McMahon v The King

[2024] NSWDC 692

District Court

New South Wales

Medium Neutral Citation:

McMahon v R [2024] NSWDC 692

Hearing dates:

14 October 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

(1)   Appeal allowed

(2)   Conviction and sentencing orders set aside.

Catchwords:

CRIME — Appeals — Appeal against conviction

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Cases Cited:

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

Fox v Percy (2003) 214 CLR 118

Lunney v DPP [2021] NSWCA 186

McNabb [2021] NSWCA 298

Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Crown)
John McMahon (Appellant)

Representation:

Counsel:
S. Apps for the Appellant
Solicitors:
Director of Public Prosecutions for the Crown
James Fuggle Rummery Solicitors for the Appellant

File Number(s):

2022/103786
2022/102775

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

29 April 2024

Before:

Magistrate M. Dakin

File Number(s):

2022/103786
2022/102775

JUDGMENT

1. John Terrence McMahon appeals his conviction of assault occasioning actual bodily harm as found by a magistrate of the Local Court. The complainant was Paul McMahon. Paul McMahon and John McMahon are brothers and will be referred to as the complainant and the appellant respectively in these reasons. The appeal is brought pursuant to s18 of the Crimes (Appeal and Review) Act 2001 (“CARA”).

2. The approach to take in respect to an appeal under section 18 of CARA has been the subject of numerous Court of Appeal and Court of Criminal Appeal decisions. The approach to take is based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows:

1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) CARA. CARA permits further evidence by leave per ss 18(2) and 19.

2. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]

3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]

4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

5. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].

3. The approach may also be described…