Commissioner for Consumer Protection v Weinthal
[2015] WASC 363
•1 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COMMISSIONER FOR CONSUMER PROTECTION -v- WEINTHAL [2015] WASC 363
CORAM: TOTTLE J
HEARD: 21 AUGUST 2015
DELIVERED : 1 OCTOBER 2015
FILE NO/S: SJA 1012 of 2015
BETWEEN: COMMISSIONER FOR CONSUMER PROTECTION
Appellant
AND
SEAN ROBERT WEINTHAL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE D TEMBY
File No :PE 62988 of 2013
Catchwords:
Appeal - Application for leave to appeal magistrate's verdict of acquittal - Australian Consumer Law (WA) s 168(2) - Whether undue harassment for payment of services - Turns on own facts
Legislation:
Australian Consumer Law (WA), s 168, s 168(2), s 208
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code Act (WA), s 23A, s 23B, s 24
Fair Trading Act 2010 (WA), s 32
Result:
Leave to appeal granted
Appeal allowed
Matter remitted to the Magistrates Court
Category: B
Representation:
Counsel:
Appellant: Mr P J Urquhart
Respondent: Ms B J Lonsdale
Solicitors:
Appellant: Department of Commerce
Respondent: Slater & Gordon Lawyers
Case(s) referred to in judgment(s):
Australian Competition and Consumer Commission (ACCC) v Maritime Union of Australia (2001) 187 ALR 487
Australian Competition and Consumer Commission (ACCC) v McCaskey (2000) 104 FCR 8
Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8
Gaunt v Hooft [2009] WASC 36
TOTTLE J:
Introduction
The appellant, the Commissioner of Consumer Affairs, seeks leave to appeal against the acquittal of the respondent, Sean Robert Weinthal, in the Magistrates Court of Western Australia of an offence under s 168(2) of the Australian Consumer Law (WA) (the ACL), namely, that he unduly harassed Mr Barry Jones and Mrs Jennifer Jones in connection with the payment for services provided by Manageable Tree Services. Pursuant to s 32 of the Fair Trading Act 2010 (WA) a person who commits an offence under the ACL is guilty of a crime.
The trial took place on 4 and 5 December 2014 before his Honour, Magistrate Denis Temby. The magistrate reserved his decision and delivered oral reasons on 8 January 2015. The reasons were transcribed and made available to me.
The application for leave to appeal and the appeal were heard together.
The factual background
The following account is derived from the magistrate's reasons.
Mrs Jones engaged Manageable Tree Services to undertake gardening work at her home in Dalkeith. The respondent was an employee of Manageable Tree Services. The work was undertaken but a dispute arose as to the amount to be paid for the work.
Proceedings in respect of the dispute were commenced in the Magistrates Court. A pre‑trial conference was held at the Joondalup Court on 19 February 2013. The matter was not resolved. The magistrate found that the respondent was irritated by the fact that a result had not been achieved at the conference. He also found that the respondent may well have believed that there was an open invitation to contact Mrs Jones or her husband to discuss and negotiate a settlement.
Over a three day period commencing on 19 February 2013 there were a series of telephone calls made from the respondent's phone to Mrs Jones' mobile telephone and she returned a number of those calls from that telephone.
Annexed to these reasons is a schedule of the relevant telephone calls. This has been compiled by the appellant's solicitors by summarising information derived from the telephone records and from 'screen shots' taken from Mrs Jones' telephone. In column 5 of the schedule references are made to the duration of the calls. The time given under this column is the period that commenced when the two telephones were connected by the mobile telephone network, (the moment the receiving phone starting 'ringing'), as distinct from the duration of any conversation. It was common ground that in several instances the calls went unanswered and no conversation took place. Column 6 of the schedule records whether the number of the caller was 'blocked' or not, that is, whether the number was displayed on the screen of the receiving telephone.
The magistrate referred to Mrs Jones' evidence that when she spoke to the respondent on the telephone over that three day period he was either aggressive or remained silent. She says that she told the respondent not to call her. His Honour did not make any findings about what was said on those occasions on which Mrs Jones and the respondent spoke.
The respondent exercised his right not to give evidence at the trial. He relied on what was said by him in the course of an interview with a Mr Reksmiss, a senior investigator with the Department of Commerce, Consumer Protection Division. The interview took place on 4 July 2013. In the interview the respondent denied that he had been aggressive or that Mrs Jones told him not to call her.
The magistrate found that Mrs Jones was not so intimidated by the respondent's behaviour that she lacked the confidence to return the respondent's calls.
On Friday, 22 February 2013, at approximately 7.15 am the respondent attended the Jones' home in person, having called Mrs Jones shortly before, to say that he was on his way.
Whilst in the garden of the Jones' home the respondent took photographs. A face to face conversation took place between Mr and Mrs Jones and the respondent. The magistrate found that in the course of that conversation the respondent made a series of comments which amounted to threats of retribution and used inappropriate language. His Honour found that the respondent's behaviour bordered on criminal conduct.
The prosecution case at trial
The prosecution alleged that the undue harassment was constituted by the following conduct viewed cumulatively:
1.The making of 16 calls to Mrs Jones over the period 19 to 22 February 2013 at times between 5.18 am to 8.48 pm.
2.The nature of the respondent's conduct when Mrs Jones answered the phone and tried to speak to the respondent, which ranged from aggression to silence.
3.The respondent's conduct when he attended the home of Mr and Mrs Jones on the morning of 22 February 2013.
The prosecution submitted that a contravention could be established if the magistrate found that only some of the conduct had occurred.
The defence case at trial
As noted above the respondent elected not to give evidence. He relied on what he had said to Mr Reksmiss in the interview held on 4 July 2013. The respondent called a work colleague to give evidence on his behalf, Mr Mitchell Grisbrook. Mr Grisbrook's evidence was directed in part to the background of the dispute about payment and in part to the events of the morning of 22 February 2013. The evidence did not touch on the telephone calls in a material way.
In closing the respondent's counsel put his case as follows:
1.There was only one face to face conversation, being the conversation which took place on 22 February 2013, and on its own that could not constitute undue harassment.
2.Many inferences, consistent with the respondent's innocence, could be drawn to explain the frequency of the telephone calls.
3.Mrs Jones invited the respondent to call her.
4.The number of calls over short periods of time, and the number of very short calls, could be explained by poor mobile telephone coverage. At least one of the calls was described by the respondent's counsel as a ‘pocket call', that is, a call made by the phone dialling a number 'accidentally' when in a pocket.
6.The number of calls could be explained by a desire on the part of both sides of the dispute to engage and, in this respect, the respondent's counsel pointed to the fact that Mrs Jones had tried to call the respondent on several occasions.
Magistrate's reasons
After directing himself in relation to the burden of proof, referring to the evidence briefly and setting out his factual findings, the magistrate referred to the law. On the issue of what constituted 'undue harassment' for the purposes of s 168 of the ACL his Honour directed himself by reference to the authorities referred to Australian Competition and Consumer Commission (ACCC) v McCaskey (2000) 104 FCR 8 and Australian Competition and Consumer Commission (ACCC) v Maritime Union of Australia (2001) 187 ALR 487. No challenge is made to that aspect of his Honour's reasoning.
The following paragraphs of the magistrate's reasons contain the critical elements of his reasoning process, (ts 119 ‑ 120, 8 January 2015):
So it's necessary to look at the frequency and nature of the content of such approaches. Undue harassment will usually involve repetitious conduct. The accused's case is that the cause (sic) are explicable. That difficulties in telephone transmission, a perceived invitation to communicate from Mrs Jones ‑ denied by her ‑ inadvertent calling, pocket calls, explain to a large extent, his behaviour during this three day period.
…
He may well have believed that there was an open invitation to discuss and negotiate settlement. That is really what the pre-trial conference is all about. So I'm open to the view that he may well have left that particular venue with the belief that there was an open invitation for him to seek to negotiate the disputed matter from the court with Mrs Jones or her husband or both of them. He did call Mrs Jones later that day, a number of calls after that as well. She was not so intimidated by the behaviour that she did not feel ‑ that she felt free, rather, to do - and confident to return his calls.
…
I can see that the calling by Mr Weinthal on 19 to 22 February 2013 can be explained in large part as to his belief, his telephone difficulties and his inadvertence in what I've already indicated was a possible explanation for how those phone calls were made on such a repetitive basis during those days.
His behaviour at the property on 22 February and his later call that day are, in my view, not explicable. I'm unable to say that the behaviour that I attribute to the accused meets the definition of undue harassment. If I estimate ‑ I eliminate the earlier exchanges by phone that I have already described and the inference that I have drawn, favourable to the accused because of those possible explanations.
In the light of all of that I have to find, therefore, that the prosecution have not proven its case against the accused and he is entitled to a judgment of acquittal.
The magistrate did not refer to the statutory defence set out in s 208 of the Act. Neither the prosecution nor the defence had drawn his attention to this provision.
The relevant statutory provisions
Section 168 is to be found in ch 4 of the ACL and is in the following terms:
168. Harassment and coercion
(1)A person commits an offence if:
(a)the person uses physical force, or undue harassment or coercion; and
(b)the physical force, or undue harassment or coercion is used in connection with:
(i)the supply or possible supply of goods or services; or
(ii)the payment for goods or services; or
(iii)the sale or grant, or the possible sale or grant, of an interest in land; or
(iv)the payment for an interest in land.
Penalty:
(a)if the person is a body corporate ‑ $1,100,000; or
(b)if the person is not a body corporate ‑ $220,000.
(2)Subsection (1) is an offence of strict liability.
(3)Subsections (1)(b)(iii) and (iv) do not affect the application of any other provision of this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.
Statutory defences in respect of contraventions of provisions of ch 4 of the ACL are set out in ch 4, Pt 4 ‑ 6 of the ACL. One such defence is to be found in s 208 of the ACL which is in the following terms:
208. Act or default of another person etc.
(1)In a prosecution for a contravention of a provision of this Chapter, it is a defence if the defendant proves that:
(a)the contravention was due to the act or default of another person, to an accident or to some other cause beyond the defendant's control; and
(b)the defendant took reasonable precautions and exercised due diligence to avoid the contravention.
(2)However, subsection (1) does not apply in relation to the act or default of another person who was, at the time when the contravention occurred:
(a)an employee or agent of the defendant; or
(b)if the defendant is a body corporate ‑ a director, employee or agent of the defendant.
(3)If a defence provided by subsection (1) involves an allegation that a contravention was due to the act or default of another person, the defendant is not entitled to rely on that defence unless:
(a)the court gives leave; or
(b)the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice giving such information as the defendant then had that would identify or assist in identifying the other person.
It was common ground that the statutory defences contained in the ACL exclude the operation of the s 23A, s 23B and s 24 of the Criminal Code Act (WA): Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8.
Ground of Appeal
The ground of appeal read as follows:
1.The learned Magistrate erred in fact and law by finding that the appellant had not proved beyond reasonable doubt that the respondent's conduct constituted undue harassment.
Particulars
1.1The appellant's case was that included in the respondent's undue harassment of the female complainant were his telephone calls to her from 19 February 2013 to 22 February 2013.
1.2The respondent's case was that these telephone calls were capable of explanations that did not amount to undue harassment.
1.3The alleged offence was an offence of strict liability subject only to the defences available under Part 4‑6 of Chapter 4 of the Australian Consumer Law (WA).
1.4By finding that the appellant had failed to prove beyond reasonable that the calls constituted undue harassment, the learned Magistrate failed to find that the respondent had proved one or more of the prescribed defences available under Part 4‑6 of Chapter 4 of the Australian Consumer Law (WA).
The appellant's submissions
The appellant submitted that:
(i)the magistrate erred in failing to direct himself in accordance with the terms of s 208 of the ACL, namely that it was for the respondent to prove that the contravention was due to an accident or some other cause beyond his control and that he exercised due diligence to avoid the contravention;
(ii)there was a lack of evidence at trial to prove that the telephone calls were due to an accident or some other cause beyond the respondent's control and that he had taken reasonable precautions and exercised due diligence to avoid the contravention;
(iii)this is not a case in which I could be satisfied that no substantial miscarriage of justice has occurred; see s 14(2) of the Criminal Appeals Act 2004 (WA).
The respondent's submissions
The respondent's primary submission was to the effect that there was no necessity for the magistrate to consider the statutory defence created by s 208 of the ACL because his Honour was not satisfied that a contravention had been made out on the evidence, when the relevant conduct was viewed as a whole.
In the alternative, the respondent submitted that the explanation provided by the respondent in his interview with Mr Reksmiss established, on the balance of probabilities, that the number and frequency of the phone calls from his phone were due to a combination of reception problems and inadvertent calling.
Disposition
The magistrate was required to consider the conduct set out in the prosecution notice as particularised in the course of the opening of the prosecution case and evaluate whether that conduct constituted undue harassment. The offence is an offence of strict liability. The respondent's explanation that the frequent and repetitive nature of the calls to Mrs Jones was the result of difficulties with the mobile telephone network and accidental or ‘pocket calls’ was relied upon him to establish that the calls were made as a result of causes beyond his control. The explanation was given in an attempt, in effect, to overcome the difficulty from the respondent’s perspective that the contravention could be established by the prosecution without proving intent on the respondent’s part.
I am satisfied that the magistrate misdirected himself in the manner in which he considered the respondent’s explanations for the calls. The explanations were matters which fell to be considered in the context of the statutory defence created by s 208 of the ACL. As such, they were not factors which should have been taken into account by the magistrate in the process of evaluating whether there had been a contravention of s 168(1) of the ACL. They were matters that the respondent was required to establish on the balance of probabilities: Carey v Commissioner for Consumer Protection [2013] WASCA 195 [15].
For the reasons set out above, I consider that the appellant has made out the ground of appeal raised by it.
Section 14(2) of the Criminal Appeals Act confers power on this court to dismiss an appeal if it considers that no substantial miscarriage of justice has occurred.
In Gaunt v Hooft [2009] WASC 36, Johnson J held that, where there had been an error of law by the magistrate, the court may draw the conclusion that there has been no substantial miscarriage of justice if it considers that the same outcome would result even if the matter were remitted to the summary court to be dealt with in accordance with the ruling of the appellate court.
The respondent submits that there was evidence upon which the court could be satisfied on the balance of probabilities that the vast majority of the impugned conduct amounted to incidental or inadvertent conduct. It was submitted that this evidence established the statutory defence created by s 208 of the ACL.
The respondent's submissions did not, however, direct attention to any evidence that might satisfy the requirements of s 208(1)(b) of the ACL, namely that the respondent had taken reasonable precautions and exercised due diligence to avoid the contravention.
I have read the transcript of the interview between the respondent and Mr Reksmiss which was relied upon by the respondent at trial. It does not appear to me that the respondent said anything in the course of the interview which was relevant to the issue of whether the defendant took reasonable precautions and exercised due diligence to avoid the contravention.
I am not satisfied that the same outcome would result even if this matter were remitted to the Magistrates Court to be dealt with in accordance with these reasons. Thus, I am not satisfied that there has been no substantial miscarriage of justice.
For the reasons set out above:
1.I grant leave to appeal.
2.I allow the appeal.
3.I order that the matter be dealt with again by another magistrate in accordance with these reasons.
I will hear the parties in relation to costs.
Schedule
Summary of Exhibits 2 and 11 - Telephone Calls Between Sean Weinthal (SW) and Jennifer Jones (JJ) Between 19 February 2013 and 22 February 2013
| Date | Time | From | To | Duration (seconds) | Blocked/Unblocked Number Displayed |
| 19/02/13 | 18:26:41 | SW | JJ | 8 | Unblocked |
| 19/02/13* | 18:26 | JJ | SW | Unknown | Unblocked |
| 19/02/13 | 18:27:09 | SW | JJ | 5 | Unblocked |
| 19/02/13* | 18:27 | JJ | SW | Unknown | Unblocked |
| 19/02/13* | 18:27 | JJ | SW | Unknown | Unblocked |
| 19/02/13 | 18:29:43 | SW | JJ | 6 | Blocked |
| 19/02/13 | 18:31:42 | SW | JJ | 3 | Blocked |
| 19/02/13 | 18:33:45 | SW | JJ | 39 | Blocked |
| 19/02/13 | 18:36:49 | SW | JJ | 38 | Blocked |
| 20/02/13 | 05:18:23 | SW | JJ | 5 | Blocked |
| 20/02/13 | 08:12:01 | SW | JJ | 9 | Not Known |
| 20/02/13 | 08:27:52 | SW | JJ | 5 | Not Known |
| 20/02/13 | 09:57:29 | SW | JJ | 53 | Blocked |
| 20/02/13 | 09:58:47 | SW | JJ | 23 | Blocked |
| 20/02/13* | 10:00:00 | JJ | SW | Unknown | Unblocked |
| 20/02/13 | 11:01:05 | SW | JJ | 22 | Blocked |
| 21/02/13 | 08:10:02 | SW | JJ | 9 | Not Known |
| 21/02/13 | 08:14:33 | SW | JJ | 16 | Not Known |
| 22/02/13 | 07:03:36 | SW | JJ | 22 | Not Known |
| 22/02/13 | 20:48:20 | SW | JJ | 33 | Not Known |
Mrs Jones' calls to Mr Weinthal are marked with an asterisk
4
4