Director of Public Prosecutions v FD

[2017] NSWSC 679

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Director of Public Prosecutions v FD [2017] NSWSC 679

Hearing dates:

26 May 2017

Date of orders:

26 May 2017

Decision date:

26 May 2017

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The appeal is allowed.

 

(2) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001, the order of her Honour Magistrate JM Milledge made on 14 June 2016 at the Downing Centre Local Court dismissing proceedings against the defendant for an offence of assault occasioning actual bodily harm, s 59(1) of the Crimes Act 1900, is set aside.

 

(3) The proceedings against the defendant for the offence of assault occasioning actual bodily harm, s 59(1) Crimes Act 1900, referred to in order two above are remitted to the Local Court to be redetermined according to law.

 

(4) The defendant is to pay the cost of the appeal.

(5) The defendant is to be provided with an indemnity certificate pursuant to s 6(1) of the Suitors Fund.

Catchwords:

CRIMINAL LAW – assault – defence of lawful correction – onus of proof – standard of proof – whether onus is on prosecution to prove lack of lawful correction – where magistrate treated defence as element of offence – error of law – whether defence must be raised by accused – error of law conceded by respondent – appeal allowed

  COSTS – application under Suitors Fund Act – application for indemnity certificate – where appeal allowed on error of law

Legislation Cited:

Crimes Act 1900 (NSW) ss 59, 61AA
Crimes (Appeal and Review) Act 2001 (NSW) ss 56, 59
Evidence Act 1995 (NSW) s 141
Suitors’ Fund Act 1951 (NSW) s 6

Cases Cited:

DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] 67 NSWLR 402

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Appellant)
FD (Respondent)

Representation:

Counsel:
J E Davidson (Appellant)
M D Farrar (Respondent)

  Solicitors:
Director of Public Prosecutions (Appellant)
Anderson Lawyers (Respondent)

File Number(s):

2016/293152

Publication restriction:

Children (Criminal Proceedings) Act 1987 s 15A - defendant to be identified by acronym only.

 Decision under appeal 

Court or tribunal:

New South Wales Local Court

Jurisdiction:

Common Law

Date of Decision:

14 June 2016

Before:

Magistrate JM Milledge

File Number(s):

2016/70977

Judgment

1. These proceedings were commenced by summons filed 30 September 2016 to appeal from a decision of her Honour Magistrate JM Milledge made on 14 June 2016. The decision was to dismiss proceedings against the defendant for the offence of assault occasioning actual bodily harm pursuant to s 59(1) of the Crimes Act 1900 (NSW) involving an incident in March 2016 between the defendant and his teenage son.

2. The errors of law identified as made by her Honour are set out in the summons, but it is sufficient for me to deal with and dispose of the appeal based on grounds one, two and three set out in the summons.

3. Those grounds were, in effect, failure to apply the correct onus of proof on the question of whether the defence raised by the defendant pursuant to s 61AA of the Crimes Act had been established. Second, failure to make an appropriate finding as to whether the defendant had established that he did not apply physical force to the victim in such a way as to be likely to cause harm that lasts for more than a short period within the meaning of that phrase in s 61AA(2)(b) of the Crimes Act. And, third, failing to provide adequate reasons for dismissing the charge.

4. I note s 61AA provides for a defence of lawful correction which was clearly a key issue in the proceedings before the magistrate. Alternative grounds four and five were identified in the summons but I do not need to deal with them as the defendant very properly conceded that grounds one and two have been made out in response to the excellent and detailed submissions prepared on behalf of the plaintiff.

5. For the reasons which follow, I allow the appeal. Given the nature and circumstances of the offences charged, the proceedings will need to be remitted to the Local Court to be redetermined according to law.

6. The legislation relevant to the making of this appeal is contained in the Crimes (Appeal and Review) Act 2001 (NSW). Section 56 of that Act refers to appeals as of right and includes in that category that the prosecutor may appeal to this court against an order made by the Local Court dismissing a matter the subject of any summary proceedings that is provided for in s 56(1)(c).

7. Section 59(2) of that same legislation provides that this court may determine an appeal against an order such as one referred to in s 56(1)(c) of the Act by either setting aside the order and making such other orders as it seems just or by dismissing the appeal.

8. Order one of the summons instituting this appeal seeks an order that her Honour's decision be set aside. I note the concession by the defendant in that regard and am of the view that, and the other orders sought in the summons, are appropriate orders to deal with this appeal.

9. Her Honour's decision was made ex tempore on 14 June 2016 and arose out of an incident on 5 March 2016. The police case was that the defendant assaulted his son by striking him on the legs and abdomen with a belt. Her Honour dismissed the charge on the basis that she was “not satisfied beyond reasonable doubt that lawful chastisement and correction was not intended by the defendant”. That was an error of law.

10. The combination of relevant provisions in the Crimes Act 1900 required the following approach.

11. First, that pursuant to s 59 of the Crimes Act a finding be made as to whether there had been an assault occasioning actual bodily harm. Section 141 of the Evidence Act 1995 (NSW) sets out the standard of proof required. There is no doubt that the standard of proof the prosecution had to meet was that that offence had been made out beyond reasonable doubt, before moving to determine whether the defence has been established.

12. In terms of the standard of proof required of a case to be made by the defendant, s 141(2) of the Evidence Act provides that in a criminal proceeding the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

13. I note the submissions of the plaintiff on this appeal helpfully set out some of the debate as to whether s 61AA is sufficiently clear regarding the allocation of the onus of proof as between the prosecution and the defendant. It appears that in the past the common law position perhaps suggested something to the effect that the burden of proof was placed on the prosecution to rebut the defence. But that was prior to the enactment of s 61AA. As noted by both counsel appearing before me on this appeal, the position has not been the subject of recent judicial consideration in this state, and this particular provision has not been the subject of judicial consideration by this Court at all.

14. Nevertheless, it is clear on her Honour's decision that the two-step aspect of the proceedings before her was not appropriately dealt with, and rather than determining whether the defendant had shown on the balance of probabilities that the defence of lawful correction was made out she found that the prosecution had not shown beyond reasonable doubt that there was not lawful correction.

15. Due to this error her Honour did not go on to consider the necessary ingredients of the defence set out in s 61AA. There is no doubt that evidence and submissions were offered on this aspect of the defence by both the prosecution and the defence, but her Honour did not deal with them in the structure and in the manner required by the legislation.

16. As referred to in the written submissions prepared by the plaintiff, her Honour's remarks being an ex tempore decision should not be “picked over” and “appropriate allowance should be given to the pressures under which magistrates are placed”, and in support of that proposition directed my attention to the following case, DPP (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402 at [15] per Johnson J. Instead, I should focus on the substance of the magistrate's reasons to see whether the correct test was applied.

17. I note that it is sufficiently evident from even a cursory review of her Honour's judgment and reasons that there has been error, and there has been no need to pick over the judgment to determine that is so.

18. Accordingly, I make the following orders as sought in the summons:

1. The appeal is allowed.

2. Pursuant to s 59(2) of the Crimes (Appeal and Review) Act2001, the order of her Honour Magistrate JM Milledge made on 14 June 2016 at the Downing Centre Local Court dismissing proceedings against the defendant for an offence of assault occasioning actual bodily harm, s 59(1) of the Crimes Act 1900, is set aside.

3. The proceedings against the defendant for the offence of assault occasioning actual bodily harm, s 59(1) Crimes Act 1900, referred to in order two above are remitted to the Local Court to be redetermined according to law.

19. In relation to the last order, I note that given the hearing required assessment of credibility of witnesses and findings in relation to s 61AA of the legislation, there is no alternative but to remit the matter to the Local Court.

Costs

20. In respect of costs, the defendant has sought an order pursuant to s 6(1) of the Suitors Fund Act 1951.

21. I received helpful oral submissions on the combination of costs orders that would appropriately employ the necessary machinery under the Suitors Fund Act.

22. As submitted by counsel for the plaintiff, and accepted by counsel for the defendant, the orders I need to make to bring that machinery in to play are as follows:

1. The defendant is to pay the cost of the appeal.

2. The defendant is to be provided with an indemnity certificate pursuant to s 6(1) of the Suitors Fund.

3. I note the undertaking provided by the plaintiff not to seek costs beyond that which a certificate under the Suitors Fund Act would provide.

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Amendments

05 June 2017 - Defendant's name suppressed.