Australia, July 9 -- New South Wales Land and Environment Court issued text of the following judgement:

1. LEEMING JA: I agree with Mitchelmore JA.

2. MITCHELMORE JA: On 26 June 2023, the applicant, Guy Spillane, was convicted in the Local Court on the charge of carrying out a sexual act towards another person without consent contrary to s 61KE of the Crimes Act 1900 (NSW) and was sentenced to an 18-month community corrections order. He brought an appeal from that conviction and sentence in the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). On 31 May 2024, Judge Shead dismissed the conviction appeal. The applicant's appeal against the severity of his sentence was ultimately withdrawn, and the orders of the Local Court were confirmed on 12 June 2024.

3. There being no right of appeal from the orders of the District Court, on 27 June 2024 the applicant filed a summons in this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). The applicant needed to establish that the decision of Judge Shead to dismiss his conviction appeal was affected by jurisdictional error (s 176 of the District Court Act 1973 (NSW) prohibits review for error of law on the face of the record).

4. In his further amended summons, the applicant advanced the following grounds of review:

1) Her Honour denied the applicant procedural fairness in refusing his application to re-examine the complainant, a train guard employed by Sydney Trains, on the appeal (as s 578A(2) of the Crimes Act prohibits publication of any matter that identifies the complainant I will refer to him as "the guard").

2) Her Honour failed to properly exercise jurisdiction by failing to take into account evidence which supported the applicant's case, namely, closed circuit television (CCTV) images and his explanation of a difficulty her Honour perceived with his own evidence.

3) Her Honour also failed to properly exercise jurisdiction by taking into account irrelevant considerations and failing to take into account relevant considerations, relying upon inconsistencies between the guard's written statement and his oral evidence, diagrammatic and photographic evidence that the applicant adduced, and the CCTV images.

4) Her Honour made a finding which was not available on the evidence, namely, that the applicant directed any act toward the guard, thereby falling into jurisdictional error.

5. At the hearing, the applicant was assisted by his spouse, Stephen Atkins. Mr Atkins made oral submissions on the applicant's behalf in which he elaborated upon aspects of the applicant's written submissions in chief and reply in relation to the grounds of review.

6. For the reasons set out below, the applicant has not established that Judge Shead's decision was affected by jurisdictional error and the amended summons should be dismissed.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1973eafb61b9de55bc7c624d)

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