Rosemarie Dempsey v Regina - [2017] NSWDC 353

District Court

New South Wales

Medium Neutral Citation: Rosemarie Dempsey v Regina [2017] NSWDC 353
Hearing dates: 14 September, 30 October, 1, 2 November 2017
Date of orders: 08 December 2017
Decision date: 08 December 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 Appeal against conviction allowed.
2 I set aside the conviction and the penalty imposed by the Magistrate.

Catchwords:
CRIMINAL LAW – conviction appeal – elements of offence – determination of guilt – dishonestly obtain financial advantage by deception – defence – claim of right

APPEAL – conviction – not guilty – interpretation – legislative provisions – reasons of magistrate
PROCEDURAL – de novo hearing - evidence – notice of motion to adduce fresh evidence – refusal of magistrate to admit evidence
Legislation Cited: Crimes (Appeal and Review) Act 2001 S.18(1)
Crimes Act 1900 s.192E(1)(b)
Mental Health (Forensic Provisions) Act 1990 s.32
Cases Cited: Gianoutsas v Glykis [2006] NSWCCA 137
Charara v R [2006] NSWCCA 244
Fox v Percy (2003) 214 CLR 118
Dyason v Butterworth [2015] NSWCA 52
AG v Director of Public Prosecutions [2015] NSWCA 218
Bandana v Director of Public Prosecutions [2016] NSWCA 140
Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
Fuge v R [2001] NSWCCA 208
Walton v Gardiner (1993) 177 CLR 378
Jago v District Court of New South Wales (1989) 168 CLR 23
Barton v The Queen (1980) 147 CLR 75.
Barron v Attorney-General (1987) 10 NSWLR 215.
Williams v Spautz (1992) 174 CLR 509, 520
Hakim v R (1989) 41 A Crim R 372
Duncan v Crews [2001] NSWSC 376
Category: Principal judgment
Parties: Rosemarie Dempsey (Appellant)
Regina (Respondent)
Representation:
Counsel:
Mr D Dalton SC (Appellant)
Solicitors:
Dominic Velcic Solicitors (Appellant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/254981
Publication restriction: None

Judgment

Rosemarie Dempsey (the appellant) appeals against the convictions entered by her Honour Magistrate Stapleton on 25 November 2014 at the Downing Centre Local Court.
The appellant pleaded not guilty to 23 counts of obtain benefit by deception contrary to section 192E(1)(b) Crimes Act 1900. The appellant was convicted following a hearing that took place over more than 20 days over a 2 year period.
The issue in the Local Court and on appeal was whether the appellant had acted dishonestly or whether there was a reasonable possibility that she was genuinely and honestly acting in accordance with a legitimate claim of right.
At the commencement of the appeal hearing, the appellant seeks a permanent stay of the proceedings. If in the course of deciding that application I come to the view that there is a reasonable doubt about the appellant’s guilt then I should set aside the convictions: Duncan v Crews [2001] NSWSC 376. If I refuse the stay then the appellant wishes to consider a further application to lead fresh evidence from the psychiatrists who were called in the Local Court and the matter will be listed for further argument.
The stay of proceedings is sought based…

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: [2017] NSWDC 353
Decision Date: 08 December 2017

CaseChat Overview and Summary

Rosemarie Dempsey appealed her conviction for obtaining a financial advantage by deception. The matter was heard de novo in the Court of Appeal, where the appellant claimed she was not guilty due to her belief in a claim of right. The Crown argued that the appellant's actions were dishonest and constituted deception. The court was required to determine whether the appellant's actions met the statutory elements of the offence and whether she had a genuine belief in a claim of right.

The court examined the legislative provisions defining the offence and the appellant's defence of a claim of right. The magistrate's reasons for conviction were also considered, along with the procedural aspects of the appeal, including the refusal to admit fresh evidence. The court found that the magistrate had erred in law by not considering the appellant's evidence in relation to her claim of right and by refusing to admit fresh evidence. Consequently, the court held that the appellant's conviction was not supported by the evidence and that she was not guilty of the offence.

The appeal was allowed, and the conviction and penalty imposed by the magistrate were set aside. The court concluded that the appellant's actions did not meet the statutory elements of the offence, and her belief in a claim of right was genuine. The court's decision highlighted the importance of correctly interpreting legislative provisions and ensuring that all relevant evidence is considered in criminal cases.

Orders

Orders of the court

1 Appeal against conviction allowed.

2 I set aside the conviction and the 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:	Rosemarie Dempsey v Regina [2017] NSWDC 353
Hearing dates:	14 September, 30 October, 1, 2 November 2017
Date of orders:	08 December 2017
Decision date:	08 December 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 Appeal against conviction allowed. 2 I set aside the conviction and the penalty imposed by the Magistrate.
Catchwords:	CRIMINAL LAW – conviction appeal – elements of offence – determination of guilt – dishonestly obtain financial advantage by deception – defence – claim of right APPEAL – conviction – not guilty – interpretation – legislative provisions – reasons of magistrate PROCEDURAL – de novo hearing - evidence – notice of motion to adduce fresh evidence – refusal of magistrate to admit evidence
Legislation Cited:	Crimes (Appeal and Review) Act 2001 S.18(1) Crimes Act 1900 s.192E(1)(b) Mental Health (Forensic Provisions) Act 1990 s.32
Cases Cited:	Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Dyason v Butterworth [2015] NSWCA 52 AG v Director of Public Prosecutions [2015] NSWCA 218 Bandana v Director of Public Prosecutions [2016] NSWCA 140 Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 Fuge v R [2001] NSWCCA 208 Walton v Gardiner (1993) 177 CLR 378 Jago v District Court of New South Wales (1989) 168 CLR 23 Barton v The Queen (1980) 147 CLR 75. Barron v Attorney-General (1987) 10 NSWLR 215. Williams v Spautz (1992) 174 CLR 509, 520 Hakim v R (1989) 41 A Crim R 372 Duncan v Crews [2001] NSWSC 376
Category:	Principal judgment
Parties:	Rosemarie Dempsey (Appellant) Regina (Respondent)
Representation:	Counsel: Mr D Dalton SC (Appellant) Solicitors: Dominic Velcic Solicitors (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/254981
Publication restriction:	None