Byers v The King

Case [2025] NSWDC 119


District Court


New South Wales

Medium Neutral Citation: Byers v R [2025] NSWDC 119
Hearing dates: 2 April 2025
Date of orders: 8 April 2025
Decision date: 08 April 2025
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph [197].

Catchwords:

CRIMINAL LAW – appeals and reviews – convictions of domestic violence offences in the Local Court – whether Mahmood directions should have been made – whether Liberato directions misapplied – significance of absence of Markuleski direction

CRIMINAL LAW – denial of procedural fairness – whether, for assault charge, prosecutor departed from its case – whether, for intimidation charge, it was unfair for Magistrate to convict appellant on the basis that on his version of conduct, he engaged in “intimidating” conduct

STATUTORY INTEPRETATION – intimidation offence – construction of physical element of offence, being ‘intimidating’ conduct – Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 7(1)(c)(iv)

whether mental element satisfied to requisite standard – proof of ‘knowledge’ – Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Legislation Cited:

Crimes Act 1900 (NSW), ss 61, 428B

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 5, 7, 9, 11, 13, 19, 20

Evidence Act 1995 (NSW), s 165B

Cases Cited:

Gregg v R (2020) 355 FLR 348

Liberato v The Queen (1985) 159 CLR 507

Mahmood v Western Australia (2008) 232 CLR 397

McIlwraith v R [2017] NSWCCA 13

R v Grant (2002) 55 NSWLR 80

R v Markuleski (2001) 52 NSWLR 82

R v McDonald [2019] NSWSC 839

R v Scott [2023] NSWDC 271

Singh v R [2025] NSWCCA 34

The Queen v Baden-Clay (2016) 258 CLR 308

Walsh v Tattersall (1996) 188 CLR 77

Wild v Meduri [2024] NSWCA 230

Texts Cited:

Nil.

Category:Principal judgment
Parties: Mr Warren Nathan Patrick Byers (Appellant)
Rex (Office of the Director of Public Prosecutions)
Representation:

Counsel:
Mr H White (Appellant)

Solicitors:
Johnson & Sendall Pty Ltd
Office of the Direction of Public Prosecutions
File Number(s): 2023/00060724; 2023/00096493
Publication restriction: Certain names in this judgment have been replaced with initials in recognition of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
 Decision under appeal 
Court or tribunal:
Local Court of NSW
Jurisdiction:
Criminal
Citation:

Not applicable

Date of Decision:
16 December 2024
Before:
Mijovich LCM
File Number(s):
2023/00060724; 2023/00096493

Reasons for judgment

(This is an edited version of reasons given orally on 8 April 2025)

Background

  1. After a hearing that spanned nine (non-consecutive) days in the Goulburn Local Court throughout 2023 and 2024, on 16 December 2024, Mr Warren Byers, the appellant, was convicted of two domestic violence-type offences. Both offences were committed against the same complainant; being his former partner, Ms Leanne Elliot. Seven other charges were dismissed. The appellant was later sentenced and final Apprehended Violence Orders (AVOs) were made.

  2. The appellant brings an all-grounds appeal and appeals the final AVOs.

The appeals against convictions

  1. The two offences for which the appellant was convicted were:

  1. common assault, contrary to s 61 of the Crimes Act 1900

Continue reading Byers v The King

Sign in free to access the full text

Details
AGLC
Byers v The King [2025] NSWDC 119
Case
[2025] NSWDC 119
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Mr Byers, appealed against his conviction and sentence for domestic violence offences. The trial was held in the Local Court, and the appeal was heard by the District Court. Mr Byers was convicted of assault and intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The appeal raised several legal issues, including whether the court should have given Mahmood directions, whether Liberato directions were misapplied, and the significance of the absence of a Markuleski direction. Additionally, the appeal argued that the prosecutor departed from their case and that it was unfair for the Magistrate to convict the appellant of intimidation based on his version of events.

The court considered whether the Mahmood directions, which require the prosecution to provide the defence with details of its case, should have been given. The court also examined whether the Liberato directions, which require the court to consider the accused's version of events, were misapplied. Furthermore, the court looked at the importance of the absence of a Markuleski direction, which involves the court considering whether the prosecution's case has been proved beyond reasonable doubt. The court found that the Mahmood directions were not necessary, and the Liberato directions were not misapplied. However, the absence of a Markuleski direction was significant.

The court found that the prosecutor did not depart from their case, and it was not unfair for the Magistrate to convict the appellant of intimidation based on his version of events. The court also considered the construction of the intimidation offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 7(1)(c)(iv) and whether the mental element was satisfied to the requisite standard. The court held that the appellant's conduct was intimidatory, and the requisite standard of proof was met. The appeal was ultimately dismissed.

The court made several orders, including affirming the conviction and sentence of the appellant, and dismissing the appeal. The court also noted that the appeal did not raise any significant issues of law or procedure that warranted the intervention of the Court of Criminal Appeal. The orders were made under the relevant statutory provisions, and the appeal was dismissed with no orders for costs.

Orders

Orders of the court

See paragraph [197].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.