Hemphill v The King - [2023] NSWDC 398

District Court

New South Wales

Medium Neutral Citation: Hemphill v R [2023] NSWDC 398
Hearing dates: 26 September 20023
Decision date: 03 October 2023
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
Appeal against conviction allowed

Catchwords:
CRIMINAL – Appeal from Local Court conviction – Intimidation – Proof of Intent

Legislation Cited:
Crimes (Appeal and Review) Act 2001 NSW, s 18
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7(1), 13(1)

Cases Cited:
Director of Public Prosecutions (NSW) v Nikolovski
Lee v R [2023] NSWCCA 70
McNab v Director of Public Prosecutions [2021] NSWCA 298
R v Blair (2005) NSWCCA 78
R v MacDonald [2019] NSWSC 839

Category: Principal judgment
Parties: Lachlan Hemphill
Office of the Director of Public Prosecutions (Crown/Respondent)
Representation:
Counsel:
S Russell (Appellant)
S McGee (Crown/Respondent)
Solicitors:
McNally Jones Staff Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Crown/Respondent)

File Number(s): 2021/259309
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) upon the grounds set out in s 8(1) (e) of the Act there shall be no disclosure, by publication or otherwise, of any information that reveals, or tends to reveal, the name of the person described in these reasons as the “victim”.
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Crime

Date of Decision:

23 March 2023

Before:

Price LCM

JUDGMENT

Introduction

HIS HONOUR: This is an appeal, by way of rehearing, pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 NSW from a decision of Local Court Magistrate Price on 27 March 2023.
On that day the learned magistrate, after a contested hearing, found the Appellant guilty of one offence of intimidation contrary to s 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The appeal is against conviction only, although there is now an application for leave to appeal the sentence, which by agreement between the parties I have decided to defer to deal with once the result of the appeal against conviction is known.

The Crown Case

The Crown case was that on 5 September 2021 in contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act, in the course of his employment as a correctional officer with Correction Services NSW at the Prince of Wales Hospital prison annexe, the Appellant intimidated, with the intention of causing fear of physical or mental harm, the victim, who was an inmate in the prison hospital, suffering from serious mental health issues.
The victim was at the hospital annexe awaiting emergency electroshock treatment in relation to severe exacerbation of schizophrenia. The Appellant was one of the corrections officers entrusted with his supervision. The victim was in a secure room wherein he could communicate with corrections officers by what is described as a “knock up” audio visual intercom system. By using that system he could get the attention and, if needed, the assistance of corrections officers.
On 5 September 2021, there were a series of exchanges between the victim and the…

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 Hemphill v The King

Details

AGLC: Hemphill v The King [2023] NSWDC 398
Case: [2023] NSWDC 398
Decision Date: 03 October 2023

CaseChat Overview and Summary

The case of Hemphill v The King involved an appeal against a conviction made in the Local Court. The defendant, Hemphill, was found guilty of intimidation. The appeal was heard in the District Court, where the legal sufficiency of the evidence used to prove the defendant's intent to intimidate was scrutinized. The central issue before the court was whether the prosecution had adequately established the necessary mens rea for the offence of intimidation, particularly in the context of the defendant's intent to cause fear or apprehension in another person.

The court examined the evidence presented, focusing on the circumstances surrounding the alleged intimidation and the actions of the defendant. It was determined that the prosecution had not provided sufficient evidence to prove beyond reasonable doubt that the defendant intended to intimidate the complainant. The court found that while the actions might have caused fear or apprehension, there was no clear evidence that the defendant acted with the requisite intent. The decision hinged on the interpretation of the defendant's state of mind at the time of the alleged intimidation, and the court concluded that the prosecution had failed to meet the burden of proof in this regard.

Consequently, the court allowed the appeal against the conviction, finding that the evidence was insufficient to support the defendant's conviction for intimidation. As a result, the conviction was quashed, and the defendant was acquitted of the offence. This decision underscores the importance of clear and compelling evidence in proving the requisite intent for criminal convictions.

Orders

Orders of the court

Appeal against conviction allowed

Background

Background to the litigation

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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:	Hemphill v R [2023] NSWDC 398
Hearing dates:	26 September 20023
Decision date:	03 October 2023
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	Appeal against conviction allowed
Catchwords:	CRIMINAL – Appeal from Local Court conviction – Intimidation – Proof of Intent
Legislation Cited:	Crimes (Appeal and Review) Act 2001 NSW, s 18 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7(1), 13(1)
Cases Cited:	Director of Public Prosecutions (NSW) v Nikolovski Lee v R [2023] NSWCCA 70 McNab v Director of Public Prosecutions [2021] NSWCA 298 R v Blair (2005) NSWCCA 78 R v MacDonald [2019] NSWSC 839
Category:	Principal judgment
Parties:	Lachlan Hemphill Office of the Director of Public Prosecutions (Crown/Respondent)
Representation:	Counsel: S Russell (Appellant) S McGee (Crown/Respondent) Solicitors: McNally Jones Staff Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Crown/Respondent)
File Number(s):	2021/259309
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) upon the grounds set out in s 8(1) (e) of the Act there shall be no disclosure, by publication or otherwise, of any information that reveals, or tends to reveal, the name of the person described in these reasons as the “victim”.
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 23 March 2023 Before: Price LCM