DM v The Queen (No. 1)

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.