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R v Briar (No 2)

R v Briar (No 2)

Case [2025] NSWDC 418 26 September 2025

Assault occasioning actual bodily harm

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Briar (No 2) [2025] NSWDC 418
Hearing dates: 16-17 June 2025
Date of orders: 26 September 2025
Decision date: 26 September 2025
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Special verdicts in relation to Counts 1, 3, and 4 that on the limited evidence available, the accused committed the offences charged, at [137].

Catchwords:
CRIME – Break and enter dwelling and commit serious indictable offence – Assault occasioning actual bodily harm – Choking – Assault police officer in execution of duty – Home invasion – Choking with an electrical cord
CRIME – Special hearing under s 56 of MHCIFP Act – Trial by judge alone – Special verdict of on the limited evidence available, the defendant committed the offence charged

Legislation Cited:
Crimes Act 1900 (NSW) ss 37, 52, 60, 112
Criminal Procedure Act 1986 (NSW) s 133
Evidence Act 1995 (NSW) s 20
LawEnforcement (Powers and Responsibilities) Act 2002 (NSW) ss 230, 231
Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 28, 40, 42, 53, 56, 59, 61, 62, 63
Police Act 1990 (NSW)

Cases Cited:
AD v State of New South Wales (2023) 308 A Crim R 367; [2023] NSWCA 115
Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25
BA v R (2023) 275 CLR 128; [2023] HCA 14
Director of Public Prosecutions (DPP) (NSW) v Araura [2012] NSWSC 1120
Director of Public Prosecutions v Gribble (2005) 151 A Crim R 256; [2004] NSWSC 926
DPP (NSW) v Trudgett [2013] NSWSC 1607
DPP v JWH (NSWSC, 17 Oct 1997, unrep)
Emde v State of NSW [2025] NSWCA 41
Fleming v R (2009) 197 A Crim R 282
GS v R [2022] NSWCCA 65
Jankovic v Director of Public Prosecutions [2020] NSWCA 31
Lindley v Rutter [1981] QB 128
McIntosh v Webster (1980) 43 FLR 112
R v Briar [2024] NSWDC 590
R v Donovan [1934] 2 KB 498
R v K (1993) 118 ALR 596
R v Lumsden [1951] 2 KB 513
R v MC (No 2) [2021] NSWSC 1542
R v Burstow; R v Ireland [1998] 1 AC 147
Reeves v State of New South Wales [2024] NSWCA 125
Rice v Connolly (1966) 2 QB 414
Stanford v R (2007) 70 NSWLR 474; [2007] NSWCCA 370
State of New South Wales v Dennis [2025] NSWCA 118
State of New South Wales v Randall [2017] NSWCA 88
Thomson v C (1989) 67 NTR 11
Woodley v Boyd [2001] NSWCA 35

Category: Principal judgment
Parties: Rex (Crown)
Kevin Douglas Briar (Accused)
Representation:
Counsel:
S Drumgold SC (Crown)
L Melhuish (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service NSW/ACT (Accused)

File Number(s): 2023/00063803
Publication restriction: N/A

JUDGMENT

The accused Kevin Douglas Briar is charged with four offences. Count 1 is an allegation of breaking and entering a dwelling house and committing a serious indictable offence therein, namely assault occasioning actual bodily harm.…

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 R v Briar (No 2)

Details

AGLC: R v Briar (No 2) [2025] NSWDC 418
Case: [2025] NSWDC 418
Decision Date: 26 September 2025

CaseChat Overview and Summary

The case of R v Briar (No 2) involved the defendant, Briar, who was accused of multiple criminal offences including breaking and entering a dwelling, committing a serious indictable offence, assault occasioning actual bodily harm, choking, and assaulting a police officer in the execution of their duty. The case was heard in a court that conducted a special hearing under section 56 of the Mental Health and Intellectual Disability Forensic Provisions Act. The proceedings culminated in the judge delivering special verdicts in relation to counts 1, 3, and 4, finding that, based on the limited evidence available, the accused committed the offences charged.

The court was tasked with determining whether the accused had committed the serious offences charged. Given the nature of the evidence, the court had to consider whether the evidence was sufficient to establish the defendant's guilt beyond reasonable doubt, while also considering the special circumstances of the case under the relevant legislation. The court had to assess the credibility and weight of the evidence, particularly in light of the special hearing provisions and the limited nature of the evidence available.

The court's reasoning was focused on the application of the special hearing provisions and the evaluation of the limited evidence presented. The court found that despite the constraints of the evidence, the accused's actions were consistent with the commission of the offences as charged. The court's analysis included a careful consideration of the circumstances under which the offences were committed, including the home invasion and the choking incident with an electrical cord. The judge concluded that the evidence, while limited, was sufficient to support special verdicts of guilty for the offences in question.

Ultimately, the court delivered special verdicts of guilty on counts 1, 3, and 4, acknowledging the limited nature of the evidence but finding that it was sufficient to establish the defendant's guilt beyond reasonable doubt. The judge's decision was made in accordance with the statutory requirements and the specific circumstances of the case, ensuring that the accused's rights were protected while also delivering justice in relation to the serious offences committed.

Orders

Orders of the court

Special verdicts in relation to Counts 1, 3, and 4 that on the limited evidence available, the accused committed the offences charged, at [137].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Briar (No 2) [2025] NSWDC 418

Cases Citing This Decision

No citing cases yet.

Cases Cited

State of New South Wales v Dennis [2025] NSWCA 118
Citation 1 (Para 111)

…submission, notwithstanding what was effectively submitted to be a reading down of the judgment in Jankovic in the State of New South Wales v Dennis [2025] NSWCA 118, there still remained a calm circumstance with sufficient time that there was a requirement that the Constable give consideration to alternatives oth…
Emde v State of New South Wales [2025] NSWCA 41
Citation 2 (Para 118)

…The third post Jankovic case was Emde v State of NSW [2025] NSWCA 41. McHugh JA confirmed that to the extent that there was any conflict between the two approaches of Basten JA on the one hand, and Barrett AJA on the other, the approach by the primary judge in the appeal with which they were concerned was required…
R v Briar [2024] NSWDC 590
Citation 3 (Para 2)

…fitness hearing, his Honour held that the accused was unfit to be tried on the indictment and would not become fit within 12 months: R v Briar [2024] NSWDC 590.…
Reeves v State of New South Wales [2024] NSWCA 125
Citation 4 (Para 117)

…The second post- Jankovic case was Reeves v State of New South Wales [2024] NSWCA 125. Bell CJ dealt with the difference in approach in the decision of Barrett AJA in Jankovic and Basten JA in an earlier case of Randall ( State of New South Wales v Randall [2017] NSWCA 88) and in AD . The Chief Justice said at [116…
AD v State of New South Wales [2023] NSWCA 115
Citation 5 (Para 115)

…In AD v State of New South Wales (2023) 308 A Crim R 367; [2023] NSWCA 115 Basten JA said at [19]:…
BA v The King [2023] HCA 14
Citation 6 (Para 48)

…The offence also requires a trespass, being entry to the premises of another without lawful authority: BA v R (2023) 275 CLR 128; [2023] HCA 14. There does not appear to be any dispute that Mr Mills had lawful possession of his own dwelling and did not authorise the accused’s entry.…
GS v The the Queen; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
Citation 7 (Para 52)

…ed “ intentionally appl[lied] pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head ”: GS v R [2022] NSWCCA 65. The element of “ without consent ” has its ordinary meaning.…
R v MC (No 2) [2021] NSWSC 1542
Citation 8 (Para 6)

…The purpose of a special hearing was described by Dhanji J in R v MC (No 2) [2021] NSWSC 1542 at [14]:…
Jankovic v Director of Public Prosecutions [2020] NSWCA 31
Citation 9 (Para 110)

…ssion of the Defence, as I have referred to earlier, reliance was placed on the judgment of Barrett AJA in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 (Macfarlan JA agreeing).…
Stanford v R [2018] NSWCCA 249
Citation 10 (Para 46)

…king to further open a partially opened door or window, but it will be breaking to open a shut, but not locked, external door. See Stanford v R (2007) 70 NSWLR 474; [2007] NSWCCA 370 at [25]-[30] and DPP (NSW) v Trudgett [2013] NSWSC 1607 at [15]. As will become clear, this is the central element in dispute in respect…
State of New South Wales v Randall [2017] NSWCA 88
Citation 11 (Para 117)

…he difference in approach in the decision of Barrett AJA in Jankovic and Basten JA in an earlier case of Randall ( State of New South Wales v Randall [2017] NSWCA 88) and in AD . The Chief Justice said at [116]:…
Director of Public Prosecutions (NSW) v Trudgett [2013] NSWSC 1607
Citation 12 (Para 46)

…ng to open a shut, but not locked, external door. See Stanford v R (2007) 70 NSWLR 474; [2007] NSWCCA 370 at [25]-[30] and DPP (NSW) v Trudgett [2013] NSWSC 1607 at [15]. As will become clear, this is the central element in dispute in respect of Count 1.…
Director of Public Prosecutions (NSW) v Araura [2012] NSWSC 1120
Citation 13 (Para 127)

…A similar outcome ensued in Director of Public Prosecutions (DPP) (NSW) v Araura [2012] NSWSC 1120. Davies J reached a similar conclusion and held that police officers who had encountered the defendant sitting in a stairwell following a domestic dispute, who was screaming and bleeding profusely from her forearm, wer…
Stanford, Andrew James v The Queen [2007] NSWCCA 370
Citation 14 (Para 46)

…a partially opened door or window, but it will be breaking to open a shut, but not locked, external door. See Stanford v R (2007) 70 NSWLR 474; [2007] NSWCCA 370 at [25]-[30] and DPP (NSW) v Trudgett [2013] NSWSC 1607 at [15]. As will become clear, this is the central element in dispute in respect of Count 1.…
DPP v Gribble [2004] NSWSC 926
Citation 15 (Para 125)

…er, either in the course of their duty or in the execution of their duty, included Director of Public Prosecutions v Gribble (2005) 151 A Crim R 256; [2004] NSWSC 926. In Gribble police had directed the defendant to move off the road in circumstances where he was standing in the middle of the road wearing dark clot…
Azzopardi v the Queen [2001] HCA 25
Citation 16 (Para 35)

…ment to myself along the lines permitted in very limited cases by s 20 and also noted by the High Court in Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25. His silence does not constitute an admission and no such inference may be drawn from that fact. Nor must his silence be used by me to fill gaps in the…
Woodley v Boyd [2001] NSWCA 35
Citation 17 (Para 121)

…In Woodley v Boyd [2001] NSWCA 35 a detailed analysis of the degree of force administered by police in the course of an arrest had been undertaken at first instance by Judge Dent and on appeal in the extensive judgment of Heydon JA (with whom Davies AJA and Foster AJA agreed). Heydon JA cited (at [37]) with approv…
Webster v McIntosh [1980] FCA 156
Citation 18 (Para 123)

…Heydon J also cited with approval the remarks of Connor J in McIntosh v Webster (1980) 43 FLR 112 at 123:…
[1981] QB 128 [1981] QB 128
Citation 19 (Para 121)

…t of Heydon JA (with whom Davies AJA and Foster AJA agreed). Heydon JA cited (at [37]) with approval the judgment of Donaldson LJ in Lindley v Rutter [1981] QB 128 at 134:…
[1934] 2 KB 498 [1934] 2 KB 498
Citation 20 (Para 50)

…dily harm. “ Actual bodily harm ” is hurt or injury that is not necessarily permanent but is more than merely transient and trifling: R v Donovan [1934] 2 KB 498. There did not appear to be any dispute as to whether or not the assault, if it occurred, caused the eye bruise and bloody nose. I will come back to the…
[1998] 1 AC 147 [1998] 1 AC 147
Citation 21 (Para 49)

…The element of assault requires an act that causes a person to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147. It includes battery, which is the actual infliction of unlawful force on another: DPP v JWH (NSWSC, 17 Oct 1997, unrep). There does not appear to be any dispute that i…
Rice v Connolly (1966) 2 QB 414
Citation 22 (Para 126)

…JJ upheld the challenge by the Crown. Their Honours referred to a number of cases including the observations by Lord Parker CJ in Rice v Connolly (1966) 2 QB 414 where his Lordship said, at 419:…
[1951] 2 KB 513 [1951] 2 KB 513
Citation 23 (Para 47)

…“ Enters ” can be understood by its ordinary meaning as requiring a person to have been in the building or land: R v Lumsden [1951] 2 KB 513. There does not appear to be any dispute that the accused entered the property at Barkindji Drive.…

Legislation Cited

Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) 28, 40, 42, 53, 56, 59, 61, 62, 63
10 mentions (from Para 2)
Crimes Act 1900 (ACT) 112, 37, 52, 60
5 mentions (from Para 46)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) 230, 231
3 mentions (from Para 109)
Criminal Procedure Act 1986 (NSW) 133
2 mentions (from Para 7)
Evidence Act 1995 (Cth) 20
1 mention
Police Act 1990 (NSW)
1 mention (from Para 126)

Medium Neutral Citation:	R v Briar (No 2) [2025] NSWDC 418
Hearing dates:	16-17 June 2025
Date of orders:	26 September 2025
Decision date:	26 September 2025
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Special verdicts in relation to Counts 1, 3, and 4 that on the limited evidence available, the accused committed the offences charged, at [137].
Catchwords:	CRIME – Break and enter dwelling and commit serious indictable offence – Assault occasioning actual bodily harm – Choking – Assault police officer in execution of duty – Home invasion – Choking with an electrical cord CRIME – Special hearing under s 56 of MHCIFP Act – Trial by judge alone – Special verdict of on the limited evidence available, the defendant committed the offence charged
Legislation Cited:	Crimes Act 1900 (NSW) ss 37, 52, 60, 112 Criminal Procedure Act 1986 (NSW) s 133 Evidence Act 1995 (NSW) s 20 LawEnforcement (Powers and Responsibilities) Act 2002 (NSW) ss 230, 231 Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 28, 40, 42, 53, 56, 59, 61, 62, 63 Police Act 1990 (NSW)
Cases Cited:	AD v State of New South Wales (2023) 308 A Crim R 367; [2023] NSWCA 115 Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25 BA v R (2023) 275 CLR 128; [2023] HCA 14 Director of Public Prosecutions (DPP) (NSW) v Araura [2012] NSWSC 1120 Director of Public Prosecutions v Gribble (2005) 151 A Crim R 256; [2004] NSWSC 926 DPP (NSW) v Trudgett [2013] NSWSC 1607 DPP v JWH (NSWSC, 17 Oct 1997, unrep) Emde v State of NSW [2025] NSWCA 41 Fleming v R (2009) 197 A Crim R 282 GS v R [2022] NSWCCA 65 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 Lindley v Rutter [1981] QB 128 McIntosh v Webster (1980) 43 FLR 112 R v Briar [2024] NSWDC 590 R v Donovan [1934] 2 KB 498 R v K (1993) 118 ALR 596 R v Lumsden [1951] 2 KB 513 R v MC (No 2) [2021] NSWSC 1542 R v Burstow; R v Ireland [1998] 1 AC 147 Reeves v State of New South Wales [2024] NSWCA 125 Rice v Connolly (1966) 2 QB 414 Stanford v R (2007) 70 NSWLR 474; [2007] NSWCCA 370 State of New South Wales v Dennis [2025] NSWCA 118 State of New South Wales v Randall [2017] NSWCA 88 Thomson v C (1989) 67 NTR 11 Woodley v Boyd [2001] NSWCA 35
Category:	Principal judgment
Parties:	Rex (Crown) Kevin Douglas Briar (Accused)
Representation:	Counsel: S Drumgold SC (Crown) L Melhuish (Accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service NSW/ACT (Accused)
File Number(s):	2023/00063803
Publication restriction:	N/A