Hood-Carberry v The King - [2024] NSWDC 295

District Court

New South Wales

Medium Neutral Citation: Hood-Carberry v R [2024] NSWDC 295
Hearing dates: 15 March 2024
Date of orders: 15 March 2024
Decision date: 15 March 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Conviction appeal upheld – the convictions and all orders of the court below are set aside

Catchwords:
CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction
CRIME — Violent offences — Resist/Hinder police officer in execution of duty — Assault police officer in the execution of duty
CRIME — Police powers under LEPRA — Police powers under Bail Act

Legislation Cited:
Bail Act 2013 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:
Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862
Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70
Charara v R (2006) 164 A Crim R 39
Dearman v Dearman (1908) 7 CLR 549
Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50
Director Public Prosecutions v Gribble [2004] NSWSC 926
Fox v Percy (2003) 214 CLR 118
McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298

Category: Principal judgment
Parties: Jacob Hood-Carberry (the offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
H Dreher solicitor for Aboriginal Legal Service (NSW/ACT)
A Edye solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/187608

JUDGMENT – ex tempore revised

Introduction

After a hearing in the Local Court Jacob Hood-Carberry, was convicted of Resist Police in the Execution of Duty and Assault Police in the Execution of Duty. He appealed those convictions to the District Court.
This appeal against convictions involves a rehearing on the basis of evidence given in the original Local Court proceeding. The evidence before the Local Court, including police body worn camera videos, and the transcript of proceedings was put before me.

Basic principles

An appeal to the District Court requires demonstration of a factual, legal or discretionary error in order to succeed: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298. I must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate’s evaluation of evidence: Crimes (Appeal and Review) Act 2001 (NSW), s 18. If error is demonstrated, I am obliged to give the “judgement which in its opinion ought to have been given in the first instance”: Dearman v Dearman (1908) 7 CLR 549 at [561].
There is no prohibition on the Court accessing the reasons for judgment in the court below, including the magistrate's findings as to the credibility of witnesses where the magistrate has had the advantage of hearing the oral testimony: McNab at [31]-[73] and [74]-[77]; Charara v R (2006) 164 A Crim R 39. I must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial…

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.

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Details

Case: [2024] NSWDC 295
Decision Date: 15 March 2024

CaseChat Overview and Summary

The matter before the court was an appeal against conviction by the respondent, who had been found guilty of resisting and assaulting a police officer in the execution of their duty, and hindering a police officer in the execution of their duty. The appeal was heard by the District Court of New South Wales. The respondent contested the conviction and sentence imposed by the Local Court, claiming that the evidence was insufficient and that the trial judge had erred in law.

The legal issues before the court were whether the prosecution had proved the elements of the offences beyond reasonable doubt, and whether there were any errors in the trial judge's direction to the jury or in the admission of evidence. The court considered the evidence presented at the trial and the arguments of both parties. The court also considered the relevant statutory provisions, including those under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Bail Act 2013 (NSW).

The court found that the prosecution had not proved the elements of the offences beyond reasonable doubt, and that there had been errors in the trial judge's direction to the jury and in the admission of evidence. The court held that these errors were significant and impacted the safety of the conviction. The court set aside the convictions and all orders of the court below, and allowed the appeal against conviction. The court ordered that the convictions and all orders of the court below be set aside.

Orders

Orders of the court

Conviction appeal upheld – the convictions and all orders of the court below are set aside

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.

Medium Neutral Citation:	Hood-Carberry v R [2024] NSWDC 295
Hearing dates:	15 March 2024
Date of orders:	15 March 2024
Decision date:	15 March 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Conviction appeal upheld – the convictions and all orders of the court below are set aside
Catchwords:	CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction CRIME — Violent offences — Resist/Hinder police officer in execution of duty — Assault police officer in the execution of duty CRIME — Police powers under LEPRA — Police powers under Bail Act
Legislation Cited:	Bail Act 2013 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited:	Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862 Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70 Charara v R (2006) 164 A Crim R 39 Dearman v Dearman (1908) 7 CLR 549 Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50 Director Public Prosecutions v Gribble [2004] NSWSC 926 Fox v Percy (2003) 214 CLR 118 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298
Category:	Principal judgment
Parties:	Jacob Hood-Carberry (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: H Dreher solicitor for Aboriginal Legal Service (NSW/ACT) A Edye solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/187608