R v WM

[2020] NSWDC 714

District Court

New South Wales

Medium Neutral Citation:

R v WM [2020] NSWDC 714

Hearing dates:

13/10/2020

Date of orders:

18/11/2020

Decision date:

18 November 2020

Jurisdiction:

Criminal

Before:

H. L. Syme DCJ

Decision:

Appeal Dismissed

Catchwords:

Parental Correction; Assault; Self Defence

Legislation Cited:

61AA of the Crimes Act

Cases Cited:

Mannix [2020] NSWDC 34

AG v DPP [2015] NSWCA 218

Category:

Principal judgment

Parties:

WM
The Crown

Representation:

WM (In Person)
R. Sharma (ODPP)

File Number(s):

2019/00238390

Publication restriction:

Yes. Non publication order on any material that may identify the Complainant

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Crime

Date of Decision:

14/02/2020

Before:

Magistrate Goodwin

File Number(s):

2019/00238390

Judgment

1. By Court attendance Notice dated 6th August 2019, the appellant was charged that between 8:00 PM and 8:30 PM on 31 July 2018 he assaulted NM (a pseudonym), a 6 year old child, the biological son of the appellant. The matter proceeded for hearing in the Local Court at Manly on 15 October 2019 and 14 February 2020. At the conclusion of the hearing he was found guilty and the Magistrate set out reasons on that day. It is from that decision that the appellant appeals.

2. The Crown appeal bundle contained the following material:

• Notice of Appeal;

• CAN Master Cover sheet;

• Local Court Transcripts;

• Paragraphs 1 - 9 of Statement of Alexander Hjorth NSW Police;

• Exhibits of Local Court Proceedings (exhibits 1 - 8)

• Material Marked for Identification (MFI A - E).

3. The appellant has provided the court with the following documents without opposition from the Crown: 

• Police body worn camera footage;

• Written submissions (undated and received by this court on 3 July 2020); 

• Written submissions dated 11 August 2020; and 

• New South Wales Police photograph of leg of NM headed Point of Impact of kick, left leg above knee. 

• Photocopy of Law Degree and enrollment documents from various institutions.

4. The appellant has also provided me with a decision of His Honour Judge Hatzistergos DCJ in an appeal in the matter of Mannix [2020] NSWDC 34. In that decision His Honour referred to the requirements for an appeal to be successful. I respectfully agree with his interpretation of what is required. He said: "Specifically, in AG v Director of Public Prosecutions (NSW), Basten JA stated that the Appellant is required to demonstrate some legal, factual or discretionary error for the appeal to succeed. The term “error”, however, has no precise meaning and requires the appellate Judge to be satisfied that the judgment under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to the specific cases. Simpson J, following an extensive review of authorities, stated that in her view it was not necessary, before the appellate power of the District Court is exercised, that there be error of law, fact or discretion shown".

5. In the context of this appeal it is difficult to discern what the complaint of the appellant really is. The difficulty included…