District Court New South Wales Medium Neutral Citation: Mason v R [2023] NSWDC 489 Hearing dates: 30 October 2023 Decision date: 30 October 2023 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: 1. Appeal allowed. 2. Orders of the Magistrate made on 5 August 2022 be set aside. 3. Extend the Apprehended Violence Order by 12 months from today's date, on the terms currently in place, being orders 1 and 6 (a) to (e) inclusive, but with the additional direction if necessary, that if the Family Court thinks it appropriate it can vary the condition insofar as it relates to the children. Catchwords: CRIMINAL – appeal from Local Court - Intimidation – Proof of relevant intent Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 s 13(1) Category: Principal judgment Parties: Trent Mason (appellant) Rex (respondent) Representation: Counsel: N Konic (solicitor for the appellant) K Gourlie (solicitor for the respondent) Solicitors: Conditsis & Associates (appellant) Watson & Watson (respondent) File Number(s): 2021/334859 Publication restriction: None Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 5 August 2022 Before: Magistrate Denes JUDGMENT: ex tempore 1. HIS HONOUR: This is an appeal from a magistrate, in relation to the appellant's conviction in the Local Court on 5 August 2022, on one count contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 2. The facts of the alleged offence are somewhat convoluted, but boil down to this. It seems that the appellant and the complainant whilst in the throes of a breakdown of their relationship were having, to put it mildly, domestic relationship issues. The appellant installed a series of cameras throughout the house that they shared, for the purpose of, for want of a better word, spying on the complainant. It seems that his intention was to catch the complainant doing a thing or things that he considered dishonourable or embarrassing for use against him at a later stage. 3. The magistrate heard oral evidence from both the complainant and the appellant and it is fair to say was not particularly impressed with either. Her Honour gave herself a Liberato direction. Her Honour concluded that she did not accept the appellant's explanation, which was something to do with an intention to keep an eye on unruly neighbours. I would come to that same conclusion. To my mind that explanation made no sense. The magistrate then appropriately put to one side the appellant's account, as the law requires her to do, then returned to the Crown case and was satisfied beyond reasonable doubt that there had been an act of intimidation, committed viz the installation of the cameras, which was done by the appellant with the intent of causing the victim either to fear physical or mental harm or with an intent that it was likely to have that effect. 4. A fundamental problem I have with that conclusion is that the Crown's case theory was no more or no less than the cameras were installed to spy on the appellant. It therefore follows, as a matter of logic, that his intention when he installed the cameras was that they be not known to the appellant. It is therefore, to my mind, very difficult to understand how one can reach a finding by way of inference that his intention was to cause the complainant to fear anything. It is true that as exhibit 7 in the proceedings before the magistrate demonstrated that there came a point in time when the complainant knew that the cameras were installed and was very unhappy about it. I don't think that really engages with the finding that I need to make, which is that the installation of the cameras was done with the relevant intention. 5. Whilst I have my doubts as to what was really going on here and whilst I have a feeling that the Crown might have brought proceedings under the wrong section, dealing with the case that was run before the magistrate, I have come to a different conclusion than the magistrate and I am not satisfied beyond reasonable doubt of the requisite mental intention. For those reasons, the orders I propose are that the appeal be allowed and the orders of the magistrate made 5 August 2022 be set aside. 6. I am, however, prepared to extend the current apprehended violence order, not because of the conviction, which no longer exists because I have set it aside, but because I am satisfied, in all the circumstances, that the complainant has a legitimate reason to fear the appellant. Unless there is reason why the current form of the apprehended violence order should not be extended, I would propose to extend it for, say, a year from now on those same terms. But I will hear from counsel, if those terms are onerous. [COUNSEL THEN ADDRESSED THE COURT] 1. In all the circumstances, I am prepared to make a further order in relation to the apprehended violence order currently in place, extending it for a period of one year from today. I wish to make it clear that in no way am I seeking to cut across the jurisdiction of the Family Court in relation to access to the children or dealings with the children in particular custody, contact or access. Therefore paragraph 6E of that order is to be read as including any variations that the Family Court of Australia thinks are appropriate. 2. We won't put that in the actual orders, but I'll just say that in the reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2023