VY v The Queen

[2018] NSWDC 490

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	VY v R [2018] NSWDC 490
Hearing dates:	6 November 2018
Date of orders:	06 November 2018
Decision date:	06 November 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Application refused
Catchwords:	CRIMINAL LAW – all grounds appeal – appeal from Local Court – application to adduce fresh evidence – refused
Legislation Cited:	Crimes (Appeal and Review) Act 2001
Cases Cited:	Charara v R [2006] NSWCCA 244 Landsman v R [2014] NSWCCA 328
Category:	Procedural and other rulings
Parties:	VY (Appellant) Regina (Crown)
Representation:	Solicitors: Total Legal (Appellant) ODPP (Crown)
File Number(s):	2017/276081; 2017/240336; 2017/284745
Publication restriction:	None
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 15 June 2018 Before: Williams LCM File Number(s): 2017/276081; 2017/240336; 2017/284745

Judgment

1. In this matter the Appellant seeks an All Grounds Appeal in relation to his conviction and sentence in relation to a number of charges brought against him and determined in the Local Court. Two of the three matters required leave, which has been granted, and I refer to my reasons previously in relation to that matter.

2. The three matters the subject of appeal are contravene an AVO, secondly assault occasioning actual bodily harm and thirdly enter premises without lawful excuse.

3. So far as I am aware, the matter first came before the Local Court for hearing on 19 February 2018 at which time evidence was given by a number of witnesses including the Appellant. Evidence was also given by the complainant. At that time the Appellant was legally represented by a solicitor engaged on his behalf.

4. Leave is now sought pursuant to s18(2) of the Crimes (Appeal and Review) Act2001 to adduce fresh evidence in this Court. According to that section fresh evidence may only be adduced in the event that leave is granted by the Court and leave is only to be granted if the Court is satisfied that it is in the interests of justice that fresh evidence be given. The procedure otherwise is that the matter on appeal proceeds by way of appeal based upon the evidence given in the Local Court and the exhibits relied upon therein.

5. The Appellant seeks to rely upon three additional pieces of evidence, only two of which are presently available. By Notice of Motion filed 23 October 2018 leave was sought to adduce evidence from Mr YB, according to paragraph 1 of the Notice of Motion, as well as Ms SC according to paragraph 2 of the Notice of Motion as well as Dr Garg according to paragraph 3 of the Notice of Motion.

6. The evidence of YB is to the effect that on the day of the alleged offence the Appellant, together with the complainant, attended YB’s premises at West Gosford at about 5pm. It is stated that during that time the complainant was playing with the daughter of YB and was “happy and healthy”. It is further stated:

“during the course of her stay I did not observe any obvious signs of injury or physical abuse on (the complainant)”.

7. He also expresses an opinion that the Appellant is a good parent.

8. The statutory declaration of YB was declared on 22 August 2017 and was, therefore, available at the time that the matter came before the Local Court in February 2018. An explanation was sought as to why it was not relied upon and I was informed, after the solicitor now appearing for the Appellant sought instructions, that the statutory declaration was in the custody of a barrister who had been retained to appear on his behalf in the Local Court, however was unable to appear due to a “conflict”.

9. The failure to rely upon the statutory declaration of YB is otherwise unexplained. I do not regard the explanation provided as satisfactory as it would be expected that there would have been multiple copies of the statutory declaration and that the author of it would have been available to give evidence at court if required. In any event, that evidence was not relied upon in the court below.

10. The second piece of evidence sought to be relied upon by the Appellant is the statutory declaration of SC declared 26 September 2018. It puts in issue whether or not the injuries observed as referred to in the medical evidence the subject of an exhibit in the Local Court, was caused by a henna or body painting service administered by SC at some time prior to the offending.

11. Again, the evidence of this witness is not without difficulties. Whilst she could testify as to the fact that the complainant had attended the business on 30 July 2017, which I note is some period before the alleged offending on 6 August 2017, the statutory declaration goes on to express an opinion as to red marks shown in Exhibit 6 in the Court below, of the forearm and legs of the complainant which the author of the statutory declaration says were red marks on her forearm and legs which were remnants of the henna painting. I note that that proposition was put to the complainant in the Local Court and rejected by her.

12. It seems unlikely that the witness SC would satisfy the requisite degree of qualifications, training or experience so as to be in a position to express a view as to the cause of red marks shown in photographs taken some time after the henna procedure was performed. In any event, it is plain that the question of the henna painting was an issue in the court below as it was a matter positively put to the complainant. Had the Appellant wished to rely upon evidence of SC at the time then it ought to have been done in the Court below.

13. The third category of evidence referred to in paragraph 3 of the Notice of Motion is a medical report from Dr Garg of Blacktown. She is said to be a healthcare professional who it is expected would express an opinion favourable to the Appellant as to whether or not the markings shown in the photographs relied upon in the Local Court are consistent with assault or otherwise. This was also a matter which was a live issue in the Local Court. Evidence was relied upon by medical experts on that occasion as to the nature and likely cause of the marks.

14. The Appellant plainly made a forensic decision not to challenge, by way of retaining his own expert, the evidence of the medical expert relied upon in the Local Court.

15. This matter has been before the Court on a number of occasions. I note that it was first listed for mention on 19 June 2018 when the Appellant sought an adjournment to consider whether or not fresh evidence would be adduced. Next, the matter was before the Court on 31 July 2018 at which time a specific direction or order was made by the Court that the Appellant was to serve any fresh evidence on or before 21 September 2018. The Appellant failed to comply with that order.

16. I note the matter was back before the Court on 28 September 2018 when a Mr Mantaj appeared on behalf of the Appellant, who at that time sought leave to withdraw as acting on behalf of the Appellant as his solicitor. Leave was granted and the matter was stood over for mention to 12 October 2018 to enable the Appellant to arrange legal representation.

17. The matter was then before the Court on 12 October 2018 for mention only, however, the Court did order that if the Appellant sought to adduce fresh evidence, a Notice of Motion ought to be served within seven days of 12 October, that is on or before 19 October 2018. The solicitor currently acting for the Appellant has been acting for him since 3 October 2018 and, therefore, was acting for him and indeed appeared when that order was made on 12 October 2018. The Appellant again failed to comply with that order.

18. It was not until 23 October 2018 that a Notice of Motion was filed in Court and served upon the Crown together with the statutory declarations referred to. I pause to note that in relation to the third category of evidence sought to be relied upon, that evidence is not even available today and the solicitor for the Appellant cannot express any great certainty as to when it might be available.

19. It is not in the interests of justice for matters such as this to be delayed to the extent to which this matter has been delayed. Further, it is not in the interests of justice for the Court to accommodate repeated failures by an Appellant to comply with specific orders by the Court as to the filing of an application to adduce fresh evidence pursuant to s18(2).

20. I note that the general rule in relation to appeals of this nature was stated by the New South Wales Criminal Appeal in Charara v R [2006] NSWCCA 244 in which President Mason, with whom Kirby and Hoeben JJ agreed, explained at [17]:

“The appeal is to be way of re-hearing on the Local Court transcripts (s 18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur”.

21. In the course of giving reasons President Mason observed at [26] that:

“...receiving any ‘fresh evidence’ is exceptional and that s 18(2) is not available for blanket trumping of s 18(1). Subsection 2 is the exception rather than the rule and a Judge must turn his or her mind to the particular ‘fresh evidence’ whose nature attracts the exceptional grant of leave”.

22. Today the Crown has also referred the Court to a decision of the Court of Criminal Appeal in the matter of Landsman v R [2014] NSWCCA 328 in which the Court further considered the question of the interests of justice test under s18(2). In [6] it was stated by the Court:

“It is apparent from the various contexts in the phrase ‘interests of justice’ is found that it will often involve the balancing of various interests that are in play in the particular context in which the phrase is used. Although the ‘interests of justice’ will include the interests of the parties, the concept will invariably be wider than that and include larger questions of legal principle, the public interest and policy considerations”.

23. Whilst it is no doubt in the interests of the Appellant to be permitted to rely upon this fresh evidence which either was or ought to have been available in the Court below, broader issues fall for consideration. In [70] of the Court’s decision in Landsman, it was further stated:

“In some cases, the interests of justice will override the recognised legal principles or matters of public policy”.

24. The Court went on to refer to the need for there to be an end to litigation as being an important public policy by which the Court must weigh the exercise of the interests, of determining the interests of justice.

25. Whilst I, as stated, accept that the evidence may provide some assistance to the Appellant, in my opinion the interests of justice require that it be excluded on appeal for the following reasons.

26. First, the Appellant has had ample opportunity to make an application well before today for the adducement of fresh evidence. Had the application been brought promptly as the Court encouraged as early as 19 June 2018 then the outcome may well have been different. The delay in the determination of this appeal is a matter which the Court has had regard to in determining the application against the Appellant.

27. Secondly, an Appellant must be held to the case as presented in the Local Court. Section 18(2) is, as already stated, the exception to the general rule. There is no reason why the general rule in this case ought to be displaced, where the Appellant was legally repented in the Local Court and plainly made a decision as to what evidence to adduce in that Court.

28. Thirdly, it is of significance that the Appellant was legally represented in the Local Court and presumably provided with advice as to what evidence ought to have been called at that time. This is part of holding the Appellant to the case which he elected to run in the Local Court and there is no reason to displace that concept in this case.

29. Fourthly, as the authorities recognise, there must be some finality to litigation, particular of this nature involving family members and alleged domestic violence. That is particularly so in cases such as this case which involved a nine year old child who, by reason of the conviction of the Appellant, is now placed into the care of the Director of Community Services.

30. I understand there are also legal proceedings afoot in the Family Court in which the mother, who resides in the United States, seeks access by way of custody to her child. That process may result in the child being reunited with her mother and ought not be delayed by reason of an application to adduce fresh evidence by the Appellant in this case.

31. Finality and holding the Appellant to the elections made as to the conduct of the case in the Court below are prevailing factors which in this particular case do not justify the exercise of discretion in favour of the Appellant.

32. The application is refused.

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Amendments

14 May 2019 - Non-publication order with regards to identity of the Appellant.

Decision last updated: 14 May 2019