R v MA

[2024] NSWDC 288

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v MA [2024] NSWDC 288

Hearing dates:

24 May 2024

Date of orders:

24 May 2024

Decision date:

24 May 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

(1)   Appeal allowed.

(2)   If necessary, set aside the conviction entered by the Magistrate on 13 November 2023, and set aside the sentence of the Magistrate entered on 22 February 2024.

Catchwords:

CRIME – Appeal from conviction of sexual intercourse without consent in Local Court – Identity – Crown concession that offence not proved beyond reasonable doubt – Appeal allowed

Legislation Cited:

Crimes Act 1900 (NSW) s 61I

Crimes (Appeal and Review) Act 2001 (NSW) s 11; s 18

Cases Cited:

Charara v R [2006] 164 A Crim R 39

Dyason v Butterworth [2015] NSWCA 52

McNab v DPP [2021] NSWCA 298

Category:

Principal judgment

Parties:

Rex
MA (Appellant)

Representation:

Counsel:
C Ervin (Crown)
A Reslan (Appellant)

Solicitors:

File Number(s):

2021/265702

Publication restriction:

Non-publication restriction

JUDGMENT: Ex tempore

1. The Appellant is now aged 18, was aged 14 in November 2020. He was charged with a single offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). As the Appellant was a juvenile at the time, the matter was heard in the Children’s Court.

2. The Appellant entered a plea of not guilty and the matter was heard by a Magistrate in the Children’s Court over five days of evidence from 11 October, 13 October, 14 October 2022, 15 June 2023, and 16 June 2023.

3. After hearing submissions, the Magistrate delivered judgment on 13 November 2023, the Appellant was found guilty. Sentence was delivered on 22 February 2024. The Appellant appeals against both the conviction entered by the Magistrate and the sentence.

4. Section 11 of the Crimes (Appeal and Review) Act 2001 (NSW) provides for an appeal as a right for any person who has been convicted or sentenced by the Local Court. Section 3 defines the Local Court to include the Children’s Court.

5. An appeal against conviction proceeds under s 18 by way of a rehearing on the basis of the evidence given before the Local Court subject to certain exceptions.

6. It is well understood on such an appeal, the judge on appeal forms his or her own view of the facts, recognising the considerable advantage though that Magistrates who have heard and seen witnesses have when assessing matters such as credit. See for example Dyason v Butterworth [2015] NSWCA 52. A judge is entitled to consider the reasons of the Magistrate, including as to findings of credibility: Charara v R [2006] 164 A Crim R 39. In order for an appeal to succeed, the Court needs to be satisfied that the ultimately result that the conclusion of the Magistrate in terms of a conviction is not correct: McNab v DPP [2021] NSWCA 298.

7. The Appellant has put comprehensive submissions before me in writing contained in an outline of submissions document signed by…