R v Trisic

[2021] NSWDC 687

District Court

New South Wales

Medium Neutral Citation:

R v Trisic [2021] NSWDC 687

Hearing dates:

14 December 2021

Date of orders:

14 December 2021

Decision date:

14 December 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 95

Catchwords:

CRIMINAL LAW – conviction appeal – offences of domestic violence assault and stalking – fresh evidence of prior good character admitted on appeal – credibility – challenge to credibility and reliability of complainants – whether any demonstrable error in Magistrate’s judgment – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) s 61

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Cases Cited:

De Silva v The Queen (2019) 268 CLR 57

Liberato v The Queen (1985) 159 CLR 507

Lunney v DPP [2021] NSWCCA 186

McNab v DPP (NSW) [2021] NSWCCA 298

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW)
Nedeljko Trisic (appellant)

Representation:

Counsel:
Ms K Rankin (solicitor advocate) for the Director of Public Prosecutions (NSW)
Mr Mitchell (solicitor avocate) for the appellant

Solicitors:
Solicitor for Public Prosecutions (NSW)
Mitchell & Co Lawyers for the appellant

File Number(s):

2020/00366573

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not reported

Date of Decision:

10 May 2021

Before:

Peach LCM

File Number(s):

2020/00366573

EX TEMPORE Judgment

BACKGROUND

1. The appellant brings an appeal against his conviction on 10 May 2021 in the Parramatta Local Court for the following offences (all said to occur on 26 December 2020 at Rydalmere):

1. common assault (domestic violence related), against Gordana Trisic, between 3:45 – 3:55pm contrary to s 61 of the Crimes Act 1900 (NSW);

2. common assault (domestic violence related), against Sasha Trisic, between 3:45 – 3:55pm contrary to s 61 of the Crimes Act; and

3. stalking, intimidating or intending to cause fear of physical or mental harm in Gordana Trisic, between 3:45 – 3:55pm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

APPROACH TO CONVICTION APPEALS

2. Two recent decisions of the Court of Criminal Appeal shape this Court’s approach to appeals against convictions from the Local Court, being McNab v DPP (NSW) [2021] NSWCCA 298 (“McNab”) and Lunney v DPP [2021] NSWCCA 186 (‘Lunney”).

3. Both decisions affirm that this Court’s jurisdiction to intervene and set aside a conviction is enlivened upon the demonstration of error, be it legal, factual or discretionary error.

4. McNab confirms a long-standing practice that a Judge in this Court is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses. In particular, where credit findings are made by the Magistrate, this Court recognises the advantage of the Magistrate in hearing and seeing the witnesses; however, whilst recognising this advantage, this Court will in practice be focussing on the question whether disputed evidence (especially in a ‘he said, she said’ type case) is consistent with incontrovertible facts, undisputed facts and other…