Jawid v The Queen

[2015] NSWDC 358

District Court

New South Wales

Medium Neutral Citation:	Jawid v R [2015] NSWDC 358
Hearing dates:	25 August 2015
Date of orders:	25 August 2015
Decision date:	25 August 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal allowed  Conviction recorded and the sentence passed by Magistrate Crompton sitting in the Downing Centre Local Court on 9 March 2015 set aside
Catchwords:	CRIMINAL LAW – Conviction appeal – Using a carriage service to make a threat to cause serious harm – Voice messages left on telephone – Whether voice message contained word “shoot” or “shoo” – Appellant Afghani with native language of Farsi – Possible mispronunciation – Appellant capable of pronouncing terminal “T” sound – Appellant asserted intent to say “show” – Appellant was emotionally agitated and had consumed alcohol – Reasonable doubt present
Legislation Cited:	Criminal Code Act 1995 (Cth)
Cases Cited:	R v Murray (1987) 11 NSWLR 11
Category:	Principal judgment
Parties:	Jawid Jawid (Appellant) Crown (Respondent)
Representation:	Solicitors: Oxford Lawyers (Appellant) Solicitor for the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/00260012
Publication restriction:	No
Decision under appeal	Court or tribunal: Downing Centre Local Court Date of Decision: 9 March 2015 Before: Crompton LCM File Number(s): 2014/260012

Judgment

1. HIS HONOUR: This is an appeal against a conviction recorded by Magistrate Crompton sitting in the Downing Centre Local Court on 9 March 2015. The appellant was charged with one offence contrary to the Criminal Code Act 1995 s 474.15(2). The charge was that between 6.48am and 7am on 20 August 2014 at Pyrmont he did use a carriage service, namely mobile phone number 04[## ### ###], to make threats to shoot the victim Asad Sultan and [to] harm the victim’s family.

2. At one time in 2014 the complainant, Mr Sultan, and the appellant, Mr Jawid, resided at unit 10, 122 Saunders Street, Pyrmont. The weight of the evidence suggests that in April 2014 the appellant and a long-time friend Mr Haschem Hassanzadeh took a lease of that home unit. They advertised for a flatmate or flatmates. One person who responded to their advertisement was the complainant, Mr Asad Sultan. He moved in. He paid a bond of approximately $300 to Mr Haschem Hassanzadeh to whom I shall refer hereafter as “Haschem”. The appellant and Haschem are from Afghanistan. The appellant described his native language in his evidence as “Persian” by which I assume he meant Farsi. I do not know Haschem’s native language but considering that they had been friends from childhood and were from the same country it may well be that his native language was also Farsi.

3. The complainant, Mr Sultan, is from Pakistan. However, he may have spent some time in the United Kingdom. There was reference to his describing himself as an Englishman and also too having been in Birmingham. The usual language of those who describe themselves as Pakistanis is Urdu. I do not know Mr Sultan’s native language but I assume that it is either Urdu or some other dialect spoken in Pakistan. Farsi is not a normally spoken language in Pakistan.

4. Mr Sultan had agreed to share the home unit in Pyrmont as he was estranged from his wife. According to the weight of the evidence he was required to give two weeks’ notice of his intention to vacate the premises. He appears to have vacated the premises on either the 20th or 22 June 2014. There is a dispute between Mr Sultan and the appellant and Haschem as to whether the complainant, Mr Sultan, gave the requisite notice. However, it is clear that the bond money was not immediately paid to him. Mr Sultan wished to leave the premises at Pyrmont in order to take up residence in Sutherland, seeking to recommence cohabitation with his wife.

5. There was a dispute at the time of Mr Sultan’s leaving the home unit at Pyrmont. It appears that Mr Sultan alleged that he had been assaulted by the appellant and the appellant complained that false accusations were made against him by Mr Sultan, which resulted in the police executing a search warrant at the premises still occupied by the appellant but the execution of that search warrant led to no charges whatever being laid against the appellant. One can see that there was some ill will between the appellant and the complainant.

6. There is no dispute that on the morning of 20 August 2014 certain telephonic communications passed between the appellant and the complainant. These are very helpfully summarised by Mr McKenzie in his written submissions on behalf of the Crown, at the foot of p 3. Those communications were these:

1. At 6.48am on 20 August 2014 a telephone call made by the appellant to the complainant.

2. At 6.53am on the same day a text message sent by the appellant to the complainant a copy of which became exhibit 2 in the Local Court.

3. At 6.55am on the same date a voice message left on the complainant’s voicemail service which was played in the Local Court and which has been replayed before me.

4. At 6.57am on 20 August a second voice message left on the complainant’s voicemail service which was played in the Local Court and which has again been played, to me, today.

7. Despite there being four different communications there was only one charge offered against the appellant. It appears that the Crown proceeded on the basis that the telephone conversation and the text message and the two voice messages were part of one course of conduct.

8. The learned Magistrate accepted that the first voice message satisfied him beyond reasonable doubt that the appellant threatened to shoot the complainant. He was not satisfied beyond reasonable doubt that the second voice message or the text message established beyond reasonable doubt a threat by the appellant to cause serious harm within the meaning of s 474.15 (2). His Honour does not appear, from my reading of his reasons, to have dealt with the telephone conversation itself, the only evidence of which was that given by the complainant. However, his Honour did give himself a direction in accordance with R v Murray (1987) 11 NSWLR 11 and having given himself that direction made his finding concerning the second voice message and the text message. One would accept in those circumstance that the same result would apply to the original telephone conversation of 6.48am and therefore that his Honour was not satisfied beyond reasonable doubt that in that telephone conversation the appellant threatened to shoot the complainant. The learned Magistrate’s only finding about the text message is a reference to his having listened to it twice so he could hear it clearly, he then said this:

“I am satisfied beyond reasonable doubt that the message says, ‘I’ll shoot you, motherfucker, fuck you, motherfucker’.”

9. There is no dispute that the appellant used foul language in talking with the complainant and in his voice messages and in his text messages. However, he was not charged with an offence of using foul or abusive language, if such an offence exist.

10. I have listened closely to both voice messages. I could not discern in the first voice message the word “shoot”.   I could hear the sound “shoo” which could equally have been written as “shoe”.

11. The first thing to observe is that the appellant is not a native speaker of English. He, as I have earlier indicated, comes from Afghanistan. He came to Australia in 2001. English is not his native language. To further understand the nature of the the interchanges between appellant and the complainant it is necessary to go back, into background facts. It would appear that on 19 August 2014 the complainant approached Haschem concerning the unrepaid bond money. The appellant gave hearsay evidence about that approach which was not subject to any objection. The evidence is this, commencing at p 32 line 32:

“Q. If I can take you up to 20 August, all right? Do you recall telephoning Mr Sultan on 20 August?

A. Yea, I did.

Q. Can you tell the Court why you telephoned him on that date?

A. Yes, because like he went to my friend place, the guy that he living with me, Haschem, we live together, he went twice and it’s shop.

Q. Is that Haschem Hassanzadeh?

A. Haschem Hassanzadeh, yeah. He went to shop. Like one time he wasn’t there he was telling his boss that he’s a thief, he’s a liar, something like this and second time like he was serving the customers, he worked in a kebab shop, he’s serving the customers. In front of customers he just like doing the same thing, abusing him, saying things. He was telling him, ‘just go away’ like ‘I’m serving customer”..

Q. Do you know the reason for that argument?

A. Because of his bond, like the bond like the deal with that. Whenever if I ask him move out I have to give you two weeks’ notice, whenever you move out you have to give two weeks’ notice as well.

Q. And what was the issue in respect to his bond?

A. Suddenly he just came there he wants to move out. So told him, like my friend told him, that like our deal is that. He said, “Oh, ask to move out, I don’t have money” or something, “I’m moving with my wife” but we knew that he wasn’t moving with a wife. No notice, nothing, yeah.”

12. The appellant then went on to point out that the bond was being held by Haschem. The appellant went on on p 32 of the transcript to point out that he had been told, presumably by Haschem, that the complainant had gone to Haschem’s workplace and confronted him in front of customers. That communication being given to the appellant when he came home from work on the morning of 20 August 2014. The appellant said that he worked 12 hour shifts and finished at 6am each morning and then went home. He was working as a security guard in premises at Pyrmont. The trip home would not have taken him long. He then pointed out that he normally took alcohol when he knocked off work. It was on the morning of 20 August after he got home that he found out about the approach made by the complainant to Haschem on the previous evening. That is what promoted the appellant to commence the communications with the complainant.

13. The evidence of the appellant concerning the reason for the interchange is corroborated to an extent by the evidence of Haschem. At p 52 line 27 the solicitor for the appellant, Mr Richardson, sought to ask Haschem about this approach to him but objection was taken by the prosecutor. However, at the foot of p 52, the following evidence commenced:

“Q. Do you recall Mr Jawid making any phone calls on the morning of 20 August?

A. Yes, he did.

Q. Do you know the reason why Mr Jawid made those phone calls?

A. He was a little bit upset because he came to my workplace and said stuff about me to my colleagues which...

Q. So who do you say came to your workplace?

A. Mr ... Asad.

Q. Mr Sultan?

A. Mr Sultan.

Q. When do you say he came to your workplace?

A. I think it was the day before when he made the call and we met in the morning and we were talking about just how stupid it is that somebody comes - doesn’t talk to me and behind me talks with my colleague ...”

There was then a further objection and no further evidence was adduced from Haschem on this issue. However, that puts the interchange by telephone in context.

14. The complainant gave evidence at the foot of p 10 and top of p 11 of the telephone conversation that he alleged with the appellant about which I do not need to recite anything further. That was followed by the text message which I do not need to recite in detail but one of the items alleged by the complainant was that the appellant said “I will shoot you”. The appellant’s constant refrain is he did not say the word “shoot” but the word “shoo”.

15. This initial telephone conversation was followed by the text message at 6.53am. The text message is this:

“U fuk with afg u wil c m f p.

i wil show u.

U didnt c noting yat m f.

I wil fuk u soon with u r bin.

loten son of a bechh”.

With the benefit of evidence given by both the complainant and the appellant this message was supposed to say this:

“You fuck with Afghan you will see motherfucking Pakistani.

I will show you.

You did not see anything yet motherfucker.

I will fuck you soon with your bin Laden, son of a bitch.”

One will note the use of the word ‘show’ and not the word ‘shoot’ in the text message.

16. Then follows the first voice message in which I could clearly hear the word “shoo” but not the word “shoot”. There is no use of either of those words in the second voice message.

17. The Local Court and this Court must be satisfied beyond reasonable doubt that the appellant threatened to shoot the complainant or a member of the complainant’s family, the crime alleged in the court attendance notice. I cannot be so satisfied.

18. It is common for non-native speakers of a language to mispronounce that language or any language with which they have no great expertise or in which they have no sound learning. By the words “sound learning” I mean established or actual learning. It is clear from the audiotapes, part of which I have heard, that the appellant was capable of pronouncing a final T in an English word. Speakers of some languages find it very difficult to pronounce terminal vowel sounds. For example, in the French language only the terminal vowels R, L, F and C are pronounced. A final T is never pronounced in French unless it is followed by a vowel and is necessary to sound the final T in order to pronounce the vowel that follows.

19. The first part of the cross-examination of the appellant by the Crown prosecutor has been played. It is clear that the appellant was quite capable of pronouncing a final T. For example, p 38 line 19 contains the word ‘went’. On the same page, line 23 contains the word ‘that’. Line 31 contains the word ‘text’, and line 31 contains the word ‘that’. Line 38 contains the words ‘what’ and ‘that’, and line 42 contains the word ‘night’. Line 45 contains the word ‘that’. On p 39, line 11 contains the words ‘first’ and ‘that’ and line 17 contains the word ‘text’.

20. Each of the final Ts in those words has been pronounced. It is clear from the transcript that the appellant was capable of pronouncing both ‘shoot’ and ‘show’ as well as ‘shoo’ or ‘shoe’. I do know from the evidence that the appellant was emotionally agitated in the early hours of 20 August 2014 and had been taking alcohol. He clearly said the word ‘shoe’. Did he mean the word ‘shoot’ or the word ‘show’. He says he meant the word ‘show’. Despite how we spell the word ‘show’ the two letters ‘ow’ represent not a vowel and a consonant but in fact a diphthong, just as the letters ‘oe’ in the word ‘shoe’ represent another diphthong. One can understand that in emotional circumstances and when affected by alcohol the appellant may have used the wrong diphthong and that he did in fact intend to mean ‘show’ rather than ‘shoot’. That intention is clearly shown in the text message which forms part of the whole interaction between the complainant and the appellant on the morning of 20 August 2014.

21. In the circumstances I cannot be persuaded beyond reasonable doubt that in the first voice message the appellant intended to say “I will shoot you” which is the version accepted by the learned Magistrate to ground the conviction. For those reasons I set aside the conviction recorded and the sentence passed by Magistrate Crompton sitting in the Downing Centre Local Court on 9 March 2015.

22. I thank Mr McKenzie who appeared for the Crown today for his very lucid and helpful submissions which clearly assisted me greatly in managing the material that was put before me on this appeal.

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Decision last updated: 09 February 2016