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District Court 18 December 2025

R v SSC (No 1)

[2025] NSWDC 568

Assault & violenceDomestic & family violence

Citation: [2025] NSWDC 568
Court: District Court of New South Wales
Date: 18 December 2025
Judge(s): D Barrow SC DCJ

Background

The appellant was convicted in the Local Court at Wyong of assault occasioning actual bodily harm (s 59, Crimes Act 1900) and (erroneously) of common assault (s 61, Crimes Act 1900) arising from a domestic violence incident at a holiday house at Hawks Nest on 21 November 2023. He was sentenced to an aggregate term of 18 months' imprisonment by way of an Intensive Correction Order.

The complainant called triple-0 that evening. Police attended and recorded body-worn camera footage showing her distressed account of having been struck by the appellant. However, the complainant was reluctant to participate in a formal electronically recorded interview (a "DVEC" under Pt 4, Div 4 of the Criminal Procedure Act 1986) that night. She participated in the formal recorded interview the following evening instead.

The appellant appealed to the District Court against conviction under s 18 of the Crimes (Appeal and Review) Act 2001, which provides for a rehearing on the evidence from the Local Court proceedings. A severity appeal against sentence was also noted in the event the conviction appeal failed.

  • Was the DVEC admissible? Specifically, did a recorded statement taken the evening after the alleged offence satisfy the requirement in s 289D of the Criminal Procedure Act 1986 that the questioning occur "as soon as practicable after the commission of the offence"?
  • Was the complainant's evidence credible and reliable? The appellant argued that deficiencies in the complainant's evidence, when weighed against the whole of the evidence, should leave the Court with a reasonable doubt as to guilt.
  • Was there a reasonable possibility the appellant's account was true? This ground required the Court to assess the competing versions of events, applying the principles in Liberato v The Queen and M v The Queen.
  • What is the correct approach to a conviction appeal from the Local Court? The Court needed to articulate the standard of review, including the weight to be given to the Magistrate's credibility findings.

Decision

Appellate approach. Barrow SC DCJ confirmed that a District Court conviction appeal under s 18 is not a de novo rehearing. The Court must form its own judgment of the facts while recognising the Magistrate's advantage of seeing and hearing witnesses. Error is established by the grounds raised; the Court is not obliged to conduct a freestanding review of the entire record. Credibility findings may be set aside where they are contrary to incontrovertible facts, uncontested testimony, or compelling inferences, or where they are "glaringly improbable."

Admissibility of the DVEC. The appellant contended that because police were present on the night of the offence and the complainant spoke to them then, the formal recorded interview had to be conducted that same night to satisfy "as soon as practicable." The Court examined the statutory text of s 289D, the purpose of the DVEC provisions, the second reading speech, and recognised principles of statutory interpretation (including ss 33 and 34 of the Interpretation Act 1987 and the purposive approach endorsed in Project Blue Sky and related authority). The Attorney General's second reading speech specifically contemplated that complainants "may not always be able to give their statement immediately at the scene," citing hospital attendance or the practical desirability of taking a statement away from the defendant and any children. Given the complainant's reluctance, distress, and the presence of her two infant children on the night in question, the Court found that an interview the following evening was consistent with the phrase "as soon as practicable." The DVEC was admissible.

Credibility and reasonable doubt. The judgment's full analysis of grounds two and three is contained in the truncated portion. However, the structure of the decision indicates the Court undertook a detailed review of the competing accounts, the body-worn camera footage, photographic evidence of the scene (including smashed crockery), and the complainant's consistency (or lack thereof) across her various accounts. The Court noted, for instance, that the complainant told police she had thrown a cucumber at the appellant but later could not recall saying this.

(Note: Because the published text of the judgment is truncated, the final conclusions on grounds two and three, the resolution of the severity appeal, and the precise orders made are not available for summary. Readers should consult the full judgment for the Court's ultimate findings on these grounds.)

Orders Made

  • The full orders are not available in the truncated text provided. Practitioners should refer to the complete judgment on NSW Caselaw for the final orders, including whether the conviction was upheld, set aside, or whether the severity appeal was determined.

Key Takeaways

  • Under s 289D of the Criminal Procedure Act 1986, "as soon as practicable" does not mean "immediately" or "at the first opportunity." Where a complainant was distressed, reluctant, or caring for children, a delay of approximately 24 hours before a formal recorded interview did not render the DVEC inadmissible.

  • The District Court recognised a distinction between body-worn camera footage and a formal DVEC, noting that the two serve different evidentiary functions. A complainant's refusal to participate in a formal recorded interview at the scene did not preclude the prosecution from later conducting and relying on a DVEC, provided the statutory prerequisites were met.

  • No automatic bar to admissibility arises from a temporal gap between the offence and the recorded interview. The relevant inquiry was whether any explanation for the delay was consistent with the statutory purpose of protecting vulnerable complainants, and whether any genuinely unreasonable delay had occurred or affected the quality or reliability of the evidence.

  • In confirming the established appellate framework, the District Court held that a conviction appeal under s 18 is not a hearing de novo. A specific error must be identified, and a Magistrate's credibility findings will be respected unless they are glaringly improbable, contrary to uncontested evidence, or otherwise demonstrably wrong.

  • The DVEC regime's procedural requirements were interpreted in a manner that promotes their protective purpose of reducing the trauma of giving evidence for complainants in domestic violence matters, rather than through a narrow, technical reading that would defeat that purpose.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 3 Div 1, s 18
- Criminal Procedure Act 1986 (NSW), ss 289D, 289F
- Interpretation Act 1987 (NSW), ss 33, 34

Cases
- Lunney v DPP [2021] NSWCA 186
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- R v Wong [2022] NSWDC 257
- DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
- Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
- R v Narouz [2024] NSWCCA 14; 106 MVR 373
- Environment Protection Authority v McMurray [2024] NSWCCA 160
- Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5; 110 NSWLR 557
- M v The Queen [1994] HCA 63
- Liberato v The Queen [1985] HCA 66; 159 CLR 507
- Jovanovic v R (1997) 42 NSWLR 520
- Palmer v The Queen (1998) 193 CLR 1