James William McEwan v Simon Vincent Rohan

[2012] ACTSC 181

JAMES WILLIAM MCEWAN v SIMON VINCENT ROHAN
 [2012] ACTSC 181 (21 December 2012)

CRIMINAL APPEAL – Appeal from Magistrate – Appellant convicted of making an intentional threat to kill – Whether Magistrate erred in finding the offence proved on the basis of the evidence before the Court – Elements of the offence considered – Fear of the reasonable person in s 30 Crimes Act 1900 not a belief or conviction – Contravention of s 30 does not require the recipient of a threat to fear the threat would be carried out if evidence establishes the reasonable person would have so feared – Evidence supports prosecution case – Appeal ground dismissed.

CRIMINAL APPEAL – Appeal from Magistrate – Appellant convicted of making an intentional threat to kill – Whether verdict unsafe and unsatisfactory – Whether open to the Magistrate to be satisfied beyond reasonable doubt that the accused was guilty – Evidence considered – No doubt that a reasonable person in the position of the complainant would fear the threat – Appeal ground dismissed.

Crimes Act1900 (ACT), s 30

Barbaro v Quilty [1999] ACTSC 119
Connelly v Allan [2011] ACTSC 170
Doyle v Ranse (1991) 103 FLR 419
Forsti v The Queen [2012] ACTCA 4
Luu v Cook [2008] ACTSC 54
R v Cousins [1982] QB 526
R v Leece (1995) 125 ACTR 1; 78 A Crim R 531

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 79 of 2012

Judge: Burns J             
Supreme Court of the ACT

Date: 21 December 2012       

IN THE SUPREME COURT OF THE     )
  )          No. SCA 79 of 2012
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:   JAMES WILLIAM MCEWAN                  Plaintiff   

AND:  SIMON VINCENT ROHAN

Defendant

ORDER

Judge:  Burns J
Date:  21 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal against conviction is dismissed.

1. On 17 September 2012 the appellant was convicted of an offence contrary to s 30 of the Crimes Act 1900 (ACT) in the following terms:

That he, in the Australian Capital Territory, on 26 December 2011, did make a threat to another person, namely, Melanie Ingram, to kill Melanie Ingram and did intend that the said Melanie Ingram should fear that the said threat would be carried out and did make the said threat without lawful excuse and in circumstances in which a reasonable person would have feared that the said threat would have been carried out.

1. Upon conviction, the appellant was sentenced to 18 months imprisonment, with a non-parole period of 12 months.  The appellant now appeals from both the conviction and sentence.  The grounds of appeal are:

(a)Her Honour erred in finding the offence proved on the basis of the evidence before the Court.  The evidence of the complainant could not support a finding that a threat to kill was made against her in circumstances where a reasonable person would have believed the threat would be carried out.

(b)The sentence imposed was…