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Byers v The King

Byers v The King

Case [2025] NSWDC 119 8 April 2025

Criminal Liability

Denial of Procedural Fairness

Statutory Interpretation

Criminal Law

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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

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

The appeals against convictions

The two offences for which the appellant was convicted were:

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byers v The King

Details

AGLC: Byers v The King [2025] NSWDC 119
Case: [2025] NSWDC 119
Decision Date: 08 April 2025

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Byers v The King [2025] NSWDC 119

Most Recent Citation

RB v The King [2025] NSWDC 247

Cases citing this decision · 1 of 1 shown

RB v The King
[2025] NSWDC 247 Para 21

…I have summarised the principles relating to hearings of appeals against convictions many times, most recently in Byers v R [2025] NSWDC 119 at [4] and I apply them here.…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Singh v The King
[2025] NSWCCA 34 Para 103

…In Singh v R [2025] NSWCCA 34 the Court of Criminal Appeal (per Chen J, with whose reasons Garling J and Sweeney J agreed) recently considered the circumstances in which a Mahmood direction should be given. The Court noted (at [127]) that such direction may not be necessary where it is apparent that the prosecution…
Wild v Meduri
[2024] NSWCA 230 Para 154

…essions like that are used, the aim is to capture the substance or gist of what was said (compare in the civil context, Wild v Meduri [2024] NSWCA 230 per Bell CJ (Kirk J agreeing) at [254]).…
R v Scott
[2023] NSWDC 271 Para 15

…I have outlined my approach to conviction appeals from the Local Court numerous times. For example, in R v Scott [2023] NSWDC 271, I said at [5]–[6] (citations omitted):…
Gregg v R
[2020] NSWCCA 245 Para 103

…sed who makes such submission to demonstrate that the person who was not called by the prosecution was a material witness (see also Gregg v R (2020) 355 FLR 348 at [537]).…
R v McDonald
[2019] NSWSC 839 Para 184

…element I am looking at, as Harrison J (as his Honour then was) once said, the threshold for proof of the mental element is quite low ( R v McDonald [2019] NSWSC 839 at [36]).…
McIlwraith v R
[2017] NSWCCA 13 Para 11

…ention is proven inferentially. [5] The content and nature of the threat may bespeak the intention of the person who utters it. 4. McIlwraith v R [2017] NSWCCA 13 at [31]–[42]. 5. The Queen v Baden-Clay (2016) 258 CLR 308 at [46]–[47].…
Boensch v Commissioner of Fines Administration
[2017] NSWCA 13 Para 179

…Earlier in these reasons, I referred to the authority of McIlwraith v R [2017] NSWCA 13, the leading decision on the construction of s 13 of the legislation; and particularly the interaction between s 13(1) and 13(3).…
R v Baden-Clay
[2016] HCA 35 Para 11

…of the threat may bespeak the intention of the person who utters it. 4. McIlwraith v R [2017] NSWCCA 13 at [31]–[42]. 5. The Queen v Baden-Clay (2016) 258 CLR 308 at [46]–[47].…
Mahmood v Western Australia
[2008] HCA 1

…B 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 Quee…
R v Grant
[2002] NSWCCA 243 Para 182

…An accused’s knowledge can be inferred from their conduct or the surrounding circumstances in which the conduct is done ( R v Grant (2002) 55 NSWLR 80 at [66]; cited in McIlwraith at [35]), although such inference must be rational and not based on mere speculation or suspicion. When I refer to the surrounding circums…
R v Markuleski
[2001] NSWCCA 290

…estern 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] NSW…
Walsh v Tattersall
[1996] HCA 26 Para 98

…e assault charge were so closely connected as to amount to a singular episode or activity, and thereby justify a singular charge ( Walsh v Tattersall (1996) 188 CLR 77 per Kirby J at 107). The prosecution did not depart from its case.…
Liberato v The Queen
[1985] HCA 66

…, 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…

Legislation cited in this decision · 5

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
11, 13, 19, 20, 4, 5, 5(1)(c), 5(1)(g),... 13 mentions (from Para 2)
Crimes Act 1900 (ACT)
428B, 61 3 mentions (from Para 1)
Evidence Act 1995 (Cth)
165B 2 mentions (from Para 72)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention

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