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[2025] NSWDC 119
General information, not legal advice.
District Court of NSW
2025-04-08
Abadee DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Byers v R [2025] NSWDC 119
Hearing dates: 2 April 2025
Date of orders: 8 April 2025
Decision date: 08 April 2025
Jurisdiction: Criminal
Before: Abadee DCJ
Decision: See paragraph [197].
Catchwords: CRIMINAL LAW – appeals and reviews – convictions of domestic violence offences in the Local Court – whether Mahmood directions should have been made – whether Liberato directions misapplied – significance of absence of Markuleski direction
CRIMINAL LAW – denial of procedural fairness – whether, for assault charge, prosecutor departed from its case – whether, for intimidation charge, it was unfair for Magistrate to convict appellant on the basis that on his version of conduct, he engaged in “intimidating” conduct
STATUTORY INTEPRETATION – intimidation offence – construction of physical element of offence, being ‘intimidating’ conduct – Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 7(1)(c)(iv)
whether mental element satisfied to requisite standard – proof of ‘knowledge’ – Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Legislation Cited: Crimes Act 1900 (NSW), ss 61, 428B
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 5, 7, 9, 11, 13, 19, 20
Evidence Act 1995 (NSW), s 165B
Cases Cited: Gregg v R (2020) 355 FLR 348
Liberato v The Queen (1985) 159 CLR 507
Mahmood v Western Australia (2008) 232 CLR 397
McIlwraith v R [2017] NSWCCA 13
R v Grant (2002) 55 NSWLR 80
R v Markuleski (2001) 52 NSWLR 82
R v McDonald [2019] NSWSC 839
R v Scott [2023] NSWDC 271
Singh v R [2025] NSWCCA 34
The Queen v Baden-Clay (2016) 258 CLR 308
Walsh v Tattersall (1996) 188 CLR 77
Wild v Meduri [2024] NSWCA 230
Texts Cited: Nil.
Category: Principal judgment
Parties: Mr Warren Nathan Patrick Byers (Appellant)
Rex (Office of the Director of Public Prosecutions)
Representation: Counsel:
Mr H White (Appellant)
Solicitors:
Johnson & Sendall Pty Ltd
Office of the Direction of Public Prosecutions
File Number(s): 2023/00060724; 2023/00096493
Publication restriction: Certain names in this judgment have been replaced with initials in recognition of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
After a hearing that spanned nine (non-consecutive) days in the Goulburn Local Court throughout 2023 and 2024, on 16 December 2024, Mr Warren Byers, the appellant, was convicted of two domestic violence-type offences. Both offences were committed against the same complainant; being his former partner, Ms Leanne Elliot. Seven other charges were dismissed. The appellant was later sentenced and final Apprehended Violence Orders (AVOs) were made.
The appellant brings an all-grounds appeal and appeals the final AVOs.
The two offences for which the appellant was convicted were:
common assault, contrary to s 61 of the Crimes Act 1900 (NSW), on 12 October 2020 (the “assault charge”), and
intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), on 24 September 2022 (the “intimidation charge”).
An assault is constituted by:
a striking, touching or application of force by the accused to another person (the complainant);
that such conduct of the accused was without the consent of the complainant;
that such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight, as a result of what he or she was about to do, but yet took the risk that that might happen; and
that such conduct be without lawful excuse.
This offence comprises the following elements:
the person ‘intimidates’ the complainant; and
the person has the intention of causing the complainant to fear physical or mental harm.
In view of the matters in controversy in this dispute, it is also pertinent to refer to some of the objects of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which inform the interpretation and application of its provisions.
The offence of intimidation is a ‘personal violence offence’, for the purposes of s 4 of the legislation; and thereby also a ‘domestic violence offence’, for the purposes of s 11.
Section 9(1) identifies two objects as:
(a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and
(b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons …
the intersection between animal abuse and domestic violence[.]
The concept of ‘intimidates’ is defined in a variety of ways, but relevantly encapsulates conduct that causes a reasonable apprehension of: (i) injury to the person or to another person with whom the person has a domestic relationship, or (ii) violence to any person, or (iii) damage to property, or (iv) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship. [1] A ‘domestic relationship’ includes a relationship between two people who have or have had an intimate personal relationship, whether or not it involves or has involved a relationship of a sexual nature. [2] It also includes a relationship with a person who is or has been a relative of the other person. [3]
Read in isolation, s 13(1) indicates that the offence is one of ‘specific intent’ (for the purposes of s 428B of the Crimes Act 1900 (NSW)). [4] As to the requirement of intent generally, often the element of intention is proven inferentially. [5] The content and nature of the threat may bespeak the intention of the person who utters it.
However, the mental element for the offence of intimidation in s 13(1) is to be read in the light of s 13(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which provides that a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. In McIlwraith this mental element was construed so that although the offence in s 13(1) is one of specific intent, it can be proven either by (a) an intent to cause a person to fear physical or mental harm; or (b) knowledge that the conduct would likely cause fear in the other person.
By s 13(4), the prosecution is not required to prove that the person alleged to have been intimidated actually feared physical or mental harm.
As will become clear there were some questions of construction relating to the intimidation charge that were in issue in the proceedings.
“2. Section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) provides that the appeal is a rehearing on the certified transcripts of evidence and the exhibits tended in the Local Court. The proceedings are not an appeal de novo.
3. The court must give the judgment which, in its opinion, ought to have been given in the first instance.
4. The appellant must demonstrate factual, legal, or discretionary error to succeed.
5. That said, the term ‘error’ has no precise meaning and refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgement of the trial judge will not be set aside unless the appellate judge is satisfied the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of ‘error’ in the ordinary meaning of that term.
6. The requirement that the appellant show error does not reverse the onus of proof. At all material times, the prosecution bears the onus on establishing guilt beyond reasonable doubt. Demonstration of error can mean no more than satisfying the appellate judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt. An appeal must be upheld unless the appellate judge is satisfied of the appellant’s guilt beyond reasonable doubt.
7. The appellate judge must form their own judgment on the facts and determine on the basis of the evidence that was before the magistrate, whether the evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt.”
6. However, to this statement of principles, I would add the following, which essentially relate to forensic limitations upon this Court in respect to appeals of this kind:
1. there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence of guidance and submissions from the parties … and
2. the appellate judge is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses …
3. in particular, (and as a function of the appeal being conducted on the basis of the transcript and exhibits in the Local Court) where credit findings are made by the Magistrate, the appellate judge recognises the advantage of the Magistrate in hearing and seeing the witnesses; however, whilst recognising that advantage, the appellate judge will, in practice, be focussing on the question whether disputed evidence (especially in a ‘he said, she said’ type case) is consistent with incontrovertible facts, undisputed facts and other relevant evidence..
Early in the course of the Local Court hearing, the prosecutor supplied the learned Magistrate with a document, titled a ‘List of Particulars’ for each of the six incidents that the prosecution relied upon. The prosecutor made it clear that the document was relied upon in lieu of an opening address (27/11/23, T 3.16). The document was Annexure A to the prosecutor’s written submissions in the Local Court.
The essential parts of the List of Particulars for the two offences this Court is concerned with were as follows.
For the assault charge (seq 9):
“The accused has rolled over so he was laying on top of Ms Eliott with his full body weight.
The accused held his hand over the mouth of Ms Eliot preventing her from breathing …”
I interpose, at this point, that in the reasons given for the Provisional Apprehended Domestic Violence Order (before the Local Court hearing) reference was made to an offence, described in shorthand as ‘suffocation’. This was a reference to the incident on 12 October 2020. The pertinent part of the reasons referred to the “accused (having) climbed onto the victim using his body weight to pin her and placed his hand over her mouth in a suffocation motion causing the victim to be unable to breathe.” There was no reference in this particular description of this offence to the accused placing his hands around the complainant’s neck in either the List of Particulars or the Provisional ADVO.
For the intimidation charge (seq 5), in the List of Particulars, it was stated that:
“Ms Eliot decided to leave the property and has begun collecting her belongings including a puppy. Ms Stone also retrieved another puppy that was in a travel crate.
The accused said to Ms Eliot and Ms Stone something similar to, ‘If you leave, I will slit the puppies’ throats’
The accused grabbed out at Ms Eliot while she was holding the puppy.
Ms Eliot attempted to push past the accused and he raised his fist and said “I’ll knock you out”.
The accused took the keys to Ms Stone’s and Ms Eliot’s cars and they could not leave the property as a result…”
As at 12 October 2020, the appellant and complainant were living together in a domestic relationship. According to the complainant their relationship commenced around April 2020 and it ended in February 2023.
By October 2020, the appellant and complainant had purchased a large rural property at Boxers Creek. But the vendors were still in occupation fixing the external part of this property. So the appellant and complainant stayed in a demountable building, also known as the ‘ATCO’ building. The complainant described this as a ‘tin building’ comprising a bedroom, kitchen and a lounge room.
Also staying with the appellant and the complainant was the complainant’s adult son, Brodie Stone and a school friend of his, Linton Mackie. Also located within the rural property were two children, AA and ZZ. Their mother was VV. These children were under the appellant’s care and worked on the property. AA slept in an area inside the ATCO building near the bedroom where the appellant and complainant slept. ZZ slept in a different building on the property.
On the evening of 12 October 2020, the appellant, the complainant, Brodie and Linton had been located around a campsite outside the building. They had been drinking. The appellant went to bed first. The complainant later joined him in the bedroom. What happened next was substantially disputed.
The complainant said that once inside the bedroom, the appellant was angry with her and said words like “We go to bed when I say we go to bed.” She indicated that she was trying to calm the situation. They got into bed. He was lying next to her. She was on the side of the bed closest to the bedroom door. She gave evidence that AA was in the lounge room, on the other side of the wall, in a swag. She later said in cross-examination that the door was closed and there was no (other) open space between the bedroom and the lounge room. Brodie and Linton were still positioned by the campfire.
The complainant said that the appellant got on top of her and started to put his right hand over her mouth. Later, in cross-examination, she said that at about the time he lay upon her, he was being argumentative. She elaborated that he put his full body weight on her whilst she was lying on her back. She said that she had trouble breathing. She was trying to pull her face away. She demonstrated what occurred by moving her head from side to side. She said that whilst he had his hand over her mouth he told her (more than once) to “shut up”. She could not push him off since he was too heavy. Finally, after turning her head, she got her mouth away and yelled out to Brodie.
In the course of the complainant’s cross-examination, the prosecutor objected to the appellant’s counsel asking questions about the part of his client’s body being on her throat. The context for this objection and the Magistrate’s exchange with Counsel was that one of the charges that had been brought against the appellant was that he choked her. This charge had, however, been withdrawn before the complainant gave evidence at the hearing. The cross-examination on this aspect went to the complainant’s credit. In cross-examination, she said she felt pressure on her throat, but could not identify specifically what part of the appellant’s body touched that area of her body.
In considering that objection, in an exchange with the appellant’s Counsel, the Magistrate said that he took the common assault allegation to be based upon the appellant’s conduct in lying on top of the complainant (29/11/23, T 230.37 - 231.12). He was not disabused of that understanding during that exchange. However, in his closing submissions in the Local Court, the appellant’s then Counsel appeared to change tack: the focus of much of his submissions was directed to the issue of whether the appellant had put his hand over the complainant’s mouth.
Resuming the complainant’s narrative, she said that Brodie Stone came into the bedroom, through the bedroom door. She recalled him saying “What’s happening here, get off mum” after which the appellant got off (on his side of the bed, furthest away from the door), jumped out of bed and tried to stop her from leaving the bedroom. She said that after the appellant had got off her, Linton Mackie then came through the bedroom door. She said that the appellant was at the foot of the bed when she noticed Linton at the bedroom door.
Brodie Stone said that the appellant called out for the complainant to come to bed more than once and said that the appellant did not appear happy with her response. He said he was positioned about 10 metres away. It was after the second time that the appellant called out that the complainant went inside. The next thing he recalled was hearing the complainant yell his (Brodie’s) name. At this point he was standing around the fire ten metres away from the demountable building. He went inside the demountable. He said Linton was behind him. Brodie described the call as one made “in distress”. That description was based on the sound of her voice, or the way she yelled out.
Brodie said that he walked in. It was dark and he used the torch on his phone. He saw the appellant on top of the complainant. He said “What’s going on here?”. He perceived that as the appellant saw him, the appellant jumped off the complainant, jumped off her side of the bed and walked from her side around to the front of the bed. He said the appellant walked towards him and Linton. Brodie also described Linton as ‘assisting’ the complainant, comforting her and trying to get her out of the room. He recalled Linton saying “Come on Leanne, let’s go outside”. Brodie said that the appellant touched Linton in a way that caused the latter to fall to the ground. He also said that he restrained the appellant whilst Linton escorted the complainant from the room. He also opined that the complainant was not highly intoxicated at the time of the incident.
After describing the events, Brodie was asked if he inquired why the complainant yelled out. He said he did not (explaining that he thought she did not wish to discuss it) but said that the complainant stated that the appellant had been on top of her, with his hands around her neck.
In cross-examination, Brodie said that he did not actually see the appellant on top of the complainant, but he did see her lying on the side of the bed with the appellant in the process of getting off the same side. It appeared to him that he was kneeling as he was getting off.
Linton Mackie also gave evidence that, in the lead up to the incident, he heard the appellant twice call out for the complainant. He also said that he heard the complainant call out Brodie Stone’s name. This was about 10 to 15 minutes after the complainant had gone in. Meanwhile he and Brodie remained around the campfire. He described the complainant’s voice as sounding ‘scared’, a description based on the sound of her voice. He noted that the complainant was looking for her hearing aid (he heard her say that it had fallen out). He said that he and Brodie ran inside. Linton said that at the point when he entered, he saw the appellant on the right side of the bed with the complainant on the other. He observed that she appeared scared and in a panic. He described the appellant as looking frustrated, with his face scrunched up. He said he walked into the room to help her. That was when the appellant touched him in a way that caused him to fall to the ground.
The appellant said that after a barbecue dinner he, the appellant, Mr Brodie and Mr Mackie were socialising around the fire and he commented that the complainant was starting to slur her words. He estimated that the complainant had consumed the Canadian Club beverage (later insisting they were black ‘double strength’ cans; not white ones). But he said that whilst they were all sitting around the fire, those who were there were civil.
He said he called the complainant to come to bed, explaining that when she got highly intoxicated she could become very argumentative. After a delay of 10 minutes, he called her again. He said that AA was the only other person in the ATCO building, in her swag in her bedroom.
The appellant said that after the complainant came in, they had an argument in bed about her drinking, in the course of which she indicated her intention to take the kids and drive home. He described her as appearing aggressive when she said this. The appellant told her that there was no way he would allow her to take the children (ZZ and AA) in a motor vehicle whilst she was highly intoxicated.
He said it was then that she yelled out (twice) to Brodie. He described the tone of her yell as sounding as if she was ‘frustrated’. After the second time she called out, he said he started to get out of bed. He said he expected ‘something to happen’. Later, under cross-examination, he said he felt scared about Brodie coming in. As he was starting to put his jeans on he noticed Linton and Brodie. He later said he felt intimidated when Brodie and Linton came in. He noticed that the complainant, on the other side of the bed, was looking for her hearing aids.
He said he noticed AA run out of the building. He moved towards the doorway and Linton came towards him. He says he wanted to see if AA was okay and pushed Linton out of the way; explaining that he felt threatened and was trying to block him. He then said that Brodie tackled him.
He denied that he lay on top of the complainant, or that he put his hand over her mouth. He also denied telling her to shut up.
The appellant said that the complainant spoke to AA’s mother, VV. He said that he also spoke to VV.
VV confirmed that she was mother to both AA and ZZ. She said that the appellant was her employer, but also a family friend.
VV said she received a telephone call from AA at 11:30pm on the evening of 12 October 2020. She described AA as sounding afraid and crying. She said that AA handed the phone to the complainant. She said she asked the complainant why AA was upset. She perceived that the complainant was slurring her words and told her she was going to take the children to leave. VV said that she told the complainant that they should not leave.
She said she later heard a call from the appellant to her partner, which was on speaker-phone. VV said she told him that the children were to stay with him.
It emerged that at the time she gave her evidence, VV was serving a sentence of imprisonment by intensive correction; and had been convicted of the offence of lying on employment records to fraudulently obtain a financial benefit of nearly half a million dollars. She was employed by the appellant at the time she gave evidence.
AA was not called to give evidence.
On the weekend of 24 and 25 September 2022, there was what the appellant described as a ‘horse event’ at his property at Boxer’s Creek. There were between 50 and 70 guests who stayed at the property that weekend who were within view of the house. The appellant stayed in the property with the complainant, Ms Ashleigh Stone (who was the complainant’s daughter), a friend (Ronald Ramsay) and AA, the child whose name was referred to in connection with the assault charge.
An incident occurred on the patio outside the dining room of the house, which gave rise to sequence 4. After that incident, the persons moved inside. The complainant and Ashleigh Stone made it known that they intended to leave the property.
What happened then featured a dispute about the content of conversation between the complainant and Ashleigh, on the one hand, and the appellant on the other.
The complainant gave evidence that after the incident on the patio, she and Ashleigh left Ashleigh’s bedroom, each carrying a travel crate containing a dog. The crate that Ashleigh carried contained a puppy. She said that the appellant was standing in the walkway, effectively preventing their access to the front door. She said she told him that she and Ashleigh were leaving. She said that the appellant responded that they were not leaving as there was an event to run the next day. She then said to Ashleigh that they needed to get out of the home. After this, the complainant said that the appellant stated to Ashleigh “If you leave, I’ll slit your puppy’s throat and hang it by the fence”. The complainant stated that Ashleigh was beside her when the appellant said the words attributed to him; trying to cover the travel crate containing the puppy.
It appeared on the face of the transcript (27/11/23, T 87.44–88.4) that the complainant was ‘upset’ when restating (that is, the second time) what the appellant said. Asked by the prosecutor why she was upset, the complainant referred to Ashleigh screaming and crying.
The complainant said that the appellant was effectively blocking her path to the front door. He had a bench next to him, with cupboards and was standing there (“solid as a rock”). She would have needed to push past him. She said that there was physical contact: she used her left hand and shoulder to try to get past and made contact with him near his face. She complained that he barged her with his chest. She said he told her “You’re not going anywhere” and described his voice as being ‘dominant’. She said that she felt petrified that she and Ashleigh could not get away.
The complainant said that she and Ashleigh got to the car. Ashleigh said that the accused had taken the car keys. She said that the appellant offered to go. She said that she and Ashleigh went back into Ashleigh’s bedroom. She said that the appellant wanted her to go back into their bedroom but she told the appellant to leave her alone.
The complainant was asked where Ronald Ramsay was when she tried to leave with the dogs. She said she could not see him at all. She recalled Ashleigh screaming to him for help, but he did not come out of the room. She said that AA was in the garage and that AA (now 14 years old) assured Ashleigh that she, AA, would look after the dogs.
Ashleigh Stone gave evidence that she tried to take the crate carrying the dog out of the bedroom, but instead the appellant tried to take the dog out of the crate, telling her that she was not allowed to take the dog. She pushed his hand away from the zipper to the crate. She said that the appellant told her that she could not take the dog and that if she tried to do so, he would “slit her (the puppy’s) throat and hang her body on the fence”. She gave evidence of his saying this a few times.
Ashleigh said that at the time she was dealing with the appellant in these respects, the complainant was also in the kitchen; and was also trying to stop the appellant from taking the dog away. Ashleigh further explained that she positioned her body over the crate in order to prevent the appellant from getting to the dog. She said that the complainant tried to get her off the ground so that they could leave. That was when AA came out of the garage and asked her if she was okay.
Ashleigh said that she and her mother tried to walk from the dining room through to the kitchen leading to the front door. But the appellant was standing there, positioning himself between the kitchen bench and the wall. She said that the complainant was trying to push past him, with her hands against the upper part of his chest in an attempt to move him out of the way. She said that as the complainant was trying to get past, the appellant said to her (Ashleigh) that if she lay her hands on him one more time ‘he’s going to put her to sleep’. She said she saw the appellant raise a closed fist in the complainant’s face, as if he was about to punch her. This scared Ashleigh. She told the complainant to leave it.
After this, Ashleigh said that she and the complainant went through the back door on to the veranda, around the house, passing through a side gate leading out to the front of the driveway.
When they got to her car, Ashleigh said that the appellant was at the driver’s side of the car. She said that the appellant told her that he had taken her car keys out of the car and that he explained that he owned the car. Eventually, the car was unlocked and the appellant got into the front seat. He told the complainant and her to go inside.
She said that the complainant and her went into her bedroom. They were in bed together. The appellant came into the house, into her bedroom and apologised.
“I’d rather put the dog down than (sic) to give to you”.
The appellant said that at this time, the complainant was behind Ms Stone, slightly to the left of Ms Stone. They were in the kitchen.
He said he stood in between the kitchen counter and the microwave and the complainant demanded that he give them the dog. After he said no, he said that the complainant punched his jaw, with a closed fist multiple times. He said he clenched his fist and said that if she hit him again, he would hit her back.
The appellant said that at the time he handed over the dog, Ronald Ramsay was present, standing in front of his bedroom. He recalled him witnessing the punching and the complainant calling for his help, however he heard Ronald say that “the only person who needed helping was Warren”.
He said he handed the dog to AA and heard AA assure Ashleigh that she would look after the dog.
He said that after the incident, they went straight into the bedroom.
At the Local Court hearing, the appellant explained that this statement was not made out of malice: it was “just a verbal thing”. He gave evidence that he had never hurt an animal. He was a horse trainer.
Under cross-examination, after saying that the complainant was “there the whole time”, the appellant said he told her “I’d rather kill the dog than give it to you” (1/8/24, T 29.14–29.19).
Before addressing each offence specifically, the Magistrate made certain general findings (16/12/24, T2-4). First, the appellant argued that that he suffered forensic disadvantage so as to require the Magistrate to inform himself in the way prescribed by s 165B of the Evidence Act 1995 (NSW). The complainant had commenced giving evidence on 27 November 2023 (completing it on 29 July 2024). Her evidence had spanned five (non-consecutive) days. The appellant commenced giving evidence on 31 July 2024 and completed his evidence on 1 August 2024. His evidence had spanned two (consecutive) days. The Magistrate rejected the appellant’s submission.
Secondly, the Magistrate rejected the appellant’s submission that it was inherently improbable that the offending would occur in the way that the complainant said it did, since she was a mature and independent woman who appeared capable of looking after herself and therefore capable of leaving the appellant at any time. The Magistrate indicated that this was a recourse to stereotype or trope.
Thirdly, although the Magistrate noted the appellant’s submission that the complainant did not complain to others, his Honour also noted that (possibly a reference to the intimidation charge, although also possibly sequence 4: see 16/12/24; T 9.11) her evidence that she was in fear was not ‘contradicted’ and found that her omission to complain did not affect her credibility in the circumstances.
Fourthly, the Magistrate determined from all of the evidence, including the conduct allegedly sustaining the charges that were dismissed, that the appellant exhibited ‘coercive and controlling behaviour’ towards the complainant (16/12/24, T 2.41). An example of this was part of the background to the assault charge: the Magistrate accepted that the appellant directed the complainant that she “must” come to bed. This particular reason was a determination of evidence the prosecution relied upon to prove the nature of the relationship between the complainant and appellant.
Fifthly, the Magistrate acknowledged certain inconsistencies as between the complainant’s statement to police and her evidence, but said that she was consistent when she gave her evidence in Court; giving it as best as she could recall. The Magistrate rejected the appellant’s submission that she was not a witness of credit.
Sixthly, the Magistrate indicated that he would give himself a Liberato direction.
Seventhly, the Magistrate noted the questioning directed to the complainant concerning the nature and extent of any intoxication afflicting her at the time of the assault charge. The Magistrate indicated that little weight should be given to the assessments of lay persons (including the complainant herself) about the extent of another person’s intoxication and the consequential effect of such intoxication on the person’s reliability of recollections of past events.
The Magistrate noted the prosecution case, substantially based on the complainant’s evidence, that she and the appellant were in bed; that he rolled on to the top of her, placed his hand over her mouth and prevented her from breathing.
The Magistrate acknowledged the appellant’s submissions directed towards impugning the complainant’s credibility; which were said to comprise her concession that she was intoxicated (after having said that she had two drinks) and the falsity of her evidence that her son, Brodie, was present in the room to actually witness the appellant with his hand over her mouth. This was different to what Brodie, and Linton, who also entered the room, saw. The Magistrate found that they entered into the bedroom at the same time; which was contrary to the complainant’s evidence that Linton came in later.
Further, the Magistrate found that the complainant had ‘resiled’ from her opinion that her difficulty with breathing was caused by the appellant placing his hands over her mouth towards expressing her view that the cause may have been the appellant’s body weight imposed on her (the charge of intentional choking having been withdrawn prior to the hearing).
The Magistrate noted the effect of the evidence of Brodie and Linton. The Magistrate found that their evidence was inconsistent with the evidence of the complainant (with Mackie’s evidence differing greatly from every other witness). His Honour found that they were independent. Ultimately, his Honour assessed their evidence was simply contextual, as to what they saw when they entered into the bedroom.
The Magistrate then considered the evidence of VV. The Magistrate considered that her evidence was mainly germane to the question of the complainant’s intoxication, but his Honour did not find this witness’ opinion to be real assistance in determining whether the assault charge was made out; especially in light of the complainant’s own concession that she was intoxicated.
The Magistrate considered, but rejected, the appellant’s submission that a Mahmood direction might be given as a consequence of the prosecution not calling the child AA. The Magistrate did not regard this person as being a material witness. His Honour doubted whether her presence was a matter raised with Brodie and Linton when they gave evidence. However his Honour noted that it had never been suggested that she had seen the conduct giving rise to the offence: the appellant’s submission that she was a material witness was antithetical to its argument that this was only a word-on-word case. There was no other material in the prosecution case indicating its view that she was a material witness. In the absence of information available to the prosecution, it was open for the appellant himself to call AA.
The Magistrate noted the appellant’s election to give evidence and acknowledged that he did not need to prove anything. The Magistrate acknowledged the appellant’s denial that he placed his hand over the complainant’s mouth and positioned himself on top of the complainant. His Honour acknowledged his case was that there was only an argument about her drinking after which the complainant got up and wanted to leave; that he tried to talk to her, but she called out in a ‘frustrated’ tone; a call which triggered the entry into the bedroom of Mr Stone and Mr Mackie.
As a preliminary complaint, the appellant complains of a denial of procedural fairness that in circumstances where the Magistrate doubted whether the appellant placed his hand over the complainant’s mouth preventing her from breathing, the Magistrate nonetheless found the offence was established by finding that he lay on top of her in a way which had the effect of causing difficulty for the complainant in her breathing. In other words, it was an indispensable part of the prosecution case that it prove beyond reasonable doubt each and all of: (a) the appellant lay on top of the complainant; and (b) the appellant covered the complainant’s mouth with his hand; and (c) the complainant experienced difficulties with her breathing because of (i) the appellant’s covering his hand over her mouth; or (ii) the appellant’s lying on top of her.
Separate but related to this point was that if the Magistrate doubted the complainant’s evidence about the appellant’s hand covering her mouth and/or her experience of having difficulty in breathing, his Honour also ought to have doubted whether the appellant did in fact lay on top of her.
The appellant then made more detailed criticisms:
(a) a difference in the evidence, as between the complainant and Brodie, as to when the latter entered the room, meant that the Magistrate should not have found that the complainant gave evidence to the best of her recollection; (b) the complainant asserted to Brodie a short time after the incident that the appellant had choked her (an assertion which was substantially different to an assertion that the appellant had merely placed his hand over her mouth). The complainant later resiled from the choking assertion under cross-examination. This was a very significant evidentiary point that undermined her credibility: a complaint about choking is inherently very different to a complaint that the appellant merely covered her mouth. This change of position led to the Magistrate finding the offence proven upon acceptance that the appellant lay on top of her; (c) the Magistrate should have given himself a Mahmood direction for the Crown’s failure to call AA. There was doubt in the evidence as to whether AA was in the ATCO building, which should have led to greater investigation. Further the Magistrate impermissibly suggested that the appellant could have called her; (d) the Magistrate misapplied a Liberato direction in several senses:
(i) it was unclear why the Magistrate questioned the appellant’s honesty and there was no basis for finding that he was not reliable. (ii) the Magistrate’s conclusion that the appellant lay on top of the complainant on the basis of a finding that the complainant’s call to Brodie was one for help rather than out of frustration, based as that was on the tone of her voice, was insufficient to ground the conclusion that the appellant lay on top of her. (iii) it was unreasonable to infer that the only reason the appellant expected something might happen when Brodie (and Linton) entered into the bedroom was because he had been lying on top of her. (iv) the Magistrate was wrong to reject the appellant’s evidence because the complainant had not left the room at the point in time that Brodie and Linton entered it. She needed to get dressed and collect her hearing aid before leaving the room; (v) matters (ii)-(iv) indicated that the Magistrate found that the appellant was not truthful, even when the Magistrate had found that he gave evidence of what he recalled. Both findings are inherently inconsistent;
(e) matters (a) and (b) should have been treated by the Magistrate as adversely affecting an assessment of the complainant’s credibility (especially in light of the Magistrate’s assessment of the appellant’s evidence)
I do not accept that there was a denial of procedural fairness in the Magistrate finding that the assault was made out by the appellant lying on top of the complainant and causing her difficulty with her breathing independently of determining, beyond reasonable doubt, whether or not the appellant also placed his hand over the complainant’s mouth.
It is true that the latter allegation formed part of the List of Particulars, but it was not incumbent upon the Crown to make out each and every particular relating to that charge in that list. The act of placing a hand over another’s mouth could itself be viewed as a common assault, just as positioning one’s body over another could be viewed as a separate assault. This was something that the Accused’s Counsel appeared to accept in his exchange with the Magistrate during the complainant’s cross-examination on the topic of choking. That it might have suited the appellant’s forensic interests to focus the Magistrate’s attention on the discrete question whether his hand was placed over the complainant’s mouth did not alter the position.
The Court was informed that no complaint was made on behalf of the appellant in the Local Court that the assault charge was defective because of duplicity. No such complaint was made in this Court. In my view, that is explicable because all of the acts which, separately, might themselves have constituted an assault in the relevant part of the List of Particulars for the assault charge were so closely connected as to amount to a singular episode or activity, and thereby justify a singular charge (Walsh v Tattersall (1996) 188 CLR 77 per Kirby J at 107). The prosecution did not depart from its case.
It was not necessary, therefore, in the circumstances for his Honour to specifically consider the factual dispute as to whether the appellant did place his hand over the complainant’s mouth; and his Honour did not do so. In saying that, I reject the appellant’s argument that the Magistrate expressly doubted whether or not the appellant’s hand was placed over her mouth.
As to the dispute whether the appellant’s conduct generally caused her difficulty in breathing (whether by covering her mouth, or choking her, or simply by laying on top of her), the causal effect of his lying upon the complainant was not an essential element of the offence of common assault. Thus, again, this matter did not need to be determined. However, his Honour did make a positive finding that there was a connection between his lying on her and her having a difficulty in breathing. I do not consider that, on the facts, he was wrong to do so.
I reject the suggestion that because the complainant had a different recollection as to the timing in which Brodie (or Linton) entered the room, this was a marker against her credibility. Had Brodie given an identical account of all of the circumstances to the complainant, it would probably have been asserted that he colluded with the complainant. (Indeed Brodie and Linton were labelled in the Local Court as lacking “independence”.) I agree with the Crown that although Brodie and Linton did not actually see the appellant lying on top of the complainant, their evidence, on balance, enhanced acceptance of the complainant’s evidence. I will also return to develop this point later.
It is inaccurate to say that the complainant ‘resiled’ from an assertion of being choked in the course of her cross-examination. It is more accurate, and fairer, to say that she did not say in her evidence (on affirmation) that he placed his hands around her throat. Further, his Honour appeared to reason that in the circumstances she faced, she felt as though she was being suffocated when describing her difficulties with her breathing. This, to reiterate, was one of the matters relied upon to establish the Provisional Apprehended Violence Orders. It was open to the Magistrate to find that his act of lying on top of her contributed to her experiencing difficulty with her breathing and further, to a layperson, there may be little practical difference between a sensation of feeling choked and the sensation of feeling suffocated; as both matters could be found as contributing to a difficulty in breathing. An inapt choice of word is not fatal to a witness’s credibility if the intention is clear. This is how I read what his Honour said, in this respect, and I agree with him.
In Singh v R [2025] NSWCCA 34 the Court of Criminal Appeal (per Chen J, with whose reasons Garling J and Sweeney J agreed) recently considered the circumstances in which a Mahmood direction should be given. The Court noted (at [127]) that such direction may not be necessary where it is apparent that the prosecution would not call the witness (and there was therefore no ‘disappointed expectation’ that the witness was not called), the accused did not require the witness to be called and no challenge to the prosecutor’s decision not to call the witness was made. The Court also reiterated (at [134]–[135]) the need for an accused who makes such submission to demonstrate that the person who was not called by the prosecution was a material witness (see also Gregg v R (2020) 355 FLR 348 at [537]).
The Crown accepted that, contrary to the Magistrate’s expressed doubts, that the presence or otherwise of AA had been put to Crown witnesses. But neither the prosecution nor the appellant suggested that AA ever entered into the bedroom where the alleged assault occurred at any time; even if in the general commotion that accompanied the incident, she ran away outside the building. This distinguished her position from Brodie and Linton who had relevant evidence to give about what occurred in the bedroom at a point closely proximate to when the alleged assault occurred.
This was not a case where the prosecutor led the appellant or his legal team to think that she might be called.
For the purpose of engaging a Mahmood direction, a missing witness does not become ‘material’ merely because, as a result of the accused’s election to give evidence, the accused suggests that the witness might have something to say that is favourable to his case. In this respect, it appears that what the appellant wanted to get from AA was corroboration of his evidence that the complainant was so intoxicated that she slurred her words not long after the incident. In short, this might provide a platform for him to challenge the complainant’s reliability. But even if that was true, it did not automatically bespeak a lack of reliability in her account of what she said. For example, neither Brodie nor Linton detected any slurring in her words when she yelled out to them twice.
As I read the Magistrate’s comments, his Honour was not reversing the onus of proof; nor directing himself that any inference adverse to the appellant’s case could arise from his omitting to call AA himself.
I do not consider that it was necessary for his Honour to give himself a Mahmood direction following the prosecution’s omission to call AA.
As to the appellant’s complaint about his Honour’s reasons when applying the Liberato direction, the several discrete points raised in the appellant’s case appear to be that the Magistrate did not explain why he positively disbelieved the appellant and/or did not adequately explain why, in the alternative, his Honour did not consider that his version might possibly be true.
These submissions encounter a difficulty, arising from the limits of appeals of this kind, that some deference is given by appeal judges to credit-based findings especially where they may be influenced by assessments of a witness’ demeanour. His Honour had seen and heard the appellant give evidence in relation to a large number of charges, over 2 days. This Court is being asked to focus through the narrow prism of his evidence in only two charges (without being referred to other parts of his evidence). Inevitably, his Honour formed views on his credibility and demeanour based on all of his evidence, influenced to some degree, on an assessment of his demeanour which may not be susceptible to easy expression, upon which there are real constraints upon this Court to overturn.
A separate difficulty in relation to the Liberato direction here is that fundamentally, the appellant blankly denied that he positioned himself on the complainant’s body and/or placed his hand across her mouth. His defence was that the acts did not occur; not that they were incapable or impossible of occurring. She said they happened. He denied that they did: the classic ‘he said she said’ case. In such cases, whilst not losing cognisance of the onus of proof resting on the Crown, the trier of fact will, when applying Liberato, be considering the credibility of the accused, but will also be concerned with the surrounding circumstances before and after the act, or acts on the bed, the prosecution relied upon.
As already noted, his Honour made an important generalised finding on the basis of all of the evidence. This was that the appellant’s relationship with the complainant was characterised by his desire to control her. As I indicated, that finding was not challenged.
This had a particular salience when the Magistrate considered the circumstances in which the complainant returned to the bedroom and what was said in the bedroom between the appellant and the complainant. The Magistrate was entitled to positively disbelieve the appellant’s evidence that he called for the complainant to come to bed because of any solicitous or considerate concern about the extent of her drinking or her health. It was, his Honour expressly found, an example of his controlling behaviour: that she should come simply because he told her to. It was important to a consideration of this question that although there was evidence of drinking, there was no evidence, at least independently of the appellant, that the complainant had been behaving in any disagreeable way around the campfire.
One important finding relevant, indeed indispensable, to that assessment was his favourable (on balance) assessment of her credibility. The Magistrate had, as indicated, seen and hear her give evidence over many days throughout the hearing. I do not find persuasive the arguments that credibility findings based, to a degree upon demeanour, should be overturned on the basis of incontrovertible or undisputed facts.
Assisted as I have been by the parties’ submissions directed to the pertinent parts of the evidence, the surrounding circumstances very strongly supported her case. I referred a moment ago to the value of the evidence of Brodie and Linton.
It is not necessary to find that the Magistrate could not have believed some parts of the appellant’s version when applying the Liberato direction. As with other witnesses, he could accept some parts of his evidence whilst rejecting other parts. Forming my own view of the facts on the evidence that was before the Local Court, some of the things that the appellant said were plausible but paradoxically, they assisted the prosecution case. Thus, his evidence that the complainant tended to became argumentative when she had had a few drinks itself suggested that, as he said, they did have a verbal argument after she went into bed and that argument, or its continuation, may help to explain why he might put his hand around her mouth, in order to shut the complainant up; a matter itself that might be the type of thing a controlling person would do if sufficiently displeased with what the complainant was saying and where there were no other means of silencing her; particularly if the person was also affected in some way by alcohol.
The only real question at the hearing was whether the physical element of the offence of common assault was proven. There was no issue as to a lack of consent, or any lack of lawful excuse.
The Magistrate referred on multiple occasions, including in his consideration of this charge, to his positive view of the complainant’s credibility. The matters raised in this appeal by the appellant do not dispel that finding.
I am not persuaded that error was demonstrated in the Magistrate’s determination that the charge of common assault was made out.
The charge for sequence 5 was part of the same incident, or very closely followed the incident, giving rise to the charge for sequence 4. The latter charge was dismissed. It is pertinent in the circumstances to refer to the Magistrate’s reasons for rejecting the charge sustaining sequence 4 before addressing sequence 5 since part of the context or background for consideration of the intimidation charge is the background to sequence 4.
The incident generally arose from the circumstances of the complainant and appellant hosting a horse competition at their home. The Magistrate noted that both the complainant and appellant had been drinking earlier in the day and that both were intoxicated. The Magistrate also noted the involvement of their daughter, Ashleigh Stone.
The prosecutor alleged that the complainant joined Ashleigh on the patio for a smoke. The Magistrate found that the appellant directed the complainant not to smoke (which the Magistrate noted was another indication of the appellant’s controlling behaviour towards her). However, the complainant continued to smoke.
In the List of Particulars (for sequence 4), the prosecution’s case was that the appellant had told her not to light a cigarette. Specifically, it was asserted that he said to her “If you light it, we are done”. Then, the prosecutor alleged that after initially walking away from the complainant, the appellant returned a short time later and struck her with an open hand across her face, knocking the cigarette to the ground. Thereafter, he walked away again, before returning and hitting the complainant on the head and verbally insulting her.
The Magistrate noted that there was a doubt as to whether the appellant had slapped the complainant’s face once or twice. The complainant did not herself recall being slapped a second time. The Magistrate emphasised that this doubt did not impair his positive assessment of the complainant’s reliability or credibility (16/12/24, T 8.48) nor, for that matter, the credibility or reliability of Ashleigh Stone. His Honour rejected the appellant’s submission that the two witnesses had colluded.
The Magistrate noted the appellant’s evidence; which was to the effect that he approached the complainant and took a cigarette out of her mouth, but made no contact with her. The Magistrate refrained from considering whether this conduct, if it occurred, could amount to an assault in its own right.
The Magistrate took into account and gave himself a Mahmood direction arising from the prosecution’s omission to call Ronald Ramsey. He had been on the patio at some stage and could be considered to be a material witness. Given the doubt about the number of slaps that the Magistrate entertained, this omission to call Mr Ramsey was material and might have lent support to the appellant’s case. Such findings altogether generated doubt as to whether the charge for sequence 4 was made out.
This offence was alleged to have occurred after the parties had moved inside from the patio, although the Magistrate noted that, whilst on the patio, the complainant had indicated her intention to leave. The Magistrate noted that the prosecution alleged that the appellant stated to Ashleigh words to the effect of ‘do something about your mother, or I’ll put her to sleep if she touches me again’. The context for this offence, as found by the Magistrate, was that the complainant and her daughter, Ashleigh, were wanting to leave the premises.
They did so carrying two puppies, each in separate dog crates. The Magistrate found that although the appellant was the owner of at least one of the puppies, Ashleigh was the primary carer for the dog; having a great attachment to it.
The Magistrate noted the part of the prosecution case that the appellant said to the complainant and Ms Stone that “if you leave, I’ll slit the puppies’ throats”.
The Magistrate referred to the appellant’s position which was (a) to deny those words actually attributed to him but, in the event that his Honour found that he made them, (b) posit that the appellant made (or perhaps more accurately directed) them to Ashleigh; and that the prosecutor did not make out the element of the offence that he intended to cause fear in the complainant.
The Magistrate noted the appellant’s statement was that he said to the complainant “I would rather kill the dog than give it to you”, a statement which, he explained, was a reference to him having purchased the dog in the first place for breeding purposes and did not want the complainant to take the dog away.
The Magistrate rejected the appellant’s case in all of these respects. The Magistrate found that the appellant clearly conveyed an intent to kill an animal to which both the complainant and Ashleigh were closely attached; and which was in Ashleigh’s possession. His Honour disparaged the appellant’s evidence that he was only asserting his right of ownership. His Honour found that the appellant said the words that he did with the intent of causing fear. It was immaterial as to whether the words he actually used were that he would “kill” the dogs or rather that he would “slit their throats”.
Separately and additionally, the Magistrate found that the appellant had attempted to prevent the complainant and Ashleigh from leaving the premises and took the car keys. The Magistrate treated this as behaviour which was ‘intimidating’ in its own right.
The sequence 5 offending was established.
Firstly, the appellant says it was procedurally unfair for the Magistrate to rely upon the appellant’s statement of what he said (his admission), being “I would rather kill the dog than give it to you” when the prosecutor himself did not rely upon it.
Secondly, the appellant contends that Mr Ramsay was not only present at the time of the conduct giving rise to sequence 4. He was also present at the time of the conduct giving rise to sequence 5. In argument on appeal, the appellant’s Counsel accepted that the incident giving rise to sequence 4 occurred on the patio whilst the incident giving rise to sequence 5 occurred in the kitchen. He also said that the incidents were separated by about 15 minutes or so. These matters were however, immaterial. By parity of reasoning, a Mahmood direction following the prosecution’s omission to call Mr Ramsay as in connection with this charge 5 should have been given as well. The appellant also says that AA was another material witness who was not called.
Thirdly, insofar as the Magistrate determined that the act of intimidation was made out solely on the basis of the appellant’s admission, the Magistrate misunderstood the context in which that statement was made. An important factual question arose in this regard. There was a conflict in the evidence whether the appellant was holding the dog (“Frankie” the puppy), or whether Frankie (or the cage intended to transport Frankie) was held by Ms Stone. The Magistrate did not resolve that conflict. On the appellant’s case, it was he who was holding Frankie and when he made the statement he said he made to the complainant and Ms Stone, his intention was not to harm the dog. He was rather, expressing, albeit in emphatic terms, his determination that he would not hand the dog over in any circumstances. The appellant’s version of what occurred was supported by the circumstance that the appellant was the owner of the dog. He was also in control of it. The appellant says that neither Ms Stone nor the complainant could reasonably have apprehended that he was threatening to kill Frankie. That being so, the Crown could not prove that the act of intimidation – the first element of the offence – was proven beyond reasonable doubt.
The appellant reprised arguments he raised in the Local Court that the complainant and Ashleigh were not witnesses of credit. But as I read the appellant’s written submissions in the Local Court (MFI 4, at paragraph 43), there was no attack to Ashleigh’s credit (apart from describing her as lacking in independence). To the contrary, the appellant cited the circumstance that Ashleigh gave no evidence of hearing the appellant make a comment along the lines that the complainant recalled as a reason to disbelieve the complainant*’*s evidence. In his written submissions in the Local Court on the topic of the intimidation offence (paragraph 43), the appellant reiterated his general attack upon the complainant’s credibility.
I will deal with this point first as I consider that it is the most important and, if made good, was apt to vitiate the conviction. I accept that the Magistrate was influenced by the appellant’s admission of the statement that he made, but I do not read his Honour’s reasoning as suggesting any preference for the appellant’s version of what he said over the versions of the complainant and Ms Stone; or evincing any doubt about the materially similar version propounded by the complainant and Ms Stone.
What his Honour did was to make factual determinations on the two alternative bases: the prosecution’s version of what he said; and the appellant’s version of what he said. In effect, he was agnostic on the question of what version he should accept, but considering them both, found that the outcome was the same. His Honour found the intimidation charge was made out.
This approach was unorthodox. The proper approach involved the application of the Liberato direction*.* This was to be considered in relation to both of the elements of the charge. In each case, he needed to consider whether he disbelieved the appellant’s version. If he did, he would consider whether it was possibly true. If both questions were answered negatively, he would then need to consider whether the prosecution had made good its case on each element beyond reasonable doubt, taking into account all of the evidence, including, amongst other things, admissions made by the appellant.
In this regard, it did not matter that the admission made by the appellant, to sustain his ‘competing’ version, was not identical to the version propounded by the prosecution, through its two Crown witnesses.
I agree with the Crown’s submission that the substantive effect upon the complainant was the same. As will be developed below, whether conduct amounts to an act of intimidation is an objective question. It is to be recalled that by the prosecutor’s List of particulars, the prosecution case was that the appellant said to Ms Elliot and Ms Stone something similar to “If you leave, I will slit the puppies throats”. A synonymous, or comparable, expression to ‘something similar to’ is words “to the effect of”. When expressions like that are used, the aim is to capture the substance or gist of what was said (compare in the civil context, Wild v Meduri [2024] NSWCA 230 per Bell CJ (Kirk J agreeing) at [254]).
In the Local Court hearing, there was no holding out by the prosecution that its case depended upon the Magistrate’s verbatim acceptance of the prosecution’s version of the words attributed to the appellant. The appellant could not have been under reasonable expectation that the prosecution case was strictly tied to a particular form of wording, to the extent that the prosecution relied upon, as it did, words by the appellant to ground the conduct of intimidation. That being so, if the appellant elected to give evidence of difference words which, though different in form, was similar in effect to the Crown case and which also fitted the description of intimidating conduct, he had no legitimate basis for complaint.
As indicated, it is of some significance that the events giving rise to this charge were part of an episode in which another charge was dismissed. It would have been appropriate for the Magistrate in effect to give himself a Markuleski direction: there are no indications in the reasons as to how the result of the charge that was dismissed bore upon his assessment of the charge of intimidation. It did not appear that the Magistrate did so and I consider that in the circumstances, his Honour erred.
Having so found, in my view, this would not have led to a different outcome in any event since his Honour specifically determined, when considering the charge that was dismissed, that the result of dismissing the charge for sequence 4 (or other charges) did not derogate from his general assessment of the complainant’s credibility and reliability. That reinforced one of his earlier generalised findings about his positive assessment of her credibility.
The Crown concedes that a Mahmood direction may have been appropriate in relation to AA. I accept that this is so, however in the circumstances, consider that the effect should not be overstated. She was privy to some of the conversation that occurred but insofar as the prosecution case stood, her evidence was limited in its scope. On the prosecution case, she could have given evidence about the aftermath to the vital conversation, including that part of the prosecution case dealing with the appellant’s retention of the car keys. Her evidence could in this sense be viewed as ‘material’, but none of the Crown witnesses – the complainant, Ms Stone – indicated any consciousness of her presence at the time when the verbal exchange occurred. It is true that the appellant more directly implicated her when he gave evidence, by positing that she was in the kitchen, but as I indicated earlier in relation to the previous charge, the circumstance that an accused, who elects to give evidence, implicates someone other than a Crown witness in contentious events does not suffice to make the person a ‘material’ witness in the requisite sense.
Further, as I have found that a substantial effect of the version of what the appellant said was the same as, or very similar to, the version propounded by the prosecution, I am not satisfied that her absence would have made any difference to the outcome of the Magistrate’s consideration of that charge.
As to the first aspect, as noted, although the point – that his statement was made only to Ashleigh Stone – was put vigorously in the appellant’s Counsel’s written submissions, the appellant’s Counsel did not put it quite so vigorously in oral argument in the hearing of the appeal.
I do not accept the appellant’s emphasis upon the aspect of exclusivity: that the appellant was only directing his comment to Ashleigh so that therefore he could only have been intimidating Ashleigh. This was not consistent with his own evidence nor the circumstances. The complainant was present when the comment was made: according to the appellant, the complainant was there the whole time. The background context, which I will return to, was that the discussion about the dogs only occurred when the complainant indicated her intention to leave, after (at least) the appellant’s verbal abuse to her on the patio and the complainant and Ms Stone’s indication that they were intending to take the dogs with them. The statement can be viewed as manifesting the appellant’s purpose of deterring the complainant from leaving: there was no suggestion that Ashleigh would have left without the complainant. The complainant spoke up in objection to his statement partly because she apprehended the fear that the statement might cause to Ashleigh. That explains why she remonstrated with the appellant to give Ashleigh the dog. It is artificial to conclude that his comment was directed only to Ashleigh.
To reiterate what I said at or about the commencement of these reasons, the physical component of the intimidation charge required the prosecutor to prove beyond reasonable doubt that the appellant relevantly engaged in conduct that caused a reasonable apprehension (in the complainant) of: (i) injury to her, (ii) violence to her; or (iii) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship. The separate circumstances in s 7(1)(c)(i), (ii) and (iv) are not mutually exclusive.
Uninstructed by authority, it appears to me clear that the physical element of intimidation involves an ultimately objective characterisation of the accused’s conduct. The conduct here was a verbal statement by the accused to two people; one of whom was the complainant.
This is achieved by the expression ‘reasonable apprehension’ of a variety of harms that are set out in s 7(c). My researches have not revealed any appellate construction of that expression. It falls to be construed by reference to text, context and statutory objects.
As to the text, the key word is ‘apprehension’. Prima facie, the verb ‘to apprehend’ is to have a mental state that is something less than a mental state of belief, knowledge or suspicion. In its plain meaning, it connotes a feeling or sensation, usually that something bad is going to happen. A synonym is ‘foreboding’. In context, it is directed to an apprehension of a list of enumerated harms in a domestic setting. In that setting, tense situations portending harm can arise randomly or unexpectedly and complainants of domestic (and/or personal) violence would not be expected or assumed to have time to process the risks of harm. Their mental state is reactive, instinctive and impulsive. This sensation or feeling might turn out to be wrong, as further information and developments come to light. I noted earlier one of the objects of the legislation, that of reducing and preventing violence. The object in s 9(b) of the Act reflects the reality that complainants of domestic violence often do not have the luxury of time in deciding what action to take (such as calling police, or engaging in acts of self-defence) in reaction to the conduct. With all of this, I construe ‘apprehension’ as connoting a state of mind where the complainant has a feeling or sense that some harm (within the enumerated kinds in s 7(c)) is about to occur. A slightly different way of describing this is that there is a perception of a risk of one or the enumerated harms occurring or materialising. This is a fairly low threshold for a complainant’s state of mind.
The word ‘reasonable’ is something of a brake or filter for proof of intimidating conduct. It imposes an objective, or external standard. A finding that conduct is intimidating cannot exclusively depend upon the complainant’s subjective state of mind. Some feelings or sensations in a complainant may be so idiosyncratic, divorced from reality, and lacking any basis, that to any normal or ordinary person, those feelings or sensations are not reasonable. Whether or not the complainant’s apprehension (their sense or feeling that a harm is about to materialise) is reasonable will be affected by an assessment of whether the complainant’s sense or feeling would coincide with the sense or feeling that a normal or ordinary person would have if that notional person were placed in the complainant’s position and circumstances at the time of the accused’s conduct. There, is of course, a need to avoid hindsight bias.
Earlier in these reasons, I referred to the authority of McIlwraith v R [2017] NSWCA 13, the leading decision on the construction of s 13 of the legislation; and particularly the interaction between s 13(1) and 13(3).
Basten JA (with whom Johnson J and Button J agreed) acknowledged that the offence of intimidation was an offence of ‘specific intent’ and can be established by proof that the person (whose conduct is in question) intended to cause another person to fear physical or mental harm. It can also, however, be established by proof of the person’s knowledge that his conduct is likely to cause fear in the other person. That in short, is knowledge of a likely consequence ([30]–[41]). By illustration, in that case, the trial judge found that despite being intoxicated, the accused knew that wielding a weapon (along with other circumstances) in confronting another person was likely to cause fear in the other person. That was enough to sustain proof of the mental element of the charge.
Section 13(4) clarifies that the prosecution does not need to prove that the complainant actually feared physical or mental harm.
An accused’s knowledge can be inferred from their conduct or the surrounding circumstances in which the conduct is done (R v Grant (2002) 55 NSWLR 80 at [66]; cited in McIlwraith at [35]), although such inference must be rational and not based on mere speculation or suspicion. When I refer to the surrounding circumstances, it is the circumstances at the time of the intimidating conduct, however, in my view, it can include circumstances occurring immediately after or contemporaneously with that act, to the extent that they illuminate what he knew or intended at the time when the intimidating conduct occurred.
Further although it is relevant to the assessment what a reasonable person in the position of the appellant would have known, ultimately the question is whether the appellant himself had this knowledge. By the statutory provision, it is unnecessary that he knew that the complainant did actually fear: it is sufficient that he knew that this result was likely.
There are doubtless a variety of acts that may satisfy the designation of being intimidation. But on the element I am looking at, as Harrison J (as his Honour then was) once said, the threshold for proof of the mental element is quite low (R v McDonald [2019] NSWSC 839 at [36]).
It is already implicit, perhaps, in my earlier reasons concerning the appellant’s point as to whom his statement was ‘directed to’, that his argument that if he intended to cause harm in anyone it could only have been Ms Stone should be rejected. It was not a binary choice as to whom the statement was directed. This obscured the real question of whether the prosecution established that, for the purpose of s 13(1), he intended to cause fear of physical or mental harm.
The Court orders that:
The appeal against conviction for sequence 5 is dismissed. The appellant’s conviction is confirmed.
The appeal against conviction for sequence 9 is dismissed. The appellant’s conviction is confirmed.
**********
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 7(1)(c)(i)–(iv).
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 5(1)(c).
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 5(1)(g).
McIlwraith v R [2017] NSWCCA 13 at [31]–[42].
The Queen v Baden-Clay (2016) 258 CLR 308 at [46]–[47].
Byers
R [2025] NSWDC 119
(2020) 355 FLR 348
(1985) 159 CLR 507
(2008) 232 CLR 397
(2002) 55 NSWLR 80
(2001) 52 NSWLR 82
(2016) 258 CLR 308
(1996) 188 CLR 77
It was not disputed, however, that the complainant called out and that Brodie and Linton entered into the bedroom. After this a physical altercation occurred between the appellant, Brodie and Linton although this feature of the incident did not give rise to any charge.
At an early point of the hearing of the appeal, I raised with Counsel for the appellant why I should not have regard to these general findings. Counsel for the appellant appeared to suggest that these generalised findings played no part in the Magistrate’s reasons on the two subject charges. They had not been expressly referred to by his Honour when addressing either of the two pertinent charges. They had not been referred to in the Crown’s submissions on this appeal and the appellant was therefore not on notice that he would have to address them in the hearing. In effect, they could be put aside by the Court on appeal.
In verbal argument, Ms Crown contended that this Court is entitled to have regard to those generalised findings.
I agree with the Crown. I do not accept that there was an effective mental severance, or separation, on the part of the learned Magistrate between the generalised findings he made and the specific findings later made about the two charges. It is hard to see what the point would be in the Magistrate stating generalised findings of fact if he did not consider them material to his consideration of all of the incidents, and all of the charges, that were before his Honour, including the charges that were established. Perhaps the Crown, with respect, might appropriately have referred to them in its written submissions in the appeal, even if those submissions appeared focused upon rebutting the appellant’s submissions (which also did not refer to the general findings). But the Crown’s omission to rely upon those general findings in its written submissions does not mean that they can, or should, be ignored by this Court; as if they were mere surplusage. In any event, contrary to the appellant’s submissions, there was a link between the generalised finding that the appellant acted (in paraphrase) in a controlling or coercive fashion towards the complainant and, for example, the assault charge. There had been a contest as to the circumstances in which the complainant returned to the bedroom: he said he was concerned about her state of intoxication. She said she relented to his demands that he go to the bedroom. That dispute was part of the factual matrix to consider the assault charge (16/12/24, T 2.46).
The Magistrate gave himself a Liberato direction; explicitly asking himself whether the appellant’s version “might be true”.
The Magistrate rejected the appellant’s explanation as being possibly true. The conduct of Brodie and Linton in rushing into the bedroom, without pause or prior request, did not support the description of the complainant’s calls as being one of ‘frustration’. Implicitly, his Honour determined that their conduct supported the complainant’s evidence as to why she called out. Further, neither of them saw the complainant near the exit door to the room, which, on the appellant’s account, would have been expected if it was true; given the small dimensions of the room. Further still, the appellant’s stated expectation that the two men might come to ‘overpower’ him was inexplicable, if not incredible, in the absence of any contextual circumstances as to why they may do that, if his account was true. It was noted that the appellant did not suggest any animosity or angst as between him, the complainant, Brodie and Linton during the evening.
The Magistrate accepted as honest and reasonable the complainant’s evidence that the appellant was on top of her, with his body weight bearing upon her; in a way that probably caused the complainant difficulty with her breathing. This sufficed to establish an ‘unwanted touching’ and therefore the offence of common assault.
The Magistrate was similarly entitled to positively disbelieve the appellant when he said that after the episode giving rise to the charge occurred, he felt ‘scared’ or ‘intimidated’ with what Brodie or Linton might do, and his reasons for acting violently towards the latter.
In my view, making allowances for the advantages of the Magistrate in seeing and hearing the appellant giving evidence, these aspects of the appellant’s evidence were capable of appearing so implausible or incredible that conceivably they were adverse to his credibility.
Further, although his Honour was still obliged to consider whether his account about these surrounding circumstances might be true, in the light of all of the evidence, I am not persuaded that the Magistrate did not do so. I do not accept that the Magistrate misapplied Liberato.
Further, the matters raised against the complainant were weak reeds. Even though the complainant had been drinking, I agree with the Magistrate that lay persons’ views as to their capacity to recall events because of drinking do not carry any real weight. Even though Brodie clarified that he did not actually see the appellant on top of the complainant, his evidence conveyed what, from the prosecution’s perspective, was the next best thing: that the appellant only got off her when he sensed that he was being watched. It was this which prompted Brodie’s understandable statement that the appellant should get off her. The probative value of his evidence, and Linton’s evidence, was to confirm the distressed state in which the complainant presented when they entered the bedroom; which was consistent with their opinion of the distressed sounds the complainant made when she yelled out twice to them.
I reject the appellant’s argument that Brodie and Linton’s evidence that they detected distress in the complainant’s calls was no more or less probative than the appellant’s evidence that they amounted only to frustration. What they saw when they entered the bedroom served to reinforced their perception of the tone of the complainant yelling out, which itself indirectly corroborated the complainant’s version.
The above conclusions still required the Magistrate to find the offence made out based upon the whole of the evidence he accepted.
Another limb to the appellant’s argument was that there was some doubt as to the person(s) to whom his statement was directed. The appellant’s Counsel submitted that both the complainant and Ms Stone had conceded that the comment was ‘directed’ only to Ms Stone. In his written submissions in this appeal, the appellant argued that his statement was directed only to Ashleigh, as she was the dog’s carer. It was she who was attached to the dog – not the complainant. It was also Ashleigh who wanted to take the dog away.
But on this last point, at the hearing of the appeal, the position of Counsel for the appellant was more nuanced. He submitted that it did not really matter: it was open to the Magistrate to find that the statement was made to both the complainant and Ms Stone. On his construction of the offence, at most, the Crown needed to disprove that his conduct was directed only to and intended to cause fear only in Ms Stone.
As to the mental element of the offence, Mr White contended that the Crown needed to prove that he intended to cause fear in the complainant. He submitted that the Crown did not disprove his evidence that his only intention was to assert his right of ownership and that he did not intend to cause the complainant fear. His evidence to that effect was not challenged. Nor could it be said that he knew that what he said might cause fear in the complainant. Further or alternatively, given that the preferable view was to find that the statement was made only to Ashleigh, if he intended to cause fear in anyone, it could only have been Ashleigh.
Applying the Liberato direction, the Magistrate should have found that the appellant’s version might be true.
The appellant also argued that there was a reasonable doubt about the relevant intent to cause the complainant fear of physical or mental harm.
In my view, the rivalling versions of what the appellant said in the kitchen to the complainant and Ms Stone were of the same effect: the appellant expressed his attitude that he was willing to kill Frankie the dog. As will be explained, he was doing so in the surrounding circumstances that he did not want the complainant to leave the property. Although the words in the competing versions were not identical, the substance or effect of the words and the context in which they were uttered were such that the statements were materially the same. The precise qualifications or conditions in which he might kill the dog may differ, but the connotation – the ‘sting’ – was the same in each case.
In practice, as a matter of common sense, all of these aspects that sustain the first element – proof of intimidating conduct – practically merge. In light of the appellant’s submissions, the important point is that when considering this first element of the intimidation charge, none of these matters involve consideration of the (subjective) intentions of the person accused of engaging in the conduct. What the accused’s state of mind was at the time of the conduct, such as what he meant to say (or do), is relevant only to the second element of the charge. The second element of the charge is exclusively regulated by the various matters in s 13. Each of the matters in ss 13(1)–(5) deal with, or concern, the accused’s state of mind. It is unnecessary and inappropriate (in view of the statutory objects) to superimpose any additional requirement to consider the accused’s state of mind at the point of the inquiry into the question as to whether or not the accused engaged in intimidating conduct.
So construed, the proper approach to considering the issue was for the Magistrate to consider each of the physical and mental elements of the charge and, in doing so, apply the Liberato direction accordingly to each element. If the appellant’s version was rejected (both at the stages of assessing positive disbelief and reasonable possibility), it would then be necessary to consider whether the prosecution discharged its burden of proof, based upon the totality of the evidence. To repeat, that process applied to each element.
As to the physical element of the charge, the appellant’s version appears to accept he and the complainant had been drinking that night and had recently come off a recent verbal argument (15 minutes before) and an incident in which he took a cigarette out of the complainant’s mouth. What occurred on the patio resulted in complainant indicating an intention to leave the property, in the company of Ashleigh, and to take the dogs with them. According to his version, the appellant held one of the dogs, Frankie, a puppy. The appellant owned that dog and the other dogs. Ashleigh said she wanted the dog. The appellant did not let go of it. The complainant told him to let Ashleigh have the dog. He refused to relinquish this to Ms Stone or the complainant and he said he would rather kill Frankie rather than hand him over to either of them.
I accept that this version might (at least) possibly be true (the easiest route home for an accused under Liberato*.* It does not matter for present purposes whether I positively believe what he states that he said in the circumstances in which he asserts he said it.) In my view, contrary to the appellant’s submission in this appeal, such finding does not compel the result that the prosecution did not establish, beyond reasonable doubt, that he engaged in intimidating conduct. He was still evincing his contemplation of a willingness to kill Frankie the dog.
I have no doubt that by the appellant’s conduct, in the circumstances and position in which she was in, the complainant apprehended that harm would befall Frankie the puppy who was an animal that belonged to or was in the possession of Ashleigh Stone, who was a person with whom she was in a domestic relationship. As to the last aspect of that, notwithstanding his asserted claim to ownership, I did not understand the appellant to challenge the Magistrate’s finding that Ashleigh Stone was the carer of the dog. Moreover, I have no doubt that by the appellant’s conduct, the complainant apprehended injury or violence to her.
The real question is whether the complainant’s apprehension about any or all of these harms was reasonable. Relevant to this objective standard are the circumstances that: the appellant had only very recently verbally abused the complainant by calling her a grub and (non-consensually) removing a cigarette from her mouth in an incident on the patio only 15 minutes before. His conduct so affronted the complainant that she decided to leave the property. That particular intention was manifested by her taking steps to take her daughter and the dogs with them. She was in a relationship characterised by his controlling and coercing her. But on this occasion, when he demanded that she stay, she resisted that demand. The appellant’s act in not relinquishing his immediate possession of Frankie was one means by which he might deter her from leaving. This was not, however, enough for the appellant. He stooped to add a statement about his willingness to kill a puppy belonging to the complainant’s daughter (consequently, or indirectly, occasioning grief and fear in the complainant’s daughter) to reinforce his coercive demand that the complainant stay at the property. This was an unmistakeable sign of authentic anger and aggression towards the complainant. A normal person, placing themselves in the complainant’s position, would sense or feel the risks that the appellant would engage in violence towards the complainant or inflict injury or violence on her if that were necessary for his demand that she stay to be complied with. I am satisfied beyond reasonable doubt that by his conduct the appellant instilled in the complainant a reasonable apprehension of injury or violence to her.
Moreover, I am satisfied beyond reasonable doubt that the appellant’s conduct was so extreme that in the circumstances facing her, a reasonable person in the complainant’s position would sense or feel the risk of harm to Frankie. As I noted earlier, Parliament was aware of the intersection between animal abuse and domestic violence. A normal or ordinary person would be taken to apprehend that it is often the case that perpetrators of domestic violence will, in the heat of the moment, take their anger or frustration out on domestic animals. The normal or ordinary person in the complainant’s position would not regard the complainant’s apprehension that Frankie would be harmed as being idiosyncratic or without foundation and therefore unreasonable.
The appellant engaged in conduct that was intimidating.
This then left the question about the mental element.
The question requires the application of Liberato, that is, whether the appellant’s version – that his intention was only to emphasise his determination not to relinquish the dog that, at that point, he was holding and that he did not know that his act would likely cause fear in the complainant – should be believed, or might be true.
I take into account and, moreover, have considered the question on the assumed premise that the appellant said the words he contends for – that he would rather kill the dog than give it to the complainant.
Under cross-examination, the appellant admitted that he knew that the complainant was upset about his ‘interactions’ with the dog during the course of the evening. I take that to include the statement he made about the harm he was willing to visit upon the dog. He also knew that his previous requests for the complainant not to leave the property had fallen on deaf ears. The horse show was to occur (or possibly continue) the following morning. It was attended by friends. He wanted his wife and daughter to be there for it. It would likely have been embarrassing for him to host the event himself without them. He knew that he had verbally abused the complainant in an incident about 15 minutes before, by calling her a ‘grub’ and even taking a cigarette out of her mouth. He knew that contrary to his asking the complainant (and Ashleigh) to stay, the complainant had given every indication that she intended to go. The most conspicuous indication was, with the assistance of Ashleigh, she was bent upon taking the dogs with them.
After the intimidating statement, shortly after, he continued to engage in other acts designed to prevent his wife leaving: including the blocking of her passage to the front door and the taking of Ms Stone’s car key. This illuminates his state of mind up leading up to and at the time he made his intimidating statement. They show his intention to say or do what he could to prevent her from leaving.
I disbelieve the appellant’s version that his statement was tantamount to emphasising only to the complainant and Ms Stone that he was the owner of the dog and was only trying to assert his belief that, as the dog’s owner, he was entitled to take possession of the dog without relinquishing it.
That is to view the statement without reference to the surrounding circumstances and is thoroughly implausible. There was no contest in the Local Court hearing that he paid for Frankie. There was no need for him to tell them that he was the owner. For example, he did not say, as he could have said, words to the effect “I own this dog and I can take hold of him and keep hold of him for as long as I please”.
He added to this purported assertion of his ownership rights, a chilling statement of his willingness to harm Frankie the dog, knowing that the puppy was beloved by and attached to the daughter of the complainant, and knowing that this was likely to instil in the complainant harm for her safety or mental harm as well as that of the dog. If, having verbally abused the complainant shortly before, and if he later declared his willingness to kill the dog (even one in respect to which, on his own account, he had paid for), there was no telling the other lengths he might go to prevent the complainant from leaving the property.
Although the element does not require proof of actual harm to the complainant’s physical safety or mental harm, it is telling that the complainant, under clear coercion, sought refuge in the daughter’s bedroom and that the appellant thereafter decided to go into that bedroom to ask that she return to the couple’s bedroom. She did fear for her safety and there was a clear causal connection between that condition and his conduct in what he said about what he was willing to do to the dog.
Disbelieving the appellant’s version, as I do, I also consider whether what he said about his state of mind might be true. For the same reasons, the result remains the same. There was no reasonable possibility, that by making the statement that he did about the dog, in context, he was otherwise than unaware that he was instilling fear in the complainant.
In view of this conclusion, it was unnecessary for the prosecution to establish that he specifically intended to instil fear in the complainant for her physical safety and mental harm even if, in the circumstances, there is much to be said for the view that he did. Given the statutory requirements for the mental element, it is however unnecessary for me to express final views about that particular form of mental element.
The mental element of the offence of intimidation is therefore also satisfied.