Can Reading Emails Aloud Justify Self-Defence in NSW?
Separated, but still living under the same roof? Tensions can run high, especially when private messages are involved. A recent NSW Court of Criminal Appeal decision looked at whether a husband's use of force to stop his estranged wife reading his emails aloud could be justified as self-defence of his "property".
On 6 November 2026 the Court of Criminal Appeal rejected that property-based reasoning on the limited facts it was given. On those facts, the emails were information, not property. Even if they had been property, merely reading the text aloud was not interference for this defence. The court quashed the husband's acquittal and sent his conviction appeal back to the District Court.
What happened while the couple were separated under one roof?
The couple had separated but were living in the same home. The husband's emails appeared on a communication device. The evidence did not establish how they came to appear there. His wife began reading them aloud.
The husband said he felt embarrassed and intimidated by the situation. He was also concerned that his wife might see communications from his family lawyers, giving her an unfair advantage in their family law dispute. These were concerns he described, not findings that the wife's conduct justified the use of force.
He did not ask her to stop reading. He tried to take the device and, when she resisted, took hold of her arm without her consent to obtain it.
The Local Court convicted him of common assault and of contravening an apprehended domestic violence order (ADVO). He appealed to the District Court, arguing self-defence: that his conduct was necessary to protect property from unlawful interference, under s 418(2)(c) of the Crimes Act 1900 (NSW). The District Court accepted that the emails were "property" and allowed his appeal.
The Director of Public Prosecutions then asked the District Court judge to refer questions of law to the Court of Criminal Appeal. This is called a "stated case".
Why the NSW Self-Defence Argument Failed on These Facts
The judgment was written by Muston J. N Adams CJ at CL and Cavanagh J agreed.
The court could only work with the facts it was given. On a stated case, the court is confined to the facts found by the lower court. No expert evidence had been called about how emails are created, sent or stored, and the District Court judge had turned to the Encyclopaedia Britannica for guidance. The court noted that the findings on these technical questions were scant.
On those facts, the emails were information, not property. Courts have long drawn a distinction between information and property. On the limited facts before the Court, the emails being read aloud could not be characterised as anything other than information. The Court left open whether an email or its electronic form could constitute property in different circumstances. Cavanagh J described this distinction as "particularly apt".
Merely reading the text aloud was not interference for this defence. Even if the emails had qualified as property, the Court held that merely reading their contents aloud, without any finding that the emails were altered, damaged or lost, did not constitute interference with property for the purposes of this particular self-defence argument. The court compared it to reading aloud a letter left face up on a table. As Cavanagh J put it: "She was simply reading it."
What the Court decided and left open
The court accepted that, at least theoretically, there may be cases where an email, or the physical changes made to equipment when an email is created and stored, could be property. This decision turned on the particular, very limited facts of this case. The court left open whether an email could be property on different facts.
Because the first two questions were answered "no", the court did not answer the remaining questions about whether the alleged interference was unlawful and whether self-defence had been raised in accordance with the relevant statutory provisions.
Why the conviction appeal returns to the District Court
The court extended the time for the prosecution to bring the stated case.
The District Court's acquittal of the husband was quashed.
The matter was sent back to the District Court, so that his appeal against the Local Court convictions can be decided according to law.
Practical steps if private communications cause conflict
Avoid physical confrontation. If you are separated but still living together, avoid physical confrontation and check the terms of any ADVO that applies. Concerns about private communications did not establish the property-based justification relied on in this case.
Worried about your family law emails being seen? Raise it with your lawyer early and ask about safe communication arrangements.
For information about assault charges and alleged ADVO breaches, see our assault and criminal defence services. If you are responding to an AVO application, see our separate guide to contesting an apprehended violence order. Our family law team also advises people separating while living under one roof.
How Surge Legal can help
Our criminal law team in Parramatta advises on assault charges, ADVOs and self-defence. To arrange a free initial consultation, call (02) 8551 7851, email info@surgelegal.com.au or book online.
Case: R v Xerri (a pseudonym) [2026] NSWCCA 183 (NSW Court of Criminal Appeal, 6 November 2026) This article is a general summary of the decision cited above for information purposes only. It does not constitute legal advice. Every case turns on its own facts. Please contact Surge Legal to discuss your individual circumstances.
