DM v The Queen (No. 1) - [2021] NSWDC 813

District Court

New South Wales

Medium Neutral Citation: DM v R (No. 1) [2021] NSWDC 813
Hearing dates: 11-12 October 2021
Date of orders: 12 October 2021
Decision date: 12 October 2021
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
1. Appeal allowed.
2. I set aside the conviction recorded and any sentence passed by Viney LCM sitting in the Burwood Local Court on 15 April 2021
3. I set aside the ADVO made by the Local Court at Burwood on 15 April 2021.
4. Adjourned to 14 October 2021 for the Appellant’s application for costs.

Catchwords:
CRIME – APPEAL – CONVICTION APPEAL – Onus of proof – Allegation that Appellant assaulted son aged 9 years and 8 months – Police relied on evidence of son (unsworn) and his mother and reliable, good character and background of Appellant had to be taken into account on both propensity and guilt.

Legislation Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336
Crimes (Domestic and Personal Violence) Act2007 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Melbourne v The Queen (1999) 198 CLR 1
R v Murray (1987) 11 NSWLR 12

Texts Cited:
Nil.

Category: Principal judgment
Parties: R – Crown
Appellant – DM
Representation: R – Trajovski of the Office of the Direction of Public Prosecutions (NSW)
Appellant – James, G. QC, Searson

File Number(s): 2020/00238290
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court of New South Wales at Burwood

Jurisdiction:

Civil

Citation:

Nil.

Date of Decision:

15 April 2021

Before:

Viney LCM

File Number(s):

2020/00238290

Judgment

Background

HIS HONOUR: This is an appeal from a conviction recorded by her Honour Alison Viney LCM sitting in the Local Court at Burwood on 15 April 2021.
The Appellant, DM, was charged that on 8 August 2020, at Epping in this State, he did assault WM. WM is the son of DM. The assault is alleged to have occurred in the then family home.
The appellant pleaded not guilty and a contested hearing was conducted on 19 March 2021. Her Honour directed the filing and service of written submissions and that occurred. The written submissions on behalf of the prosecution were over five pages, pp 168 to 172 of Exhibit 1 before me. Counsel for the appellant in the court below, Mr Searson, provided five pages of written submissions as well, bearing date 6 April 2021. Those submissions can be found at pp 163 to 167 of Exhibit 1 before me.
Her Honour gave judgment on 15 April 2021, finding the appellant guilty of common assault upon his own son. Some background is required.

Factual setting

The family was living at unit 7/25 Carlingford Road, Epping, at the relevant time. The appellant and his wife, CF, were married most probably in 2006. In her oral evidence, CF said that she and DM had been married for 14 years. In the electronically recorded interview that the appellant gave to the police he said that they married in either 2006 or 2007 after having known each…

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 DM v The Queen (No. 1)

Details

AGLC: DM v The Queen (No. 1) [2021] NSWDC 813
Case: [2021] NSWDC 813
Decision Date: 12 October 2021

CaseChat Overview and Summary

The appeal before the court was brought by an appellant against a conviction and sentence imposed by the Burwood Local Court. The appellant was found guilty of assaulting his nine-year-old son and the court also made an apprehended domestic violence order against him. The appellant appealed against the conviction and sentence, and the case was heard by the Local Court Magistrates’ Court of Appeal.

The central legal issue before the court was whether the prosecution had discharged the onus of proving the assault beyond reasonable doubt. The evidence against the appellant primarily came from his son, who was nine years and eight months old at the time of the alleged assault, and his mother. The court had to consider the unreliability of the son’s unsworn evidence and the appellant’s good character and background. The court was required to determine if the prosecution’s case was sufficient to satisfy the onus of proof beyond reasonable doubt.

The court found that the prosecution’s case was not sufficient to discharge the onus of proof. The unsworn evidence of the son, coupled with the mother’s evidence, did not meet the required standard of proof beyond reasonable doubt. Additionally, the court noted the appellant’s good character and background, which had to be taken into account in assessing both the propensity of the appellant to commit the offence and his actual guilt. The court concluded that the prosecution had not proven the assault beyond reasonable doubt and allowed the appeal. The conviction, sentence, and the apprehended domestic violence order were set aside. The matter was adjourned for the appellant’s application for costs.

Orders

Orders of the court

1. Appeal allowed.

2. I set aside the conviction recorded and any sentence passed by Viney LCM sitting in the Burwood Local Court on 15 April 2021

3. I set aside the ADVO made by the Local Court at Burwood on 15 April 2021.

4. Adjourned to 14 October 2021 for the Appellant’s application for costs.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DM v R (No. 1) [2021] NSWDC 813
Hearing dates:	11-12 October 2021
Date of orders:	12 October 2021
Decision date:	12 October 2021
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	1. Appeal allowed. 2. I set aside the conviction recorded and any sentence passed by Viney LCM sitting in the Burwood Local Court on 15 April 2021 3. I set aside the ADVO made by the Local Court at Burwood on 15 April 2021. 4. Adjourned to 14 October 2021 for the Appellant’s application for costs.
Catchwords:	CRIME – APPEAL – CONVICTION APPEAL – Onus of proof – Allegation that Appellant assaulted son aged 9 years and 8 months – Police relied on evidence of son (unsworn) and his mother and reliable, good character and background of Appellant had to be taken into account on both propensity and guilt.
Legislation Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Crimes (Domestic and Personal Violence) Act2007 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Melbourne v The Queen (1999) 198 CLR 1 R v Murray (1987) 11 NSWLR 12
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	R – Crown Appellant – DM
Representation:	R – Trajovski of the Office of the Direction of Public Prosecutions (NSW) Appellant – James, G. QC, Searson
File Number(s):	2020/00238290
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of New South Wales at Burwood Jurisdiction: Civil Citation: Nil. Date of Decision: 15 April 2021 Before: Viney LCM File Number(s): 2020/00238290