Lees v Visser
[2000] TASSC 3
•10 February 2000
[2000] TASSC 3
CITATION: Lees v Visser [2000] TASSC 3
PARTIES: LEES, Jason Andrew
v
VISSER, Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Appellate
FILE NO/S: LCA 21/1998
DELIVERED ON: 10 February 2000
DELIVERED AT: Hobart
HEARING DATE: 28, 29, 30 July 1999
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law - Particular offences - Other offences against the person - Assaults - Generally - Threatened assault - Whether element of offence requires an intention to apply force immediately.
Criminal Code Act 1924 (Tas), s182.
Thornton v R 81/1984, followed.
Aust Dig Criminal Law [131]
REPRESENTATION:
Counsel:
Applicant: D J Porter QC
Respondent: H Virs
Solicitors:
Applicant: Rae & Partners
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 3
Number of paragraphs: 40
Serial No 3/2000
File No LCA 21/1998
JASON ANDREW LEES v CLAAS VISSER
REASONS FOR JUDGMENT EVANS J
10 February 2000
The applicant appeared before the Court of Petty Sessions at Whitemark, Flinders Island on the following charge:
"Charge: Aggravated Assault
Breach of:Section 183 Criminal Code Act, 1924 and Section 115 Firearms Act 1996
Particulars: You are charged with on the 6th April, 1997 at Whitemark in Tasmania you did assault one Jim Demetrios XYPTERAS by pulling open your jacket and exposing a pistol and saying, 'I want to be paid and that I have other means to collect my money.'"
Pursuant to the Firearms Act 1996, s115(2), with the consent of the parties, the applicant was tried summarily.
Facts
The only direct evidence before the learned magistrate in relation to the incident which is the subject of the charge was the evidence of Mr Xypteras, the complainant. The applicant declined to be interviewed by the police in relation to the incident and elected not to give evidence.
The participants reside on Flinders Island. The evidence before the learned magistrate established that at or about midnight on 5 April 1997, the applicant telephoned the complainant and told him he wanted money owed to him by the complainant. The applicant was owed about $1,000 for work he had performed on the complainant's car. The complainant told the applicant he did not have the money. The applicant said he would come to the complainant's home to get the money.
As the complainant was concerned about his conversation with the applicant, he made several telephone calls in order to locate the local police officer. Shortly after the complainant had communicated with the police, the applicant arrived at the door of the complainant's home. The applicant asked the complainant for his money and asked the complainant if he would pay him something. The complainant asked the applicant to come to his shop the next day. Mention was made of the complainant going bankrupt. As he spoke to the complainant, the applicant was playing with a magazine similar to that of a .22 rifle. The magazine was held in the applicant's hand. The applicant in substance told the complainant that he was always paid and there was no way the complainant could get away with not paying the money. As the applicant spoke to the complainant, the applicant on a number of occasions opened his jacket, exposing the handle end of a pistol in the inside pocket of his jacket. The whole handle was exposed. Sergeant McMahon arrived at the scene as the applicant was speaking to the complainant. The applicant said to the complainant, "You didn't call the police did you, Jimmy?" The complainant replied that he had and that he had done so as he felt frightened. Before running from the scene, the applicant said to the complainant, "You won't get away with that Jim, I get you for it". Sergeant McMahon gave evidence confirming that when he arrived at the scene, the applicant ran.
The learned magistrate convicted the applicant.
Appeal
The applicant has appealed against his conviction on the following grounds:
"1The learned magistrate erred in law and/or in fact in that there was no evidence upon which he could find that an assault had been committed by the applicant as defined in section 182 of the Criminal Code Act 1924.
1AThe learned magistrate erred in law in failing to consider whether an essential element of the offence had been made out; namely, whether the complainant in fact apprehended the immediate application of force directly or indirectly.
2The learned magistrate erred in law in that he applied Weissensteiner v R (1993) 178 CLR 217 at pp227-228 when the circumstance of the case did not permit of its application; in particular, that the inference sought to be drawn was an essential ingredient of the offence, namely the Applicant's state of mind.
3The learned magistrate erred in law in that he treated the failure of the Applicant to give evidence as rendering unreasonable and irrational an otherwise reasonable and rational hypothesis with innocence.
…
5The learned magistrate erred in law and/or in fact in that there is no evidence upon which he could make the finding that the pistol involved in the assault was one other than that known to be owned by the Applicant and kept in the safe at his house.
5AThe learned magistrate erred in law in that he failed to give any or any sufficient reasons for finding that the pistol involved in the assault was not the one known to be owned by the Applicant, but was another pistol.
6That the conviction is unsafe and unsatisfactory having regard to the whole of the evidence."
Grounds 1 and 1A
The learned magistrate, in substance, found that the applicant threatened the complainant with immediate force with the intention of conveying to him that the force could be executed immediately. Ground 1 of the appeal was pressed on the basis that at most the evidence established that the applicant intended to threaten the complainant with force at some time in the future and there was no evidence upon which the learned magistrate could find that the applicant's threatening gesture was intended to induce the complainant to apprehend the immediate application of force. It is submitted that an essential element of the offence of assault by means of a threatening gesture is that the accused intended to induce the complainant to apprehend the immediate application of force and that an intention to induce an apprehension of the application of force at some time in the future is not sufficient.
Ground 1A was argued on a similar basis, save that that ground relates to the state of mind of the complainant, not the applicant. Again, the contention is that it is an essential element of the offence that the complainant apprehend the immediate application of force.
The legal proposition which underpins both these grounds of appeal is that for the appellant to be convicted of the offence, the force which he intended to threaten and the force which the complainant apprehended must be immediate force. I turn to that proposition.
Assault is defined in the Criminal Code, s182(1), as follows:
"182 (1) An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening by any gesture to apply such force to the person of another if the person making the attempt or threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; or the act of depriving another of his liberty."
Putting aside the state of mind of the accused, it is apparent on the face of the Code, s182(1), that the elements of the two forms of the crime of an assault by means of a threatening gesture created by the section are:
(1) i the act of threatening by any gesture,
i to apply force to the person of another directly or indirectly,
i if the person making the threat has present ability to effect his purpose; or
(2) i the act of threatening by any gesture,
i to apply force to the person of another directly or indirectly,
iif the person making the threat causes the other person to believe, on reasonable grounds, that he has present ability to effect his purpose.
The learned magistrate convicted the applicant of the second form of assault by means of a threatening gesture which includes, as an element, the accused causing the complainant to believe, on reasonable grounds, that the accused has present ability to effect his purpose.
In Thornton v R 81/1984, the Court of Criminal Appeal considered the mental element to be established against an accused for the purposes of an assault by a threatening gesture. Green CJ said at 9 - 10:
"In my view, an essential ingredient of the crime … is that the act which constitutes the threatening gesture must be done with the intention that the victim should thereby be induced to apprehend that the actor is about to apply force directly or indirectly to the person of the victim. As the learned trial judge did not give the jury any directions about the mental element of the crime, I find it unnecessary to express an opinion as to whether in the alternative it would be sufficient to prove that the act was done with foresight that the probable consequence of the act would be to induce in the victim an apprehension that force was about to be applied to him."
Cosgrove J said at 5 - 6:
"But in my opinion an action cannot amount to a threat (ie a message of impending harm) unless it was intended as such, or was perceived as such by the person or persons to whom it was apparently directed."
Cox J (as he then was) said at 4:
"As presently advised I see no reason to read into that definition the need for a specific intention to cause the victim to apprehend force where the assault takes the form of a threatening gesture any more than the High Court in Vallance v Reg (1961) 109 CLR 56 found the need for such a specific intention to inflict a wound in relation to the crime created by s 172."
And at 5:
"In these circumstances there was cogent evidence that the appellant recklessly caused apprehension of the application of force in the complainants even if he did not specifically intend his actions to be perceived as a threat by them. However, it is unnecessary to express a final opinion on the question whether it would be sufficient to ground a conviction that the jury was satisfied that by a voluntary and intentional gesture the appellant caused apprehension to a victim and that he made such gesture recklessly foreseeing that as a likely consequence such apprehension would be caused … "
The decisions of the members of the Court in Thornton v R (supra) expressly or implicitly accept that as to the mental element to be established against an accused, it is sufficient to prove that the accused's acts were done with the intention of inducing an apprehension in the complainant that force was to be applied. As no issue was raised in Thornton v R (supra) about whether it was necessary that the force was intended to be and apprehended to be applied immediately, the reasons for judgment do not address the significance or otherwise of the immediacy of the threatened force.
In the above-quoted passage from the decision of Green CJ, he refers to inducing "an apprehension in another that force is about to be applied". In adopting the words "force is about to be applied", I do not understand his Honour to be addressing the issue of whether an element of the offence of assault by means of a threatening gesture created by the Code, s182(1) is an intention on the part of the accused to cause the victim to apprehend the immediate application of force as that issue had not been raised. Those words appear to be carried forward from his Honour's earlier summation of the position at common law, at 5 of his reasons for judgment, where he said:
"At common law in cases in which no actual physical force has been applied an assault is a threat which raises in the mind of the victim a fear or apprehension that force is about to be applied."
Whilst no authorities have come to my attention on the significance of the immediacy of the force threatened for the purposes of an assault by a threatening gesture, under the Code, s182(1), there are ample authorities that for a common law assault by a threatening gesture, there must be an element of immediacy about the violence that the complainant apprehends suffering. One line of authority requires that the complainant apprehend immediate violence; Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 and Knight v R (1988) 35 A Crim R 314. In Rozsa v Samuels [1969] SASR 205, Hogarth J, at 207, said:
"The gist of the offence is the creation of a fear in the mind of the person assailed that unlawful force is about to be used against him."
Another line of authority is to the effect that the violence must be a present fear of physical harm in due course within the parameters of the incident; Zanker v Vartzokas (1998) 34 A Crim R 11 and the decision of Zelling J in MacPhearson v Brown (1975) 12 SASR 184. In Barton v Armstrong [1969] 2 NSWLR 451, Taylor J said at 455:
"Threats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an interference with personal freedom and integrity, and the right of a person to be free from the fear of insult. If the threat produces the fear or apprehension of physical violence then I am of opinion that the law is breached, although the victim does not know when that physical violence may be effected."
The applicant relies on these authorities to support his contention that an apprehension of the threat of imminent violence is an essential ingredient of what the accused must intend the complainant to apprehend and what the complainant must believe.
Although common law authorities may play a part in the interpretation of the Code, the starting point in the construction of any provision of the Code is the language used. As observed by Dixon and Evatt JJ in Brennan v R (1936) 55 CLR 253 at 263 in relation to the construction of a provision in the Western Australian Criminal Code:
"But it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered (Cf, per Lord Herschell, Bank of England v Vagliano Brothers (1891) AC 107, at pp 144, 145)."
The circumstances in which the common law may be called in aid in the construction of the Code are dealt with in Vallance v R (1961) 108 CLR 56, Windeyer J at 74 - 76 and in Murray v R [1962] Tas SR 170, Burbury CJ at 172 - 173 and Gibson J at 190 - 193. As those circumstances are not present in this case, resort to the common law is not warranted in order to determine the elements of the crime of assault created by the Code, s182(1); Thornton v R (supra), Green CJ at 6 and Cox J at 4. Similar views have been taken in relation to comparable provisions dealing with assault in statutes in New Zealand and Canada. At common law, the victim's knowledge of the threat is an essential ingredient of the first form of assault by a threatening gesture. In construing the Crimes Act 1961 (NZ), s2(1), which, for relevant purposes, is similar to the Code, s182(1), the New Zealand Court of Appeal refused to read down the terms of the section by incorporating that common law requirement into the statutory offence; R v Kerr [1988] 1 NZLR 270. The Canadian cases I have in mind are R v Colburne (1991) 66 CCC (3d) 235 and R v Melaragni and Longpre (1992) 75 CCC (3d) 546.
Section 182(1) contains no express requirement referable to a threat of immediate force. What is prescribed is "threatening by any gesture to apply … force to the person of another, (directly or indirectly) if the person making the … threat causes the other to believe on reasonable grounds that he has present ability to effect his purpose". A temporal element is introduced into the offence insofar as the section expressly requires that the complainant must believe that the accused has present ability to effect his purpose. That requirement is understandable. In the absence of such a belief, the apprehension caused to the complainant by the threat is likely to be significantly reduced. Whilst the requirement that the complainant believe that the accused has the present ability to effect his purpose may suggest the need for some proximity between the time of the threat and the time when the force is to be applied, this falls a long way short of requiring that the threatened force must be imminent.
The complainant must believe that the accused has a present ability to achieve his purpose, that is, directly or indirectly applying force to the complainant. No limit is expressly placed on the time when the force is to be applied. I can find no justification in the language used for extending the requirement that the complainant's belief be that the accused "has, present ability to effect his purpose" to encompass and impose a requirement that the purpose itself is to be effected immediately. Such an extension would be artificial and illogical. The gravamen of the offence is the accused's threat by gesture to apply force to the complainant and the complainant's belief referable to the same. I can see no reason for confining the offence to threats of immediate force. In some circumstances a threat of force at a time subsequent to the threat can be more intimidating and distressing than a threat of immediate force.
Had Parliament intended to confine the offence to threats of immediate force, it would have been easy to manifest that intention by inserting the word "immediate" into the section so that it read: "threatening by any gesture to apply such force immediately to the person of another". In the absence of language such as this, I am unpersuaded that the words used should be embellished by the addition of a requirement that the threatened force be immediate force.
As it is not necessary that the threatened force be immediate force, grounds 1 and 1A must fail. Insofar as it was necessary to do so, the learned magistrate made findings about the force the applicant intended the complainant to apprehend and the complainant's state of mind referable to that force. The learned magistrate inferred that the applicant intended to convey to the complainant that he would be subject to violence from the applicant by the use of a firearm if he did not pay the applicant. That finding is consistent with the evidence. In relation to the complainant's mental state, the learned magistrate said that he had no reason to doubt the complainant's evidence of his feelings and his perceptions of what the applicant did and said. It is clear from that finding, together with other findings, that the learned magistrate was satisfied to the requisite standard that the complainant believed that the applicant had the present ability to effect his purpose. There was ample evidence to support the findings and I agree with them.
Grounds 2 and 3
Grounds 2 and 3 are directed at the following portion of the oral reasons which the learned magistrate gave for his decision:
"The defendant has not given evidence, and that is not evidence, it cannot be used to fill in gaps in the evidence, but the inference fairly arising from the evidence is that the defendant threatened to apply immediate force to the complainant if he did not pay him the money (immediately) by revealing the gun to the complainant. By his personal presence the defendant intended to convey to the complainant that the violence could be executed immediately, by use of the pistol, that is, that he had the present ability to effect the purpose. It was a threat to apply force without temporal limits, in effect, the money or else. The rational inference consistent with innocence is that he did not intend Mr Xypteras to be induced to apprehend that he was about to apply force directly or indirectly to his person, by the pistol, that he only intended it to be a threat as to future conduct. The defendant's actual intention is something solely within the defendant's knowledge, something of which only he can apprise the court of and he has chosen not to do that. I can more confidently draw inferences from the evidence than I otherwise could … ."
The learned magistrate then referred to the joint judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner v R (1993) 178 CLR 217 at 227 - 229, and in particular the following passage, at 228:
"… hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."
After referring to the above the learned magistrate implicitly rejected the hypothesis that the applicant only intended a threat as to future conduct, as he went on to say he was satisfied beyond reasonable doubt that the charge was proved.
On behalf of the applicant, it is submitted that:
·The Weissensteiner principle has no application when making a determination about an accused's state of mind. In support of this proposition, reference was made to R v Hocking (1988) 9 Qd R 582 at 593 and Kanaveilomani v R (1994) 72 A Crim R 492 at 509. As to a contrary approach, see R v Sparrow [1973] 2 All ER 129.
·The Weissensteiner principle should only be applied where the evidence is of a circumstantial character; Kanaveilomani v R (supra) at 497. A contrary view to this was expressed by the majority of the members of the Court of Appeal in R v Demeter (1995) 2 Qd R 626 at 635.
The Weissensteiner principle was considered by the High Court in RPS v R [2000] HCA 3. That decision provides support for the second submission put on behalf of the applicant. The joint decision of Gaudron ACJ, Gummow, Kirby and Hayne JJ, pars22 - 36, is to the effect that one of the matters which is relevant to the application of the Weissensteiner principle is whether the prosecution case depends upon the jury drawing inferences from proved facts. In the circumstances of this appeal, it does not fall to me to deal with whether the application of the Weissensteiner principle is confined as contended on behalf of the applicant. It is clear from the above-quoted portion of the learned magistrate's reasons for decision that insofar as he applied the Weissensteiner principle, he limited its application to his consideration of whether an inference was open that the applicant only intended to threaten force in the future. For the reasons I have given in relation to grounds 1 and 1A, it was not necessary for the learned magistrate to reject that inference and his reference to the Weissensteiner principle is of no consequence. I observe, however, that had it been necessary for the learned magistrate to reject that inference, he was entitled to do so more readily in the absence of evidence from the accused. The evidence in support of that hypothesis consistent with innocence could only have come from the accused; RPS v R (supra) par27.
The inescapable conclusion to be drawn from the evidence is that the applicant, by his threatening conduct, intended the complainant to apprehend the application of force and the learned magistrate so found. In reaching that conclusion, he did not rely on the Weissensteiner principle. The decision is not open to a challenge for the wrongful application of that principle. I accordingly dismiss grounds 2 and 3.
Grounds 5 and 5A
The evidence called by the prosecution included evidence that the applicant owned a pistol and that when the police called on him at his home shortly after the incident, he, upon request, showed them the pistol which was locked in a safe in his office, as well as a magazine for the pistol containing .22 bullets. He also, on the request of the police, showed them a total of six rifles and guns which he had in a cabinet in his office.
The applicant called his partner, Ms Julie Baker, to give evidence on his behalf. She said that on the night of the incident the applicant left their residence having told her he was going to see the complainant. About 15 minutes after his departure, she had a telephone conversation with Sergeant McMahon, who told her that the applicant had been seen with a pistol. This surprised her, as she had the only set of keys to the safe which contained the pistol. Following that telephone conversation, she went to the safe, opened it and observed that the pistol was there. She also said that the applicant had never had any other pistol. Whilst the learned magistrate accepted this evidence, it did not deter him from finding that the applicant had been in possession of a pistol at the time of the incident with the complainant, although he found that the pistol was not the pistol which Ms Baker had observed in the applicant's safe.
These findings are challenged by grounds 5 and 5A. The premise which underpins the challenge to these findings involves the proposition that it was necessary for the prosecution to establish where the pistol the applicant was observed to have in his possession came from. That is not so. Whilst the absence of evidence of the source of the pistol was relevant to the assessment of the reliability of the complainant's evidence that he observed a pistol in the applicant's pocket, it does not necessitate the rejection of that evidence. The applicant may have obtained the pistol from a variety of sources. The evidence of the firearms the applicant had at his residence suggests that he had some involvement with others who provide and keep firearms.
To convict the applicant, the learned magistrate had to be satisfied beyond reasonable doubt, inter alia, that at the time of the incident the applicant was in possession of a pistol. The complainant gave evidence that he observed the handle of a pistol protruding from the inside pocket of the applicant's jacket. The complainant's evidence on this matter was not shaken in cross-examination. On the day following the incident, the police arranged for the complainant to identify the jacket the applicant had been wearing and the pistol he saw. This exercise was recorded on a video tape which was put into evidence. The complainant was shown three jackets, one of which was the applicant's. He initially identified a jacket other than the applicant's, but after examining each jacket with a pistol placed in its pocket, he identified the applicant's jacket. He was shown four pistols and identified the applicant's pistol as being "something similar" to the pistol he saw. This evidence does not cast any doubt on the veracity or reliability of the complainant's evidence of what he observed.
The complainant gave unchallenged evidence that as the applicant spoke to him, the applicant held a magazine similar to that of a .22 rifle in his hand. No explanation was proffered for the applicant's display of the magazine and this evidence, when considered together with the unusual time at which the applicant chose to visit the complainant and the demands he then made, indicate that the applicant had in mind intimidating the complainant. For the applicant to have had a pistol with him at the time of the visit is consistent with that objective. The applicant ran when Sergeant McMahon arrived at the scene. This suggests that the applicant had something to hide. Against this background, and in the absence of evidence directly contradicting the complainant's observation that the applicant had a pistol in his jacket pocket, the learned magistrate accepted that evidence. There was no reason for him to do otherwise. In accepting that evidence, it was not necessary for the learned magistrate to have evidence before him of the source of the pistol and the absence of that evidence does not vitiate the finding. I reject grounds 5 and 5A.
Ground 6
The applicant submits that his conviction is unsafe and unsatisfactory having regard to the whole of the evidence. The learned magistrate accepted the evidence of the complainant in relation to the incident. That acceptance must in part have been based on the learned magistrate's assessment of the demeanour of the complainant and it should only be disturbed if there is a very good reason to do so. I can see no reason, let alone any good reason, for rejecting the complainant's evidence. The other evidence which was called provides no basis for doing so.
The complainant's evidence having been accepted, in my respectful view, the only conclusion which was reasonably open to the learned magistrate was that the applicant, by his conduct and words, intentionally threatened to apply force to the complainant by means of the pistol and the complainant believed on reasonable grounds that the applicant had the present ability to effect that force. I reject this ground of appeal.
The appeal is dismissed.
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