NADINE MUSABWASONI v R [2015] NSWDC 243

District Court New South Wales

Medium Neutral Citation: NADINE MUSABWASONI v R [2015] NSWDC 243 Hearing dates: 25 February 2015 Date of orders: 27 February 2015 Decision date: 27 February 2015 Jurisdiction: Criminal Before: Judge AC Scotting Decision: See paragraphs [62] and [63] Catchwords: CRIMINAL LAW - appeal - domestic violence - assault - stalk and intimidate - apprehended domestic violence order OTHER - relationship of appellant to complainant - knife - threats - history of relationship Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing and Procedure) Act 1999 Crimes (Appeal and Review) Act 2001 Cases Cited: Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Mahmood v Western Australia (2008) 232 CLR 397 Louzios v R (2009) 194 A Crim R 223 Kilby v R (1973) 186 CLR 427 Lemura v R [1998] NSWCCA 699 Liberato v R (1985) 159 CLR 507 Category: Principal judgment Parties: Nadine Musabwuasoni (Appellant) Regina (Respondent) Representation: Counsel: Mr P Segal (Respondent)

Solicitors: S Kavanagh – Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/135674

Judgment 1. Nadine Musabwasoni (the appellant) appeals against the convictions entered and the Apprehended Domestic Violence Order made by Ms Kennedy LCM on 24 September 2014 at the Burwood Local Court. 2. On that day the appellant pleaded not guilty to two counts of Assault Occasioning Actual Bodily Harm pursuant to section 59(1) Crimes Act 1900 (sequences 1 and 2) and one count of Stalk/Intimidate with the intent to cause fear pursuant to section 13(1) Crimes (Domestic and Personal Violence) Act 2007. On each charge the appellant was convicted and ordered to enter into a bond for a period of 12 months pursuant to section 9 Crimes (Sentencing and Procedure) Act 1999. 3. Further, the appellant required the prosecution to show cause why an Apprehended Domestic Violence Order should be made in favour of the complainant. At the completion of the hearing, the magistrate made the Apprehended Domestic Violence Order for a period of 12 months on the standard conditions 1(a)-(c). 4. The complainant, Robert Sebie, was the appellant's husband. The history of their relationship was tumultuous. They had separated on or about 14 February 2014, but remained living in the matrimonial home. On 30 April 2014, the appellant had commenced proceedings in the Family Court of Australia seeking parenting and financial orders. 5. On the appeal, Mr Segal of Counsel appeared for the appellant and Ms Holloway, solicitor, appeared for the Director of Public Prosecutions; the respondent in the proceedings. 6. The prosecution case on sequences 1 and 2 was that on 21 April 2014, at about 9.00pm, the appellant struck the complainant, her husband in the left eye with a coffee mug in a punching type motion, and then shortly thereafter struck him on the lateral aspect of the left upper arm with a skateboard. As to sequence 3 it was the prosecution case that on 5 May 2014 at about 7:30am in the kitchen that the appellant held a knife pointing upwards and said to the complainant, words to the effect, "one day Robert I can kill you". At about 7.00pm on 5 May 2014 the complainant attended Burwood Police Station and gave a statement in relation to the matters that became the subject of the charges. At about 9:50pm on 5 May 2014 police spoke to the appellant and placed her under arrest. She was conveyed to Burwood Police Station and exercised her right to silence. 7. In evidence the appellant denied assaulting the complainant on 21 April 2014. She gave evidence that the complainant had told her that he had suffered injury when he was cutting tree branches that were overhanging the pool at the rear of the house. The appellant further denied saying the words alleged to have been said by her in relation to sequence 3 on 5 May 2014.