Citation: R v Davis [2025] NSWDC 393
Court: District Court of New South Wales
Date: 30 September 2025
Judge: Montgomery DCJ
Background
The appellant was convicted in the Local Court after a trial before Magistrate Farnan on 24 September 2024, on multiple counts of common assault and assault occasioning actual bodily harm (ABH). All offences occurred in the context of a relationship structured around BDSM (Bondage, Discipline, Dominance, Submission, Sadism and Masochism) practices. The primary complainant, ZL, was in a long-term intimate relationship with the appellant that operated on mutually agreed master-slave protocols.
The offences against ZL included a public punch to the face, a 29-stroke caning that left welts, a slap that burst her eardrum, and an incident where the appellant dragged her by the hair under a fence along gravel. A second complainant, C2, was grabbed by the hair at a party while the appellant announced to bystanders, "This is how a real man takes control."
The appellant appealed all convictions to the District Court on three grounds: that the magistrate wrongly found consent was unavailable as a defence to the caning charge; that tendency evidence was improperly admitted; and that the evidence of ZL was too unreliable to support the convictions beyond reasonable doubt.
Legal Issues
- Whether, as a matter of law, consent can operate as a defence to assault occasioning actual bodily harm where the recipient consented to conduct within an ongoing BDSM relationship
- Whether the tendency evidence (cross-admissibility of conduct across multiple complainants) was properly admitted, including whether the notified tendency was sufficiently specific to carry significant probative value
- Whether the magistrate was entitled to accept parts of ZL's evidence while rejecting other parts on credit grounds, and whether the verdicts could stand on the evidence as a whole
Decision
Ground 1: Consent as a defence to ABH
Montgomery DCJ upheld Ground 1. The Magistrate had treated R v Brown as requiring a ruling that consent is never available as a defence to assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW). Reviewing Brown, R v Wilson, Russell and Stein, the court held that the common law is not that consent can never be a defence to assault occasioning actual bodily harm regardless of any foreseeable risk of serious injury. The caning occurred at ZL's request, in private, within an intimate domestic relationship, with express consent before each stroke and no evidence of a foreseeable risk of serious injury. In those circumstances ZL's consent was a defence, and the conviction on Sequence 21 was quashed. The court noted that it had not considered the coercive control provisions, which commenced after the events.
Ground 2: Tendency evidence
The court found no error in the magistrate's decision to admit tendency evidence. The tendency was not, as the appellant argued, a mere generalised propensity for violence against women. Rather, it was characterised more specifically: a tendency to assert control over women through physical force, including in public settings with witnesses present. The court was satisfied that this tendency had sufficient probative value to outweigh the danger of unfair prejudice under s 101 of the Evidence Act 1995 (NSW). Ground 2 was rejected.
Ground 3: Reliability of ZL's evidence
The District Court found that the magistrate was fully entitled to accept some parts of ZL's evidence while rejecting others on credit grounds. That approach is a well-recognised feature of fact-finding and does not, of itself, undermine a verdict. Montgomery DCJ reviewed the evidence afresh and reached no different assessment to the magistrate. Her Honour's reasons were found to be cogent, supported by corroborating evidence, and consistent with the applicable directions (including the Liberato, Markuleski, and Central Witness directions). Ground 3 was rejected.
Orders Made
- Ground 1: appeal upheld; the conviction on Sequence 21 (assault occasioning actual bodily harm) was quashed.
- Ground 2: appeal dismissed.
- Ground 3: appeal dismissed.
Key Takeaways
- In upholding Ground 1, the District Court held that consent can be a defence to assault occasioning actual bodily harm under the Crimes Act 1900 (NSW): R v Brown does not establish that consent is never available, and where consensual conduct in private carries no foreseeable risk of serious injury, the complainant's consent may answer the charge.
- A tendency notice framed around the assertion of physical control over women in specific circumstances, including in public, carries sufficient particularity to meet the probative value threshold under s 101 of the Evidence Act 1995 (NSW) and is not reducible to a mere generalised tendency for violence.
- Where a fact-finder rejects portions of a witness's evidence on credit grounds, this does not prevent reliance on other accepted portions of that witness's evidence, particularly when corroborating material exists within the broader evidentiary matrix.
- The court conducting a conviction appeal from the Local Court forms its own view of guilt on the whole evidence but must identify a factual, legal, or discretionary error by the magistrate; the Crown retains the onus of establishing guilt beyond reasonable doubt throughout.
- The availability of consent turns on the specific circumstances, including whether the conduct carried a foreseeable risk of serious injury; it does not depend on an evaluation of the social utility of BDSM practices.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18
- Evidence Act 1995 (NSW), s 101
- Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW)
Cases:
- Attorney-General's Reference (No 6 of 1980) [1981] QB 715
- Department of Health and Community Services v JWB and SMD (1992) 175 CLR 218
- Haoui v R [2008] NSWCA 209
- M(B) [2018] EWCA 260
- Pallante v Stadiums Proprietary Limited (No 1) [1976] VR 331
- R v Brown [1993] 2 WLR 556
- R v Coney (1882) 8 QBD 534
- R v Donovan [1934] 2 KB 498
- R v Emmett [1999] EWCA Crim 1710
- R v McIntosh [1999] VSC 358
- R v Stein [2007] VSCA 300
- R v Wilson [1997] QB 479
- Russell v R [2023] NSWCCA 272
- McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298