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
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
-
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:
-
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.
-
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:
-
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…
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- AGLC
- R v Graeme John Lee [2021] NSWDC 65
- Case
- [2021] NSWDC 65
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the actions of the accused constituted a breach of the statutory provisions concerning the improper use of a firearm. The court had to consider whether the evidence presented demonstrated that Lee had discharged his firearm in a manner that was likely to cause injury or damage. This involved a careful analysis of the circumstances under which the firearm was discharged and the potential risks associated with such an act.
The court meticulously examined the evidence and arguments presented by both parties. It determined that the accused had indeed discharged his firearm in a manner that was likely to injure people or damage property, as per the statutory definitions. The court found that the accused's actions were reckless and posed a significant risk to public safety, leading to a conviction. The reasoning was grounded in the specific details of the incident and the applicable legal standards. Consequently, the court delivered its judgment and passed the orders as detailed in the specified paragraphs.
Orders
Orders of the court
See [78 - 79]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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