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Court of Criminal Appeal 6 November 2026

R v Xerri (a pseudonym)

[2026] NSWCCA 183

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME APPEAL AND REVIEW STATED CASE QUESTION OF LAW

Citation: R v Xerri (a pseudonym) [2026] NSWCCA 183
Court: Court of Criminal Appeal
Date: 6 November 2026
Judges: N Adams CJ at CL; Cavanagh J; Muston J

Background

The respondent was convicted in the Local Court of common assault and contravening an Apprehended Domestic Violence Order (ADVO) arising from an incident with his estranged wife. The incident occurred at the family home when the respondent grabbed the complainant's arm to wrest away a specialised communication device (an "Eyegaze machine") belonging to their severely disabled daughter. The complainant had been using the device to read aloud the respondent's incoming emails, which had appeared on it in unexplained circumstances.

On appeal to the District Court, the respondent argued self-defence under section 418(2)(c) of the Crimes Act 1900 (NSW): that his use of force was necessary to protect "property" from unlawful interference. The District Court accepted that argument, held the emails were property, and allowed the appeal, effectively acquitting the respondent.

The Crown then brought the matter to the Court of Criminal Appeal by way of a stated case under section 5B of the Criminal Appeal Act 1912 (NSW), seeking answers to four questions of law arising from the District Court's decision.

Legal Issues

  • Whether emails are "property" for the purposes of section 418(2)(c) of the Crimes Act 1900 (NSW)
  • Whether reading aloud the content of emails amounts to an "interference" with property under section 418(2)(c)
  • Whether the Court was confined to the factual findings stated by the District Court judge when answering the referred questions
  • Whether questions 3 and 4 as submitted were appropriate for determination (ultimately not addressed)

Decision

Issue 1: Whether emails are "property" under section 418(2)(c)

Muston J (Adams CJ at CL and Cavanagh J agreeing) held that, on the facts stated by the District Court, the emails were not "property." No expert evidence had been called in either court concerning the technical properties of email or the systems used to create, convey or store them (at [31]). The District Court had instead consulted the Encyclopaedia Britannica, producing only the finding that an email is "a pattern of electrical impulses or electrical signals, carried on a network" (at [31], [54]).

The court conducted a detailed analysis of the statutory and common law meaning of "property." The definition in section 4 of the Crimes Act was traced to Victorian-era English statutes concerned with physical things capable of being controlled or possessed (at [44]). At common law, property must be definable, identifiable by third parties, and possess some degree of permanence and stability, following the criteria in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 (at [46]). Courts have consistently distinguished between "information" and "property," holding that mere information cannot be property because it is nothing more than knowledge (at [49]). Based on the limited factual findings available, the emails could only be characterised as information (at [55]). The court also noted that the emails had appeared in the daughter's account in unexplained circumstances, raising further doubt as to whether any property that might have existed in them belonged to the respondent at all (at [58]).

Issue 2: Whether reading aloud emails constitutes "interference" with property

Muston J added that, even had the emails been property, merely reading their content aloud would not have amounted to an "interference" within the meaning of section 418(2)(c) (at [57]). The stated facts disclosed nothing to suggest the complainant had interacted with the emails in a way that could have caused them to be lost, damaged or altered (at [58]). The court drew an analogy with reading aloud from a physical letter left face up on a table: while the letter itself may be property, reading it aloud without handling it cannot properly be described as interfering with it (at [60]).

Issue 3: Limitation to stated facts

A significant theme across both issues was the court's strict confinement to the factual findings incorporated into the stated case. The court held that it cannot refer to material not contained in those facts or draw additional factual inferences (at [24]). The absence of expert evidence and the resulting scarcity of technical findings about email systems were therefore determinative of the outcome on question 1 (at [57]).

Orders Made

  • Time extended under section 5B(2) of the Criminal Appeal Act 1912 (NSW) to permit the Crown to bring the appeal by way of stated case.
  • The acquittal of the respondent by the District Court is quashed.
  • The matter is remitted to the District Court for the respondent's appeal from his Local Court conviction to be determined according to law.

Key Takeaways

  • Under section 418(2)(c) of the Crimes Act 1900 (NSW), emails will not constitute "property" where the only factual findings characterise them as information displayed on a screen: on the limited facts stated in this case, the Court of Criminal Appeal held that the emails were information only, not property (at [55]).

  • The distinction between "information" and "property" remains significant in Australian law. Mere information cannot be property because it is nothing more than knowledge, a principle the court applied by reference to both common law authorities and English case law on digital data (at [49]-[50]).

  • Even if emails were property, reading their content aloud, without any interaction that might cause the emails to be lost, damaged or altered, does not constitute an "interference" with property for the purposes of the statutory self-defence provision (at [57]-[60]).

  • When questions of law are submitted to the Court of Criminal Appeal under section 5B of the Criminal Appeal Act 1912 (NSW), the court is strictly confined to the factual findings made in the court below and incorporated into the stated case. It cannot draw additional factual inferences or speculate about matters not expressly stated (at [24]).

  • The definition of "property" in section 4 of the Crimes Act 1900 (NSW) has its origins in statutes concerned with physical things capable of being controlled or possessed, though the inclusive and non-exhaustive nature of that definition leaves open the possibility that intangible things may qualify in appropriate circumstances where adequate factual findings are made (at [44]-[45]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) , ss 4, 61, 418, 419
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Criminal Appeal Act 1912 (NSW), ss 5B
- Criminal Law Amendment Act 1883 (NSW), s 3
- Larceny Act 1861 (24 & 25 Vict c 96), s 1
- Larceny Consolidation Act 1827 (7 & 8 Geo IV c 29)
- Larceny (Ireland) Act 1828 (9 Geo IV c 55)
- Punishment of Frauds Act 1857 (20 & 21 Vict c 54), s 17
- Robbery of the Person Act 1837 (7 Will IV & 1 Vict c 87), s 12
- Trustees and Directors Frauds Prevention Act 1858 (NSW), s 3

Cases
- Australian Securities and Investments Commission v Carey (No 6) (2006) 153 FCR 509; [2006] FCA 814
- Croton v The Queen (1967) 117 CLR 326; [1967] HCA 48
- Dixon v R [2016] 1 NZLR 678; [2015] NZSC 147
- Fairstar Heavy Transport N.V. v Adkins [2012] EWHC 2952
- Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525; [1943] HCA 50
- Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1; [2020] HCA 19
- Joukhador v Commissioner of Police (NSW) [2020] NSWSC 227; (2020) 281 A Crim R 456
- Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56
- Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61
- Moore v R [2016] NSWCCA 260; (2016) 262 A Crim R 590
- Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414; [1984] HCA 73
- National Provincial Bank Ltd v Ainsworth [1965] AC 1175
- Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220
- Poulton v Conrad [2025] TASFC 7
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- R v Lakeman [2026] 2 WLR 696; [2026] EWCA Crim 4
- R v Narouz [2024] NSWCCA 14; (2024) 313 A Crim R 365
- Saulnier v Royal Bank of Canada WBLI Inc 2008 3 SCR 166
- Tritton v Clarke [2018] NSWCCA 31
- Xerri (a pseudonym) v R [2025] NSWDC 542
- Yeates v The King (2025) 79 VR 340; [2025] VSCA 288
- Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281