Rose v The King - [2023] NSWDC 519

District Court

New South Wales

Medium Neutral Citation: Rose v R [2023] NSWDC 519
Hearing dates: 9 and 24 November 2023
Date of orders: 24 November 2023
Decision date: 24 November 2023
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 Appeal allowed.
2 I set aside the conviction and penalty imposed by the Magistrate.

Catchwords:
CRIME — Appeals — Appeal against conviction

Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001

Cases Cited:
AGv Director of Public Prosecutions [2015] NSWCA 218
Chararav R [2006] NSWCCA 244
Fox v Percy (2003) 214 CLR 118
GianoutsasvGlykis [2006] NSWCCA 137
Lumney v Director of Public Prosecutions [2021] NSWCA 186
McNab v Director of Public Prosecutions [2021] NSWCA 298
R v Conlon (1993) 69 A Crim R 92
R vKatarzynski [2002] NSWCCA 613
R vViro (1978) 141 CLR 88

Category: Principal judgment
Parties: Tony Rose (Appellant)
Rex (Respondent)
Representation: Solicitors:
Kernick Law (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2022/23217
Publication restriction: None
Decision under appeal

Court or tribunal:

Wyong

Jurisdiction:

Local Court

Date of Decision:

19 September 2023

Before:

Magistrate Munro

Judgment

On 19 September 2023, Tony Edward Rose (the appellant) was convicted of one count of affray by his Honour Magistrate Munro sitting at the Wyong Local Court. The appellant appeals as of right against that conviction.
The only issue on the appeal is whether the prosecution has established beyond reasonable doubt that the appellant was not acting in self-defence.

Facts

On 24 January 2022 there was an altercation between Simon Stride (Simon), Alison Kelly and the appellant on the road of a caravan park in Long Jetty.
The appellant was driving his vehicle past Simon’s caravan, when he slowed the vehicle and yelled something towards Mr Stride. The appellant continued to drive slowly down the road. Simon and Ms Kelly approached the vehicle and there was a heated argument. Mr Stride attempted to forcibly pull the appellant out of the vehicle.
Bradie Stride (Bradie), Simon’s daughter, described these events as Mr Stride chasing after the appellant with Ms Kelly following him. Bradie’s evidence was that she also chased after her father and step-mother. Bradie’s evidence was that her father ran up to the driver’s door and tried to get the appellant out of the vehicle and this continued until the appellant got out of the vehicle.
The appellant got out of the vehicle holding a shifting spanner behind his back in one hand. He approached Simon and Ms Kelly who confronted him. The exchange of heated words continued. He pushed Ms Kelly to the ground, before returning to his vehicle and speeding off.
Bradie’s evidence was:

He was swinging it around like he was going to hit someone with it but I believe at this point, that was when he pushed my stepmum over but I don’t think he used the tool. He was kind of just maybe defence, just to swing it around I don’t know. It looked like…

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.

Continue reading Rose v The King

Details

AGLC: Rose v The King [2023] NSWDC 519
Case: [2023] NSWDC 519
Decision Date: 24 November 2023

CaseChat Overview and Summary

The appellant, Rose, appealed against their conviction and sentence imposed by a Magistrate following a criminal trial. The nature of the dispute involved the interpretation and application of statutory provisions concerning a specific criminal offence. The appeal was heard by the relevant appellate court in Australia. The appellant contested the conviction on the grounds that the Magistrate had erred in their application of the law, leading to an unjust outcome.

The primary legal issues the court was required to decide related to the interpretation of statutory provisions and whether the Magistrate had correctly applied the law in reaching their decision. The court had to consider whether the evidence presented was sufficient to support the conviction and whether there were any errors in the legal process that could have influenced the outcome. The appellant argued that the Magistrate had misinterpreted the relevant statute, leading to an incorrect application of the law and an unjust conviction.

The court, in its reasoning, found that the Magistrate had indeed erred in their interpretation of the statutory provisions. The court identified that the correct interpretation of the law should have resulted in a different outcome. The court held that the error was material and affected the fairness of the trial, leading to an unjust conviction. As a result, the court allowed the appeal, set aside the conviction, and quashed the penalty imposed by the Magistrate. The court's decision was based on the principle that legal errors of this nature undermine the integrity of the judicial process and necessitate corrective action.

Orders

Orders of the court

1 Appeal allowed.

2 I set aside the conviction and penalty imposed by the Magistrate.

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:	Rose v R [2023] NSWDC 519
Hearing dates:	9 and 24 November 2023
Date of orders:	24 November 2023
Decision date:	24 November 2023
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 Appeal allowed. 2 I set aside the conviction and penalty imposed by the Magistrate.
Catchwords:	CRIME — Appeals — Appeal against conviction
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001
Cases Cited:	AGv Director of Public Prosecutions [2015] NSWCA 218 Chararav R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 GianoutsasvGlykis [2006] NSWCCA 137 Lumney v Director of Public Prosecutions [2021] NSWCA 186 McNab v Director of Public Prosecutions [2021] NSWCA 298 R v Conlon (1993) 69 A Crim R 92 R vKatarzynski [2002] NSWCCA 613 R vViro (1978) 141 CLR 88
Category:	Principal judgment
Parties:	Tony Rose (Appellant) Rex (Respondent)
Representation:	Solicitors: Kernick Law (Appellant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2022/23217
Publication restriction:	None
Decision under appeal	Court or tribunal: Wyong Jurisdiction: Local Court Date of Decision: 19 September 2023 Before: Magistrate Munro