honour had directed himself in accordance with Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1, the prosecution’s failure to call the CAD operator required a conclusion that operator would not have assisted the prosecution case. If the complainant ha…
Fox v Percy
[2003] HCA 22 Para 15

…The principles set out in Fox v Percy 2003) 214 CLR 118; [2003] HCA 22, are relevant to my assessment:…
Dyers v The Queen
[2002] HCA 45 Para 72

…mood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27]; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620; Dyers v The Queen {2002] HCA 45; (2002) 210 CLR 285 at 293 [13], 327-328 [120]-[123].…
R v Markuleski
[2001] NSWCCA 290 Para 51

…land, said the appeal was advanced on the basis that; having acquitted of the pillow incident charges, a direction in accordance with R v Markulevski [2001] NSWCCA 290, at [191], should have been given by his Honour, and, if properly applied, must have resulted in an acquittals.…
RPS v The Queen
[2000] HCA 3 Para 72

…entertain a reasonable doubt about the guilt of the appellant. Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27]; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620; Dyers v The Queen {2002] HCA 45; (2002) 210 CLR 285 at 293 [13], 327-328 [120]-[123].…
Fleming v The Queen
[1998] HCA 68

…ueen {2002] HCA 45; (2002) 210 CLR 285 Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Fox v Percy 2003) 214 CLR 118; [2003] HCA 22 Harper v R [2022] NSWCCA 211 Hodgson v R [2022] NSWCCA 72 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Lunney…
M v the Queen
[1994] HCA 63 Para 17

…99]. They referenced the High Court decisions of Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 and M v The Queen (1994) 181 CLR 487; [1994] HCA 63:…
Liberato v The Queen
[1985] HCA 66 Para 74

…as clearly alert to the need to not undermine the onus placed on the prosecution and the direction recommended by Brennan J in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. A Liberato direction has an important role to play in ensuring that there is no diminution in the onus and standard of proof when…
Browne v Dunn
113 ER 1206 Para 58

…lusions could not provide a basis for a suggestion the appellant lacked credibility. He also submitted that his Honour had inverted the rule in Browne v Dunn (1893) 6 R 67, when he considered the appellant’s evidence about the general the practise of a couple when attempting to reconcile after an argument. Something, t…

Legislation cited in this decision · 5

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 10)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 81)

Medium Neutral Citation:	Day (a pseudonym) v R [2022] NSWDC 594
Hearing dates:	7 October 2022; 26 October 2022
Date of orders:	24 November 2022
Decision date:	24 November 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	On each matter the appeals against conviction are dismissed.
Catchwords:	APPEAL - Appeal against conviction - did Magistrate err - need to review all evidence from the Local Court - need for precise application of judicial directions - assessing complainant’s credibility given there was an acquittal of a count in the Local Court - reviewing credibility findings on an appeal - challenge to Magistrate’s credibility findings - can a judge ignore a Magistrate’s credibility findings - resolving “oath on oath” domestic violence on appeal- “self-serving evidence” CRIME – Common assault - Intimidate intending to cause fear - Sexually touch another without consent - Domestic violence related
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Domestic and Personal Violence) Act 2007 Evidence Act1995
Cases Cited:	AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 BM v R [2017] NSWCCA 133 Browne v Dunn (1893) 6 R 67 Dansiev The Queen [2022] HCA 25 De Silva v The Queen [2019] HCA 48 Dyers v The Queen {2002] HCA 45; (2002) 210 CLR 285 Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Fox v Percy 2003) 214 CLR 118; [2003] HCA 22 Harper v R [2022] NSWCCA 211 Hodgson v R [2022] NSWCCA 72 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Lunney v DPP [2021] NSWCA 186 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 Mulder v Director of Public Prosecutions(Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92 O’ Connell v DPP [2021] NSWSC1519 R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529 R v Markulevski [2001] NSWCCA 290 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Category:	Principal judgment
Parties:	Peter Day (the appellant) Director of Public Prosecutions (the respondent)
Representation:	Counsel: Mr S Boland (for the appellant) Solicitors: McAneny Lawyers (for the appellant) Ms J Walshe (for the respondent)
File Number(s):	2020/00315147
Publication restriction:	In this judgment the appellant is referred to by a pseudonym. The name of the complainant is not to be published, nor is any other material that could lead to the identification of the complainant or a child: s578A of the Crimes Act 1900; s15A Children (Criminal Proceedings) Act 1987.
Decision under appeal	Court or tribunal: Wollongong Jurisdiction: Local Court, Crime Date of Decision: 4 April 2022 Before: M O'Brien LCM File Number(s): 2020/00315147