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Court of Criminal Appeal 14 November 2025

Barnes v R

[2025] NSWCCA 192

Assault & violence

Citation: Barnes v R [2025] NSWCCA 192
Court: Court of Criminal Appeal, NSW
Date: 14 November 2025
Judges: Adamson JA; Chen J; R A Hulme AJ

Background

The applicant was convicted by a jury in the District Court of causing grievous bodily harm with intent to cause grievous bodily harm, following an unprovoked assault at Clyde railway station in December 2018. CCTV footage and eyewitness accounts showed the applicant punch the victim multiple times to the head. The victim made no attempt to defend himself, lost consciousness, and fell backwards onto the platform.

The prosecution also led evidence of a statement the applicant made immediately after the assault, to the effect that the victim would not say "that" to his girlfriend again. The applicant was separately convicted of assaulting a second person at the same location, a conviction he did not challenge on appeal.

The applicant sought an extension of time to appeal his conviction on count 1. His sole ground was that the jury's verdict was unreasonable because, he argued, the evidence did not support a finding beyond reasonable doubt that he had intended to cause grievous bodily harm. The appeal was filed out of time after the applicant sought a second legal opinion, following an initial legally-aided merit advice.

  • Whether the verdict of guilty on count 1 was unreasonable, specifically whether it was open to the jury to find the applicant intended to cause grievous bodily harm
  • Whether the applicant's statement made immediately after the assault was admissible as an admission under s 81 of the Evidence Act 1995 (NSW), given that the victim was unconscious and unable to hear it
  • Whether an extension of time to file the appeal should be granted, given the delay arose from the applicant seeking a second legal opinion

Decision

On the question of whether the verdict was unreasonable, the Court applied the well-established test of whether it was "open" to the jury to find the applicant guilty, or whether the jury "must have had a doubt." Adamson JA noted that the applicant's own counsel made several significant concessions: that the applicant threw multiple punches to the victim's head, that at least one punch caused the victim to lose consciousness and fall, that the victim's arms were by his side throughout, and that intent to cause grievous bodily harm can in some cases be inferred from fist strikes alone. The Court found it difficult to comprehend how the ground of appeal was even arguable in light of those concessions.

On the admissibility of the post-assault statement, the Court held that the statement was admissible as an admission under s 81 of the Evidence Act 1995 (NSW), even though the victim was unconscious and incapable of hearing it. The statement formed part of the surrounding circumstances of the offence. It was adverse to the applicant's interests, and capable of revealing a performative and vindictive motive: that the applicant acted violently to assert ownership over his girlfriend and to demonstrate that no other man should speak to her in a particular way. The Court held it was open to the jury to treat the statement as evidencing the requisite intent.

On the extension of time, the Court observed that the delay resulted from the applicant seeking a second private opinion after an initial legally-aided advice had been received. From the sequence of events, the Court inferred that the first advice was that the appeal lacked merit. Because the Court found the appeal was without merit, it declined to extend time. Adamson JA added a caution that counsel should not advise that an appeal has prospects when it does not, as this gives false hope to those who are imprisoned.

Orders Made

  • Extension of time for leave to appeal refused

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the ferocity of an unprovoked attack, involving multiple punches to the head that rendered the victim unconscious and defenceless, can provide a sufficient evidential foundation for a jury to infer an intent to cause grievous bodily harm.

  • A statement made by an accused immediately after an assault is capable of constituting an admission under s 81 of the Evidence Act 1995 (NSW) even where the victim was unconscious and could not hear or comprehend the statement, provided the statement forms part of the surrounding circumstances of the offence.

  • Post-assault statements that reveal a performative or vindictive motive can be treated by a jury as evidencing the intent required for an offence under s 33 of the Crimes Act 1900 (NSW).

  • Refusing an extension of time is an available outcome where an appeal is found to lack merit, regardless of the reason for the delay; the merit of the appeal remains the central consideration.

  • Adamson JA observed that counsel should not advise that an appeal has prospects where it has none, as doing so raises false hope in those who are imprisoned as to the prospect of abbreviating their incarceration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35
- Evidence Act 1995 (NSW), s 81

Cases
- ZT v The King (2025) 281 CLR 137; [2025] HCA 9
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35