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District Court 2 December 2022

R v Steele

[2022] NSWDC 603

Theft & propertyDomestic & family violence
CRIME INTIMIDATION TRIAL JUDGE ALONE REASONS OF TRIAL JUDGE CONFLICT OF EVIDENCE

Citation: R v Steele [2022] NSWDC 603
Court: District Court of New South Wales
Date: 2 December 2022
Judge: Haesler SC DCJ

Background

The accused, a man in a domestic relationship with the complainant, faced three charges arising from events across three consecutive days in late July 2021. The first two counts charged intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007, relating to conduct on the nights of 27 to 28 July and then 28 to 29 July 2021. The third count charged aggravated break and enter with intent to commit a serious indictable offence (intimidation) at the complainant's home in Bombala on 30 July 2021.

The accused elected, with legal advice and the Director of Public Prosecutions' consent, to be tried by judge alone in the Bega District Court. Evidence included a recorded Domestic Violence Evidence in Chief (DVEC), phone call records, text messages, photographs of the premises, an Apprehended Domestic Violence Order (ADVO), a lease agreement, and the testimony of the complainant and two police officers.

The accused gave evidence in his own defence. A 2019 Local Court facts sheet was also admitted, though its use was strictly limited under s 136 of the Evidence Act 1995 to assessing whether the conduct amounted to intimidation by reference to a pattern of domestic violence behaviour; it could not be used as tendency evidence or as evidence of character.

  • Whether the acts alleged in Counts 1 and 2 were proved beyond reasonable doubt to constitute intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007
  • Whether the accused, for Counts 2 and 3, had the requisite mental state: specifically, knowledge that his conduct was likely to cause the complainant to fear physical or mental harm
  • Whether the accused broke into the premises for Count 3, or whether he entered pursuant to an actual or implied right or permission
  • Whether, on Count 3, it was proved beyond reasonable doubt that the accused knew the complainant was present in the dwelling at the time of entry
  • How to assess credibility and resolve conflicts of evidence in a "one and one" (word against word) domestic violence trial before a judge sitting alone

Decision

On Counts 1 and 2, the trial judge was satisfied beyond reasonable doubt that the accused's conduct and messages constituted intimidation. Even though the physical threat implicit in the Count 2 texts was not ultimately carried out in the feared manner, the complainant was placed in a state of fear and anxious anticipation that itself amounted to the harm the provision targets. The prosecution was not required to prove that the complainant actually feared harm; proof of the accused's intention or knowledge sufficed.

On the mental element for Counts 2 and 3, Haesler SC DCJ applied the principle from McIlwraith v R [2017] NSWCCA 13 that intent under s 13(1) is satisfied by proof that the accused knew his conduct was likely to cause fear. The judge drew that inference from the accused's own actions and conduct, rejecting his claimed lack of awareness. As the judgment observes, his actions "spoke louder than words."

On Count 3, the judge found as a matter of fact that both the front and rear doors of the Bombala premises were locked and that the accused held no key, the locks having been changed previously. He forced entry through the rear door (which required little force due to pre-existing damage). Any prior permission to enter the home could not extend to entry through a door locked against him. Once inside, his presence beside the complainant as she cowered in bed, combined with his refusal to leave despite her repeated requests, amounted to harassment constituting intimidation. The judge found he entered to fulfil the threats made in earlier texts, not out of genuine concern for the complainant.

The judge also addressed the domestic violence context expressly, noting the accused's conduct demonstrated "entitlement and control" over the complainant. The 2019 pattern of behaviour was considered only for the limited purpose authorised by s 7(2) of the Crimes (Domestic and Personal Violence) Act, in assessing whether the conduct amounted to intimidation.

Orders Made

  • Count 1: Benjamin Steele found guilty of intimidation
  • Count 2: Benjamin Steele found guilty of intimidation
  • Count 3: Benjamin Steele found guilty of aggravated break and enter and committing a serious indictable offence

Key Takeaways

  • Under s 13 of the Crimes (Domestic and Personal Violence) Act 2007, the prosecution need not prove the complainant actually experienced fear; it is sufficient to prove the accused knew the conduct was likely to cause fear of physical or mental harm, and that knowledge can be inferred from conduct and surrounding circumstances.
  • Prior permission to enter a shared or former shared residence does not extend to entry through a door that has been locked against the accused, particularly where locks have been changed and no key held.
  • A pattern of prior domestic violence (here, a 2019 incident) may be considered under s 7(2) of the Crimes (Domestic and Personal Violence) Act when assessing whether conduct amounts to intimidation, but a court sitting alone must carefully limit that material so it does not operate as tendency evidence or evidence of character.
  • In judge-alone domestic violence trials involving contested "one and one" evidence, the trial judge must expose reasoning fully, resolve all credibility conflicts, and address each element of each offence with reference to the applicable principles and warnings.
  • Persistent unwanted presence in a complainant's home, combined with refusal to leave despite repeated requests, can amount to harassment constituting intimidation, even where no explicit verbal threats are made at the time of entry.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112(1), 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
- Criminal Procedure Act 1987 (NSW)
- Evidence Act 1995 (NSW), ss 136, 191

Cases
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Kempe v Webbe [2003] ACTSC 7
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- McIlwraith v R [2017] NSWCCA 13
- R v BA [2021] NSWCCA 191
- R v Grant (2002) 55 NSWLR 80; [2002] NSWCCA 243