Citation: R v Ross [2025] NSWDC 330
Court: District Court of New South Wales
Date: 20 August 2025
Judge: Wilson SC DCJ
Background
The accused stood trial on 12 counts (including one alternative count) arising from alleged domestic violence offending against his former partner. The alleged conduct spanned from 1 January 2013 to 22 February 2014, when the couple were living together in the Central Coast region of NSW. The relationship had begun in 2011, and the couple had two children together.
The offending only came to police attention in April 2023, after an intercepted telephone call between the accused and the complainant while the accused was in custody on unrelated matters. The complainant then reported the alleged conduct to police, and proceedings commenced in September 2023. The trial ran over six non-consecutive days in July 2025 before Wilson SC DCJ, sitting as judge alone.
The charges included multiple counts of intimidation, use and threatened use of offensive weapons with intent to commit an indictable offence, common assault, and one count of attempting to discharge loaded arms with intent to murder. The accused contested all counts, attacking the honesty, credibility, and reliability of the complainant in respect of every allegation.
Legal Issues
- Whether the accused intimidated the complainant on multiple occasions, within the meaning of s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Whether the accused used offensive weapons (including a flick knife, meat cleaver, and firearm) with intent to commit intimidation, under s 33B of the Crimes Act 1900 (NSW)
- Whether the accused threatened to use an offensive weapon (by threatening to shoot the complainant's dog) with intent to commit intimidation
- Whether the accused committed a common assault by dragging the complainant by the hood of her jumper
- Whether the accused attempted to discharge loaded arms with intent to murder the complainant, under s 29 of the Crimes Act 1900 (NSW), by holding a firearm to her head and pulling the trigger twice
Decision
Wilson SC DCJ found the accused guilty on 11 of the 12 counts. The central evidentiary contest throughout the trial was the credibility of the complainant, and the court accepted her evidence as sufficient to establish the elements of the relevant offences beyond reasonable doubt on the counts where guilty verdicts were entered.
The most serious allegation, count 9, charged the accused with attempting to discharge loaded arms with intent to murder. The Crown's case was that the accused held a firearm to the complainant's head, pulled the trigger twice without a discharge occurring, and stated he was going to kill her. When the firearm failed to fire, he allegedly said "Someone's watching over you." The court applied the deeming provision in s 4 of the Crimes Act 1900 (NSW), under which a firearm unlawfully presented at a person is deemed to be loaded unless the contrary is shown, and found the firearm was in fact loaded. However, the court acquitted on count 9 because proof of intent to murder requires proof of an intent to kill, and an intent merely to cause grievous bodily harm is insufficient, as confirmed in Knight v R (1992) 175 CLR 495. The court was not satisfied beyond reasonable doubt that the intent to kill was established on the evidence.
The accused was instead convicted on count 10, the alternative charge, which was using an offensive weapon with intent to commit intimidation. The court found the elements of that offence were made out on the same facts. On count 11, the court found that after the complainant fled through the front door, the accused retrieved a firearm and discharged it in her direction, satisfying the elements of intimidation. On count 12, the court found the accused placed ammunition on the front seat of the complainant's car, telling her there was something in the car "with her name on it," which the court held constituted intimidation.
Orders Made
- Verdicts of guilty entered on counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, and 12
- Verdict of not guilty entered on count 9
- The accused was convicted on all counts of guilty
Key Takeaways
- A conviction for attempting to discharge loaded arms with intent to murder under s 29 of the Crimes Act 1900 (NSW) requires proof of an actual intent to kill; an intent to cause grievous bodily harm does not suffice, following Knight v R (1992) 175 CLR 495.
- Under s 4 of the Crimes Act 1900 (NSW), a firearm unlawfully presented at a person is deemed to be loaded unless the contrary is shown; the court found that a firearm which failed to discharge but later did fire a shot satisfied that deeming provision on the facts.
- The deeming provision establishing that a firearm is loaded goes to the first element of the offence (the attempted discharge) but does not relieve the Crown of proving the requisite intent under the second element.
- Placing ammunition on a complainant's car with an accompanying verbal threat was found to constitute intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), satisfying both the conduct and intent elements.
- Offending alleged to have occurred over a decade before trial can still ground a prosecution where delayed reporting is explained and the complainant's evidence is accepted; agreed prior convictions and intercepted telephone calls formed significant contextual and tendency evidence in this case.
Legislation and Cases Referenced
Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
- Crimes Act 1900 (NSW), ss 4, 29, 33B, 61
- Criminal Procedure Act 1986 (NSW), ss 3, 5 and Table 2
- Evidence Act 1995 (NSW)
Cases
- Knight v R (1992) 175 CLR 495
- Fleming v The Queen (1998) 197 CLR 250
- R v Markuleski (2001) 52 NSWLR 82
- Jovanovic v R (1997) 42 NSWLR 520
- Fox v Percy [2003] HCA 22
- AR v R [2025] NSWCCA 22
- JS v R [2022] NSWCCA 145
- W v The Queen [2014] NSWCCA 110