Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 16:

1. On 28 November 2023, after a hearing spanning two non-consecutive days (13 September 2023 and 11 October 2023), the Liverpool Local Court (Acting Magistrate Seagrave) found Mr David Kaikaty (the 'appellant') guilty of two offences committed on 6 January 2023 against his wife (the 'complainant') in the home apartment. The appellant was sentenced on 14 December 2023.

2. The two offences were as follows:

1) Common assault, contrary to s 61 of the Crimes Act 1900 (NSW); and

2) Intimidation, contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Elements of the offences

3. The concept of 'assault' in the first offence entails proof of various matters. In this context, the prosecutor relied upon a battery. The elements were:

1) A striking, touching or application of force by the accused to another person (the complainant).

2) That such conduct of the accused was without the consent of the complainant.

3) That such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen.

4) That such conduct be without lawful excuse.

4. For the intimidation offence, the elements of the offence are:

1) intimidation of another person; and

2) the intention of causing the other person to fear physical or mental harm

5. 'Intimidation' is a term defined in the Act (s 7). It can include: harassment or molestation of the person; an approach made to the person that causes the person to fear for his or her safety; conduct that causes a reasonable apprehension of(i) injury to the person or to another person with whom the person has a domestic relationship, or (ii) violence to any person, or (iii) damage to property. It can also include a court may have regard to any pattern of violence in the person's behaviour.

6. However, by s 13(3), a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

7. The combined operation of s 13(1) and (3) was considered by the CCA in McIlwraith v DPP (NSW) [2017] NSWCCA 13. Basten JA, delivering the leading judgment, explained that although the offence is one of specific intent, it can be proved by a state of mind that might be characterised as something akin to reckless indifference. As his Honour explained, in practical terms, knowledge of a likely result (that a person is likely to be fearful) is a lesser determination than an intention to cause a specific result (that the person is likely to be fearful). The legislation also indicates that it is unnecessary for the prosecution to prove that the person actually feared physical or mental harm.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193d1c01e892f5fa1dd8609b)

Disclaimer: Curated by HT Syndication.