Jeffery v The State of Western Australia - [2009] WASCA 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JEFFERY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 133

CORAM: MILLER JA

HEARD: 24 JULY 2009

DELIVERED : 6 AUGUST 2009

FILE NO/S: CACR 69 of 2009

BETWEEN: AARON KENNETH JEFFERY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KEEN DCJ
File No  :IND 1300 of 2008

Catchwords:

Criminal law - Leave to appeal - Threat to unlawfully kill - Whether trial judge obliged to direct jury that they needed to consider effect of words spoken by appellant on victim

Legislation:

Criminal Code (WA), s 338, s 338B

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr P B Cassidy
Respondent: No appearance

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Green v The Queen (Unreported, WASCA, Library No 950592, 8 November 1995)
Prazmo v The State of Western Australia [2009] WASCA 25
R v Leece (1995) 78 A Crim R 531
The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25

MILLER JA: The appellant was charged that on 18 September 2007 at Maylands he made a threat to unlawfully kill Kylie Paige Scott.
The offence of threatening to unlawfully kill another is contained within s 338 and s 338B of the Criminal Code (WA). Section 338 sets out what is the meaning of a threat and, relevantly to this case, the definition is in the following terms:
In this Chapter a reference to a threat is a reference to a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to ‑
(a)kill, injure, endanger or harm any person, whether a particular person or not;
...
Section 338B provides as follows:
Any person who makes a threat to unlawfully do anything mentioned in section 338(a), (b), (c) or (d) is guilty of a crime and is liable ‑
(a)where the threat is to kill a person, to imprisonment for 7 years ...
The nature of the case against the appellant and the appellant's defence to the allegation was quite simple. The prosecution case was that on 18 September 2007, at her unit in Maylands, the complainant was assaulted and then had a knife held to her throat. At this time, the appellant was alleged to have said to the complainant that if she called the police he would kill her.
The defence case was that the relationship between the complainant and the appellant was dysfunctional and that an argument developed on 18 September 2007. The appellant said that there was no assault upon the complainant and that at no time did he have a knife to her throat, nor did he threaten to kill her.

The evidence

The complainant's evidence, as recounted by the trial judge to the jury, was that the events began on 17 September 2007, outside an IGA store. The appellant snatched the complainant's keys from her bag. Because she was scared, she then went to a friend's place. There, she received telephone calls from the appellant, telling her that he was going to smash things up if she did not come home. The complainant spent the night at the home of another friend, Andrew Thomas Dawkins. On the following day, 18 September 2007, the complainant received further telephone calls in which the appellant allegedly said that he would 'smash up the house' and 'put a match to it' if she did not return. The complainant said that she returned to the unit with Mr Dawkins.
The complainant said that at her unit there was much yelling and that the appellant threw Mr Dawkins out of the unit. The complainant testified that the appellant then said to her that if the police were called he would kill her. He then had a knife which he had taken from the kitchen drawer. The knife was put to her throat and the appellant allegedly said that he would slit her throat. The complainant said that she was struck by the appellant and that she was petrified. The police arrived at the unit, and the complainant alleged that the appellant then said that if she opened the door he would slit her throat.
Police were at the front door of the unit and, through the door, a policeman asked whether the complainant was okay. The complainant said that she had a knife at her throat and that she was okay. Police were then let into the unit, but according to the complainant the appellant had by then put the knife away in the lounge room.
When cross‑examined, the complainant admitted that there was an argument at the unit when she returned there on the morning of 18 September 2007. She denied that the argument related to drugs. She agreed that the appellant had called her a horrible mother. She said that the appellant had said a lot of things to her, such as, 'You're dead' and 'I should kill you both'. She was unsure whether the threat to kill her was made when Mr Dawkins was present. The complainant reiterated in cross‑examination that when police arrived the appellant told her that he would slit her throat if she let them in, and that at that time he had a knife at her throat.
Mr Dawkins gave evidence that he took the complainant to her unit at about 4 pm on 18 September 2007. He described the appellant as threatening to smash a television set and as holding a hammer in his hand. Mr Dawkins endeavoured to get the complainant out of the unit and said that he had the complainant by the waist, but he was unable to get her out because the appellant had her by the hair. Mr Dawkins stumbled at the doorway and the appellant pulled the complainant back in by the hair and shut the door. Mr Dawkins said that he was about to go to his vehicle to call the police, when he was called back by the appellant. Mr Dawkins said that the appellant then had the complainant by the waist and had a knife at her throat. Mr Dawkins alleged that the appellant said, 'If you call the police, I'll kill her'. When cross‑examined, Mr Dawkins was adamant that he had seen the appellant with a knife at the complainant's throat.
Investigating police gave evidence. Senior Constable Strahan testified that when he arrived at the premises he could see the appellant through a flywire door. The complainant was behind the appellant. The police officers were let into the premises and the appellant was handcuffed. Senior Constable Strahan observed a knife in the corner of the couch. He testified that he did not see a knife in the appellant's hands, nor a knife at the throat of the complainant. He did not hear the appellant threaten to kill the complainant.
Evidence was given by Senior Constable Moffitt, a second police officer who also attended at the premises. He said that the security door to the unit was locked when they got there. He could see the appellant inside and the complainant behind him. Senior Constable Moffitt described the facial expression of the complainant as one of panic and fright. It was the complainant who said that the police should be let in. Once they were let in, the appellant was handcuffed and led to a lounge to sit down. There, Senior Constable Moffitt noticed a knife between the back and side cushions of the lounge. This knife was secured by Senior Constable Moffitt. He confirmed in cross‑examination that he did not see a knife in the hand of the appellant. He did not hear the appellant threaten the complainant.
The appellant gave evidence in his defence. He gave evidence about his relationship with the complainant and about difficulties that they had with their children. He admitted to telephoning the complainant while she was at the home of Mr Dawkins, but said that he wanted to know why the complainant was into drugs and prostitution and was not looking after the children. He said that he was angry, but made no threats. He said that on 18 September 2007 the complainant came to the unit with Mr Dawkins. There was a conversation about the use of drugs, in which the complainant allegedly said that she was mixing up morphine. The appellant said that he asked Mr Dawkins to leave. There was a struggle with Mr Dawkins because he would not leave, but eventually Mr Dawkins went out the door and it was shut. This was the wooden door.
The appellant said that the complainant was only interested in 'having a shot' and, as a result, he started to 'do his block'. He said that he could not recall any argument about the television set. He said that the police did turn up at the unit and he agreed that he would not let them in, but said that they could talk through the flyscreen. In the end, he agreed that they could come in. He said that he was not holding the complainant when they arrived. He denied that at any time during the day he had had a knife in his hand. He denied that he had ever put a knife to the complainant's neck or threatened her with a knife. He also denied assaulting her.
The appellant was cross‑examined about the knife on the couch. He said that he may have put it there and left it there. He described it as standing up on the corner of the couch.
It can be seen from the facts of the case that the trial really revolved around a simple assertion by the complainant that a knife had been held to her throat by the appellant and that he had threatened to kill her. This allegation was met with a complete denial by the appellant.

The trial judge's directions

The trial judge directed the jury as to the legal ingredients of the offence of threatening to kill. He pointed out that the first element was one of identity, but said that this was not in issue. The second element was whether the appellant had made a threat. The third element was whether there was a threat to unlawfully kill the complainant.
The trial judge told the jury that a threat was:
[A] statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting a threat to do something. A threat is a statement of a person's intention to punish or hurt someone. In this case, the State says the threat was to unlawfully kill Ms Scott.
The trial judge then told the jury that the meaning of the words used by a person often depends upon the circumstances in which they are used. Words which if interpreted literally would amount to a threat to kill are frequently made in jest or temper, and in a context where they are not intended to be taken seriously. The trial judge then continued:
Now, members of the jury, whether a threat to kill has been made is a question for you, the jury, to determine. Now, you'll do that first by finding what words, if any, were used by Mr Jeffery, and then deciding whether those words, in the context in which they were used, can reasonably be regarded as constituting a threat to unlawfully kill Ms Scott.
Now the issue, members of the jury, is not whether Mr Jeffery actually intended to kill Ms Scott. The issue is whether the words that you find were used by Mr Jeffery, in the context in which they were used, constituted a threat to unlawfully kill.

Ground of appeal

There is only one ground on which leave to appeal is sought. It is in the following terms:
1.The trial Judge erred both in law and in fact when he failed to direct the jury adequately concerning the elements of the offence such that there was a miscarriage of justice:
Particulars of inadequacy:
i)His Honour failed to direct the jury that they needed to consider, as part of the circumstances in which the words were spoken, the effect of them upon the complainant.
The appellant's contention relies primarily upon the judgment of Ipp J in Green v The Queen (Unreported, WASCA, Library No 950592, 8 November 1995). This was a decision of the Court of Criminal Appeal (Franklyn, Ipp and Anderson JJ). Franklyn and Anderson JJ agreed with Ipp J. The case concerned a threat to unlawfully kill two police officers, contrary to the provisions of s 338B(a) of the Criminal Code. The ground of appeal against conviction was that the trial judge had withdrawn from the jury the issue as to whether a threat to kill had been made. The evidence in the case revealed that a Sergeant Edmondson had testified that the appellant had said to him and to another officer, 'I'll kill you ... I'll ... kill you'.
In dealing with s 338B(a) of the Criminal Code, Ipp J said, at 8:
It is no part of the offence that the person who is making the threat should possess an intention to carry out the threat: Spiteri v The Queen, unreported CCA SCt of WA; Library No 930209; 8 April 1993. That is to say, the subjective intention of the person making the threat is irrelevant. To this extent the offence of threatening to kill under our Criminal Code differs from similar offences elsewhere; see for example s20 of the Crimes Act (Vic), s19 of the Criminal Law Consolidation Act (SA) and s16 of the Offences Against the Person Act 1861 (UK) (as replaced by the Criminal Law Act 1977, Schedule 12 (UK)).
The words in s338B 'makes a threat' are equivalent to 'threaten.' The Oxford English Dictionary defines 'threaten' relevantly as, 'To declare one's intention of inflicting'. Therefore the words used, when objectively construed, must constitute a declaration of an intention to kill. Accordingly, while there should be no inquiry into the subjective intention of the person alleged to have made a threat, the words alleged to constitute a threat must constitute, objectively speaking, a declaration of an intention to kill.
The meaning of words may depend on the circumstances in which they are used, and any task of construction will ordinarily involve an examination of those circumstances.
Ipp J said, at 9, that it has long been held that whether a threat to kill has been made is a question for the jury to determine. That question involves not only an examination of the words used, but also the circumstances in which they were spoken.
The case turned upon the question whether there had been a miscarriage of justice occasioned by the failure of the trial judge to leave to the jury the question whether the words were actually spoken. In the context of the way in which the case was dealt with, it was determined that there had been no substantial miscarriage of justice occasioned by that failure.
Counsel for the appellant seeks to extrapolate from the decision in Green the proposition that an examination of the circumstances in which the words were spoken means that the circumstances should include 'the effect of the words spoken upon the recipient'.
In Green, Ipp J made no statement to this effect. What his Honour said, at 9, was:
It has long been held that whether a threat to kill has been made is a question for the jury to determine: R v Carruthers (1844) 1 Cox CC 138; R v Tyler (1835) 1 Mood CC 428; R v Solanke [1971] WLR 1. That question involves not only an examination of the words used, but - in addition - the circumstances in which they were spoken.
I apprehend this statement to be no more than that the jury must look at the circumstances in which the words were spoken to see whether they truly constituted a threat to kill, or whether the words may have been used in some other context. This statement does not support the proposition that the circumstances include the effect of the words spoken upon the recipient.
Counsel for the appellant has made reference to R v Leece (1995) 78 A Crim R 531 and, in particular, to the following passage in the judgment of Higgins J, at 536:
One may infer … that to be a threat to kill, the relevant utterance or communication must convey, objectively, to the hypothetical reasonable person in the position of the listener or recipient that the publisher proposes to kill the listener or recipient or another person. If it conveys a merely hypothetical proposal that will not suffice, but a conditional threat, particularly when the person threatened is entitled not to meet such conditions, will suffice as 'a threat'. There may, of course, be a fine line between such a conditional threat and a merely hypothetical one.
This passage does not suggest that it is necessary to consider the effect of the words spoken upon the recipient, but only that the words spoken need to be looked at objectively to see whether or not they constitute a threat to kill.
The essence of the offence of threatening to kill is that (1) there must be a threat, and (2) the threat when viewed objectively (which means an examination of the words used and the circumstances in which they were spoken) must declare an intention to kill.
To introduce into the test a need for the recipient to give evidence that he or she was in fear of being killed, would be to introduce a subjective element into the offence. It would involve the subjective belief of the recipient of the threat. There is nothing to support this contention.
Reference by counsel for the appellant to The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25 per Murray J, at [38], seems to me to be irrelevant to the matter. Murray J was there speaking about circumstances of aggravation in the context of a charge of robbery in circumstances of aggravation, and I can find nothing in the passage referred to which is of any assistance whatever to the appellant.
It follows, in my opinion, that there is no substance in the ground of appeal.
In Prazmo v The State of Western Australia [2009] WASCA 25, at [1], I formulated the test for leave to appeal in these terms:
For leave to appeal to be granted, the court must be satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 9(2). To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
In the present case, I do not consider that the appellant's ground of appeal has any rational and logical prospect of succeeding or any real prospect of success. I would refuse leave to appeal.