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District Court 8 April 2025

Byers v R

[2025] NSWDC 119

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEALS AND REVIEWS WHETHER LIBERATO DIRECTION S MISAPPLIED DENIAL OF PROCEDURAL FAIRNESS INTIMIDATION OFFENCE PROOF OF ‘KNOWLEDGE’

Citation: Byers v R [2025] NSWDC 119
Court: District Court of New South Wales
Date: 8 April 2025
Judge: Abadee DCJ

Background

Following a nine-day hearing in the Goulburn Local Court spanning 2023 and 2024, the appellant was convicted on 16 December 2024 of two domestic violence offences against his former partner. Seven other charges were dismissed. The appellant was also made subject to final Apprehended Violence Orders.

The two convictions were: common assault under s 61 of the Crimes Act 1900 (NSW), arising from an incident on 12 October 2020; and intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), arising from a separate incident on 24 September 2022. The appellant brought an all-grounds appeal against both convictions, as well as appeals against the AVOs and the severity of the sentence.

The District Court conducted a rehearing on the certified transcripts and exhibits from the Local Court. The appeal was not a fresh hearing; rather, the appellant was required to demonstrate factual, legal, or discretionary error in order to succeed.

  • Whether the Magistrate erred by failing to give a Mahmood direction (a warning about the dangers of using propensity reasoning where there are multiple related charges)
  • Whether the Magistrate misapplied the Liberato direction (the requirement that a jury or fact-finder apply the benefit of the doubt when a defendant's evidence raises a reasonable possibility of innocence)
  • Whether the absence of a Markuleski direction (a direction addressing inconsistencies in a complainant's evidence) caused a miscarriage of justice
  • Whether the prosecution departed from the case it had opened for the assault charge, thereby denying the appellant procedural fairness
  • Whether, for the intimidation charge, it was procedurally unfair to convict the appellant on a basis arising from his own version of events
  • Whether the mental element (knowledge or intent) for the intimidation offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 was made out beyond reasonable doubt
  • The proper construction of "intimidating" conduct under s 7(1)(c)(iv), which includes causing reasonable apprehension of harm to an animal in a domestic relationship context

Decision

Assault charge. The appellant argued that the prosecution's case at hearing departed from the particulars it had supplied at the outset, which had described him lying on top of the complainant with his full body weight and covering her mouth. Abadee DCJ examined whether this departure caused unfairness to the conduct of the defence. The Court found no procedural unfairness that would warrant overturning the conviction. The Magistrate's credit findings in favour of the complainant were a significant feature of the appeal analysis, with the District Court recognising the Magistrate's advantage in assessing witnesses.

Intimidation charge and construction of the offence. A notable aspect of this appeal concerned the interaction between ss 7 and 13 of the Crimes (Domestic and Personal Violence) Act 2007. Section 7(1)(c)(iv) defines "intimidates" to include conduct causing a reasonable apprehension of harm to an animal belonging to, or previously belonging to, a person in a domestic relationship. The appellant contended it was unfair to convict him on the basis of his own account of what he said, on the footing that his own version amounted to intimidating conduct. Abadee DCJ rejected that argument and found the physical element of the offence was established.

Mental element for intimidation. Section 13(3) provides that a person intends to cause fear of physical or mental harm if they know their conduct is likely to cause fear. Drawing on McIlwraith v R [2017] NSWCCA 13, the Court confirmed the mental element can be satisfied either by specific intent or by knowledge that the conduct would likely cause fear. Disbelieving the appellant's version of events and evaluating the circumstances in context, the Court found there was no reasonable possibility that the appellant was unaware he was instilling fear in the complainant when he made statements about what he was willing to do to the dog. The Court found the mental element established on the knowledge limb, making it unnecessary to resolve whether the specific intent limb was also made out.

Directions grounds. The grounds relating to the absence or misapplication of Mahmood, Liberato, and Markuleski directions were each considered and rejected. The Court confirmed convictions on both charges.

Orders Made

  • The appeal against conviction for sequence 5 (intimidation charge) is dismissed; the conviction is confirmed.
  • The appeal against conviction for sequence 9 (assault charge) is dismissed; the conviction is confirmed.
  • Following the dismissal of both conviction appeals, the appellant withdrew the appeals against the AVOs and the severity of sentence.

Key Takeaways

  • Under s 13 of the Crimes (Domestic and Personal Violence) Act 2007, the mental element for intimidation can be established either through specific intent to cause fear or through knowledge that the conduct is likely to cause fear, as confirmed in McIlwraith; proof of the knowledge limb alone is sufficient for conviction.

  • The District Court confirmed that "intimidating" conduct under s 7(1)(c)(iv) extends to statements or behaviour causing reasonable apprehension of harm to an animal connected to the complainant through a domestic relationship, reflecting the legislature's recognition of the intersection between animal abuse and domestic violence.

  • A conviction will not be overturned on procedural fairness grounds arising from an alleged departure from the prosecution's particulars unless the departure caused actual unfairness to the conduct of the defence.

  • In dismissing all three directions grounds, the Court applied the established principle that the absence of a particular jury-style warning (such as a Mahmood, Liberato, or Markuleski direction) will not automatically warrant intervention unless it resulted in a miscarriage of justice on the evidence.

  • On conviction appeals from the Local Court, the District Court does not undertake a free-standing review of all evidence without guidance from the parties, and Magistrates' credit findings retain recognised weight, particularly in "he said, she said" cases where consistency with incontrovertible facts is a key analytical tool.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 428B
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 5, 7, 9, 11, 13, 19, 20
- Evidence Act 1995 (NSW), s 165B
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)

Cases
- Gregg v R (2020) 355 FLR 348
- Liberato v The Queen (1985) 159 CLR 507
- Mahmood v Western Australia (2008) 232 CLR 397
- McIlwraith v R [2017] NSWCCA 13
- R v Grant (2002) 55 NSWLR 80
- R v Markuleski (2001) 52 NSWLR 82
- R v McDonald [2019] NSWSC 839
- R v Scott [2023] NSWDC 271
- Singh v R [2025] NSWCCA 34
- The Queen v Baden-Clay (2016) 258 CLR 308
- Walsh v Tattersall (1996) 188 CLR 77
- Wild v Meduri [2024] NSWCA 230