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District Court 15 March 2024

R v Holman (No 1)

[2024] NSWDC 267

Assault & violenceDomestic & family violence

Citation: R v Holman (No 1) [2024] NSWDC 267
Court: District Court of New South Wales
Date: 15 March 2024
Judge: Sutherland SC DCJ

Background

The accused faced six counts on an indictment arising from three separate incidents involving a former domestic partner, all occurring between late December 2021 and 18 January 2022. The alleged conduct included using an offensive weapon with intent to commit an assault, intimidation, common assault, and assault occasioning actual bodily harm. Two counts related to an incident at Wingham, two to a separate incident described at trial as occurring "in the forest" near Cedar Party, and two to a final incident at Taree.

The accused elected a judge-alone trial, to which the Crown consented. Under section 132 of the Criminal Procedure Act 1986, this left the court with no discretion and the matter proceeded accordingly.

The Crown's case rested substantially on the complainant's evidence, supported by complaint evidence, a witness who attended the scene of the third incident, and tendency evidence admitted by a pre-trial ruling. The defence argued that the complainant was not a witness of truth and that her accounts were affected by significant methamphetamine use.

  • Whether the Crown proved each count beyond reasonable doubt in the context of a volatile domestic relationship where the complainant's credibility was directly contested
  • How to assess the complainant's evidence given the defence submission that methamphetamine use rendered her unreliable
  • The proper application of tendency evidence admitted prior to trial
  • Whether the accused's letter to the Supreme Court in support of a bail application, admitted as a Crown exhibit, warranted a Liberato direction, and if so, what effect that had on the verdicts
  • Whether conduct during the third incident (the "forest" incident) amounted to common assault and intimidation

Decision

His Honour convicted the accused on five of the six counts and acquitted him on Count 5, the charge of assault occasioning actual bodily harm arising from the 18 January 2022 Taree incident.

The court applied standard directions on the burden and standard of proof, the accused's right not to give evidence, and the limited use of a handwritten bail letter the accused had sent to the Supreme Court. Because that letter contained exculpatory statements, His Honour applied a Liberato direction: if the exculpatory account was accepted, or even provided a reasonably possible version of events, an acquittal was required. The court ultimately found that the exculpatory contents of the letter did not prevent convictions on five counts, while the Crown failed to prove Count 5 to the required standard.

On the "forest" incident (Counts 3 and 4), the court was satisfied beyond reasonable doubt that common assault and intimidation had occurred. Although the physical contact observed by the attending witness appeared minor, the court drew on the surrounding circumstances: the complainant's decision to send her location to the witness, the volatile nature of the relationship, and the tendency evidence. His Honour was not persuaded by the defence suggestion that what occurred was a consensual embrace.

On the acquittal for Count 5, the Crown did not satisfy the court beyond reasonable doubt as to the elements of assault occasioning actual bodily harm on 18 January 2022, notwithstanding the conviction on the accompanying intimidation charge (Count 6).

Orders Made

  • Guilty verdict on Count 1: use of an offensive weapon with intent to commit an indictable offence (assault), contrary to s 33B(1)(a) of the Crimes Act 1900
  • Guilty verdict on Count 2: intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007
  • Guilty verdict on Count 3: intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007
  • Guilty verdict on Count 4: common assault contrary to s 61 of the Crimes Act 1900
  • Not Guilty verdict on Count 5: assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900
  • Guilty verdict on Count 6: intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007

Key Takeaways

  • In a judge-alone trial under s 132 of the Criminal Procedure Act 1986, the court has no discretion to refuse the application where the accused elects that mode of trial and the Crown consents; the trial must proceed on that basis.
  • Under s 133(2) of the Criminal Procedure Act 1986, and consistent with Fleming v R (1998) 197 CLR 250 and AK v Western Australia (2008) 232 CLR 438, a judge sitting alone must articulate the principles of law applied and the findings of fact relied upon in reaching a verdict.
  • A Liberato direction applies where the accused has made exculpatory statements admitted into evidence: if those statements are accepted, or raise a reasonably possible version of events, an acquittal follows. The direction applied here because the accused's bail letter was admitted as a Crown exhibit.
  • Tendency evidence, properly admitted at a pre-trial ruling, can inform the assessment of whether disputed conduct occurred in domestic violence proceedings, particularly where the relationship is described as volatile and corroborating witnesses are limited.
  • The court's finding that physically ambiguous contact can still constitute common assault where surrounding circumstances, including prior conduct, communications, and the dynamics of the relationship, establish the relevant elements beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Firearms Act 1996 (NSW)

Cases
- AK v Western Australia (2008) HCA 8; (2008) 232 CLR 438
- Fleming v R (1998) 197 CLR 250