Devlin v Cooper

[1991] TASSC 115

Serial No B1/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:               Devlin v Cooper [1991] TASSC 115; B1/1991

PARTIES:  DEVLIN, Vanessa Joan
  v
  COOPER, Jon Andrew

FILE NO/S:  LCA 16/1990
DELIVERED ON:  31 January 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B1/1991
Number of paragraphs:  13

Serial No B1/1991
List "B"
File No LCA 16/1990

VANESSA JOAN DEVLIN v JON ANDREW COOPER

REASONS FOR JUDGMENT  ZEEMAN J

31 January 1991

1. The applicant was charged on a complaint alleging a breach of s86(a) of the Telecommunications Act 1975 of the Commonwealth in that on 13 May 1989 at Launceston she used a telecommunications service for the purpose of harassing another person. The applicant pleaded not guilty. After a hearing which extended over a number of days, the learned magistrate found the complaint proved. He thereupon proceeded under s20 of the Crimes Act 1914 of the Commonwealth by convicting the applicant and then ordering that she be released upon recognisance without surety in the sum of $200.00 requiring her to be of good behaviour for a period of two years and during that period to commit no further offence under s86 of the Telecommunications Act 1975.

1. The applicant seeks to review the conviction. The amended grounds upon which the review is sought are in the following terms:

"1The learned Magistrate erred in law in failing to consider the whole of the evidence of circumstances together in order to determine whether the charge was proved beyond reasonable doubt.

2The learned Magistrate erred in law in determining whether the charge was proved beyond reasonable doubt without or before considering the whole of the evidence.

3The learned Magistrate erred in law in failing to consider whether the evidence of the circumstances of the case excluded all reasonable hypotheses consistent with the applicant's innocence.

4The learned Magistrate erred in law and in fact in failing to find that the evidence of the circumstances of the case did not exclude all reasonable hypotheses consistent with the applicant's innocence.

5The learned Magistrate erred in law and in fact in taking into account an explanation for circumstances that was unfavourable to the applicant when he ought to have taken into account an explanation favourable to the applicant, specifically:

(a)That the phone call on the 16th May had been falsely categorised when it may have been and in fact probably was correctly categorised by the recipient;

(b)That in respect of all other (nuisance) calls there may have been another nuisance caller, when there may have been only one nuisance caller that caller not being the applicant.

6The learned Magistrate erred in law and in fact in failing to place sufficient weight on the evidence that a telephone call was made from 'Pamela House' to 'Rebecca House' on 16th May, 1989 which was or ought to have been found on the evidence:

(a)to have been a 'nuisance' telephone call and not to have been falsely categorised as a malicious phone call; and

(b)to not have been made by the applicant.

7The learned Magistrate erred in law and in fact in considering whether any person or persons other than the applicant might have had a motive for making the said telephone calls and finding no such motive or in placing undue weight on the lack of evidence of such a motive.

8The learned Magistrate erred in law and in fact in placing insufficient weight on the following evidence

(a)the many other 'nuisance' telephone calls made before and after the 13th May;

(b)that there may have been keys to Pamela House in the possession of persons who are unidentified;

(c)that an intruder may have entered Pamela House without the knowledge of the applicant;

(d)that on 12th and 13th May there was no blind over the inside of the inner door;

(e)that when the applicant was not in the activities room or laundry the lights in those rooms were turned off;

(f)that the applicant explained to Madeline Walker how to trace calls;

(g)the reputation and character of the applicant and her actions after being first accused;

(h)the lack of investigation and hence evidence of any 'nuisance' calls made between 12th April and 11th May, 1989;

(i)the lack of evidence of any motive the applicant may have had to make the telephone calls the subject of the charge.

9The learned Magistrate erred in fact in failing to find on the whole of the evidence that there was a reasonable possibility that a person other than the applicant could have made the said telephone calls.

10The learned Magistrate erred in fact in finding beyond reasonable doubt that the applicant made the said telephone calls.

11The learned Magistrate erred in law and in fact in failing to consider whether on the whole of the evidence there was a reasonable doubt as to the applicant's guilt and not finding that there was such reasonable doubt.

12The learned Magistrate erred in law and in fact in failing to find that one telephone call constituted the offence with which the applicant was charged and having conceded the possibility that the applicant may not have made all three calls there was insufficient evidence to indicate which of the three calls the applicant had made."

1. The first two grounds may be disposed of quite shortly. As developed in argument, those grounds appear to raise a complaint that the learned magistrate, in expressing his reasons for finding the complaint proved, proceeded to say forthwith that he found the complaint proved without then having canvassed all or any of the evidence. What the learned magistrate did was to express his conclusion and then express his reasons. As I understood the submissions made for the applicant, the complaint raised by the first two grounds would not have been made if the learned magistrate had first reviewed the evidence, making appropriate findings thereon, and had then proceeded to find the complaint proved upon the basis of those findings. Counsel's submission was that the learned magistrate's reasoning was in error because he expressed his conclusion before he had given all his reasons. I consider these grounds to be devoid of any merit.

1. Grounds 3 to 11 (inclusive) may be considered together. It is appropriate to record some relevant, apparently undisputed, evidence which was before the learned magistrate. The Society for Multiply Disabled People of Tasmania Inc conducted a number of group homes in Launceston. Group homes were homes provided for severely multiply disabled persons which attempted to provide a normal lifestyle for such disabled persons. The Society employed staff to attend to the needs of the persons residing in such homes. Two of those homes were located in the suburb of Summerhill. One known as "Pamela House" accommodated disabled children, and the other, "Rebecca House", accommodated disabled adults. The applicant was employed by the Society as a personal care aide trainer, generally working at "Pamela House", her normal shift being from 11.00pm until 7.00am the following day.

1. On the night of 12/13 May 1989 the applicant was working such a shift at "Pamela House". No other person was on duty. That same night, another personal care aide trainer, one Madeline Walker, was on duty at "Rebecca House". She was present at that house from 3.00pm on 12 May until 3.00pm on the following day, having worked two shifts and having slept at the house during the period between those shifts.

1. The learned magistrate found as a fact that on 13 May 1989 three telephone calls were made from the Society's telephone installed at "Pamela House" to the Society's telephone installed at "Rebecca House" at 2.48am, 2.55am and 3.18am. The learned magistrate accepted Mrs Walker's evidence as to the circumstances in which those calls were made. The effect of her evidence appears to be that on the occasion of the first and third calls, she heard nothing when she picked up the receiver, and that on the occasion of the second call, she only heard what she described as a "gasp". Those findings by the learned magistrate were not challenged, and indeed there was ample evidence justifying those findings. Clearly, the making of those telephone calls entailed a use of a telecommunications service within the meaning of s86(a).

1. As the case developed before the learned magistrate, it seems that the only live issue of fact was whether or not it had been established beyond reasonable doubt that it was the applicant who had made any or all of the telephone calls. If the magistrate were to be so satisfied, then he needed to consider whether or not such call or calls which he found to have been made by the applicant constituted calls made for the purpose of harassing another person within the meaning of the section.

1. Much of the argument before me, and before the learned magistrate, was directed to the question as to whether or not the magistrate could have excluded beyond reasonable doubt the possibility that a person or persons other than the applicant had made the telephone calls. There was, of course, significant circumstantial evidence before the learned magistrate pointing to the applicant as being the maker of all the calls. Such evidence included the undisputed presence of the applicant in the house where the telephone was located and the lack of opportunity on the part of any other person to make one, let alone all three, of the calls. As to the lack of opportunity, there was evidence as to the house being locked, the lack of access to keys, and the fact that the telephone number called was not listed in the telephone directory, its identity having been treated as restricted information by the Society.

1. On the other hand, the applicant pointed to various factual matters pointing to the possibility of another person having made the calls. Many of those matters are specified with some particularity in grounds 5, 6 and 8. In dealing with this possibility, the learned magistrate concluded as follows:

"I find that it is beyond the realms of reasonable possibility that a person could have entered the residence, made a telephone call, and exited the residence on three separate occasions clandestinely, or alternatively, remained secreted and undetected during part of the relevant period."

1. It is settled law that the findings of fact made by the learned magistrate are to be treated in the same way as an appeal from a verdict of a jury (see Richardson v Shipp [1970] Tas SR 105 at p117, Benson v Rogers [1966] Tas SR 97 at p99, and Bedelph v Weedon [1963] Tas SR 69 at p81). I consider that the finding made by the learned magistrate, that it was the applicant who made all three telephone calls, was amply justified by the evidence. No sufficient basis to disturb that finding has been disclosed. The matters which, in the submission of the applicant, point to the existence of a reasonable doubt were rejected by the magistrate and I perceive no reviewable error in the reasoning which led him to do so.

1. As to the final ground upon which the review is sought, a useful review of the relevant considerations is to be found in Daly v Medwell (1985) 17 A Crim R 68. In that case, as in the present, the defendant sought no particulars of the charge, although it was clear that a course of behaviour, rather than a single act, was relied upon. If particulars had been sought by the present applicant, no doubt it would have been made plain to the applicant that the complainant was seeking to rely upon the totality of the three calls as constituting a course of conduct which, in its totality, amounted to using the telephone service for the purpose of harassment. That is the way in which the case was conducted before the learned magistrate without objection from the applicant, who was then represented by counsel.

1. For the reasons expressed in Daly v Medwell (supra) which, with respect, I would adopt, it was open to the learned magistrate to find that the making of the three telephone calls in the particular circumstances, including the time of day at which they were made, the short period of time over which they were made, and what occurred when the handset on the receiving telephone was lifted, in totality amounted to using the telephone service for the purpose of harassment. The shorter Oxford Dictionary defines harassment inter alia as meaning "to worry, distress with annoying labour, care, importunity, misfortune, etc". Plainly, it was open to the learned magistrate to infer that the maker of the calls had such a purpose in mind. I do not think that ground 12 is made out. I observe that a factual assertion made by ground 12, namely that the learned magistrate conceded the possibility that the applicant may not have made all three calls, is not borne out by a reading of the totality of his reasons in context.

1. The appeal is dismissed.