R v Graeme John Lee

[2021] NSWDC 65

District Court

New South Wales

Medium Neutral Citation:

R v GRAEME JOHN LEE [2021] NSWDC 65

Hearing dates:

22 February 2021

Date of orders:

11 March 2021

Decision date:

11 March 2021

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [78 - 79]

Catchwords:

CRIME — Violent offences — Discharge firearm manner likely injure persons/property

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

CrimesAct 1900 (NSW)

Cases Cited:

Gianoutsos v Glykis [2006] NSWCA 137

Eaton [2021] NSWDC 33

Katarzynski [2002] NSWSC 61

Decision Restricted [2016] NSWCCA 268

Santow in R v Trevenna [2004] NSWCCA 43

R v Cicekdag [2004] NSWCCA 357

Fingleton v The Queen (2005) 227 CLR

Hudd v R [2013] NSWCCA 57

R v Howe (1958) 100 CLR 448

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Regina (Crown)

Lee (Appellant)

Representation:

Carter Solicitor for the NSW DPP
Conwell Counsel for the Appellant

File Number(s):

2019/00373085

Publication restriction:

Unrestricted

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

23 October 2020

Before:

His Honour Dakin LCM

File Number(s):

2019/00373085

Judgment

1. This is a conviction appeal from a decision of a Local Court Magistrate. Such an appeal is conducted pursuant to s18 of the Crimes (Appeal and Review) Act, and is a rehearing and not a hearing de novo.   There is authority to the effect that no error needs to be found; Gianoutsos v Glykis [2006] NSWCA 137. The preponderance of authority however is that there is a need for some error to be found. Recently I considered the position in Eaton [2021] NSWDC 33, and from [6] set out the following, which I adopt here:

2. The appeal process under section 18 has been described as being akin to an appeal to the Supreme Court under section 75A of the Supreme Court Act. Adopting that approach would require error to be found in order for this appeal to be successful. There is however a conflict in the Court of Appeal authorities as to whether error does need to be found. Gianoutsos v Glykis [2006] NSWCA 137 says no error is necessary; the judgment of McColl JA in Engelbrecht v DPP [2016] NSWCA 290 clearly supports that error is necessary and Basten JA in AG v DPP [2015] NSWCA 218 considers error is required. In AG v DPP only Basten JA expressed this view.

3. In Engelbrecht which was decided after Gianoutsos, and after section 18 had been amended appears the following passage at [89], which adopts the reasoning from Charara v R [2006] NSWCCA 244 which was decided on the same legislation as Gianoutsos but with a different outcome:

4. The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth,[68] as follows:

[26] As 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] – [24]) per Mason P…