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District Court 27 February 2026

Cullen v Dyer

[2026] NSWDC 17

Domestic & family violence

Citation: Cullen v Dyer [2026] NSWDC 17
Court: NSW District Court (Criminal jurisdiction)
Date: 27 February 2026
Judge(s): Priestley SC DCJ

Background

This case concerns a District Court appeal from a Local Court decision dismissing an application for an apprehended personal violence order (APVO) under s 19 of the Crimes (Domestic and Personal Violence) Act 2007. The appellant (the applicant for the APVO) and the respondent (against whom the order was sought) both lived on a multiple occupancy property in the hinterland near Murwillumbah. They had known each other for approximately ten years and had previously been close friends.

The appellant alleged that he was assaulted by the respondent on 2 October 2023 when he drove to the respondent's lot on the property. He sought the APVO on the basis that he had reasonable grounds to fear, and did in fact fear, violence or intimidation by the respondent. The magistrate at first instance dismissed the APVO application and made a costs order against the appellant, finding the proceedings were frivolous or vexatious. The appellant, acting for himself, appealed both decisions to the District Court under s 18 of the Crimes (Appeal and Review) Act 2001 (CARA).

The evidence before the Local Court included the appellant's own account (tested in cross-examination), statements from three witnesses called by the respondent — including a Ms Pateman and a Ms Coleman who also lived on the property — and various documentary materials including police records and correspondence. Notably, Ms Pateman had herself previously sought an APVO against the appellant arising from the same incident, though that application was later withdrawn. The relationship between the appellant and other members of the community had deteriorated by the time of the alleged events.

  • Whether the magistrate erred in dismissing the appellant's APVO application — specifically, whether the evidence established that the appellant had reasonable grounds to fear, and did fear, violence or intimidation by the respondent, and whether the respondent's conduct was sufficient to warrant the making of an order under s 19 of the Crimes (Domestic and Personal Violence) Act 2007.

  • Whether the magistrate erred in ruling that certain text messages tendered by the appellant were irrelevant and inadmissible.

  • Whether the magistrate erred in making a costs order against the appellant on the basis that the proceedings were frivolous or vexatious.

  • The standard and scope of the District Court's review on a s 18 CARA appeal — a rehearing on the evidence given at first instance, forming an independent view of the facts while giving appropriate weight to the magistrate's advantage of hearing witnesses directly.

Decision

The appeal proceeded by way of rehearing under s 18 of CARA, and the Court set out the well-established legal framework for such appeals. Drawing on Fox v Percy (2003) 214 CLR 118, Charara v R [2006] NSWCCA 244, and Lunney v DPP [2021] NSWCA 186, Priestley SC DCJ noted that the appellate judge must form their own view of the facts while recognising the magistrate's advantage in observing witnesses, and must give the judgment that ought to have been given at first instance. The extent of the review depends on the circumstances and the kind of error alleged.

On the substance of the APVO application, the respondent submitted — and the Court accepted — that the evidence supported the magistrate's decision. Three witnesses, including the respondent, gave consistent accounts that differed markedly from the appellant's version. Their accounts depicted the appellant as the aggressor and characterised any force used by the respondent as defensive and moderate. The appellant's evidence failed to clearly identify the respondent as the person who assaulted him. The evidence did not disclose a pattern of ongoing intimidating or violent behaviour; rather, the incident appeared isolated. In these circumstances, the appellant did not establish on the balance of probabilities the elements required under s 19 of the Act.

Priestley SC DCJ addressed the appellant's various grounds of appeal with some care, making allowances for the fact that he was self-represented. Many of the appellant's submissions were found to be irrelevant to the magistrate's reasoning — including references to a separate assault involving another party, complaints about police conduct, references to ss 316 of the Crimes Act 1900 and 136 of the Police Act 1990, and dissatisfaction with a prior unrelated "silverside" complaint. The appellant's challenge to the procedural conduct of the hearing (including the order of evidence and the magistrate's management of answers) was also addressed: the transcript demonstrated that the applicant's evidence was taken first, followed by cross-examination, consistent with standard practice. The appellant's criticism of the magistrate's comment about the respondent's solicitor's hourly rate — made during costs submissions after judgment — was found to be of no consequence.

On the evidentiary ruling regarding the text messages (marked Exhibit B on appeal), the Court considered the excluded material but the judgment's treatment of them, read in context, indicates the magistrate's ruling was not found to be erroneous. On costs, the magistrate's finding that the proceedings were frivolous or vexatious was supported by the appellant's failure to make out the alleged assault and by evidence that he had attempted to use the proceedings to leverage a $7,000 settlement (which the appellant characterised as an amount he would accept under victims of crime legislation, a distinction that did not assist him).

Orders Made

  • The appeal against the dismissal of the APVO application was dismissed.
  • The appeal against the costs order was dismissed.

(Note: The full text of the judgment was truncated in the material provided, and it is possible the precise terms of the orders differed. Readers should consult the full judgment for the definitive orders.)

Key Takeaways

  • The District Court confirmed that a s 18 CARA appeal by way of rehearing requires the appellant to identify specific errors in the magistrate's factual findings or legal reasoning. While allowances were made for the appellant's self-representation, his submissions failed to engage with the magistrate's reasoning in the manner required to disturb the decision below.

  • Consistency among three witnesses who contradicted the appellant's account was a decisive factor in resolving the contested facts. The District Court recognised this corroboration as central to the magistrate's credibility findings and held that the advantage of the magistrate in observing the witnesses warranted significant weight on appeal.

  • A single contested incident, particularly one where the applicant was found to have been the aggressor, was insufficient to satisfy the statutory test under s 19 of the Act. No pattern of ongoing behaviour by the respondent was established, and the Court held that the evidence did not support reasonable grounds to fear violence or intimidation.

  • In upholding the costs order, the District Court accepted that the appellant's attempt to leverage the APVO proceedings to extract a $7,000 payment from the respondent supported the magistrate's finding that the application was frivolous or vexatious.

  • Evidentiary rulings excluding certain material were reviewed on appeal, but the Court held that demonstrating the relevance of excluded evidence was not enough. The appellant was also required to show that the exclusion materially affected the outcome of the proceedings, a burden he failed to discharge.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 19
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19
- Crimes Act 1900 (NSW), s 316
- Police Act 1990 (NSW), s 136

Cases:
- Charara v R [2006] NSWCCA 244
- Dyason v Butterworth [2015] NSWCA 52
- Fox v Percy (2003) 214 CLR 118
- Lunney v DPP [2021] NSWCA 186
- McMahon v R [2024] NSWDC 693
- McNabb [2021] NSWCA 298
- Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1