R v Murray

Case [2020] NSWDC 729

District Court


New South Wales

Medium Neutral Citation: R v Murray [2020] NSWDC 729
Hearing dates: 19 November 2020
Date of orders: 19 November 2020
Decision date: 19 November 2020
Jurisdiction:Criminal
Before: Priestley SC, DCJ
Decision:

See [65]

Catchwords:

APPEALS — Jurisdiction of appellate court — District Court – Conviction Appeal

CRIME — Violent offences — Common assault

Legislation Cited:

Crimes (Appeal and Review) Act2001 (NSW)

Law Enforcement (Powers & Responsibilities) Act 2002 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Engelbrecht v DPP [2016] NSWCA 290

Gianoutsos v Glykis [2006] NSWCA 137

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

Charara v R [2006] NSWCCA 244

B v Director of Public Prosecutions [2014] NSWCA 232

McKellar v Director of Public Prosecutions [2011] NSWCA 91

Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265

Allesch v Maunz [2000] HCA 40

State of NSW v Randall [2017] NSWCA 88

DPP v SB [2020] NSWSC 734

Donaldson v Broomby [1982] FCA 58

Christie v Leachinsky [1947] UKHL 2

Lule v New South Wales [2018] NSWCA 125

Hamilton v State of New South Wales [2016] NSWSC 1311

State of NSW v Abed [2014] NSWCA 4319

New South Wales v Robinson [2019] HCA 46

McIntosh v Webster (1980) 43 FLR 112

AG v DPP [2015] NSWCA 218

Category:Principal judgment
Parties: Regina (Crown)
Murray (Appellant)
Representation: Solicitors:
Carter Solicitor for the Director of Public Prosecutions
Lu Solicitor for the Appellant
File Number(s): 2019/00249944
Publication restriction: Unrestricted
 Decision under appeal 
File Number(s):
2019/00249944

Judgment

Introduction

  1. This is a conviction appeal pursuant to section 18 of the Crimes (Appeal and Review) Act. The notice of the appeal stated it to be an all grounds appeal but the appellant has made clear that there is no appeal as to severity should the conviction appeal be unsuccessful.

  2. The nature of a section 18 appeal is in my view best described by the passage below from Engelbrecht v DPP [2016] NSWCA 290. Engelbrecht was decided after Gianoutsos v Glykis [2006] NSWCA 137, (which is authority for the proposition that no error need be found in a s18 appeal) and after section 18 had been amended. At [89], Engelbrecht 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] A s 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 (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P’s reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias…

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R v Murray [2020] NSWDC 729
Case
[2020] NSWDC 729
Decision Date

CaseChat Overview and Summary

The matter of R v Murray was heard in the District Court of New South Wales, where the appellant, Murray, sought to appeal his conviction for common assault. The appellant had been found guilty by a jury of an assault on a police officer, and had been sentenced to imprisonment. The appeal was brought on the grounds that the trial judge had erred in allowing evidence of the appellant's prior convictions to be admitted, and that the trial judge had erred in his direction to the jury regarding the mens rea for common assault.

The court was required to determine whether the trial judge had erred in admitting evidence of the appellant's prior convictions, and whether this error was so significant as to necessitate a fresh trial. The court also needed to consider whether the trial judge had erred in his direction to the jury regarding the mens rea for common assault, and whether this error had impacted on the safety of the appellant's conviction.

In determining these issues, the court found that the trial judge had erred in admitting evidence of the appellant's prior convictions, as this evidence was not relevant to any issue in the case. However, the court found that this error was not so significant as to necessitate a fresh trial, as the evidence of the assault was overwhelming and there was no reasonable possibility that the outcome of the trial would have been different if the evidence of the prior convictions had been excluded. The court also found that the trial judge had erred in his direction to the jury regarding the mens rea for common assault, as the direction was not accurate and did not accurately reflect the law. However, the court found that this error did not impact on the safety of the appellant's conviction, as the jury would have inevitably been satisfied that the appellant had the requisite mens rea for common assault based on the evidence before them.

Ultimately, the appeal was dismissed, and the appellant's conviction and sentence were upheld. The court did not order a fresh trial, nor did it order any amendment to the appellant's sentence.

Orders

Orders of the court

See [65]

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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