AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 18 October 2024

R v Green

[2024] NSWDC 638

Assault & violenceDomestic & family violence
CRIME JUDGE ALONE TRIAL REASONS OF TRIAL JUDGE ASSAULT OCCASIONING ACTUAL BODILY HARM INTENTIONAL STRANGULATION ACCUSED FOUND NOT GUILTY ON ALL COUNTS

Citation: R v Green [2024] NSWDC 638
Court: District Court of New South Wales
Date: 18 October 2024
Judge: D Barrow SC DCJ

Background

The accused was charged with four counts arising from two alleged incidents involving his domestic partner. The charges were: assault occasioning actual bodily harm and intentional strangulation (both alleged to have occurred in the early hours of 14 March 2023 at a Surry Hills unit), and two further common assault charges relating to separate incidents on 5 and 6 July 2023 at Redfern and Surry Hills respectively.

The complainant and the accused had begun a relationship in approximately November 2022, and the accused moved into the complainant's unit shortly afterwards. The alleged conduct included punching the complainant to the point of unconsciousness, strangling her, stomping on her shoulder and head, and punching her in the jaw following a night at a local hotel.

The accused pleaded not guilty to all counts. Both parties agreed to proceed as a judge-alone trial under the Criminal Procedure Act 1986.

  • Whether the Crown proved each of the four charges beyond reasonable doubt
  • How the trial judge, sitting without a jury, should apply standard jury directions, including the Liberato direction (which concerns how a fact-finder should approach accused persons' evidence that, while not accepted, raises a reasonable possibility of being true)
  • Whether the complainant was a sufficiently honest and reliable witness to ground convictions on any count

Decision

The trial judge found the complainant's evidence raised substantial concerns about both her honesty and her reliability across all four counts. Her initial denial to police that anything was wrong, followed hours later by a detailed complaint of serious violence, was noted. While the judge acknowledged this pattern is not unusual in domestic violence cases, other features of the complainant's account and conduct contributed to the credibility concerns.

The judge observed that there was nothing qualitatively different in the complainant's evidence as between each of the four counts. The problems identified with her credibility and reliability applied consistently across the indictment. The judge expressly did not find that the complainant's account was false, only that it could not be accepted to the required standard.

Applying the Liberato direction, the judge found there was a reasonable possibility that the accused's evidence was true. The accused had given evidence denying all allegations and was not materially shaken in cross-examination. A minor inconsistency in his evidence (describing a thrown object as a $20 note when footage showed it to be a cigarette lighter) was considered insufficient to undermine his general credibility.

The judge concluded that the truth of the matter could not be determined with the certainty required by the criminal standard of proof. Uncertainty of that kind required verdicts of not guilty on all counts.

Orders Made

  • Count 1 (assault occasioning actual bodily harm, 14 March 2023): not guilty
  • Count 2 (intentional strangulation, 14 March 2023): not guilty
  • Count 3 (assault, 5 July 2023): not guilty
  • Count 4 (assault, 6 July 2023): not guilty

Key Takeaways

  • In a judge-alone trial under the Criminal Procedure Act 1986, the trial judge must apply all directions and warnings that would otherwise be given to a jury, and must articulate in the reasons how those directions were applied to the findings of fact.
  • A complainant's delayed disclosure to police, while not disqualifying in domestic violence matters, may still be weighed against other features of the evidence in assessing overall credibility and reliability.
  • Where a trial judge identifies substantial reservations about a complainant's honesty and reliability that apply consistently across all counts, those reservations may found not guilty verdicts on every charge on the indictment.
  • The Liberato direction requires the fact-finder to acquit if there is a reasonable possibility that the accused's evidence is true, even where that evidence is not positively accepted.
  • A minor factual inconsistency in an accused's evidence does not necessarily damage credibility across the whole of that evidence; the District Court treated the cigarette lighter error as isolated and not reflective of broader unreliability.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 133

Cases
- Fleming v The Queen [1998] HCA 68
- Barwick v R [2023] NSWCCA 139
- GS v R [2022] NSWCCA 65