Hemphill v The King
[2023] NSWDC 398
•03 October 2023
District Court
New South Wales
Medium Neutral Citation: Hemphill v R [2023] NSWDC 398 Hearing dates: 26 September 20023 Decision date: 03 October 2023 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: Appeal against conviction allowed
Catchwords: CRIMINAL – Appeal from Local Court conviction – Intimidation – Proof of Intent
Legislation Cited: Crimes (Appeal and Review) Act 2001 NSW, s 18
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7(1), 13(1)
Cases Cited: Director of Public Prosecutions (NSW) v Nikolovski
Lee v R [2023] NSWCCA 70
McNab v Director of Public Prosecutions [2021] NSWCA 298
R v Blair (2005) NSWCCA 78
R v MacDonald [2019] NSWSC 839
Category: Principal judgment Parties: Lachlan Hemphill
Office of the Director of Public Prosecutions (Crown/Respondent)Representation: Counsel:
Solicitors:
S Russell (Appellant)
S McGee (Crown/Respondent)
McNally Jones Staff Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Crown/Respondent)
File Number(s): 2021/259309 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) upon the grounds set out in s 8(1) (e) of the Act there shall be no disclosure, by publication or otherwise, of any information that reveals, or tends to reveal, the name of the person described in these reasons as the “victim”. Decision under appeal
- Court or tribunal:
- Local Court
- Jurisdiction:
- Crime
- Date of Decision:
- 23 March 2023
- Before:
- Price LCM
JUDGMENT
Introduction
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HIS HONOUR: This is an appeal, by way of rehearing, pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 NSW from a decision of Local Court Magistrate Price on 27 March 2023.
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On that day the learned magistrate, after a contested hearing, found the Appellant guilty of one offence of intimidation contrary to s 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
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The appeal is against conviction only, although there is now an application for leave to appeal the sentence, which by agreement between the parties I have decided to defer to deal with once the result of the appeal against conviction is known.
The Crown Case
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The Crown case was that on 5 September 2021 in contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act, in the course of his employment as a correctional officer with Correction Services NSW at the Prince of Wales Hospital prison annexe, the Appellant intimidated, with the intention of causing fear of physical or mental harm, the victim, who was an inmate in the prison hospital, suffering from serious mental health issues.
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The victim was at the hospital annexe awaiting emergency electroshock treatment in relation to severe exacerbation of schizophrenia. The Appellant was one of the corrections officers entrusted with his supervision. The victim was in a secure room wherein he could communicate with corrections officers by what is described as a “knock up” audio visual intercom system. By using that system he could get the attention and, if needed, the assistance of corrections officers.
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On 5 September 2021, there were a series of exchanges between the victim and the Appellant and another corrections officer via the “knock up” system which form the basis of the evidence relied on by the Crown.
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I have listened to the audio of those exchanges and will set out shortly the critical exchanges.
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The learned magistrate found the Appellant guilty on the basis of one particular statement by him to the victim in the course of an exchange, when the Appellant said to the victim “Oi, watch your mouth or I’ll come in there and I'll smack it”. The magistrate found beyond reasonable doubt that conduct amounted to intimidation as defined in the Act (s 7) and that when the Appellant said those words he intended to cause the victim fear for his physical safety and was thus guilty of the offence created by s 13.
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On appeal, the Crown, in addition to seeking to uphold the specific finding of the magistrate, also contended that a conviction was available based on the totality of the conversations which, so the submission went, amounted in totality to intimidation, as that concept is to be understood in the statute.
The Relevant Exchanges
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Shortly before 6pm, a few minutes after Ms Nasr had told the victim that nursing staff needed a few minutes to organise his change of bedding, the following exchanges occurred:
Track 175210 (5:52pm – 6 minutes: 24 seconds)
VICTIM:
[At 6.13] “Help!”
HEMPHILL:
“Shut up!”
VICTIM:
“You get fucked!”
HEMPHILL:
“Yeah, we’ll see what you say when I come in there”
VICTIM:
“Yeah, I will say get [unclear]”
Track: 175855 (5:58pm – 25 seconds)
HEMPHILL:
“What?”
VICTIM:
“Don’t what me”
HEMPHILL:
“Well what, what are you going to do?”
VICTIM:
[Laughter] “Don’t test me, cunt”
HEMPHILL:
“Yeah… do you even know who this is?”
VICTIM:
“I don’t give a fuck who it is”
HEMPHILL:
“Well when you see me you will”
Track 175954 (5:59pm – 1 minute:41 seconds)
HEMPHILL:
“Hello, welcome to Telstra”
VICTIM:
“Welcome to what?”
HEMPHILL:
“How may I help you”
VICTIM:
“I need help”
HEMPHILL:
“I know you need help, but why?”
VICTIM:
“I just need help”
HEMPHILL:
[Sigh] “Alright. What have you done?”
VICTIM:
“I pissed me bed”
HEMPHILL:
“Why didn’t you get up and go to the toilet then?”
VICTIM:
“I tried but I couldn’t get out of bed quick enough”
HEMPHILL:
“I’ve watched you get up out of bed, you can do it fine”
VICTIM:
“But I didn’t get up out of bed quick enough, you dickhead”
HEMPHILL:
“Watch the tone”
VICTIM:
“So shut the fuck up”
HEMPHILL:
[makes noise of a cat]
VICTIM:
“Don’t meow to me you motherfucker, or you’ll see the fucking wrong side of me”
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Forty minutes later at 6.39 pm, the following exchange took place:
Track: 183947 (6.39pm – 6 minutes)
NASR:
“Oh.”
HEMPHILL:
“You must be more of a retard than he is, oh sorry, mate, I didn’t realise I was holding the button.”
VICTIM:
“OK. Who are you calling a wee cunt?”
HEMPHILL:
“What did you say?”
VICTIM:
“Who are you calling wee cunt?”
HEMPHILL:
“Not you.”
VICTIM:
“Yeah, that’s right.”
HEMPHILL:
“Oh I’m a big scary man.”
VICTIM:
“Chief.”
HEMPHILL:
“[the victim].”
VICTIM:
“I need help.”
HEMPHILL:
“I need help as well.”
VICTIM:
“Not as much as me…”
HEMPHILL:
“Have you actually pissed the bed again?”
VICTIM:
“Yes.”
HEMPHILL:
“You fucking idiot. Why did you piss the bed again?”
VICTIM:
“ ‘Cause I didn’t get up quick enough.”
HEMPHILL:
“I think you’re just being lazy. Oi.”
VICTIM:
“Oi.”
HEMPHILL:
“Yeah, what are you doing?”
VICTIM:
“No, nothing.”
HEMPHILL:
“Are you going to the toilet?”
VICTIM:
“No, ‘m going on the fuckin’ - - - [interjection].”
HEMPHILL:
“Have you had a shower?”
VICTIM:
“Yes.”
NASR:
“No, you haven’t.”
HEMPHILL:
“No, you haven’t.”
VICTIM:
“Yeah, I have.”
HEMPHILL:
“Doesn’t smell like it.”
VICTIM:
“You can suck my dick.”
HEMPHILL:
“Is it big?”
[PAUSE]
“What are you doing?”
VICTIM:
“Nothing.”
HEMPHILL:
“What are you trying to do? Why don’t you lay on the bed properly instead of rolling around in your own piss? I’m sorry….you. Do you like me, [ ]?”
VICTIM:
“No, I don’t, you can go fuck yourself.”
HEMPHILL:
“I’m a fuckin’ dog, yeah, mad, that’s the answer I was looking for. Tell me a joke.”
VICTIM:
“Sanitise me.”
HEMPHILL:
“I know one, do you want to hear it?”
VICTIM:
“No…but I know I’m gunna hear it anyway.”
HEMPHILL:
“All right, you ready?”
VICTIM:
“Yeah, I’m ready.”
HEMPHILL:
“All right, the joke is [the victim]”
VICTIM:
“You’re a dickhead.”
HEMPHILL:
“Nah, you want to hear another joke?”
VICTIM:
“If I have to.”
HEMPHILL:
“Why did the Lebo go to hospital?”
VICTIM:
“I don’t know.”
HEMPHILL:
“ ‘Cause he was fully sick.”
VICTIM:
“You’re a …”
HEMPHILL:
“What movie’s on?”
VICTIM:
“I don’t know.”
HEMPHILL:
“Mate, what are you doing downward dog for, is it a yoga session now? I dare you to shit yourself. No, don’t do that.”
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The particular statement referred to by the learned Magistrate in finding that guilt was established took place following a brief exchange approximately ten minutes later. It started between the victim and Ms Nasr at 6.55 pm:
Track: 184805 (6:48pm – 7 minutes: 2 seconds)
VICTIM:
[At 6.38] “I need help, chief”
NASR:
“What do you want?”
VICTIM:
“I need help”
NASR:
“Yeah with what? I’m sick of hearing that. [Laughter heard in background] You’re like a fuckin’ baby. What do you want? [Laughter]”
VICTIM:
“[indistinguishable] you slut, fuckin’ -”
HEMPHILL:
“Oi, watch your mouth or I’ll come in there and I’ll smack it”
VICTIM:
“Bring it on bitch”
HEMPHILL:
“What the fuck do you want, [the victim]? You’re starting to piss me off now”
VICTIM:
“well youse is starting to fucking piss me off aren’t youse”
HEMPHILL:
“Mate, you’ve already pissed yourself”
[PAUSE]
“That’s what I thought, bitch”
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As I have said, I have listed to the audio of the above exchange and other similar exchanges. I think the tone of all concerned in the exchanges is an important factor to which I will return.
The Statutory Framework
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I turn then to the relevant legislation which, I must say, is not a great advertisement for modern Parliamentary drafting. The starting point is s 7 which contains a definition of intimidation. The section is as follows:
7 Meaning of “intimidation”
(1) For the purposes of this Act, intimidation of a person means—
(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or
Note—
An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) conduct that causes a reasonable apprehension of—
(i) injury to the person or to another person with whom the person has a domestic relationship, or
(ii) violence to any person, or
(iii) damage to property, or
(iv) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship, or
(d) conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900, section 93AC, or
(e) conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage).
(2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.
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The defined term of “intimidation” then finds its way into s 13 of the Act which is as follows:
13 Stalking or intimidation with intent to cause fear of physical or mental harm
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
Maximum penalty—Imprisonment for 5 years or 50 penalty units, or both.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
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So it can be seen that the first element of a breach of s 13 is conduct properly characterised as “intimidation”. In this case the Crown relies on that part of the definition in s 7(1)(c)(ii) viz: “Intimidation of a person means … conduct … that causes a reasonable apprehension of … violence to any person …” It is only if a finding to that effect is made, that it becomes necessary to engage with the mental element contained in s 13(1) as amplified in section 13(3).
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In other words, if the conduct is intimidation as defined by s 7, a person will be guilty of an offence under s 13 if the intimidation occurred “with the intention of causing the other person to fear physical or mental harm…” That is the second element.
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By virtue of s 13(3) a person will be taken to have such an intention if they had an intention to “cause fear of physical or mental harm or if the Appellant knew that the conduct was likely to cause fear in the other person”.
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The drafting of these sections to my mind raises a series of difficult legal questions most of which have been dealt with in cases to date. The first question is whether the test in section 7(1)(c) that is, that the conduct “causes a reasonable apprehension of violence”, is to be judged subjectively by reference to the state of mind of the recipient of the conduct, or whether it is to be judged objectively by reference to a standard of reasonableness. This question was answered by Adamson J in Director of Public Prosecutions (NSW) v Nikolovski [2017] NSWSC 1038 where her Honour said at [19]:
“By contrast, although the prosecution needs to prove as an element of an offence against s 13(1) of the CDPV Act that the victim was intimidated, the word “intimidation” is defined so as to alter its natural meaning. Thus, the prosecutor is not required to prove that the alleged victim actually feared physical or mental harm (s 13(4) of the CDPV Act). Moreover, if the defendant’s conduct is such as to cause a reasonable apprehension of injury to a person (s 7(1)(c) of the CDPV Act), it does not matter whether the defendant’s conduct caused such an apprehension in the alleged victim, since the use of the word “reasonable” shows that the test is an objective one.”
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The next question of construction is whether the mental element provided for in s 13(1) and s 13(1) (iii) is to be assessed subjectively by reference to the intention of the accused or whether it is to be judged by reference to the actual effect the conduct had on the recipient of the conduct.
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I think the answer to that question is tolerably clear. The intention in s 13(1) is an intention of causing the other person to fear physical or mental harm, which can be proved by knowledge that the conduct is likely to cause fear (s 13). It seems to me that the proper approach to that question is to enquire simply as to what the intention of the Appellant was at the time and not to focus on what the effect of the conduct was. That being said, whether the conduct did cause some “fear” or “apprehension” may in some cases be relevant to proof of intent.
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Such intention can, in appropriate cases be proved by inference. As the Court of Appeal said at [34] in Lee v R [2023] NSWCCA 70:
“As can be seen, there are a wide range of matters that might amount to intimidation. However, to make out the offence, it is necessary that the act be carried out with the intention of causing the complainant to fear physical or mental harm and it is likely that, other than in the unusual case, and in the absence of other evidence such as an admission, a trivial example of intimidation will not sustain an inference that the accused intended to cause physical or mental harm.”
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The final question of statutory construction is what does the legislation mean in s 13(1) and (3) by mental harm? Does that require proof of an intention to either cause or cause a fear of a mentally diagnosable disorder or something less?
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This is a difficult question. In a very different context, Harrison J in R v MacDonald [2019] NSWSC 839, when considering the question of “mental harm” seems to have come to the conclusion that for the purpose of this legislation, it was to be considered a reasonably low threshold. I will proceed on that basis, but I do think the intent must be to cause something more than irritation, embarrassment or even anger.
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The first question is therefore whether in the context of what I know about the relationship between the Appellant and the victim is firstly, whether the magistrate was right to conclude that the particular exchange upon which he relied on which relevantly started with the victim saying to the Appellant’s partner:
“you slut fuckin”
ought to be found beyond reasonable doubt to be conduct that objectively fits the definition in s 7. The second question is whether the requisite intent provided for in s 13 has been proved, again beyond reasonable doubt.
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As I have said, the relevant exchange occurs at the end of a series of exchanges between the Appellant, his partner and the victim. Accepting that the victim was suffering from serious mental health problems at the time and was under the control of the corrective services officers, he was behaving in what might reasonably be described as in a difficult if not belligerent way. It must be accepted that the various statements by the Appellant and his partner are, as I think was conceded before the magistrate by the Appellant, not something that they ought properly to be proud of. I say this notwithstanding that the Appellant was tired, he had worked a double shift and he was clearly irritated by the fact that the victim was repeatedly wetting his bed and demanding the sheets be changed in circumstances where it was not possible due to staffing issues to respond immediately. I also suspect he was bored. Having made those observations, when one listens to the audio the exchanges are in fact quite good natured and can to a large degree be fairly described as friendly banter couched in bad language and interspersed with bad jokes.
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The magistrate resolved the matter in this way:
“In my opinion out of all the other matters that I have seen here, I have very little hesitation in finding that the statement of “Watch your mouth or I’ll come in there and I’ll smack it” was a clear act of intimidation, was a clear act on behalf of Mr Hemphill at that point in time to demonstrate his authority over the situation, and to attempt, albeit out of frustration, albeit out of stress but attempt to ensure that the victim new his place and that he would think twice about talking further to a New South Wales Correctives officer in the manner that the victim was.
I do not accept that Mr Hemphill did not have an intention to cause any fear in the victim at that point in time. It is my view that even beyond reasonable doubt I would find that he had a clear intention to cause an element of fear for the victim, a fear for his safety, and he was making it unambiguously clear to the victim that if you do not shut your mouth there will be physical ramifications, or potentially physical ramifications, and we need to place this back in the context in which it was stated.
We have here a highly vulnerable, albeit highly at times aggravating and annoying inmate, who was in a cell by himself, who was in a disadvantaged situation, who has mental health issues, who had physical issues in wetting himself, in other words urinating himself, and where the victim had no way of knowing that he would not be the subject of some form of physical recrimination if he did not at that point in time shut his mouth and stop talking in the way he was. Or at least stop swearing at the Correctives officers in the way he did.”
The Competing Submission
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The Appellant contends that the learned magistrate’s application of the facts to the statutory provisions is erroneous or in the context of a s 18 appeal that I should reach the contrary conclusion because :
The context of the relationship between the corrections officers and the victim was not given sufficient weight. It is clear from the tone of all of the exchanges that robust language was commonplace between them, and the exchanges themselves, when listened to, do sound like reasonably friendly (albeit rather immature and puerile) banter.
Seasoned inmates, like the victim, would be no stranger to such robust language and like the victim, are often prepared to offer such language in return.
Sometimes, use of appropriate force is necessary within a centre. Indeed, the evidence in this case was when anyone entered into the victim’s cell, he was placed in handcuffs whilst matters were attended to.
The fact that the victim is in fact not “intimidated” at all by what is said is relevant.
The second reading speech of the relevant amendments to the Crimes (Domestic and Personal Violence) Act stated as follows:
“The aim of this provision is to target behaviour that is intentionally harassing or threatening. The act of stalking for instance may involve repeatedly following a person about or watching or frequenting a person’s home or place of work. Behaviour that is intimidating may include the making of repeated telephone calls or conduct that amounts to harassment or molestation.”
To infer a breach of the criminal law to the requisite standard, as far as intent is concerned, the intent must be to cause “the other person” to “fear physical or mental harm”.
At the s 13 stage of the analysis, the objective consideration posed by s 7(1)(c) has come and gone and it is necessary for the Crown to prove (in this case by inference) the necessary intent.
To do so, it is necessary to assess the nature of any relationship the Appellant had with the victim together with the friendly tone of the exchanges.
This ought to lead to the conclusion that all the evidence establishes is no more than a speculative possibility that the conduct amounted to intimidation and that the Appellant intended to cause the victim physical or mental harm, and mere speculation does not lead to a finding by way of inference (R v Blair (2005) NSWCCA 78 per Grove J at [17]).
The Appellant also in reliance on what was said by the Court of Criminal Appeal in Lee v R [2023] NSWCCA 70 at [34] emphasised that
“What are described by the Appellant as a trivial example of intimidation will not sustain an inference that the Accused intended to cause physical or mental harm. The Appellant contends that in context the relevant statement ought be seen as trivial and therefore no adverse inference should be drawn against the Appellant or perhaps more caution should be exercised in drawing such an inference.”
The Crown repeats and relies on the reasons of the learned magistrate.
In essence, the Crown's case boils down to this. The Appellant was frustrated, tired and perhaps irritated by the victim’s persistent requests for help in changing his sheets after wetting his bed. The Appellant wanted the victim to stop irritating him and his partner and, in the context of the particular conversation, did not like the fact that the victim had sworn at his partner and called her “a slut”. In an effort to stop the victim from continuing the behaviour, the Appellant said:
“Oi watch your mouth or I’ll come in there and I’ll smack it”
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The Crown says that the only reason he said those words was that he had the intent to cause some fear in the victim of physical or mental harm, because otherwise there was no point in saying it. The fact that the victim does not appear to have been in any way shape or form intimidated by what was said, and that thereafter he and the Appellant seemed to have returned to what might be described as their usual relationship is not to the point. The real question is whether the Appellant intended there to be some sort of threat of violence.
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As far as whether the definition of intimidation has been satisfied, the Crown contends that regardless of what the victim’s reaction was, a reasonable person in the victim’s position would have had a reasonable apprehension of violence, and therefore the definition in s 7(1)(c)(i) is engaged.
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The Appellant’s riposte to most of this is to invite the Court to consider all of the interactions between the Appellant, his partner and the victim, and to conclude that it really amounts to no more than trivial light-hearted banter going both ways, where what in other circumstances might be regarded as bad threatening language is used almost in a friendly way, and that notwithstanding that the Appellant accepted it when cross-examined before the magistrate that he was frustrated and was “not joking” when he said the relevant words that there could be no reasonable apprehension of violence even on an objective test, and therefore the definition of intimidation was not engaged, and moreover, it is not possible to infer the relevant intention under ss (1) and (3) of section 13.
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The Appellant’s point really comes down to the proposition that the words “or I’ll come in there and smack it” were no more than a figure of speech to convey to the victim that he really wanted the behaviour to stop and did not convey, nor was it intended to convey any threat of violence.
Resolution
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I have found this a very difficult case to resolve. I think it is very much on the borderline both at the section 7(1)(c) level and on the question of intent required to be proved by s 13(1) and/or s 13(3).
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I have ultimately decided that the definition of intimidation in s 7(1) has been satisfied because I am satisfied beyond reasonable doubt, applying the objective standard identified by Adamson J Nikolovsky, that a bystander would have a reasonable apprehension that the Appellant might occasion some violence to the victim by following through with his threat. I come to that conclusion notwithstanding that the victim did not seem to have that apprehension at all.
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I then turn to whether I am satisfied beyond reasonable that the requisite mental element required by section 13(1) has been proved.
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Again, with some hesitation because there is real strength in the logic of the Crown’s analysis as to why the Appellant said what he said, I think, having listened to the audio of the exchanges (Exhibit B) there is sufficient room for me to conclude by way of inference that in fact the statement was more of a “throwaway line”, perhaps born of frustration, irritation or anger in response to the victim calling his partner a “slut”. It was not said as a joke but it was also not said with any intent that it would be understood literally; rather, it was a figure of speech. The competing inference is that it was said with the intent of conveying that the Appellant seriously did not want the victim to call his partner a “slut” again. I think the possibility of that inference being correct is sufficient to give me reasonable doubt as to the competing inference contended for by the Crown.
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The Accused gave sworn evidence that he did not have the relevant intent, although he did concede that he was not joking and that his desire was to stop the victim swearing at his partner, and perhaps further to stop irritating him and his partner with repeated requests for sheet changing. I think that concession is in fact consistent with the “figure of speech” inference. I am not persuaded that the Appellant’s denial of his intention must be rejected. People often say things which, if taken literally, mean one thing but when taken in context and by their tone mean something very different. I at least have sufficient doubt as to intent to conclude that the Crown has failed to prove beyond reasonable doubt the mental element of the charge. At the very least, there are competing inferences available only one of which is consistent with guilt.
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I now turn to the alternative way the Crown put the case on appeal, that is, that the entirety of the exchanges taken together amount to intimidation.
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I think this is a very difficult proposition for the Crown although I accept that the literal words used could be said to be “belittling” or “insulting” and were certainly, as the magistrate observed, not particularly professional. The jokes are also, to my mind, not funny. But none of that is a crime. I have listened on a number of occasions to the audio of the exchanges and I am left with the impression that going both ways they were rather light hearted banter and I do not think that, even applying an objective standard, the definition of s 7 has been engaged. Moreover, I have factored into this analysis of the entirety of the exchanges my analysis of the particular exchange relied upon by the magistrate as part of the totality. Again, the nuance in what was said and conveyed is something that can only be determined considering the matter in context but also by listening to the audio.
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Accordingly, I am not satisfied that the magistrate’s conclusion can be justified on the alternative basis suggested by the Crown.
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Before leaving the matter, I should say in deference to the learned magistrate’s reasoning process, that I am not at all sure that the basis upon which I have decided the matter was put to the magistrate at all, or at least was not put to him in a clear and distinct way. My review of the transcript is that the way the matter was argued before the magistrate was that the available inferences as to intent were on the one hand, an inference consistent with the mental element prescribed in s 13, and on the other hand, friendly banter. The concession by the Appellant that he was “not joking” when he said the relevant words was no doubt destructive of the “friendly banter” submission. What was not pointed out to the magistrate was that there was a third alternative being the one that I have identified being a figure of speech said seriously but with an intent only to convey that what was being said was serious.
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Accordingly, whilst have come to a different conclusion on the same evidence that was before the magistrate, I have got there by accepting a submission which was not clearly put to the magistrate. Nonetheless, because this is an appeal pursuant to s 18 it is not my role to identify error. I am required to form my own judgment on the evidence and submissions put before me as to the appellant’s guilt beyond reasonable doubt – see McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] – [29] per Bell P, and [80] – [90] per Basten and McCallum JJA.
-
For those reasons, I make an order pursuant to s 20 of the Crimes (Appeal and Review) Act 2001 as follows:
The appeal is allowed.
I set aside the conviction entered Price LCM on 27 March 2023.
*****
Decision last updated: 03 October 2023
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