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District Court 3 February 2021

Barber v DPP

[2021] NSWDC 7

Assault & violenceDomestic & family violence
CRIMINAL LAW CONVICTION APPEAL DOMESTIC VIOLENCE OFFENCE WHETHER APPELLANT ACTED IN SELF DEFENCE

Citation: Barber v DPP [2021] NSWDC 7
Court: District Court of New South Wales
Date: 3 February 2021
Judge(s): Abadee DCJ

Background

The appellant was convicted of common assault in the Local Court at Burwood on 21 February 2020, following an incident at his home in Campsie on 24 February 2019 involving his then partner. The Magistrate accepted the complainant's account that the appellant had grabbed her, brought her to the ground, and then choked her by gripping her neck for approximately five seconds. The Magistrate found the complainant to be a credible witness and rejected the appellant's account of the incident.

The appellant appealed to the District Court, arguing that the prosecution had not proven the elements of common assault beyond reasonable doubt and, alternatively, that the Crown had failed to negative his claim of self-defence under s 418 of the Crimes Act 1900 (NSW).

  • Whether inconsistencies in the complainant's evidence meant the prosecution had not proved the elements of common assault to the required standard.
  • Whether the Crown had discharged its burden of negativing the appellant's claim of self-defence, specifically by establishing that his belief in the need to defend himself was not reasonably held and that his response was not a reasonable one in the circumstances as he perceived them.

Decision

On the elements of the offence: Abadee DCJ rejected this ground without difficulty. The appellant's own evidence conceded that he had grabbed the complainant, causing her to fall, and had grabbed her by the neck. In light of those concessions, and the Magistrate's credibility findings (bolstered by the complainant's contemporaneous 000 call to police), it was not open to the appellant to maintain that the elements of assault had not been proven. Counsel for the appellant did not press this ground seriously in oral argument.

On self-defence: The appellant argued that the complainant had been the initial aggressor, pointing to her yelling at him and throwing items including a make-up bag that struck his laptop. Abadee DCJ found that argument neglected the immediate context: the complainant had been repeatedly asking the appellant to retrieve sunscreen from the car, and he was ignoring her while playing a computer game. The court acknowledged the appellant's submission that the complainant had a history of erratic or unpredictable behaviour, supported by earlier incidents the Magistrate had accepted occurred. However, the prior incidents could not rescue the self-defence claim in the circumstances present on the day.

Critically, the appellant conceded under cross-examination that the complainant was not moving towards him at the time, had no property of his in her hands capable of being thrown, and that he could have moved around her and left the room with his laptop. Given those concessions, no imminent attack on his person or property existed. Abadee DCJ held that although there was a reasonable possibility the appellant subjectively perceived a threat of further attack, a reasonable person in his position would not have shared that belief, and nothing prevented him from simply leaving the room. The appellant's response of grabbing the complainant, bringing her to the ground, and choking her was plainly disproportionate. The Magistrate's finding that self-defence had been negated was not merely open but, in the court's view, compelling.

Orders Made

  • The appeal is dismissed.
  • The conviction is confirmed.

Key Takeaways

  • In dismissing the appeal, the District Court reaffirmed that appellate courts give significant deference to credibility findings made by a Magistrate who saw and heard witnesses give evidence, particularly where those witnesses also gave physical demonstrations of how an assault occurred.
  • A self-defence claim under s 418 of the Crimes Act 1900 (NSW) requires both that the accused held a subjective belief that their conduct was necessary and that their response was objectively reasonable in the circumstances as they perceived them; the Crown must negative both elements beyond reasonable doubt.
  • Where an accused's own concessions at trial establish that no imminent threat existed and that a non-violent exit from the situation was available, those concessions can be fatal to a self-defence claim regardless of the broader relationship history between the parties.
  • Prior incidents of erratic or aggressive behaviour by a complainant may be relevant to the subjective limb of self-defence, but will not automatically render a violent physical response proportionate where the immediate circumstances disclose no genuine threat.
  • Sufficient evidence to sustain a conviction can be drawn from a combination of sources, including the accused's own admissions, the complainant's testimony, and a contemporaneous 000 call to police.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 418

Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244
- Douglas v R [2005] NSWCCA 419
- Fox v Percy (2003) 214 CLR 118
- R v Katarzynski [2002] NSWSC 613