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District Court 30 October 2025

R v AA

[2025] NSWDC 518

Public order & justice offences
CRIME VERDICT JUDGMENT FOLLOWING JUDGE ALONE TRIAL PERVERT THE COURSE OF JUSTICE ACCUSED ARRESTED FOR ATTEMPTED MURDER ACCUSED’S VERSION REJECTED

Citation: R v AA [2025] NSWDC 518
Court: District Court of New South Wales
Date: 30 October 2025
Judge: Sutherland SC DCJ

Background

The accused had been arrested in May 2021 in connection with a shooting at Denham Court the previous November and charged with shooting with intent to murder. In the immediate aftermath of that arrest, while at the police custody desk as officers counted his money, the accused took his mobile phone from the counter and stomped on it, causing damage.

The accused was separately charged with damaging the phone with intent to pervert the course of justice. That charge was severed from the attempted murder count and proceeded independently. The accused had already been convicted by a jury of the attempted murder count in June 2024 and was awaiting sentence on that matter.

For the pervert-the-course-of-justice charge, the accused elected a judge-alone trial, to which the Crown consented. The trial proceeded before Sutherland SC DCJ in October 2025. The accused pleaded not guilty, and gave evidence at trial.

  • Whether the accused deliberately damaged the phone (not in dispute).
  • Whether the accused's intention in damaging the phone was to pervert the course of justice by destroying evidence connected to the attempted murder, or whether his stated intention, concealing intimate messages visible on the lockscreen, was a live alternative that the Crown had negated beyond reasonable doubt.
  • Whether the Crown had established, beyond reasonable doubt, that the phone actually contained material relevant to the attempted murder.

Decision

The court found that the deliberate act of stomping on the phone was uncontested. It was an irresistible inference that the accused intended to damage the device, and he conceded as much in evidence. The central question was whether the specific intent was to destroy inculpatory evidence relating to the attempted murder, as the Crown alleged, or to conceal intimate communications, as the accused claimed.

His Honour did not accept the accused's explanation in positive terms, expressing "considerable reservation" about it. The accused's fear that a particular individual might collect his property and see the messages was described as "somewhat fanciful." However, the accused's version was not shown to be mere conjecture or patently unreasonable, given it was supported by his own sworn evidence and was not a hypothesis invented by defence counsel without any evidentiary foundation.

The critical gap in the Crown's case was its failure to establish what, if anything, was on the phone relevant to the attempted murder. Despite forensic expertise being available since August 2023, investigators had not completed re-examination or repair of the device, and offered no adequate explanation for that failure. The court described this as "inexcusable." When the Crown's expert was asked how long the task would take, the response ("how long is a piece of string?") indicated a lack of prioritisation.

Because the Crown could not contradict the accused's assertion that the phone contained nothing implicating him in the shooting, a rational possibility remained that his intention was other than perverting the course of justice with respect to the attempted murder proceedings. That reasonable doubt required an acquittal.

Orders Made

• Verdict of Not Guilty

Key Takeaways

  • For a conviction for perverting the course of justice as charged here, the Crown must prove beyond reasonable doubt that the accused's specific intention was to obstruct justice, not merely that damage was deliberate; an alternative innocent intention supported by evidence may be sufficient to raise a reasonable doubt.
  • The District Court applied the principle from Liberato v The Queen and related authorities that where an accused gives sworn evidence of an alternative motive, the Crown must negative that account rather than simply rely on an adverse inference from the act itself.
  • Where circumstantial evidence is relied upon, each fact critical to the finding of guilt must itself be established beyond reasonable doubt, consistent with the Shepherd direction applied here.
  • The court's acquittal was not a positive acceptance of the accused's version but a finding that the Crown had left open a rational hypothesis consistent with innocence, particularly by failing to establish the phone's contents despite years of opportunity to do so.
  • An investigator's unexplained and prolonged failure to examine potentially decisive forensic evidence can leave a fatal gap in the Crown's circumstantial case, even where the accused's own account attracts considerable scepticism.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 133

Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Barca v R [1975] HCA 42; (1975) 133 CLR 82
- Fleming v R [1998] HCA 68; (1998) 197 CLR 250
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Peacock v R (1911) 13 CLR 619; [1911] HCA 66
- Plomp v R (1963) 110 CLR 234; [1964] ALR 267
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573