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District Court 13 March 2024

R v McFarlane

[2024] NSWDC 193

Assault & violenceFraud & dishonesty

Citation: R v McFarlane [2024] NSWDC 193
Court: District Court of New South Wales
Date: 13 March 2024
Judge: Haesler SC DCJ

Background

The accused, who preferred to be known by a name other than his legal name, faced two serious charges arising from events in Moruya in October 2022. The first charge alleged that he dishonestly obtained a financial advantage by transferring and withdrawing money from another person's Commonwealth Bank account between 17 and 19 October 2022. The second charge alleged that on 21 October 2022 he entered a dwelling house intending to commit intimidation, knowing persons were present, and that he intentionally wounded the occupant during that entry.

The accused elected to be tried by judge alone, waiving his right to a jury trial. The trial ran over three days at Bega District Court, with the judge delivering an ex tempore (on-the-spot, oral) verdict on the final day.

The complainant, referred to throughout as the alleged victim, had previously been sentenced by the same judge in unrelated proceedings. That prior contact was disclosed to counsel, and the judge cautioned himself about the implications for the complainant's credibility, noting that the sentence reduction the complainant had received for cooperating with authorities was a relevant consideration.

  • Whether the accused dishonestly obtained a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), by accessing another person's bank account.
  • Whether the accused entered a dwelling house with intent to commit a serious indictable offence (intimidation), in circumstances of aggravation (knowing persons were present) and special aggravation (intentionally wounding the victim), contrary to s 111(3) of the Crimes Act 1900 (NSW).
  • How the court should assess the credibility of witnesses from different backgrounds, including those displaying apparent mental illness, drug use, or hostility toward police.
  • How the circumstantial evidence principles from R v Baden-Clay [2016] HCA 35 applied to Count 1.
  • What weight to give the complainant's evidence given his prior dealings with the same judge and the benefit he received on sentence for cooperating with authorities.

Decision

On Count 2 (entering a dwelling with intent and wounding), the court found the accused guilty beyond reasonable doubt. The judge accepted the complainant's evidence as clear, precise, and exact. A witness who gave a different version did not directly contradict the complainant's account and had not been present throughout the relevant incident. The judge found there was a clear motivation for the attack, evidenced by the word "snitch" being called out at the outset, and noted that the complainant had made an immediate complaint to his mother and maintained a consistent account thereafter.

The nature and severity of the wound was significant. Medical records confirmed a deep laceration that severed an extensor tendon and required surgery. The judge applied limited common knowledge about such injuries to conclude the wound was inconsistent with an accidental fall and more consistent with an edged weapon, consistent with the police officer's observations at the scene.

On assessing witness credibility, the judge applied the principle from Fox v Percy (2003) 214 CLR 118, evaluating evidence against contemporary materials, objectively established facts, and the logic of events. The judge explicitly cautioned against stereotyping witnesses based on background, attitude toward police, limited education, possible mental illness, or apparent drug use, while acknowledging those factors could still be weighed in context.

The judgment does not contain a fully articulated verdict on Count 1 within the text provided, though the judge set out the applicable circumstantial evidence principles from R v Baden-Clay in detail, indicating those principles governed the analysis of that charge.

Orders Made

• The accused is found guilty of Count 2

Key Takeaways

  • In a judge-alone criminal trial under the Criminal Procedure Act 1986 (NSW), the judge must not merely return verdicts but must expose the full reasoning process, link legal principles to findings of fact, and administer any required directions to themselves on the record.

  • Where a prosecution witness has received a sentencing benefit for cooperating with authorities, the trial judge must treat that benefit as a factor going to credit and credibility, to be assessed alongside all other evidence.

  • A prior sentencing proceeding involving a key witness before the same judge does not automatically disqualify the judge, but requires disclosure to counsel and a documented self-direction about the potential impact on the assessment of that witness.

  • Sufficient evidence of a wounding can arise from a combination of medical records, police observations, and inferences drawn from common knowledge under s 144 of the Evidence Act 1995 (NSW), provided the judge raises those inferences openly so parties are not prejudiced.

  • Inconsistencies between witnesses do not automatically undermine the principal complainant's account, particularly where the inconsistent witness was not present throughout the relevant events and gave evidence two years after the fact.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(3), 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Procedure Act 1986 (NSW), ss 132, 132A, 133
- Evidence Act 1995 (NSW), s 144

Cases
- AK v Western Australia [2008] HCA 8; 232 CLR 438
- Coombes v Rodes and Traffic Authority & Ors [2006] NSWCA 229
- Fleming v The Queen (1998) 197 CLR 250
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- R v Baden-Clay [2016] HCA 35; 258 CLR 308
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247