Sultani v The Queen

[2019] NSWDC 747

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Sultani v R [2019] NSWDC 747
Hearing dates:	27 November, 10 December 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 102
Catchwords:	CRIMINAL LAW – conviction appeal – intimidating officer in execution of duty – nature of District Court’s powers in rehearing – whether necessary to identify error by the Local Court.
Legislation Cited:	Crimes Act 1900 (NSW), s 60A(1) Crimes (Appeal and Review) Act 2001 (NSW), s 18
Cases Cited:	AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Charara v The Queen (2006) 164 A Crim R 39 Dyason v Butterworth [2015] NSWCA 52 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 Francisco v R [2019] NSWDC 720 Jamal v DPP [2019] NSWCA 121 Liberato v R (1985) 159 CLR 507 R v Death [2019] NSWDC 682 R v Dookheea (2017) 347 ALR 529; [2017] HCA 36 R v Murray (1987) 11 NSWLR 12 R v Niaas [2005] NSWCCA 120 R v Li (2003) 140 A Crim R 288
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr A Sultani
Representation:	Mr B Barrack (Appellant) K Austen for the Director of Public Prosecutions
File Number(s):	2018/71613

Judgment

Background

1. The appellant appeals against his conviction in the Burwood Local Court in Parramatta on 19 June 2019. He was convicted of the offence that on 31 December 2017, as an inmate at a correctional facility in Silverwater, he intimidated Mr Adrian Russell, a law enforcement officer (a Corrections Officer) whilst in the execution of the officer’s duty, when the latter escorted the appellant from one section of the correctional facility to another.

2. The offence was contrary to s 60A(1) of the Crimes Act 1900 (NSW).

3. There is no statutory definition of the word “intimidates”, for the purposes of s 60A(1) (falling within Division 8A of Part 3 of the Crimes Act), although there is a definition of that term in s 545B of the Crimes Act, albeit in a different part of the legislation (Part 14A, Division 2). Nevertheless, it appeared to be common ground in the Local Court that the expression connoted, in the circumstances of this case, the use of threatening words specifically intended to cause fear in Mr Russell in the knowledge that they were likely to cause fear in Mr Russell. In this Court, Counsel for the appellant accepted that the words alone could in the circumstances make out the element of intimidation.

Nature of the appeal

4. The appeal to this Court is pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). The nature of the appeal is that it is one by rehearing, on the basis of the Local Court transcripts, supplemented by the exhibits tendered in the Local Court. There was no application before me, by the appellant, for leave to adduce fresh evidence.

5. It…