Xerri (a pseudonym) v R

Hearing dates: 30 September, 22 November, 20 December 2024

Date of orders: 19 December 2025

Decision date: 19 December 2025

Jurisdiction: Criminal

Before: Neilson DCJ

Decision: See par [28].

Catchwords: CRIME – APPEAL – Appellant’s (A) emails read out to A’s children by his estranged wife (C). Emails were on one child’s laptop computer. No explanation as to how that occurred. A pulled laptop from C’s grasp, causing a common assault upon her – Self-defence raised in Local Court but a conviction recorded.
ON APPEAL - Argument that self-defence was available because C’s conduct amounted to assault of A rejected. Argument that C’s conduct amounted to a serious indictable offence (“intimidation”) rejected. Argument that the emails were A’s property and he was entitled to defend his property upheld – Conviction quashed.

Legislation Cited: Crimes Act 1900, ss 4(1), 418, 419, 420, 422
Crimes Act 1961 (NZ)
Crimes (Domestic and Personal Violence) Act 2007, ss 7, 13
Criminal Procedure Act 1986, ss 3(1), 5
Sale of Goods Act 1923 (NSW), s 5(1)

Cases Cited: Dixon v R [2015] NZSC 147; [2016] 1 NZLR 678
Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267; (2010) 77 NSWLR 479
Oxford v Moss (1979) 68 Cr App R 183
R v Burgess, R v Saunders [2005] NSWCCA 52
R v Earley (1990) 55 SASR 140
R v McKay [1957] VR 560 at 572-3
R v Munro [2001] NSWCA 187; (2001) 51 NSWLR 540
R v Turner [1962] VR 30 at 36
Sivaraja v R; Sivathas v R [2017] NSWCCA 236
St Albans City and District Council v International Computers Ltd [1996] 4 All ER 481

Texts Cited: Encyclopaedia Brittanica
Halsbury’s Laws of Australia at [130-1151]

Category: Principal judgment

Parties: Appellant – Xerri (a pseudonym)
Crown – R (NSW)

Representation: Counsel:
Appellant – Mr McMahon, D.
Crown – Ms Pearson, J. (Solicitor)
Solicitors:
Appellant – Essere - The Defenders
Crown – Office of the Director of Public Prosecutions (NSW)

File Number(s): 2023/00420142

Publication restriction: Nil.

Judgment

1. HIS HONOUR: This is an appeal against the recording of two convictions by Zaki LCM sitting in a suburban Local Court on 9 February 2024. There is no appeal about the severity of the sentences imposed by her Honour. The issue before me is whether an email, or emails, can be viewed as “property” which a person is entitled to defend under Crimes Act 1900, s 418(2)(c). The relevant parts of the Crimes Act are these:

“418

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary –

………

(c) to protect property from unlawful taking, destruction, damage or interference, or

………

and the conduct is a reasonable response in the circumstances as he or she perceives them.

419

In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

420

This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only –

(a) to protect property, or

…..

422

This Division is not excluded merely because –

(a) the conduct to which the person responds is lawful, or

(b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.”

In the present appeal, section 420 does not arise.

2. The factual background involves domestic relationship and some domestic disharmony and it is appropriate to protect the identity of the family involved by the use of pseudonyms. The relevant actors are:

3. Father: Matt Xerri (appellant)

4. Mother: Amanda Xerri (complainant)

5. Elder daughter: Lisa Xerri (aged 17 years)

6. Son: Rob Xerri (aged 10 years)

7. Younger daughter: Anne Xerri (aged 6 years)

8. The appellant was charged with two offences which were known as Sequence 1 and Sequence 2. Those charges were:

1. [the appellant] at 4:20pm on 20 November 2023 at [suburb] did assault Amanda Xerri;

2. [the appellant] between 4:20pm and 4:25pm on 20 November 2023 did knowingly contravene a (prohibition/restriction) specified in an order.

4. The “order” referred to in the last pleading was not put into evidence, but no issue is taken by the appellant in that regard. It has been referred to in the papers before me as an Apprehended Violence Order (AVO)(Domestic). The learned Magistrate proceeded on the basis that it contained standard conditions 1 and 2. I asked my Associate to search JusticeLink which confirmed that on 27 October 2023, an ADVO was made for the protection of another family member, which enjoined the appellant from assaulting or threatening that family member or anyone with whom he/she had a domestic relationship which included the complainant in the current matter. As the learned Magistrate said in her reasons, “if assault is made out then the contravention of the AVO would automatically follow because orders 1 and 2, it seems, were in place, from what I understand.”

Background Events

5. The complainant and the appellant were married for about 20 years. They had a number of children, 3 of whom were at home at the relevant time. The parents separated in April 2023, the appellant leaving the matrimonial home to stay with friends and others. On or about 16 November 2023, he returned to reside in the family home. When asked why he did so, he said, “Because I was trying to get fifty-fifty custody of my children and I basically needed to rent a house and buy some expensive equipment to help care for my daughter in order to do that, so by moving back I was going to save money and also would be closer to my children…” By that stage he had already engaged “family lawyers”.

6. The daughter to whom the appellant was referring was his elder daughter Lisa, who is severely disabled. For locomotion, a wheelchair is required. She uses an “Eyegaze” machine to communicate. The complainant said this:

“…for her to communicate she has an Eyegaze machine she looks at to indicate what she wants, and that’s how I communicate with the speech therapist, through the Eyegaze machine…..She can’t access the emails. She’s not able to do that, but, yes, her email address is on there and that’s how I access the Zoom link for the therapy session.”

Lisa was due to have a speech therapy session on the late afternoon of 20 November 2023.

7. On the afternoon of 20 November 2023, the appellant was at home with his younger daughter, Anne, sitting at the dining room table, painting. The complainant brought Lisa home from her school. The complainant may also have brought Rob home from his school. The complainant pushed Lisa into the dining room. At relevant times, Rob was either in his own bedroom which was close to the dining room or in the dining room itself. He took some video footage (which became Exhibit 2) of the appellant and Anne sitting at the dining room table. Body worn camera film taken by the appellant shows Rob from time to time. Lisa, in her wheelchair, sat beside the appellant. On the other side of the table sat the complainant. The initial configuration appears to be this:

The complainant and Lisa arrived at the house about an half hour after the appellant had commenced painting with Anne. After the complainant had pushed Lisa up to the table, she went to Lisa’s room and “came out with the Eyegaze machine” (T37.48).

8. In some way that, on the evidence called, is completely unexplained, the appellant’s emails had been sent to Lisa's email account (or Gmail account) which came up on the Eyegaze machine. The complainant then started to read out the appellant’s incoming emails, so that those gathered around the table could hear what was being read out. The appellant gave this evidence:

“When she started reading the emails…I was feeling embarrassed and intimidated…I didn’t want to let her know that[,] because I was scared that she was going to take it further and I was hoping she was going to stop. Then[,] when she started mentioning about Luxury Escapes and vasectomies[,] I started to realise it wasn’t just Bumble emails that she had there[,] and I started to wonder what the kids were thinking, like, how they were feeling about it[,] and possibly, you know, they would think bad of me if they were hearing these things, so I walked around the table, I went to take it [the eyegaze machine] from her and she resisted. I then put my hand on her arm and took the Eyegaze off her.” (T38.22 to T38.30)

The appellant was also concerned that his emails contained communications to him from the solicitors he had retained to advise him about his Family Law rights and that the complainant’s reading them would give her “an unfair advantage”. The “Bumble emails” were communications with a dating site.

9. A little later the appellant gave this evidence:

“Q. What caused you to approach her?

A. I basically wanted to stop her reading all the emails to the children, yep.

Q. Why did you think it was necessary to approach her?

A. I don’t think – if I said something, I think it just would have fuelled her fire more. I think just by simply taking it off her and I could have deleted or logged out the account – I don’t even know how it’s possible, yeah. I think that thing that sparked in my mind was that she was going through the lawyer emails, the family law emails.

Q. That’s what prompted you to approach?

A. Yeah, it sort of became urgent, like, it was only a matter of time.

Q. How did it make you feel that potentially emails were being read out in front of the children?

A. Yeah, I was pretty embarrassed and, like, I felt intimidated. I was definitely worried about what they were thinking. It really felt like she was trying to use it against me to gain – for the kids to favour her.

Q. Is there a reason why you didn’t tell her in that video to stop looking at your emails?

A. Only because I knew if I said “stop” – I knew that she would dig and dig further – give her a reason to dig further. I just thought – I was hoping she would stop by herself, that’s why I didn’t react too much in the video.

Q. When you approached her and you grabbed the laptop, why did you feel it was necessary to put your hand on her arm?

A. Yeah, well, originally I did just go to take it and she resisted and I could just simply put my hand on her arm and to stop her resisting, pulling back basically.

Q. Was that for the purposes of getting the computer?

A. To stop her reading the emails, yes, and seeing if I could sort out why the emails were there.”

The luncheon adjournment was then taken. Immediately after the adjournment, this evidence was given:

Q: Mr Xerri, you said earlier that when the emails were being read out or rather when she was accessing the emails you felt intimidated?

A: Yes.

Q: What did you mean by that?

A: I felt that – like, I feared that it was going to damage my relationship between me and my children.”

The Relevant Physical Interaction

10. In cross-examination, the appellant gave this evidence:

“Q: You…..mentioned in your evidence-in-chief that Amanda resisted and then you put your arm on her; is that right?

A: Yeah, she resisted when I tried to take it without touching her.

Q: How did you know that she resisted? What was it that she did to give you that indication?

A: She pulled the iPad back and, as you can see in the video, she also sort of pushed my hand away slightly, yes.

Q: That’s the moment that you decide to use force to regain control of that iPad?

A: Yes.

Q: I’ll put it to you that you were worried about what else Amanda might see on that email account?

A: Yes.

Q: And that you panicked and, because of that concern, that’s what caused you to grab her arm?

A: Correct, yes.”

It is the taking hold of the complainant’s arm without her consent that constitutes the common assault charged in Sequence 1 in the Court Attendance Notice.

11. Her Honour had the advantage of seeing and hearing the witnesses, the main witnesses being the complainant and the current appellant, then the defendant. Her Honour said this commencing at T57.22:

“The complainant gave a DVEC and also gave evidence in Court today. I did say that I had some difficulty with some of her evidence and that is because my view was that much of the situation, or perhaps, a confined view of the situation was provided in chief. Ultimately, in cross-examination a number of things were drawn out of her, and a video was played to her and that did confirm most of the defendant’s version of events in terms of things that were said during this interaction on 20 November [2023] when it seems the defendant was seated at a dining room table with his youngest child. They were painting. All of this is captured on his body worn video which was, ultimately, tendered [Exhibit 5]. Then the complainant starts reading out from the Eyegaze device, which is a device used by their disabled eldest child and there are a number of emails that, it seems to me, were read out in what was a very uncomfortable situation. Much of it, the defendant, quite understandably, said in his evidence caused him some embarrassment and humiliation as a result of the things that were discussed, like sexually transmitted diseases, holidays or Luxury Escapes emails, you know, Bumble and so on. So a lot of it was material that, understandably, caused the defendant a great deal of distress.

In the video my observations were that the behaviour continued. The complainant continued reading from the email. The defendant, in his evidence, said that he was hoping that it would simply stop and he tried not to react, and that is borne out by what the Court saw today. He did not seem to be reacting to what was being said and it did seem to me that he was being truthful when he said he just hoped that the situation would resolve and that she would stop reading from the emails. It ultimately culminates with the defendant standing up because it goes on and he has given a version about the fact he was concerned that some Family Law emails would be accessed by the complainant and he has tried to remove the Eyegaze device from the complainant. The device does not belong to him, but, yes, the explanation given was that he just did not want her to have an unfair advantage in the Family Court proceedings, so he has gone to grab the device. The complainant resists, that is borne out in the video that the Court saw today as well. A hand, on his version, is placed on her arm and he then attempts to grab the device from her a second time. As I said, there is a level of dispute about the force that was used and certainly from the video that was played to the Court, I think, if there [were] a significant amount of force used, that would have been apparent in the video that was played, because I would have expected a jerky movement, I would have expected some other greater or more obvious movement [on the part of] the complainant, had there been a struggle that was of some force.

…….I should say actually, the defendant gave evidence and I did find that version, I felt that he was, as far as it was possible, attempting to give a truthful version of events.”

Self-defence raised in the Local Court

12. In the Local Court, the appellant raised self-defence on two bases:

(i) defence of himself to prevent mental harm, and (ii) defence of his property.

Her Honour rejected each defence. The appellant still presses those defences, but I shall deal with the second defence first. In respect of the defence of property, her Honour said this:

“The second argument that was put forward was that it could be said that it was self-defence of property in the sense that he was trying to – the property that is referred to is property by way of emails and in support of that argument a New Zealand authority was put forward, and that authority, however, did deal with CCTV footage. Again it was a situation, I think, that can be distinguished somewhat, as the prosecutor said, because it is a situation where perhaps the owner of that property could be identified, whereas in the current situation it is not known really what these emails were. They could be notification from some server that was sent out automatically. I am just not sure that an email would fit within that definition or that this authority would allow me to interpret the law in that way, so again I must reject that argument.”

The authority to which her Honour was referring was one cited to her by Ms Beljic, who appeared for the appellant in the Court below. It is Dixon v R [2015] NZSC 147; [2016] 1 NZLR 678 (‘Dixon’).

What is an email?

13. I understand that an email, an earlier variant of which was/is e-mail, derives from the adjective and noun “electronic mail”. The Encyclopaedia Brittanica tells me this:

“e-mail, messages transmitted and received by digital computers through a network. An e-mail system allows computer users on a network to send text, graphics, sounds, and animated images to other users. The “at sign” (@) in the middle of an email address, separating the name of the emailer from the domain name of the hosting terminal, is now one of the most popularly used and immediately recognisable symbols in the world.

On most networks, data can be simultaneously sent to a universe of users or to a select group or individual. Network users typically have an electronic mailbox that receives, stores, and manages their correspondence. Recipients can elect to view, print, save, edit, answer, forward or otherwise react to communications. Many e-mail systems have advanced features that alert users to incoming messages or permit them to employ special privacy features. Large corporations and institutions use e-mail systems as an important communication link between employees and other people allowed on their networks. E-mail is also available on major public online and bulletin board systems, many of which maintain free or low-cost global communication networks.”

From what I have read, email may be used as a noun, an adjective (“his email communication”) and as a verb either transitively or intransitively.

14. In short, email is a means of communication. Earlier means of communication of the like nature were the post and the telegram. Like such earlier means of communication, some communications are limited i.e. sent to a particular person or persons, or to a particular group. The sender of the communication may intend to limit the communication to that particular person or that particular group, and seek to prevent others of learning of the matter communicated. Equally, a person to whom information has been communicated may wish to restrict that information from others, or to prevent others learning that the information has been communicated to him or her. In the present appeal, the appellant sought to restrict communications sent to him from being read by the complainant who might communicate some of the information to their children.

15. Earlier forms of communication were easier to limit, and easier to analyse legally. Post required a sender to write or type a communication onto a piece of paper, then to seal it into an envelope, write upon the envelope the intended recipient’s name and address, affix a postage stamp and then commit the sealed, addressed and stamped envelope to a posting box. Eventually, the postal authority would deliver it to its addressee at the address endorsed on the envelope. Any person who intercepted the communication, either before or after delivery, was guilty of trespass to property sent by the sender to the recipient, property of either the sender or the recipient (leaving aside issues relating to the postal service). Telegrams required the sender to lodge a written communication at the telegraph office to be sent to another; the telegrapher sent that message over the telegraph line to another telegraph office where it was deciphered back from dots and dashes to ordinary writing and then delivered by an official in the telegraph office to the addressee. Other than when the communication was “on the wire”, it was in written form and ownership of the writing could be claimed either by the sender or addressee. However, an email lacks “hard copy” in respect of which possession and, therefore, ownership can be claimed.

16. I have no technical expertise, nor has any expert been called. Nevertheless, I understand that an email is a pattern of electrical impulses or electrical signals, carried on a network which, when displayed on a computer screen communicates information that one might otherwise glean from a letter, a telegram, an entry in an encyclopaedia, or an extract from a book, a piece of music or a mathematical problem or the like.

Is it property?

17. The question which then arises is whether an email can amount to property? Crimes Act 1900, s 4(1) contains definitions. It includes this:

“Property includes every description of real and personal property; money, valuable securities, debts and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.”

This definition is inclusive rather than exclusive. It is also circular in that “property” is defined to include “every description of real and personal property.” It clearly extends to intangible property, as it extends to choses in action, “a right to recover or receive an money or goods”. The law recognises many forms of intangible property, both real and personal property, and the first clause of the statutory definition is apt to pick up all such intangible forms of property.

18. It is convenient at this point to consider the decision of the Supreme Court of New Zealand (Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ) in Dixon. The decision of the Supreme Court was given by Arnold J. The judgment commences with this introduction:

“[1] During the 2011 Rugby World Cup, the English rugby squad visited Queenstown during a break between matches. One evening some members of the squad, including the vice-captain Mike Tindall, visited a local bar. During their time at the bar, Mr Tindall, who is married to a member of the Queen’s family, was seen socialising, and then leaving, with a female patron. This was recorded on the bar’s closed circuit television (CCTV) system.

[2] The appellant, Jonathan Dixon, worked for a company which provided security services to the bar. He obtained a compilation of the relevant CCTV footage and attempted, unsuccessfully, to sell it to overseas media interests. He eventually posted it on a video-sharing site, which resulted in something of a media uproar.

[3] Mr Dixon was charged with accessing a computer system for a dishonest purpose contrary to s 249(1)(a) of the Crimes Act 1961. Section 249(1)(a) provides that a person commits an offence if he or she “directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right … obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration”. The Crown case was that Mr Dixon had obtained “property”, namely the digital footage. Judge Phillips ruled that the digital footage was property and directed the jury accordingly, whereupon Mr Dixon was found guilty. Judge Phillips sentenced him to four months’ community detention and 300 hours of community work.

[4] Mr Dixon then appealed to the Court of Appeal against both conviction and sentence. The sole ground of the conviction appeal was that the Judge had erred in finding that the digital footage was “property” for the purposes of s 249(1)(a). The Court of Appeal accepted that the footage was not property but considered that Mr Dixon was guilty of accessing a computer to obtain a benefit, also an offence under s 249(1)(a). Accordingly, exercising its powers to substitute a verdict under s 386(2) of the Crimes Act, the Court of Appeal quashed his conviction and substituted a conviction for obtaining a benefit. The Court dismissed Mr Dixon’s sentence appeal.” (Citations omitted)

A little later further background was provided by his Honour:

“[12] By way of further background, the bar which Mr Tindall and his colleagues visited was operated by a company called Base Ltd (Base). It had installed a CCTV system in the premises. Mr Dixon learnt that there was footage of the incident involving Mr Tindall on the bar’s CCTV system and asked a receptionist to go through the footage and save any relating to Mr Tindall. The receptionist compiled the relevant footage from several cameras and saved the files onto a desktop computer in the reception area, in a way which allowed a viewer of the footage to follow Mr Tindall and his female companion as they socialised inside the bar before leaving together. Mr Dixon then transferred the files from the desktop to a personal USB stick, and deleted them from the desktop. Mr Dixon attempted, unsuccessfully, to sell the footage to overseas media organisations, and supplied at least one still image to The Sun newspaper in the United Kingdom.

[13] When Mr Impey, who worked for Base, discovered what had happened, he asked Mr Dixon to return the footage. Mr Dixon said that he planned to sell it, and asked Mr Impey if he could do so. Mr Impey said that he could not. Subsequently, Mr Dixon posted the footage on the video-sharing site YouTube. Base complained to the police.

[14] At trial, Mr Dixon sought to explain his conduct by saying that he was involved in “Project Lucy”. He said that as part of the project, he had obtained the footage, researched its market value and looked for a buyer. He indicated that he intended to present the project to the bar’s management for approval. Project Lucy was, he said, work of a type that he had done previously for the bar’s owners on numerous occasions. Mr Dixon explained his reason for uploading the footage onto YouTube as being that Base had rejected his Project Lucy proposal and were intent on releasing the footage slowly. Mr Dixon said he could not condone that, and accordingly released the entire footage immediately.

[15] The jury rejected Mr Dixon’s explanation for his conduct. At sentencing, Judge Phillips said that Mr Dixon had posted the footage out of spite and to prevent anyone else from having the opportunity to make money from it.” (Citations omitted)

The issue before the Supreme Court was whether the Court of Appeal was correct in holding that the CCTV files were not “property” and, if so, whether the Court of Appeal had otherwise dealt with the appeal to it correctly.

19. The judgment then considers the decision of the primary judge, Phillips DCJ who presided at a trial with a jury:

“[16] Before we begin our discussion of whether the digital files obtained by Mr Dixon were “property” for the purposes of s 249(1)(a) we will summarise the decisions of the Courts below on the point.

District Court decision

[17] When the Crown closed its case at trial, Mr Dixon’s counsel made an application that Mr Dixon be discharged under s 347 of the Crimes Act on the ground that Crown had failed to prove that he obtained “property”. Judge Phillips dismissed the application. Having summarised the Crown evidence and the submissions of counsel, Judge Phillips said:

“[13]… the definition of property in the Crimes Act is wide; in my view clearly [it] is sufficiently wide to cover here the situation. I have regard to the overall position relating to what we are talking about here. I see that what a computer does is receives, digests and analyses data. I consider that data can include anything that is capable of being stored on a computer system, being a word document or a programme file or a script, that enables the operator to do something quickly for example and can clearly include picture files and the like.

[14] What the receptionist did, under the instructions of the accused on the evidence, was retrieve data from a CCTV camera and store it on the desktop. At that point in time, of course, nothing at all had happened other than there had been the creation of a separate file, being a picture file containing this video. At that point in time the property remained in the possession of Base. The accused arrives, then physically himself moves that picture file from the desktop onto his USB stick and then deletes the picture file. I refer back to the definition of property. In my view we have in fact clear property, being the picture file, which is data from a computer taken into the possession of the accused on the Crown’s case. Quite clearly the management/owners/directors or whatever of Base would be able to say that they had that document (that picture file) under the company’s control and thus could make a claim to possession of it. It was taken from the desktop, onto the USB stick and the company’s document was then deleted.

[15] I consider that there is sufficient evidence before this Court that at this point in time establishes that the accused did obtain property as the result of accessing the computer owner by Base. I dismiss the application accordingly.”” (Citations omitted)

20. The judgment of the Supreme Court then discusses the decision of the Court of Appeal, which held the primary decision to be erroneous, relying on the principle that the digital files were not property within the meaning of the Crimes Act 1961 (NZ) because they were simply “pure information”, whether confidential or not, in accordance with Oxford v Moss (1979) 68 Cr App R 183 (QB). The Court of Appeal noted that some authorities had drawn a distinction between information and the medium on which it was stored or contained, giving as an example a computer disc containing information – the disc would be property but the information on it would not. Authorities to that effect include St Albans City and District Council v International Computers Ltd [1996] 4 All ER 481 (EWCA) at 493 per Glidewell J, and Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267; (2010) 77 NSWLR 479 per Fullerton J. However, that line of authority depends upon Sale of Goods legislation, and the Sale of Goods Act 1923 (NSW) provides in section 5(1):

“Goods include all chattels personal other than things in action and money. The term includes emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.”

(see 77 NSWLR 479 at [11]). In short that line of authority does not extend to incorporeal personal property.

21. The Supreme Court went on to express this conclusion:

“[51] Like the Court of Appeal, we consider that conduct such as Mr Dixon’s is clearly within the statutory purpose of s 249. However, we think it a more natural interpretation of s 249(1)(a) to say that Mr Dixon took “property” when he downloaded the compilation of digital files to his USB stick and deleted them from the desktop computer than it is to say that he acquired a “benefit”. A benefit is an “advantage”, “good” or “profit” and it was not at all clear at the point he acquired them whether Mr Dixon obtained any advantage or profit from having the files: at best he acquired something that was potentially of advantage or profit to him. We consider that interpreting the word “property” as we have is not only required by the statutory purpose and context but is also consistent with the common conception of “property”.

[52] We note that electronic records have been similarly treated in other contexts. In R v Cox [(2004) 21 CRNZ 1 (CA)] the Court of Appeal was required to consider whether the police could obtain a search warrant under s 198 of the Summary Proceedings Act 1957 in relation to the content of text messages. Section 198(1)(b) provided that a search warrant could be issued where there were reasonable grounds for believing that there was in any place “any thing” which there was reasonable ground to believe might be evidence as to the commission of an offence. One of the arguments raised by the defendants was that s 198 did not authorise the search of text messages as a text message was not a “thing”. The Court rejected that, saying that electronic data “has a physical existence even if ephemeral”. Moreover, the fact that software is included within the definition of “goods” for the purpose of various consumer protection statutes provides some limited support for our view. It does at least show that Parliament has been concerned to update the law to reflect the ubiquity of computers, and the nature of their role, in modern society.

[53] For these reasons, we consider that Judge Phillips was right to hold that the digital files which Mr Dixon downloaded to his USB stick and deleted from the desktop computer were “property” for the purposes of s 249(1)(a). It follows that the Court of Appeal was wrong to quash Mr Dixon’s conviction for obtaining “property” and substitute a conviction on the basis that he obtained a “benefit”. In light of this conclusion, it is unnecessary that we consider whether the Court of Appeal was right to substitute a conviction under s 386(2) or to determine what constitutes a “benefit” for the purposes of s 249(1)(a).” (Citations omitted)

The judgment goes onto discuss other matters not currently relevant.

22. If a message were sent to the appellant by a third party by either post or telegram he would be entitled to keep the communication to himself and to prevent others from interfering with it e.g. taking it physically from his possession and reading it. Considering the width of the definition of “property” in the Crimes Act 1900 I am prepared to hold that an email directed to the appellant personally is a piece of personal property. However, in the present case that can not be the end of the matter. If the third party, “sender”, sent an email to the appellant to his personal computer/laptop/portable device, a person who wished to intercept the communication could do so by interfering with the computer/laptop/portable device, which would be trespass to that item of personal property, which the appellant could claim as the basis of self-defence of his property.

The emails on another’s device

23. I must reiterate what I said at the beginning of [8] supra, that the evidence does not disclose how emails addressed to the appellant came to be on Lisa’s Eyegaze device: neither the complainant or the appellant could explain this. It is unlikely, given Lisa’s severe disability, that she had, in some fashion, arranged this. This aspect of the matter must also be considered by analogy. Assume that the appellant, when he returned to the matrimonial home, brought with him a parcel of letters/posted material which he had placed inside e.g. a plastic bag and, somehow, that bag was moved from his suitcase to a suitcase being used by another family member who, on discovering it, decided to rummage through the contents of the plastic bag, out of curiosity. Provided it were clear to that person that contents of the plastic bag belonged to the appellant and amounted to his private papers, that person had no entitlement to read the contents of the communications sent to the appellant.

24. In the present matter, the appellant’s emails, those addressed to him, those of which he was the recipient, appeared on Lisa’s Eyegaze device. They were being read out by the complainant to the appellant’s children, causing him embarrassment and, perhaps, the same emotion or other emotions in his children. Was he entitled to ask the complainant to desist from reading his emails? The answer must be yes: they were sent to him by the relevant sender, not to the complainant. In short, the complainant was interfering with the appellant’s property, with his emails. She did not desist when asked to cease her interference. The appellant sought to stop the inference by removing the Eyegaze device, or lap-top, from her. In doing so, he touched her without her consent, a form of assault, battery. That was the criminal conduct which lead to the two convictions.

25. The emails which the appellant was attempting to retrieve from the complainant were his emails. To retrieve them he had to take from the appellant Lisa’s device, not the appellant’s device. At the relevant time Lisa was a minor: her guardians would have been her parents, both the appellant and the complainant. The complainant had no greater right to claim possession of Lisa’s device than did the appellant. Aliter, if the device belonged to the complainant. On any view of the facts, he took the device from the complainant to stop the complainant’s interference with his emails.

Self-defence made out

26. This activity falls within s 418(2)(c) of the Crimes Act 1900 – see [1] supra. The question which then arises is whether his conduct was a reasonable response to the circumstances as he perceived those circumstances to be. The touching was minor. No actual bodily harm was alleged to have been inflicted. There might have been some transient discomfort but it would have rapidly passed. Psychic trauma might have endured a little longer, but could equally be categorised as transient. The provisions of s 422 which I have also set out above are equally applicable to this case, albeit that it can be argued that the complainant had no legal right to read the appellant’s emails.

27. In making these findings, I am limiting my remarks to the circumstances of this particular case. The finding(s) might have been otherwise if the appellant’s emails had been on the complainant’s laptop/device, when it could have been argued that either the sender of an email or its intended recipient might have, in some way, caused the email to be sent to her device, giving rise to a factual onus of proof falling on the appellant. In any event, in the current proceedings, the prosecution has not satisfied the onus of proof placed upon it by s 419 of the Crimes Act 1900 to establish beyond reasonable doubt that the appellant did not carry out the conduct in defence of his property.

Disposition

28. I set aside the conviction recorded and sentence passed in each of H78621925 Sequence 1 and Sequence 2 and, in lieu thereof, I find the appellant not guilty of each charge.

Defence of Self

29. As to the argument that the appellant was acting in defence of his own person, Zaki LCM said this:

“…the defendant has in fact admitted to physical contact, and there is a self-defence argument in that under s 418(2)(a) it is said that his conduct was carried out in an effort to defend himself and it was not to defend himself against physical harm but to defence himself against mental harm. There was no authority available or anything else that would really convince me that that [was] an appropriate way to deal with this matter, because it was a fear of mental harm that might be caused as a result of damage to the relationship with his children. I must say I am just not entirely sure that I accept that [s 418(2)(a)] can be read in that way. And it is for that reason that I don’t accept that it has been established on the balance of probabilities, which is required in this instance, and I have given myself the direction in respect of self-defence and the two things that need to be established there about whether the person believes [his] conduct is necessary, and that is the subjective test, and then the objective test as to whether the behaviour was reasonable.”

30. It is necessary to return to s 418(2) of the Crimes Act 1900:

“(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary--

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.”

The words in the chapeau to the subsection, “if and only if” must be given their ordinary meaning: they are words or strict limitation. I would confine paragraph (a) to defence of one’s person or the person of another.

31. Mr McMahon, for the appellant made this submission (MFI 1 [23]):

“It is apparent that the learned Magistrate took the view that defending oneself for the purpose of s 418(2)(a), did not as a matter of law, include the idea that a person might defend themselves [sic] from a threat of a non-physical nature. However, a limitation of that nature is not apparent from the statutory language itself. The section does not refer to the concept of harm, nor the type of harm but refers more broadly to the defence of oneself or another. Section 422 of the Crimes Act 1900 further broadens the circumstances in which the defence might apply to include those where a defendant is responding to lawful conduct, although as construed in R v Burgess, R v Saunders [2005] NSWCCA 52 at [15] (‘R v Burgess; R v Saunders), that only applies to s 418(2)(a) given the express stipulation in the other sections to the conduct being unlawful or criminal.”

32. Perhaps, I was somewhat hasty in stating what I did state at the end of [30] supra. The words “if and only if” clearly modify the following clause where the verb is “believes” so that, strictly, the words limit the belief of an accused person. However, the strictness of the belief must extend to that which the belief embraces, i.e. defence of oneself or of another. I do not agree that the concept of self-defence enshrined in our criminal law extends to a defence of one’s interests. Her Honour and Mr McMahon differentiated physical and mental harm, her Honour being uncertain as to whether it extended to (pure) mental harm and Mr McMahon’s pointing out that there is nothing in the Act that provides such a discrimen.

33. Extending the belief required for a person to avail himself or herself of the defence of self-defence to include a belief that it was necessary to protect one’s mental health or the mental health of another, or to protect some other interest of one’s self or another’s self, involves including ratiocination, thinking, into the process of self-defence. This, in my view, defeats the immediacy of what one expects if self-defence be invoked, if one seeks to avoid a swinging cricket bat (cf R v Munro [2001] NSWCA 187; (2001) 51 NSWLR 540) or a swung knife (cf Sivaraja v R; Sivathas v R [2017] NSWCCA 236). The thinking process of the present appellant can clearly be seen in the evidence he gave, which I have quoted at [8] and [9] supra.

34. In R v Burgess; R v Saunders, Adams J (with whom Hislop J and Newman AJ agreed) said this:

“11 The effect of s 418 on the common law position was considered by Howie J in R v Katarzynski [2002] NSWSC 613. His Honour said at [20] –

“The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon (1993) 69 A Crim R 92. The questions to be asked by the jury under s 418 are: (1) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.”

12 Howie J went on to explain that the question posed by s 418(2) concerning the belief of the accused is “determined from a completely subjective point of view” whilst whether the conduct is reasonable is “an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced”. It is, in the context of the present case, important to note two other issues posed by the subsection. Firstly, with respect to the matters referred to in paragraphs 418(2)(b) and (c), the prevention or termination undertaken by the accused will only be conduct in self-defence if he or she is responding to unlawful conduct of the specified kind. Whether such conduct is indeed unlawful is, obviously, not a matter of fact and, if the behaviour were lawful the defence would be excluded even if the accused thought he or she was responding to unlawful behaviour. Similarly, the behaviour specified in paragraph (d) must in law amount to criminal trespass before the defence applies and a mistaken belief by the accused about the matter will not avail.

13 It is, however, necessary to consider the effect of s 422, which provides –

“This Division is not excluded merely because:

(a) the conduct to which the person responds is lawful, or

(b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.”

14 This provision reflects in part the recommendation in the final report December 1992 of the Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General on the Model Criminal Code. That recommendation, however, is not justified by any discussion of the policy issues which the recommendation presents. Section 422 goes somewhat further than the recommendation but the reasons underlying s 422 are also somewhat unclear. In Zecevic, dealing with the common law, the Court was divided on this point and it is not presently material to rehearse the arguments on each side. The majority view, that there is no necessary requirement that the attack giving rise to the need for defence should be unlawful, was that the lawfulness or unlawfulness of the attack would be relevant and possibly decisive when considering whether the fact and extent of the self-defence was reasonable. Thus, Wilson, Dawson and Toohey JJ said (162 CLR at 663, and see Deane J at 682) –

“Whilst in most cases in which self-defence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so…Thus, for example, self-defence is available against an attack by a person who, by reason of insanity, is incapable of forming the necessary intent to commit a crime. It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist…then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design…”

15 The statutory defence, however, is qualified in that the specific terms of paras 418(2)(b)(c) and (d) require that the conduct sought to be resisted by the use of otherwise unlawful conduct must itself be unlawful and that s 422 applies only to conduct undertaken for the reason specified in para 418(2)(a).

The judgment below

16 Blackmore DCJ considered that it was an essential requirement of the notion of self-defence that there must be –

“a significant correlation between the act that constitutes the offence and the threat that the accused is defending against. It must be emphasised that self defence arises in circumstances where someone is repelling an attack on his person, other persons or property. To my mind, the principal objective indicators that the evidence raises an incidence of self defence are the physical and temporal relationship between the perceived threat and the action of the accused allegedly taken in response to it. The section requires that the accused’s actions be subjectively necessary to address the perceived threat. If, in reality, there was no such threat or it was so far removed in time or place from the accused such that their actions could not be said to involve any necessity to act to address the threat, then no incidence of self defence sufficient to go to the jury arises.”

17 His Honour then briefly set out the cases made by the accused and said –

“…[To] my mind the evidence does not support a conclusion that there existed the necessary nexus between the offence and the threat that was perceived such as to provide evidence of self defence. It lacked the necessary temporal and physical relationship that would have made the actions of the accused necessary. At best the evidence demonstrates, if is accepted, when analysed objectively, that at some time in the future some action that might be carried out by the Government of Australia might have the effect of directly or indirectly injuring some unidentifiable person in a different country. In my view that is not a basis to found a claim for self defence.

…

Further, the suggestion made by the accused in evidence that, if Australia made a decision to go to war, it or its citizens might suffer an attack from terrorists at some future time to my mind is even further temporally and physically removed from any perceived threat.”

18 His Honour concluded –

“It must be emphasised that a claim to self defence is a claim of necessity. It is a claim that it was necessary to act in the way which was otherwise illegal to avoid a perceived threat. Even allowing that the belief in the necessity to act is subjective, a court will be very conscious [sic] to ensure that there is a proper objective relationship between the perceived threat and the actions carried out by the accused before a claim to acting in self-defence is left to a jury…[In] my view the objective evidence in this case does not support a claim of self defence sufficient to go to the jury.”

19 Having considered and dismissed another possible defence arising under the terms of s 194 of the Act (to which I will come in due course), the learned trial judge ruled that the self-defence could not be raised by the appellants.”

His Honour cited with approval what had been said by Blackmore DCJ of the alleged self-defence in that case:

“It lacked the necessary temporal and physical relationships that would have made the actions of the accused necessary.”

and also what his Honour said that was cited by Adams J in [18] of that dictum, about “a proper objective relationship” between the perceived threat and the actions taken by the accused.

35. In the present case I am not (as was her Honour) in the position to find that the appellant’s perception of what was happening was perceived by him as a threat to his psychic health or as a threat to the psychic health of his children. There was a lack of an objective relationship between the perceived threat and the appellant’s conduct. This is, in effect, the thrust of the Crown’s written submissions (MFI 2, [17] – [23]).

To prevent the commission of an indictable offence

36. The appellant has also raised an argument that he was entitled to do what he did because he was entitled to use reasonable force to prevent the commission of an indictable offence: R v McKay [1957] VR 560 at 572-3; R v Turner [1962] VR 30 at 36 (‘R v Turner’); R v Earley (1990) 55 SASR 140; Halsbury’s Laws of Australia at [130-1151].

37. The Criminal Procedure Act 1986, s 3(1) defines for that Act “indictable offence” to mean “an offence (including a common law offence) that may be prosecuted on indictment.” Section 5 of this Act provides:

“(1) An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily.

(2) An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment.”

The Crimes Act 1900 s 4(1) defines “serious indictable offence” to mean “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.: The Crimes (Domestic and Personal Violence) Act 2007 s 13 provides:

“(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

: Maximum penalty--Imprisonment for 5 years or 50 penalty units, or both.

(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3) For the purposes of this section, 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.

(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.”

Whilst the law of this State has strayed a long way from dividing pleas of the Crown into either treasons, felonies or misdemeanours, I am prepared to accept that an offence created by section 13 of the Crimes (Domestic and Personal Violence) Act 2007 is the equivalent of a felony at common law. I understand that the definition of “serious indictable offence” in the Crimes Act 1900 to have been inserted to substitute for a definition of a felony. In R v Turner at 36, the Full Court of the Supreme Court said:

“When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of the felony or the escape of the felon). See R v McKay, [1957] VR 560; [1957] ALR 648.”

38. After citing that passage, Mr McMahon went on to say this:

“[29] For the reasons outlined above, the conduct amounted to an offence of intimidation (harassment) which was clearly directed at causing the appellant mental harm, or in the very least, understood to be likely to have that effect: see s 13(3) of the Crimes (Domestic and Personal Violence) Act 2007. Given the Magistrate appears to have accepted the appellant’s account as to both the reason he took hold of the complainant’s arm and also his account of the level of force used (T58:7), there was at least a reasonable possibility that the application of force was justified to prevent the continuation of the offence (which was arising from the complainant’s ongoing access to emails clearly addressed to the appellant) which the prosecution have not negatived.”

39. The relevant elements of the crime constituted by section 13 of the Crimes (Domestic and Personal Violence) Act 2007 appear to me to be:

(a) a person (the accused) (b) intimidates another person (the complainant) (c) –

(i) with the intention of causing the complainant to fear physical or mental harm

OR

(ii) with the intention of causing a third person, with whom the complainant has a domestic relationship to fear physical or mental harm.

A tribunal of fact would need to be directed as to the meaning of “intimidation” which is contained in section 7 of the Crimes (Domestic and Personal Violence) Act 2007:

“(1) For the purposes of this Act,

"intimidation" of a person means--

(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or

Example of conduct that may amount to harassment of a person--:

(1) Intentionally disclosing or threatening to disclose any of the following about a person without the person's consent, known as "outing"--

(a) the person's sexual orientation,

(b) the person's gender history,

(c) that the person has a variation of sex characteristics,

(d) that the person lives with HIV,

(e) that the person is, or has been, a sex worker.

(2) For subsection (1)(b) of this example, "gender history" means the sex recorded at birth for the person is different to the sex the person identifies with, lives in or seeks to live in, whether or not the person's record of sex is altered under--

(a) the Births, Deaths and Marriages Registration Act 1995 , Part 5A, or

(b) the corresponding provisions of a law of another State or Territory or a jurisdiction outside Australia.

Note : An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) 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, or

(d) conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900 , section 93AC, or

(e) conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage).

(2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.”

40. The root of the word “intimidation” is the Latin verb timeo, timere, timui: to experience fear, to be afraid. That verb provides the noun timor, timoris (m): fear and the adjective timidus, to be liable to fear, timid or fearful.

41. Returning to section 7, the tribunal of fact must go through the actual meanings to ascertain whether any applied in the current case, as alleged by the appellant. Was there any molestation or harassment of him? There was conduct which may have caused him some embarrassment but not such that I would describe as harassment or molestation, especially the latter which suggests an element of physicality. There was nothing that could cause the appellant to fear for his safety (s 7(1)(b)). There was nothing said or done that fell within s 7(1)(c), (d) or (e). There was no evidence that any behaviour that could be used under s 7(2). Merely because the appellant described how he felt as being “intimidated” or “harassed” does not mean that the crime constituted by s 13 of the Crimes (Domestic and Personal Violence) Act 2007 was committed. I am unable to uphold this ground of appeal.

**********

Amendments

06 February 2026

In [8] correct name of owner of email account.