DM v R (No. 1) [2021] NSWDC 813

DM v R (No. 1) [2021] NSWDC 813

The evidence of the complainant was inconsistent as to material aspects of the event, lacking in reliability, and unsupported by corroborative evidence; the evidence of the mother was inconsistent and uncorroborative; the appellant’s good character and experience weighed against a finding of propensity to assault; the prosecution failed to establish guilt beyond reasonable doubt, and a reasonable doubt remained; thus, the conviction could not be sustained and the ADVO was not supported on the evidence.

Jurisdiction
Australia
Judgment Date
12 October 2021
Procedural Posture
Appeal / Judgment on Conviction Appeal
Outcome
appeal allowed; conviction and ADVO set aside
Legal Topics
['appeal Against Conviction' 'common Assault' 'onus of Proof' 'evidence of Children' 'good Character Evidence' 'apprehended Domestic Violence Orders']
['criminal Law'] ['appeal Against Conviction' 'common Assault' 'onus of Proof' 'evidence of Children' 'good Character Evidence' 'apprehended Domestic Violence Orders']

Case Brief

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Procedural Posture

Appeal / Judgment on Conviction Appeal

Legal Issues

  1. 1 ['Whether the conviction for common assault by the appellant against his son was supported by admissible, reliable evidence and met the criminal standard of proof' 'Whether the evidence of the complainant and his mother was sufficiently reliable to support a conviction' 'Whether good character evidence relating to the appellant was given due weight' 'Whether the making of the ADVO was justified on the balance of probabilities']

Ratio Decidendi

The evidence of the complainant was inconsistent as to material aspects of the event, lacking in reliability, and unsupported by corroborative evidence; the evidence of the mother was inconsistent and uncorroborative; the appellant’s good character and experience weighed against a finding of propensity to assault; the prosecution failed to establish guilt beyond reasonable doubt, and a reasonable doubt remained; thus, the conviction could not be sustained and the ADVO was not supported on the evidence.

Court Disposition

appeal allowed; conviction and ADVO set aside

Orders

  • ['Appeal allowed.' 'Conviction recorded and any sentence passed by Viney LCM in the Burwood Local Court on 15 April 2021 set aside.' 'ADVO made by the Local Court at Burwood on 15 April 2021 set aside.' "Adjourned to 14 October 2021 for the Appellant's application for costs."]