Gamage v Snelleksz - [2025] ACTSC 239

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Gamage v Snelleksz
Citation:	[2025] ACTSC 239
Hearing Date:	1 April 2025
Decision Date:	26 May 2025
Reasons Date:	10 June 2025
Before:	Baker J
Decision:	The appeal should be dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – appeal from Magistrates Court – appeal against conviction – correctness standard – distribute intimate image – threaten to distribute intimate image – threat to kill – stalking – where intimate images were sent from the complainant’s email address – where complainant denied sending the intimate images – whether the Magistrate erred in finding that the complainant was a witness of truth – whether complainant’s evidence was contradicted by expert digital forensic evidence – adequacy of reasons – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT), ss 30, 35, 72C, 72E Magistrates Court Act 1930 (ACT), pt 3.10
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304 Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Coghlan v Cumberland (1898) 1 Ch 704 DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 Fox v Percy [2003] HCA 22; 214 CLR 118 King v Bishop [2024] ACTSC 114 Koschier v The King [2024] NSWCCA 24; 113 NSWLR 491 M v The Queen [1994] HCA 63; 181 CLR 487 McFarlane v Van Eyle [2022] ACTCA 68 Poidevin v Coutts [2024] ACTSC 91 Porter v The Queen [2024] ACTCA 9 R v Murray (1987) 11 NSWLR 12 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Wolter v Broomhall [2023] ACTSC 331
Parties:	Malith Kodagoda Gamage ( Appellant) Shannon Snelleksz ( Respondent)
Representation:	Counsel A Williamson SC and D Ager ( Appellant) E Wren ( Respondent)
Solicitors Fraser Criminal Law ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 29 of 2024
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 17 May 2024 Case Title: Police v Gamage Court File Number(s): CC2023/4009

BAKER J:

Overview

1․On 17 May 2024, Chief Magistrate Walker found Malith Kodagoda Gamage (the appellant) guilty of one count of reckless threat to kill contrary to s 30 of the Crimes Act 1900 (ACT) (CC2023/1858); one count of stalking contrary to s 35 of the Crimes Act (CC2023/4009); one count of threaten to distribute intimate images contrary to s 72E of the Crimes Act (CC2023/1857); and, three counts of distribute intimate images of another person contrary to s 72C of the Crimes Act (CC2023/1859–61).
2․The appellant appealed these convictions. The grounds of appeal particularised in the appellant’s Amended Notice of Appeal were as follows:
(a)The learned Chief Magistrate erred by failing to give effect to the Murray direction given;
(aa)The learned Chief Magistrate made specific error in finding the complainant—
(i)Discovered intimate images on her Toshiba laptop, or that it was reasonably possible for her to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gamage v Snelleksz

Details

AGLC: Gamage v Snelleksz [2025] ACTSC 239
Case: [2025] ACTSC 239
Decision Date: 26 May 2025

CaseChat Overview and Summary

The appeal was brought by the appellant, Gamage, against a conviction and sentence imposed by the Magistrates Court. The appellant was found guilty of charges including distributing an intimate image without consent, threatening to distribute an intimate image without consent, threatening to kill, and stalking. The respondent, Snelleksz, was the complainant in the matter.

The appellant contested the conviction on several grounds, including the correctness of the Magistrate's finding that the complainant was a credible witness. The appellant argued that the complainant's evidence was contradicted by expert digital forensic evidence, which suggested the complainant could not have sent the emails in question. The appellant also argued that the Magistrate did not adequately address the evidence in the reasons for judgment. The Court of Appeal needed to determine whether the Magistrate erred in finding the complainant was a truthful witness and whether the reasons for judgment were adequate.

The Court of Appeal held that the Magistrate's assessment of the complainant's credibility was open to the Magistrate and not plainly wrong. The Court found that the expert digital forensic evidence did not definitively exclude the complainant as the sender of the emails, and therefore, the Magistrate was entitled to accept the complainant's evidence. The Court also held that the reasons provided by the Magistrate were sufficient to demonstrate that the evidence was considered and that the findings were rationally based on that evidence. Consequently, the appeal was dismissed.

The appeal was dismissed, and the conviction and sentence imposed by the Magistrates Court were upheld.

Orders

Orders of the court

The appeal should be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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