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District Court 5 June 2015

Dowling v R

[2015] NSWDC 205

Domestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION ONGOING CONFLICT BETWEEN NEIGHBOURS WORDS AND PHRASES PATTERN OF VIOLENCE INTIMIDATION

Citation: Dowling v R [2015] NSWDC 205
Court: District Court of NSW
Date: 5 June 2015
Judge: Cogswell SC DCJ

Background

The appellant was a landlord who lived near her tenant on the same property in Taree. Their relationship deteriorated, and the tenant obtained an apprehended violence order (AVO) against the appellant in October 2014. The AVO prohibited the appellant from entering or loitering about the premises where the tenant resided.

About a month later, the tenant complained to police that the appellant had approached the house and looked at her through a bedroom window. The appellant was arrested and charged with two offences under the Crimes (Domestic and Personal Violence) Act 2007: contravening the AVO (s 14(1)) and intimidating the tenant with the intention of causing her to fear physical or mental harm (s 13(1)).

A magistrate in the Local Court found the appellant guilty of both offences. The appellant then appealed to the District Court, which heard the matter afresh on the transcript and exhibits, including a mobile phone tendered in evidence.

  • Whether the appellant's conduct, described at its highest as a passing glance toward the tenant's house while walking by, constituted intimidation with the intention of causing fear of physical or mental harm under s 13(1) of the Act.
  • Whether the other incidents between the two women could be characterised as a "pattern of violence" within the meaning of s 7(2) of the Act, so as to inform the intimidation charge.
  • Whether the appellant had "entered or loitered about the premises" in contravention of the AVO under s 14(1) of the Act, where the conduct amounted to walking past and glancing toward the house.
  • Whether the word "premises" in the AVO clause extended beyond the interior of the house to encompass adjacent areas such as the veranda.

Decision

On the intimidation charge (s 13(1)), Cogswell SC DCJ found that the prosecution evidence established no more than a passing glance by the appellant toward the tenant's house as she walked by. The tenant herself, under cross-examination, confirmed the appellant had continued walking and had not stopped. The judge accepted that the conduct may have been mischievous and uncalled for, but was not satisfied beyond reasonable doubt that it was carried out with the intention of causing the tenant to fear physical or mental harm.

The judge also considered whether prior incidents between the parties could establish a "pattern of violence" under s 7(2) of the Act, which would have been relevant to the intimidation charge. He was not satisfied that those earlier events amounted to violence, and noted that the personal violence provisions of the Act (s 10), unlike the domestic violence provisions (s 9(3)(d)), did not extend the concept of violence in the same way. The prior conduct therefore could not be characterised as a pattern of violence for the purposes of s 7(2).

On the AVO contravention charge (s 14(1)), the judge turned to whether the appellant had entered or loitered about the premises. He was not satisfied beyond reasonable doubt that she had stepped onto the veranda, entered the house, or done anything more than walk past and glance toward it. He also noted some uncertainty about the scope of the word "premises" in the AVO clause. Challenges to the appellant's credibility, including a comment she made to police at the time of arrest and text message exchanges with a prosecution witness, did not persuade the judge to doubt her account.

Both convictions were set aside.

Orders Made

  • Both convictions (under s 13(1) and s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007) were set aside pursuant to s 20(1) of the Crimes (Appeal and Review) Act 2001.

Key Takeaways

  • A conviction for intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 requires proof beyond reasonable doubt of an intention to cause fear of physical or mental harm. Conduct that is mischievous or inconsiderate does not, without more, satisfy that element.
  • Under s 7(2) of the Act, a court may have regard to a "pattern of violence" when assessing intimidation. The District Court found that prior incidents between the parties did not amount to violence in the context of a personal violence offence, where the broader definition applicable to domestic violence offences under s 9(3)(d) does not apply.
  • Where an AVO prohibits a person from entering or loitering "about the premises," a finding of contravention under s 14(1) requires satisfaction beyond reasonable doubt as to both the scope of that prohibition and the actual conduct. Walking past a property and glancing toward it was held insufficient.
  • On appeal from the Local Court, the District Court conducts a fresh hearing on the evidence while giving appropriate weight to the magistrate's assessment of witness demeanour. Credibility challenges raised against an appellant do not automatically succeed simply because some inconsistencies exist in the evidence.
  • Insufficient evidence of criminal intent, rather than the absence of problematic behaviour, was the dispositive factor. The court expressly acknowledged the conduct may have been mischievous and uncalled for.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 9, 10, 13(1), 14(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20

Cases: No cases were cited in the judgment.