Lunney v Director of Public Prosecutions [2021] NSWCA 186

Lunney v Director of Public Prosecutions [2021] NSWCA 186 · Read the judgment on AustLII

Catchwords: District Court conviction appeals – issues raised by the parties – no independent requirement for review of the whole of the evidence

In this decision, the Court of Appeal has held that in a District Court appeal against conviction, the issues to be considered by the judge are those raised by the parties. If the appellant does not raise for consideration a point that requires a review of the whole of the evidence, then a judge will not err by limiting themselves only to the appeal points raised. It also followed that there was no error in not watching the recording of the complainant’s evidence-in-chief.

The applicant was convicted of a domestic violence offence in the Local Court. He appealed that conviction to the District Court. As part of the District Court appeal, he raised two arguments, the details of which are presently unimportant, in support of the conclusion that the Magistrate had erred. Both arguments were rejected and the conviction appeal duly refused. He appealed to the Court of Appeal on the basis of an asserted jurisdictional error: that the District Court judge had erred by failing to conduct an independent assessment of the applicant’s guilt, based on the whole of the evidence.

As observed by McCallum JA (with whom White JA agreed; Meagher JA also agreeing, with some additional observations), the application raised an interesting question as to the nature of the function conferred in the District Court in appeal against conviction from the Local Court (at [9]).

It is clear from earlier decisions that a conviction appeal to the District Court is neither a hearing de novo requiring (or permitting) the prosecution to prove the charge afresh nor, at the other end of the spectrum, a species of judicial review in which the judge is relieved of any obligation to consider the case on its merits (at [33]). However, it does not follow that the legislation requires the District Court in every case to review the whole record of the proceedings and form an independent assessment of the applicant’s guilt (at [34]). Several authorities have acknowledged that the scope of the Court’s function in a District Court appeal against conviction is properly informed by the scope of the issues raised by the applicant (at [43]). The extent of the review required in any individual case will depend on all the circumstances of the case and the kind of error alleged (at [44]).

In this case, the applicant had raised two relatively discrete points (distilled at [60]) neither of which was a global argument about the body of the evidence. In short, there had been no clearly articulated argument the resolution of which required the judge to review the whole of the evidence once he had rejected the ambitious submission that the magistrate had not determined the cased on the basis of credibility findings (at [86]). The Court is not required to undertake a free-standing review of the evidence in the absence of guidance and particular submissions by the parties (at [88]).

Separately, one of the applicant’s arguments in the District Court had turned on a question of the credibility of the complainant. Because the matter was a domestic violence matter, the complainant had participated in a Domestic Violence Evidence in Chief (‘DVEC’) recording. The applicant on appeal argued that the District Court judge should have at least watched that recording. However, in the District Court the applicant had not identified any forensic purpose for viewing the video recording, and counsel had not urged that course upon the Court (at [82]), so that it was not an error that the judge had not viewed it.