Winner's Submissions for the Novice Moot Competition 2025
By Benjamin MacVean & Sharan Shidhu
Published
Topic
Competition Submissions
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Disclaimer: Views expressed herein are solely those of the author and do not necessarily reflect the views of other contributors
I WRITTEN SUBMISSIONS
Part I: Orders Sought
A. Dismiss the appeal with costs.[1]
Part II: Outline of Submissions
1. Mr Brown intimidated Ms Jones. It is irrelevant whether Mr Brown knew Ms Jones was listening.
2. Mr Brown intended to intimidate Ms Jones by using Ms Walker as a conduit for his threats.
Sub 1: Mr Brown intimidated Ms Jones. Whether Mr Brown knew she was listening is irrelevant.
3. Mr Brown intimidated Ms Jones. This is illustrated in four ways:
3.1. Firstly, intimidation can be conveyed via a third party; and
3.2. Secondly, Mr Brown has a pattern of domestic violence; and
3.3. Thirdly, Magistrate Donald found that Mr Brown intimidated Ms Jones; and
3.4. Fourthly, Mr Brown’s threats constitute intimidation per sections 7 and 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘CDPV’).[2]
4. Firstly, intimidation can be conveyed via a third party. Therefore, it is irrelevant if Ms Jones was listening.
4.1. In DPP v Best, Hulme J found that saying "Just tell him that if he doesn't back off I'm going to go and get a gun and kill him" to a third party was intimidation even though the threat was conveyed by a third party.[3]
4.2. DPP v Best centered on section 60 of the Crimes Act 1900 (NSW).[4] However, Hulme J explained that the principle of intimidation via third parties is not limited to section 60. It is a principle of “logic and common sense”,[5] and it has been applied to a variety of statutory settings prohibiting intimidation.[6]
4.3. Additionally, the accused need not request the third party to convey the information. In Von Stalheim v Lusted, the accused was convicted of intimidating Anita Smith, even though his threatening emails were sent to a third party, addressed as ‘dear Emily’,[7] and contained no inferrable or explicit instruction to convey the information.
4.4. Therefore, because Mr Brown’s threats can be conveyed via Ms Walker to Ms Jones, it is irrelevant whether Mr Brown knew that Ms Jones was listening.
5. Secondly, Mr Brown has a pattern of domestic violence. The court should take this into account when determining that Mr Brown intimidated Ms Jones.
5.1. Section 7(2) CDPV explicitly permits the court to consider patterns of violence, especially domestic violence offences, when determining if a person has been intimidated.[8]
5.2. Paragraph 2 of the Agreed facts states that, in Mr Brown’s and Jones's relationship, there were “several domestic violence incidents, including intimidatory conduct”.[9]
5.3. Paragraph 3 states that Ms Jones has received several Apprehended Domestic Violence Orders.[10]
5.4. This demonstrates that Mr Brown has a pattern of committing violence and should therefore be considered in determining that Mr Brown intimidated Ms Jones.
6. Thirdly, Magistrate Donald found that Mr Brown intimidated Ms Jones. The court should take this into account when determining that Mr Brown intimidated Ms Jones.
6.1. Magistrate Donald found that “The words used by Mr Brown met the definition of intimidation.”[11]
6.2. In Chara v R, it was held that the District Court, in hearing a conviction appeal, is impliedly required to consider the reasons of the local court magistrate,[12] and is to recognise the advantage of the local court in observing the evidence of witnesses firsthand.[13]
6.3. Therefore, this court is to recognise the inherent advantage Magistrate Donald had when observing Ms Jones, Ms Walker, and Mr Brown provide evidence, when he convicted Mr Brown.
6.4. Therefore, this favours the court determining Mr Brown intimidated Ms Jones.
7. Fourthly, Mr Brown’s threats constitute intimidation per sections 7 and 13 of the CDPV.
7.1. The CDPV defines Intimidate as any of the following: “(a) conduct amounting to harassment or molestation of the person, or (b) an approach … by any means … that causes the person to fear for … her safety, or (c) conduct [causing] reasonable apprehension of injury to a person… ”.[14]
7.2. When interpreting section 7, section 13(4) clarifies that it does not need to be proven whether Ms Jones was actually intimidated.[15]
7.3. Mr Brown’s conduct was harassing. The Meriam–Webster Dictionary defines harassment as ‘to annoy persistently’.[16] The calls are clearly annoying, because Ms Jones applied for and received several ADVO’s with non-contact conditions are Mr Brown attempted to contact her.[17] The calls were persistent, in that the agreed facts described the frequency as ‘numerous’ and ‘often’.[18]
7.4. Mr Brown made an approach to Ms Jones, through Ms Walker, that made her fear. Ms Jones fear can be inferred from Mr Brown’s patterns of domestic violence,[19] and from Magistrates Donald’s observation that Ms Walker appeared to be nervous, and her emotions were genuine. [20]
7.5. Mr Brown's conduct caused a reasonable apprehension of injury. Merriam-Webster Dictionary defines apprehension as ‘suspicion or fear especially of future evil’ and ‘the.. power of perceiving.. something’.[21] Ms Jones could perceive Mr Brown’s threats once Ms Walker relayed them to her. Further, it is self-evident that these threats reasonably cause apprehension. Mcilwrath v R stated it is ‘trite to observe’ that conduct, such as threatening violence, can be intimidating.[22]
7.6. Finally, the court is to interpret provisions in a way that promotes the purpose of the act.[23] Section 10 CDPV sets out the purpose. It is to ensure the safety and protection of persons who experience personal violence.[24] Therefore, it would be antithetical to the purpose of the act if the court interprets Mr Brown's threats of violence as anything less than intimidating.
8. Each of these four reasons demonstrate that Mr Brown intimidated Ms Jones.
Sub 2: Mr Brown intended to Intimidate Ms Jones via Ms Walker, because he knew his conduct would likely cause her fear.
9. Mr Brown intended to intimidate Ms Walker, because:
9.1. Firstly, a person can intend to intimidate their victim through a third party; and
9.2. Secondly, a person intends if they know their conduct will likely cause fear. This is a low threshold.
9.3. Thirdly, Mr Brown’s claim that he intended his threats to be ‘a joke’ is implausible; and
9.4. Fourthly, Magistrate Donald found that Mr Brown knew Ms Walker would be a conduit.
10. Firstly, a person can intend to intimidate their victim through a third party. Mr Brown’s history of communicating messages via Ms Jones shows his intent to intimidate Ms Jones through Ms Walker.
10.1. As shown at point 4, DPP v Best is authority that intimidation can occur through a third party.[25]
10.2. Mr Brown was aware that Ms Walker would likely convey his threats, given that Paragraph 4 of the Agreed Facts states that Mr Brown had on ‘numerous past occasions’ contacted Ms Walker, who ‘would often relay messages… to Ms Jones’. This ‘was known to Mr Brown.’[26]
10.3. This history of communicating messages through Ms Walker shows that Mr Brown was aware that Ms Walker would likely convey his threats to Ms Jones and intended her to do so.
11. Secondly, a person intends if they know their conduct will likely cause fear. This is a low threshold.
11.1. Section 13(3) CDPV defines intent as knowing your conduct will likely cause fear in another.[27]
11.2. The CDPV does not define the word know. So, its ordinary meaning can be used.[28] The Meriam-Webster dictionary states the word means ‘to perceive directly’ ‘have direct cognition of’ ‘to have understanding of’ and ‘to recognise the nature of.’[29]
11.3. Further, Basten J explained that knowledge of a likely result is a lesser requirement than the intent to cause a specific result.[30]
11.4. Additionally, to determine the extent of a person’s knowledge, Mcilwrath v R stated the following: it is ‘trite to observe that anyone would know’ that threatening violence is intimidating.[31] It is self evident.
11.5. Therefore, because Mr Brown has direct cognition of the words he uses, and a threat of violence is inherently likely to cause a person to fear, Mr Brown has the requisite intention to intimidate.
12. Thirdly, Mr Brown’s claim that he intended his threats to be ‘a joke’ is implausible.[32] This claim cannot negate his knowledge that a threat of violence would likely cause fear in Ms Jones.
12.1. In response to a similar denial, Estcourt J stated ‘one would have thought if that were so, he could have expressed it clearly and not expressed himself in a way that … unreasonably … put someone in fear.’[33]
12.2. One would expect Mr Brown to have caveated his threats with some indication of humour. For example, Mr Brown might have laughed, or clarified that he was joking in the moment, but he did not.
12.3. Mr Brown, in his conversation with Ms Walker, outlined a goal of recovering the money owed by Ms Jones. His threats are conveyed as a means to fulfil this goal, rather than being humorous.
13. Fourthly, Magistrate Donald made a finding of fact that Mr Brown knew Ms Walker would be a conduit. This court should account for His finding when determining Mr Brown had intention.
13.1. Paragraph 11 of the Agree Facts state that Magistrate Donald found Mr Brown knew Ms Walker would convey his threats.[34]
13.2. As noted at 6.2, Magistrate Donald possessed the advantage of observing the evidence of witnesses firsthand when making this finding, which this court is to recognize.[35]
13.3. As this is a conviction appeal, this court must rely upon the evidence presented in the Local Court. Fresh evidence requires leave.[36]
13.4. To overturn this finding of fact, the Appellant must prove that the Magistrate was ‘unreasonable or plainly unjust’, or ‘[mistook] the facts’, as per House v The King.[37]
13.5. Therefore, It is the respondent’s submission that the Magistrate’s finding of fact was reasonable and just.
14. Therefore, (a) that it is irrelevant whether Mr Brown knew Ms Walker would convey his threats for the purpose of satisfying intent and (b) that Mr Brown intended to intimidate Ms Jones.
II CASE FACTS
Ryan Brown (“Mr Brown”) and Amanda Jones (“Ms Jones”) were previously in an intimate, domestic relationship for approximately 3 years commencing in 2017. During that relationship, they lived together in a house in south Sydney.
The relationship between Mr Brown and Ms Jones was not a positive one; there were several domestic violence incidents, including intimidatory conduct, which are not related to the matter before the Court. Ms Jones ended the relationship in late 2020 and moved out of the home.
Ms Jones moved into new accommodation, but Mr Brown continued to try and contact Ms Jones. Ms Jones applied for several Apprehended Domestic Violence Orders (“ADVOs”) with non-contact conditions, which were granted. As a result, Mr Brown would occasionally contact some of Ms Jones’ friends, in order to try and get messages to Ms Jones. This contact has slowly decreased over time.
One of these friends is Karen Walker (“Ms Walker”). On numerous past occasions, Mr Brown contacted Ms Walker and discussed his relationship with Ms Jones. Ms Walker would often relay messages and the contents of the conversations to Ms Jones. This was known to Mr Brown.
On 15 February 2025, Ms Jones was talking to Ms Walker on a phone call. Whilst on that phone call, Ms Walker received a call from Mr Brown. Ms Walker told Ms Jones that she was going to merge the calls.
Ms Walker did not tell Mr Brown that Ms Jones was a part of the phone call. It is agreed that Mr Brown did not know that Ms Jones was listening to the call between Mr Brown and Ms Walker.
Mr Brown told Ms Walker that Ms Jones owed him money, and that he intended to take her to Court. The following conversation then took place:
Ms Walker said: “Ryan that’s crazy. You’re full of it”
Mr Brown said: “Nah she’s been lying to you and I’ll tell you what, if Amanda doesn’t pay up then she’d better get out of the state. Otherwise, I’m gonna get a gun and come down the highway to her place. I’ll take out anyone that’s there, and no police and no AVOs are gonna stop me”
Ms Walker said: “You’ll end up in gaol”
Mr Brown said: “I don’t care”
A few days later, Ms Jones reported the matter to police. Mr Brown was arrested and charged with one count of intimidation with intent to cause fear of physical or mental harm pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007.
Mr Brown pleaded not guilty, and the matter proceeded to hearing before Magistrate Donald at Sutherland Local Court on 23 June 2025.
At the hearing, Ms Jones, Ms Walker and Mr Brown all gave evidence. Ms Jones and Ms Walker gave generally consistent evidence about the words that Mr Brown used. Mr Brown said that the words were a joke. Mr Brown’s evidence was that he didn’t know Ms Jones was listening, that he didn’t intend to intimidate her, nor did he intend to have those words spoken to her.
Magistrate Donald found Mr Brown guilty of the offence. In his judgment, Magistrate Donald made the following findings:
That the words used by Mr Brown met the definition of intimidation.
That Ms Jones and Ms Walker appeared nervous to give evidence, but their emotions appeared real and genuine, so they were persuasive witnesses.
That Mr Brown did not know Ms Jones was on the phone call, but that he believed Ms Walker was a conduit for communication between him and Ms Jones. In any event, Magistrate Donald found that Mr Brown knew or foresaw that Ms Walker would pass on the information to Ms Jones.
Mr Brown now appeals his conviction to the District Court of Appeal NSW at Sydney.
Grounds of Appeal
The Appellant Ryan Brown contends that the Local Court Magistrate was incorrect to find him guilty of the offence of intimidate intending to cause fear of physical or other harm as:
Mr Brown did not know that Ms Jones was listening to the call, and this does not meet the definition of intimidation; and
Mr Brown did not intend for Ms Walker, a third-party, to communicate the intimidatory words, or he was not aware that she would.
III FOOTNOTES
[1] Crimes (Appeal and Review) Act 2001 (NSW) s 20(b).
[2] Crimes (Domestic and Personal Violence) Act 2007 (NSW) s (7)-(13) (‘CDPV’).
[3] Director of Public Prosecutions (NSW) v Best [2016] NSWSC 261, [41] (Hulme J) (‘DPP v Best’).
[4] Crimes Act 1900 (NSW) s 60(1).
[5] DPP v Best (no 3) [41].
[6] See generally Von Stahleim v Lusted [2014] TASSC 9 (‘Von Stalheim v Lusted’) (Escourt J) as cited in DPP v Best (no 3) [19].
[7] Von Stalheim v Lusted (no 6) [2].
[8] CDPV (no 2) s7(2).
[9] See Agreed Facts, [2].
[10] Ibid [3].
[11] Ibid [11].
[12] Charara v R (2006) 164 A Crim R 39, [23] (Mason J) (‘Charara’).
[13] Ibid [27]-[29].
[14] CDPV (no 2) s 7(1).
[15] Ibid s13(4); DPP v Nikolovski [2017] NSWSC 1038, [19] (Adamson J) (‘DPP v Nikolovski’).
[16] Merriam-Webster Dictionary (12th ed, 2025) ‘intimidate’ (‘Merriam-Webster’) as authorised by Interpretation Act 1987 (NSW) s 34.
[17] See Agreed Facts, [3].
[18] Ibid, [4].
[19] CDPV (no 2) s 7(2).
[20] See Agreed Facts, [11].
[21] Merriam-Webster (no. 16) ‘Apprehension’.
[22] Mcllwraith v R [2017] NSWCCA 13, [24] (Bastan J) (‘Mcllwraith v R’).
[23] Interpretation Act 1987 (NSW) s 33.
[24] CDPV (no 2) s 10.
[25] DPP v v Best (no 3) [41].
[26] See Agreed Facts, [4].
[27] CDPV (no 2) s 13(3).
[28] DPP v Nikolovski (no 15) [19].
[29] Merriam-Webster Dictionary (12th ed, 2025) ‘intimidate’ as authorised by the Interpretation Act (no 19) s 34.
[30] Mcilwraith v R (no 22) [30] (Basten JA).
[31] Ibid [24].
[32] See Agreed Facts, [10].
[33] Von Stahlhelm v Lusted (no 6) [18].
[34] See Agreed Facts, [11].
[35] Charara v R (no 12), [29].
[36] Crimes (Appeal and Review) Act (no 1) s18(1)-(2).
[37] House v the King [1938] HCA 40, [505] (Dixon, Evatt and McTieran JJ).