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District Court 16 December 2024

R v Kaikaty

[2024] NSWDC 597

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEALS AND REVIEWS APPEALS AGAINST LOCAL COURT CONVICTIONS APPLICATION FOR FRESH EVIDENCE

Citation: R v Kaikaty [2024] NSWDC 597
Court: District Court of New South Wales
Date: 16 December 2024
Judge(s): Abadee DCJ

Background

The appellant was convicted by the Liverpool Local Court on 28 November 2023 of two domestic violence offences against his wife, committed on 6 January 2023 at the couple's home apartment. The offences were common assault (s 61 of the Crimes Act 1900 (NSW)) and intimidation (s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). He was sentenced on 14 December 2023 and subsequently appealed both convictions to the District Court.

The Crown alleged that the appellant grabbed his wife's jaw, squeezed it, and pushed her head against the wall after an argument about the use of her car, which had taken place partly in front of his father. Later that day, the Crown alleged the appellant told the complainant "I should have killed you. You misled me since before we got married. I won't let you do that to another man again. You should be dead." The reference to misleading him related to the complainant's inability to conceive a child.

The appellant denied assaulting or intimidating his wife. He contended the complainant fabricated the allegations and had deliberately self-harmed to create the appearance of injuries. He relied on mobile phone footage showing the complainant striking her own shoulders with a lightweight plastic coat hanger.

  • Whether the Acting Magistrate erred in convicting the appellant of common assault under s 61 of the Crimes Act 1900 (NSW)
  • Whether the Acting Magistrate erred in convicting the appellant of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
  • Whether, on the evidence, each offence was established beyond reasonable doubt

Decision

Abadee DCJ applied the same appellate principles as he had articulated in R v Guider [2024] NSWDC 588 and R v Scott [2023] NSWDC 271. His Honour carefully reviewed the Magistrate's reasoning and found no basis to disturb the convictions.

The Magistrate had accepted the complainant's evidence after acknowledging some shortcomings in it, including her omission to mention self-harm with a coat hanger. Despite that, her Honour found the complainant did not embellish, did not appear defensive, and was not "damaged" in cross-examination. The Magistrate also found the complainant made an immediate complaint to police, that observed facial injuries were consistent with the assault allegation, and that her account was corroborated by body-worn camera footage.

The Magistrate was unimpressed by the appellant's evidence, finding his account of the mobile phone footage and his surreptitious recordings of the complainant unpersuasive. Abadee DCJ agreed with the Magistrate's assessment. His Honour also noted that the complainant's suicidal ideation or expressions of self-harm were not, in his view, antithetical to the charges, observing that complainants in fraught domestic situations not uncommonly blame themselves and react to such environments in emotional extremes.

On the intimidation charge, Abadee DCJ found that the verbal threat was an express, if not implied, threat to kill and that the appellant actually knew the likely result of making it was to instil fear in the complainant. Both offences were established beyond reasonable doubt, and both convictions were confirmed.

Orders Made

  • The appellant's appeal against his convictions is dismissed.
  • Both convictions are confirmed.

Key Takeaways

  • The District Court confirmed that, for the intimidation offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the prosecution does not need to prove the complainant actually experienced fear; proof that the accused knew their conduct was likely to cause fear is sufficient.
  • Following McIlwraith v DPP (NSW) [2017] NSWCCA 13, the intimidation offence is one of specific intent but can be established by a state of mind akin to reckless indifference, because knowledge that fear is likely is a lesser determination than intention to produce that specific result.
  • In dismissing the appeal, the District Court accepted that a complainant's expressions of self-harm or suicidal ideation in a domestic violence context are not necessarily inconsistent with the Crown's case, and may instead reflect the emotional toll of the domestic environment.
  • Corroborative evidence, including immediate complaint to police, officer observations of injuries, photographs, and consistency between body-worn footage and the complainant's account, can collectively support a finding of guilt even where a complainant's evidence has minor gaps or omissions.
  • No error was established in the Magistrate's approach to credibility assessment, including her decision to prefer the complainant's account over the appellant's denial and his self-harm fabrication theory.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61 (common assault)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
- Evidence Act 1995 (NSW), s 135
- Surveillance Devices Act 2007 (NSW), ss 7(1), (3)

Cases
- Haile v R [2022] NSWCCA 71
- McIlwraith v DPP (NSW) [2017] NSWCCA 13
- R v Guider [2024] NSWDC 588
- R v Scott [2023] NSWDC 271