Foley v The The Queen

[2022] NSWDC 122

District Court

New South Wales

Medium Neutral Citation:

Foley v R [2022] NSWDC 122

Hearing dates:

11 April 2022

Date of orders:

22 April 2022

Decision date:

22 April 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Appeal dismissed; conviction confirmed.

Catchwords:

APPEAL – Assault occasioning actual bodily harm – in company.

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Supreme Court Act 1970

Cases Cited:

Charara v R [2006] NSWCCA 244

McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Crown)
Kerry James Foley (Appellant)

Representation:

Solicitors:
S. Amvrazis (Crown)
J. McLoughlin (Appellant)

File Number(s):

19/392929

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

13 May 2021

Before:

Magistrate V Swain

Judgment on appeal

1. On 13 May 2021, the appellant was convicted of an offence pursuant to s 59(2) of the Crimes Act 1900 of assault occasioning actual bodily harm, following a hearing in the Local Court. That hearing took place over three days on 16 and 17 November 2020 and 26 March 2021.

2. The appeal is by way of rehearing based on the transcript of evidence before the learned magistrate and the exhibits in those proceedings. In determining the appeal, I am to apply the principles governing appeals for a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence and the exhibits (in this case, including the CCTV footage of the premises), 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].

3. In McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298, Bell P said in respect of an appeal pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (“CAR Act”) at [25]:

“An appeal is from orders, not reasons, and such error will be identified, if at all, by the process of rehearing. The task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate… whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the Local Court, but without the error of law which tainted the result at first instance. Such a hearing will, however, not be a hearing de novo.”

4. McNab was a case that concerned an application for judicial review of a District Court judge’s decision to dismiss an applicant’s appeal against conviction, pursuant to s 69 of the Supreme Court Act 1970.…