R v Arkle

[2022] NSWDC 523

District Court

New South Wales

Medium Neutral Citation:

R v Arkle [2022] NSWDC 523

Hearing dates:

1 November 2022

Date of orders:

1 November 2022

Decision date:

01 November 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 36

Catchwords:

CRIMINAL LAW – appeals and review – all grounds appeal from decision of Local Court – use of carriage service to menace, harass or offend

Legislation Cited:

Crimes Act 1914 (Cth) ss 19B, 20

Crimes (Appeal and Review) Act 2001 (NSW) s 18

Criminal Code (Cth) s 474.17

Crimes (Sentencing Procedure) Act1999 (NSW) s 9

Cases Cited:

McNab v DPP (NSW) (2021) 106 NSWLR 430

Lunney v DPP (2021) 105 NSWLR 236

Category:

Principal judgment

Parties:

Commonwealth Director of Public Prosecutions (CDPP)
Mr W Arkle (appellant)

Representation:

Counsel:
Mr R Steward for the appellant

Solicitors:
Mr A Assaad for the CDPP
J Burke Law for the appellant

File Number(s):

2020/00285700

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Sutherland Local Court

Jurisdiction:

Local Court

Date of Decision:

6 May 2020

Before:

Magistrate P Bugden

File Number(s):

2020/00285700

REASONS FOR Judgment

Background

1. On 6 May 2022, Wayde John Arkle was found guilty in the Sutherland Local Court of the offence that early in the morning of 7 March 2020 at Burraneer he used a carriage service, namely a telephone, in such a way that a reasonable person would regard that use as being menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth). The complainant was the appellant’s step-mother.

2. The appellant now appeals that conviction.

Approach to conviction appeals from the Local Court

3. Conviction appeals from the Local Court to this Court are by rehearing, generally on the evidence as it was in the Local Court[1] .

   1. Crimes (Appeal and Review) Act 2001 (NSW), s 18

4. Two recent decisions of the Court of Criminal Appeal shape this Court’s approach to appeals against convictions from the Local Court, being McNab v DPP (NSW) (2021) 106 NSWLR 430 (“McNab”) and Lunney v DPP (2021) 105 NSWLR 236 (“Lunney”). Both decisions affirm that this Court’s jurisdiction to intervene and set aside a conviction is enlivened upon the demonstration of error, be it legal, factual or error in the exercise of discretion.

5. McNab confirms a long-standing practice that a Judge in this Court is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses. In this particular case, however, where the appellant elected not to give evidence, no adverse credit findings were made against the prosecution’s witnesses. At any rate, an appeal against conviction in this Court is not a rehearing de novo.

6. Lunney indicates that how error is demonstrated is shaped by the manner in which the appellant grounds his or her appeal, effectively through grounds of appeal identified through an appellant’s submissions. In this regard, the Court has considered the short written submissions of the…