Director of Public Prosecutions v FD

Judgment (3 paragraphs)

[1]

Judgment

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.
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.
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.
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.
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.
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).

Costs

In respect of costs, the defendant has sought an order pursuant to s 6(1) of the Suitors Fund Act 1951.
I received helpful oral submissions on the combination of costs orders that would appropriately employ the necessary machinery under the Suitors Fund Act.
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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Judgment (3 paragraphs)

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