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District Court 25 September 2024

R v Roussos (a pseudonym) (No 1)

[2024] NSWDC 498

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL PROCEDURE — TRIAL — JUDGE

Citation: R v Roussos (a pseudonym) (No 1) [2024] NSWDC 498
Court: District Court of New South Wales
Date: 25 September 2024
Judge: Sutherland SC DCJ

Background

The accused and the complainant (both pseudonymous) entered a romantic relationship in April 2022 after meeting through TikTok. The relationship was described throughout the trial as volatile and tempestuous, with the couple breaking up and reconciling at least once before eventually marrying at a Greek Orthodox Church on 5 October 2022, just days after the alleged incidents the subject of the charges.

The accused was originally charged with numerous offences, including multiple counts of sexual intercourse without consent, following a statement the complainant gave to police on 13 October 2022. Those serious sexual assault charges were discontinued on the first day of trial. What remained were two charges: one count of intimidation under the Crimes (Domestic and Personal Violence) Act 2007, allegedly arising from an incident at a local café on 2 October 2022, and one count of common assault under the Crimes Act 1900, allegedly arising from a push in the back at the couple's apartment later that same evening.

The matter proceeded as a six-day judge-alone trial in the District Court, involving nine witnesses and nearly 400 pages of transcript. The unusually extended nature of proceedings for charges of this kind was explained by the history of the more serious charges that had preceded them.

  • Whether the Crown proved beyond reasonable doubt that the accused committed intimidation within the meaning of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
  • Whether the Crown proved beyond reasonable doubt that the accused committed common assault under s 61 of the Crimes Act 1900.
  • Whether the summary assault charge was duplicitous, given inconsistencies between the Court Attendance Notice and the Charge Certificate as to which alleged physical act was the subject of the charge.
  • Whether leave should be granted to the Crown to amend the assault charge as to time and date.

Decision

On the intimidation charge, the court assessed the evidence of what occurred at the Jolie Café on 2 October 2022. The judgment records numerous inconsistencies between the accounts given by the complainant and the accused. After weighing those inconsistencies and applying the requisite standard of proof, the court was not satisfied beyond reasonable doubt that the accused committed the alleged intimidation, and returned a verdict of Not Guilty.

On the assault charge, a procedural complication arose because the Court Attendance Notice particularised the assault as occurring during the morning of 7 October 2022, while the Charge Certificate pointed to an event on 2 October 2022. The court, noting that the defence had clearly understood the allegation to concern the push on 2 October, granted leave to the Crown to amend the charge as to time and date, resolving the duplicity concern.

On the merits of the assault charge, the court observed that the complainant's account of the push on the evening of 2 October 2022 was supported only by her own evidence. The court found it difficult to reconcile the proposition that the accused had physically assaulted her and threatened to kill them both on 2 October with the undisputed facts that followed: the couple's joint wedding preparations over the next two days and the wedding itself less than 72 hours later.

Faced with that uncertainty, the court found it could not be satisfied beyond reasonable doubt that the alleged assault had occurred, and returned a verdict of Not Guilty on the common assault charge as well.

Orders Made

• Verdict of Not Guilty with respect to the allegation of common assault

Key Takeaways

  • The District Court returned verdicts of Not Guilty on both the intimidation charge and the common assault charge, finding that the Crown had not established the allegations beyond reasonable doubt in either case.
  • Where inconsistencies exist between a Court Attendance Notice and a Charge Certificate as to the identity of the alleged conduct, a court may grant leave to the Crown to amend the charge, provided the defence has not been relevantly misled as to the nature of the allegation being met.
  • A conviction for common assault requires the Crown to prove the alleged act beyond reasonable doubt; evidence from the complainant alone, uncorroborated and difficult to reconcile with objective surrounding circumstances, may be insufficient to satisfy that standard.
  • The court applied the principle that reasonable doubt as to whether the alleged events occurred at all warrants an acquittal, even where the relationship between the parties was accepted to be volatile and problematic.
  • Suppression protections under s 578A(3) of the Crimes Act 1900 continue to apply to a complainant's identity even after sexual assault charges have been discontinued, requiring pseudonyms to be used for the complainant and associated persons throughout published judgments.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes Act 1900 (NSW), s 61 (common assault); s 578A(3) (publication restrictions)
- Criminal Procedure Act 1986 (NSW), s 166 (summary offences dealt with in District Court)

Cases
- AK v Western Australia (2008) HCA 8; (2008) 232 CLR 438
- Fleming v R (1998) 197 CLR 250
- Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16