Davey v R [2022] NSWDC 168

Davey v R [2022] NSWDC 168

The appeal was allowed because the magistrate's decision was legally wrong: the magistrate used impermissible reasoning to bolster the complainant's credit from perceived lack of embellishment and failed to consider whether the prosecution's failure to call Callum Everett gave rise to reasonable doubt. On an independent assessment the Court was not persuaded beyond reasonable doubt of the appellant's guilt: the evidence did not prove intentional suffocation, did not prove the alleged kicks constituting common assault, and did not prove the assault occasioning actual bodily harm charge or negative self-defence.

Jurisdiction
Australia
Judgment Date
19 May 2022
Procedural Posture
Criminal Appeal From Local Court to District Court / Appeal Against Convictions Entered by Magistrate Huntsman at Waverley Local Court
Outcome
Appeal allowed; convictions and penalties imposed by the magistrate set aside; associated ADO set aside.
Legal Topics
['appeal From Local Court to District Court' 'intentional Suffocation' 'common Assault' 'assault Occasioning Actual Bodily Harm' 'self Defence' 'reasonable Doubt' 'failure to Call Witness']
['criminal Law' 'criminal Procedure' 'evidence'] ['appeal From Local Court to District Court' 'intentional Suffocation' 'common Assault' 'assault Occasioning Actual Bodily Harm' 'self Defence' 'reasonable Doubt' 'failure to Call Witness']

Case Brief

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Procedural Posture

Criminal Appeal From Local Court to District Court / Appeal Against Convictions Entered by Magistrate Huntsman at Waverley Local Court

Legal Issues

  1. 1 ['Whether the magistrate engaged in impermissible reasoning in accepting the complainant as a witness of truth.' "Whether the magistrate properly considered the prosecution's failure to call Callum Everett, an independent witness present at the unit during the altercation." 'Whether the prosecution proved beyond reasonable doubt that the appellant intentionally suffocated the complainant.' 'Whether the prosecution proved beyond reasonable doubt the common assault charge.' 'Whether the prosecution proved the assault occasioning actual bodily harm charge or negatived self-defence.']

Ratio Decidendi

The appeal was allowed because the magistrate's decision was legally wrong: the magistrate used impermissible reasoning to bolster the complainant's credit from perceived lack of embellishment and failed to consider whether the prosecution's failure to call Callum Everett gave rise to reasonable doubt. On an independent assessment the Court was not persuaded beyond reasonable doubt of the appellant's guilt: the evidence did not prove intentional suffocation, did not prove the alleged kicks constituting common assault, and did not prove the assault occasioning actual bodily harm charge or negative self-defence.

Court Disposition

Appeal allowed; convictions and penalties imposed by the magistrate set aside; associated ADO set aside.

Orders

  • ['Appeal allowed.' 'The convictions and penalties imposed by the magistrate are set aside.' 'The associated ADO should be set aside.']