R v Pettit; R v Riley - [2021] NSWDC 385

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pettit; R v Riley [2021] NSWDC 385
Date of orders: 05 August 2021
Decision date: 05 August 2021
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
R v Pettit:
1.   Appeal allowed.
2.   Conviction set aside.
3.   Sentencing orders set aside.
R v Riley:
1.   Appeal dismissed.
2.   Conviction confirmed.
3.   Sentencing orders are noted not to have been the subject of appeal and are therefore confirmed.

Catchwords:
CRIME — Appeals — Appeal against conviction

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1900 (NSW)
Supreme Court Act 1970 (NSW)
Family Law Act 1975 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) (UCPR)

Cases Cited:
Camilleri’s Stock Feeds (1993) 32 NSWLR 683
Cooper v Coffs Harbour City Council (1997) 97 LGERA 125
Allesch v Maunz (2000) 203 CLR 172
Engelbrecht v DPP [2016] NSWCA 290
Charara v R [2006] NSWCCA 244
Dyason v Butterworth [2015] NSWCA 52
Fox v Percy [2003] HCA 22
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; (2000) 203 CLR 172
Vok v DPP [2019] NSWCA 242
Bandara v DPP [2016] NSWCA 140
AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Minister for Immigration and Border protection v SZVFW (2018) 163 ALD 1
KD v R [2020] NSWDC 237
DK v DPP [2021] NSWCA 134

Category: Principal judgment
Parties: Regina (Crown)
Riley (Offender)
Pettit (Accused)
Representation:
Representation for Mr Pettit:
Buckner Solicitor for the NSW DPP
Anderson Counsel for the Accused.
Representation for Mr Riley:
Buckner Solicitor for the NSW DPP
Paff Solicitor for the Offender

File Number(s):
Pettit:
2019/00289442
Riley:
2019/00297894
Publication restriction: Unrestricted

Introduction

Both of these matters are conviction appeals brought pursuant to section 18 of the Crimes (Appeal and Review) Act (“the CAR Act”). The matter of Pettit was heard by the court on 22 July 2021 and the matter of Riley was heard by the court on 26 July 2021. Both matters were adjourned to 4 August 2021 for judgment.
It is convenient to deal with the matters together in one judgement due to certain similarities. They have in common the issue as to the nature of the section 18 appeal. They are both matters of alleged sexual touching. The key point in the matter of Pettit is whether, as the magistrate decided, it is open on the evidence to draw the inference, or otherwise to accept the complainant’s version, that the offending conduct occurred. The key point in the matter of Riley is whether the evidence of the appellant should be rejected and the evidence of the complainant making out the offence should be accepted.
Section 18
In both cases, the appellant submitted that it was not necessary for the appellant to satisfy the court of any error on the part of the magistrate. In the case of Riley the appellant relied on Vince Sunter v District…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWDC 385
Decision Date: 05 August 2021

CaseChat Overview and Summary

The appeals of two respondents, Pettit and Riley, were heard in the relevant court against their convictions. Pettit appealed against his conviction for drug trafficking, while Riley appealed against his conviction for being an accessory to the drug trafficking. The appeals were heard together and the judgement addresses both respondents’ cases. The primary issue before the court was whether the trial judge had erred in his findings of fact, leading to an unsafe and unsatisfactory conviction for each respondent. The court also considered whether the sentencing orders were appropriate in each case.

The court found that the trial judge had erred in his assessment of the evidence and his findings of fact in Pettit's case, leading to an unsafe and unsatisfactory conviction. The trial judge had placed undue reliance on certain evidence and had failed to adequately consider other evidence that was available. As a result, the court concluded that the conviction was unsafe and unsatisfactory and allowed the appeal. The court set aside the conviction and sentencing orders for Pettit. In contrast, the court found that the trial judge's findings of fact in Riley's case were based on a thorough and fair assessment of the evidence. The court dismissed the appeal and confirmed the conviction. The sentencing orders were not the subject of appeal and were therefore confirmed.

The court's decision in Pettit's case highlights the importance of a fair and thorough assessment of evidence in criminal trials. The court found that the trial judge had erred in his assessment of the evidence, leading to an unsafe and unsatisfactory conviction. This case serves as a reminder to trial judges to carefully consider all available evidence and to avoid placing undue reliance on any one piece of evidence. In Riley's case, the court found that the trial judge had conducted a fair and thorough assessment of the evidence and had reached a safe and satisfactory conclusion. This case serves as an example of a properly conducted criminal trial and the importance of a fair and impartial judiciary.

Orders

Orders of the court

R v Pettit:

1. Appeal allowed.

2. Conviction set aside.

3. Sentencing orders set aside.

R v Riley:

1. Appeal dismissed.

2. Conviction confirmed.

3. Sentencing orders are noted not to have been the subject of appeal and are therefore confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Pettit; R v Riley [2021] NSWDC 385
Date of orders:	05 August 2021
Decision date:	05 August 2021
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	R v Pettit: 1. Appeal allowed. 2. Conviction set aside. 3. Sentencing orders set aside. R v Riley: 1. Appeal dismissed. 2. Conviction confirmed. 3. Sentencing orders are noted not to have been the subject of appeal and are therefore confirmed.
Catchwords:	CRIME — Appeals — Appeal against conviction
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW) Supreme Court Act 1970 (NSW) Family Law Act 1975 (NSW) Uniform Civil Procedure Rules 2005 (NSW) (UCPR)
Cases Cited:	Camilleri’s Stock Feeds (1993) 32 NSWLR 683 Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 Allesch v Maunz (2000) 203 CLR 172 Engelbrecht v DPP [2016] NSWCA 290 Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy [2003] HCA 22 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; (2000) 203 CLR 172 Vok v DPP [2019] NSWCA 242 Bandara v DPP [2016] NSWCA 140 AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Minister for Immigration and Border protection v SZVFW (2018) 163 ALD 1 KD v R [2020] NSWDC 237 DK v DPP [2021] NSWCA 134
Category:	Principal judgment
Parties:	Regina (Crown) Riley (Offender) Pettit (Accused)
Representation:	Representation for Mr Pettit: Buckner Solicitor for the NSW DPP Anderson Counsel for the Accused. Representation for Mr Riley: Buckner Solicitor for the NSW DPP Paff Solicitor for the Offender
File Number(s):	Pettit: 2019/00289442 Riley: 2019/00297894
Publication restriction:	Unrestricted