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District Court 26 September 2025

R v Briar (No 2)

[2025] NSWDC 418

Assault & violencePublic order & justice offences
CRIME ASSAULT OCCASIONING ACTUAL BODILY HARM CHOKING HOME INVASION CHOKING WITH AN ELECTRICAL CORD CRIME TRIAL BY JUDGE ALONE

Citation: R v Briar (No 2) [2025] NSWDC 418
Court: District Court of New South Wales
Date: 26 September 2025
Judge: Sutherland SC DCJ

Background

The accused faced four charges arising from events on the evening of 24 February 2023 and the early hours of 25 February 2023 in Wilcannia, NSW. The charges were: breaking and entering a dwelling house and committing a serious indictable offence therein (assault occasioning actual bodily harm); assault occasioning actual bodily harm as an alternative count; intentional choking without consent; and assaulting a police officer in the execution of his duty.

A prior fitness hearing before Haesler SC DCJ had found the accused unfit to be tried on the indictment and unlikely to become fit within 12 months: R v Briar [2024] NSWDC 590. The Office of the Director of Public Prosecutions elected to continue the prosecution. The matter was therefore listed for a special hearing before Sutherland SC DCJ under Division 3 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act").

The special hearing proceeded as a judge-alone trial, with no election made for a jury. The accused was provided with a support person, hearing loops, and comfort breaks throughout the proceedings.

  • Whether the special hearing procedure under s 56 of the Act was properly applied, including the appropriate standard of proof and the modified participatory arrangements for an unfit accused.
  • Whether the Crown established beyond reasonable doubt, on the limited evidence available, that the accused committed the home invasion and assault occasioning actual bodily harm (Count 1).
  • Whether the Crown established beyond reasonable doubt, on the limited evidence available, that the accused intentionally choked the complainant without consent contrary to s 37(1A) of the Crimes Act 1900 (Count 3).
  • Whether the police officer who restrained the accused at Wilcannia Hospital was acting in the execution of his duty at the time of the alleged assault, so as to establish Count 4.

Decision

Special hearing procedure. Sutherland SC DCJ directed himself in accordance with the purpose of a special hearing as described in R v MC (No 2) [2021] NSWSC 1542: an accused is to be acquitted unless it is proved beyond reasonable doubt that, on the limited evidence available, the defendant committed the offence charged. The court noted the multiple ways in which the accused's unfitness could affect his participation, and confirmed that all ordinary defences remained available to an unfit accused in a special hearing.

Counts 1 and 3 (home invasion, choking). The court was satisfied beyond reasonable doubt, on the limited evidence available, that the accused entered the dwelling of the complainant knowing a person was present and committed an assault occasioning actual bodily harm therein (Count 1). The court was also satisfied that the accused intentionally choked the complainant with an electrical cord without consent (Count 3). Count 2, being the alternative to Count 1, therefore did not require a verdict.

Count 4 (assault on police officer). The key question on Count 4 was whether Constable Gyzen was acting in the execution of his duty when he restrained the accused at Wilcannia Hospital. The court reviewed the relevant authorities on the scope of police duty, including the principle that an officer acts in execution of duty from the moment he embarks on a lawful task connected with his functions until that task is completed. Sutherland SC DCJ found that the constables at the hospital were discharging a lawful duty to keep the accused in custody and, if necessary, to prevent him from harming himself or escaping. When the accused ripped out a cannula and sat up, the constable's act of pushing him back onto the bed fell squarely within that duty. There was no dispute that the accused then punched the constable. The court was satisfied beyond reasonable doubt that the offence on Count 4 was established.

Orders Made

  • On Count 1 (break and enter dwelling and commit serious indictable offence): special verdict that, on the limited evidence available, the accused committed the offence charged.
  • On Count 3 (choking without consent): special verdict that, on the limited evidence available, the accused committed the offence charged.
  • On Count 4 (assault police officer in execution of duty): special verdict that, on the limited evidence available, the accused committed the offence charged.

(Count 2, the alternative count to Count 1, did not require a separate verdict in light of the finding on Count 1.)

Key Takeaways

  • Under the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW), a special hearing proceeds as nearly as possible as a criminal trial, with the Crown required to prove guilt beyond reasonable doubt on the limited evidence available before a special verdict of commission of the offence can be returned.

  • Where no election for a jury is made under s 56(9) of the Act, the special hearing proceeds as a judge-alone trial, and the court is bound by the obligations in s 133 of the Criminal Procedure Act 1986 (NSW), including the requirement to record the principles of law applied and findings of fact relied upon.

  • A police officer continues to act in the execution of duty throughout a lawful task connected with police functions, provided the officer does nothing outside the ambit of that duty. Guarding a person in lawful custody at a hospital, and physically restraining that person from sitting up and potentially absconding or injuring himself, fell within that duty on the facts of this case.

  • An unfit accused retains the full benefit of available defences in a special hearing, and the special verdict regime is designed to prevent conviction unless the limited evidence satisfies the criminal standard of proof.

  • The District Court confirmed that the special hearing framework accommodates meaningful participation by an unfit accused through procedural modifications (such as support persons and adjusted hearing conditions) without altering the substantive standard of proof.

Legislation and Cases Referenced

Legislation
- Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 40, 42, 53, 56, 59, 61, 62, 63
- Crimes Act 1900 (NSW), ss 37, 52, 59, 60, 112
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 20
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231
- Police Act 1990 (NSW)

Cases
- R v Briar [2024] NSWDC 590
- R v MC (No 2) [2021] NSWSC 1542
- Fleming v R (2009) 197 A Crim R 282
- BA v R (2023) 275 CLR 128; [2023] HCA 14
- AD v State of New South Wales (2023) 308 A Crim R 367; [2023] NSWCA 115
- Emde v State of NSW [2025] NSWCA 41
- Reeves v State of New South Wales [2024] NSWCA 125
- Jankovic v Director of Public Prosecutions [2020] NSWCA 31
- GS v R [2022] NSWCCA 65
- Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25
- DPP (NSW) v Araura [2012] NSWSC 1120
- DPP v Gribble (2005) 151 A Crim R 256; [2004] NSWSC 926
- DPP (NSW) v Trudgett [2013] NSWSC 1607
- R v Donovan [1934] 2 KB 498
- R v Burstow; R v Ireland [1998] 1 AC 147
- R v K (1993) 118 ALR 596
- Lindley v Rutter [1981] QB 128
- McIntosh v Webster (1980) 43 FLR 112
- R v Lumsden [1951] 2 KB 513
- DPP v JWH (NSWSC, 17 Oct 1997, unrep)