R v Davis - [2025] NSWDC 393

District Court

New South Wales

Medium Neutral Citation: R v Davis [2025] NSWDC 393
Hearing dates: 1 September 2025 & 4 September 2025
Date of orders: 30 September 2025
Decision date: 30 September 2025
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
Ground 1: appeal granted, Sequence 21 conviction quashed.
Ground 2: appeal dismissed.
Ground 3: appeal dismissed.

Catchwords:
CRIME – Appeals – Conviction Appeal from Local Court – whether Magistrate erred in finding that consent is not an available defence to assault occasioning actual bodily harm – whether Magistrate erred in admitting tendency evidence – whether tendency notified was too general to have significant probative value – whether Magistrate was entitled to rely on parts of central witness’ evidence despite rejecting other parts of the central witness’ evidence on the basis of credit.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Attorney-General’s Reference(No 6 of 1980) [1981] QB 715
Department of Health and Community Services v JWB and SMD (1992) 175 CLR 218
Haoui v R [2008] NSWCA 209
M(B) [2018] EWCA 260
Pallante v Stadiums Proprietary Limited (No 1) [1976] VR 331
R v Brown [1993] 2 WLR 556
R v Coney (1882) 8 QBD 534
R v Donovan [1934] 2 KB 498 at 507
R v Emmett [1999] EWCA Crim 1710
R v McIntosh [1999] VSC 358
R v Stein [2007] VSCA 300
R v Wilson [1997] QB 47 9
Russell v R [2023] NSWCCA 272

Category: Principal judgment
Parties: Rex (Crown)
Ridley Legal (on behalf of Appellant)
Representation:
Counsel:
Mr J. Lang (on behalf of Appellant)
Solicitors:
Ms. I. Viney (ODPP)
Ms G. Ridley (Ridley Legal)

File Number(s): 2021/00069733
Publication restriction: Non-Publication Order regarding identity of the complainants.

JUDGMENT

The Appellant appeals in relation to each of the charges in the below table for which he was convicted after a trial before her Honour Magistrate Farnan on 24 September 2024.
In the Local Court, Sequence 68 was referred to as Sequence 69 and Sequence 70 was referred to as Sequence 71. I have put “(68)” and “(70)” after references to Sequence 69 and 71 respectively. Those numbers within parentheses are the correct sequence numbers.

Offence

Section

Victim

Summary of offending

Sequence 13

Common Assault

Section 61

Crimes Act 1900 (NSW)

Three months into the Appellant’s relationship with ZL, he was walking with her along Coogee Bay Road, and they were arguing. He turned around and punched ZL in the face, once. ZL fell to the ground. The Appellant said to her, “If I can do this in public where people can see, imagine what can I do at home? Get the fuck up and walk”. This occurred in the presence of members of the public.

Sequence 21

Assault Occasioning ABH

Section 59(1)

Crimes Act 1900 (NSW)

The Appellant hit ZL with a cane 29 times across her buttocks and upper thighs. The caning left welts. ZL…

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 Davis

Details

AGLC: R v Davis [2025] NSWDC 393
Case: [2025] NSWDC 393
Decision Date: 30 September 2025

CaseChat Overview and Summary

The appellant, Davis, appealed against his conviction and sentence for assault occasioning actual bodily harm, arguing that the Magistrate had erred in various respects. The appeal was heard by the District Court of New South Wales. The central issue was whether the Magistrate had erred in determining that consent is not a defence to assault occasioning actual bodily harm. Additionally, the appellant argued that the Magistrate had erred in admitting tendency evidence and that the tendency notified was too general to have significant probative value. Finally, the appellant submitted that the Magistrate was not entitled to rely on parts of the central witness' evidence despite rejecting other parts of that witness' evidence on the basis of credit.

The court held that the Magistrate had indeed erred in concluding that consent was not a defence to assault occasioning actual bodily harm. Consent can be a defence in certain circumstances, and the court found that the Magistrate's conclusion was incorrect. However, the court found that this error was not substantial enough to affect the result of the trial, and therefore, the appeal was dismissed in relation to this ground. The court also found that the Magistrate had not erred in admitting the tendency evidence, as the evidence was relevant and had significant probative value. Furthermore, the court held that the Magistrate was entitled to rely on parts of the central witness' evidence despite rejecting other parts, as the rejected parts did not form the basis of the conviction. The court found that the appeal was dismissed in relation to these grounds.

The appeal was granted in relation to Ground 1, and the conviction was quashed. However, the appeal was dismissed in relation to Grounds 2 and 3. The court did not make any orders in relation to the sentence, as the appeal was only in relation to the conviction.

Orders

Orders of the court

Ground 1: appeal granted, Sequence 21 conviction quashed.

Ground 2: appeal dismissed.

Ground 3: appeal dismissed.

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.

Medium Neutral Citation:	R v Davis [2025] NSWDC 393
Hearing dates:	1 September 2025 & 4 September 2025
Date of orders:	30 September 2025
Decision date:	30 September 2025
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	Ground 1: appeal granted, Sequence 21 conviction quashed. Ground 2: appeal dismissed. Ground 3: appeal dismissed.
Catchwords:	CRIME – Appeals – Conviction Appeal from Local Court – whether Magistrate erred in finding that consent is not an available defence to assault occasioning actual bodily harm – whether Magistrate erred in admitting tendency evidence – whether tendency notified was too general to have significant probative value – whether Magistrate was entitled to rely on parts of central witness’ evidence despite rejecting other parts of the central witness’ evidence on the basis of credit.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Attorney-General’s Reference(No 6 of 1980) [1981] QB 715 Department of Health and Community Services v JWB and SMD (1992) 175 CLR 218 Haoui v R [2008] NSWCA 209 M(B) [2018] EWCA 260 Pallante v Stadiums Proprietary Limited (No 1) [1976] VR 331 R v Brown [1993] 2 WLR 556 R v Coney (1882) 8 QBD 534 R v Donovan [1934] 2 KB 498 at 507 R v Emmett [1999] EWCA Crim 1710 R v McIntosh [1999] VSC 358 R v Stein [2007] VSCA 300 R v Wilson [1997] QB 47 9 Russell v R [2023] NSWCCA 272
Category:	Principal judgment
Parties:	Rex (Crown) Ridley Legal (on behalf of Appellant)
Representation:	Counsel: Mr J. Lang (on behalf of Appellant) Solicitors: Ms. I. Viney (ODPP) Ms G. Ridley (Ridley Legal)
File Number(s):	2021/00069733
Publication restriction:	Non-Publication Order regarding identity of the complainants.