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District Court 19 December 2025

Xerri (a pseudonym) v R

[2025] NSWDC 542

Assault & violenceDomestic & family violence
CRIME APPEAL SELF ARGUMENT THAT SELF CONVICTION QUASHED.

Citation: Xerri (a pseudonym) v R [2025] NSWDC 542
Court: District Court of New South Wales
Date: 19 December 2025
Judge(s): Neilson DCJ

Background

The appellant ("the father") and the complainant ("the mother") were estranged spouses who had separated after approximately 20 years of marriage. In November 2023, the father moved back into the family home to save money while pursuing custody arrangements. An Apprehended Domestic Violence Order (ADVO) was in force that prohibited him from assaulting or threatening the mother.

On 20 November 2023, the mother began reading aloud the father's private emails from an "Eyegaze" communication device belonging to the couple's severely disabled eldest daughter. The emails had ended up on the device through an unexplained mechanism. In front of the children, the mother read out personal material including dating site notifications, medical correspondence, and (critically) privileged communications from the father's family lawyers. When the father tried to take the device, the mother resisted, and he placed his hand on her arm to stop her pulling it back.

The father was convicted in the Local Court of common assault and contravention of the ADVO. He appealed to the District Court on the question of conviction only, arguing self-defence in the form of defence of property under s 418(2)(c) of the Crimes Act 1900.

  • Can an email (digital information) constitute "property" for the purposes of the defence-of-property limb of self-defence under s 418(2)(c) of the Crimes Act 1900?
  • Did the mother's conduct in reading the emails aloud amount to an "assault" on the father, such that self-defence of the person was available?
  • Did the mother's conduct constitute "intimidation" under the Crimes (Domestic and Personal Violence) Act 2007, amounting to a serious indictable offence that would enliven self-defence?
  • If defence of property applied, was the father's conduct (placing his hand on the mother's arm) a reasonable response in the circumstances as he perceived them?

Decision

Self-defence of the person rejected. Neilson DCJ held that the mother's act of reading emails aloud, however distressing, did not constitute an assault on the father. It involved no application or threat of physical force. The court also rejected the argument that the mother's conduct amounted to "intimidation" under s 7 of the Crimes (Domestic and Personal Violence) Act 2007. While the conduct may have been harassing, the judge was not satisfied it rose to the level of a serious indictable offence necessary to support this argument.

Emails as "property": upheld. This was the central question. Neilson DCJ undertook a detailed analysis of whether digital information can be "property." His Honour noted that the Crimes Act does not define "property" for the purposes of s 418, and that the common law has traditionally treated confidential information as not being "property" capable of being stolen (citing Oxford v Moss). However, the judge distinguished the theft context from the broader defence-of-property context. Drawing on the New Zealand Supreme Court's reasoning in Dixon v R, which held that digital files are "property" capable of being damaged, and on English authority recognising software as "goods," his Honour concluded that emails are property for the purposes of s 418(2)(c). The father was the owner of those emails, regardless of which device they appeared on.

Reasonable response. The judge found the father's conduct, placing a hand on the mother's arm to stop her pulling the device away, was a reasonable response in the circumstances as he perceived them. The father had initially tried to retrieve the device without touching the mother. He used minimal force only when she resisted. The mother was reading out legally privileged communications in front of the children, creating genuine urgency.

Prosecution failed to disprove self-defence. Under s 419, the onus lay on the prosecution to prove beyond reasonable doubt that the father did not act in self-defence of property. The court held the prosecution had not discharged that onus. Because the common assault was not established, the ADVO contravention (which depended on the assault being made out) also fell away.

Orders Made

  • Appeal allowed
  • Convictions on both charges (common assault and contravention of ADVO) quashed

Key Takeaways

  • Digital content, specifically emails, can constitute "property" for the purposes of s 418(2)(c) of the Crimes Act 1900 (NSW). Neilson DCJ's analysis represents a notable extension of the concept of property in NSW criminal law to encompass digital information, enabling defence-of-property arguments in cases involving such material.

  • The District Court found that the defence of self-defence succeeded because the physical contact was genuinely minimal: a hand placed on an arm after an initial attempt to retrieve the device without touching the complainant. A more forceful response might not have satisfied the "reasonable response" test, underscoring that proportionality of force was central to the outcome.

  • Under s 422 of the Crimes Act 1900, it was not necessary to find that the mother's conduct was criminal for self-defence to apply. It was sufficient that she was interfering with the father's property, confirming that the defence is available even where the conduct being responded to is lawful.

  • In accordance with s 419, the prosecution bore the onus of disproving self-defence beyond reasonable doubt once the issue was raised. The prosecution's failure to address the property-based defence head-on proved fatal to the common assault charge.

  • The reading aloud of legally privileged correspondence was a significant factor in the Court's reasoning about the urgency and reasonableness of the defendant's response. Neilson DCJ's decision highlighted the risks arising from accessing or disclosing an estranged partner's legal communications, particularly in front of children, within family law disputes carrying criminal overlays.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4(1), 418, 419, 420, 422
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
- Criminal Procedure Act 1986 (NSW), ss 3(1), 5
- Sale of Goods Act 1923 (NSW), s 5(1)
- Crimes Act 1961 (NZ)

Cases:
- Dixon v R [2015] NZSC 147; [2016] 1 NZLR 678
- Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267; (2010) 77 NSWLR 479
- Oxford v Moss (1979) 68 Cr App R 183
- R v Burgess, R v Saunders [2005] NSWCCA 52
- R v Earley (1990) 55 SASR 140
- R v McKay [1957] VR 560
- R v Munro [2001] NSWCA 187; (2001) 51 NSWLR 540
- R v Turner [1962] VR 30
- Sivaraja v R; Sivathas v R [2017] NSWCCA 236
- St Albans City and District Council v International Computers Ltd [1996] 4 All ER 481