Leigep v Police - [2005] SASC 275

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEIGEP v POLICE
Judgment of The Honourable Justice Layton
20 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - TESTIMONY AS TO BELIEF IN IDENTITY
Appellant appeals against conviction for the offence of threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) - whether the evidence consisting of a phone call identified the appellant as the maker of the threat - whether the magistrate erred in finding beyond a reasonable doubt that the telephone call was made by the appellant conditional upon which identity evidence admissible from statement - whether there was any other admissible material before the magistrate to find the identity of the caller - - whether appropriate to order a retrial under s 42(5) - appellant already undergone sentence concurrent with another sentence - order appeal allowed and that the conviction be quashed.
Magistrates Court Act 1991 (SA) s 42 ; Criminal Law Consolidation Act 1935 (SA) s 19, referred to.
Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627; Gerakiteys v R (1984) 153 CLR 317; The Queen v Firman (1989) 52 SASR 391; Fingleton v Lowen (1979) 20 SASR 312; The Queen v Benz (1989) 168 CLR 110; R v Kamleh [2003] SASC 3; R v Kamleh [2003] SASC 269; Kamleh v R (2005) 213 ALR 97, considered.

LEIGEP v POLICE
[2005] SASC 275

LAYTON J: This is an appeal against conviction. The appellant was charged on an Information with the following offence:
On the 9th day of November at Klemzig in the said state, without lawful excuse threatened to cause harm to Kaitlyn Leigep intending to arouse fear that the threat will be or is likely to be, carried out, or is recklessly indifferent as to whether such fear is aroused contrary to section 19(2) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”).
The offence of threatening to cause harm is a minor indictable offence. The relevant statutory provision under division 4 of the CLCA provides:
19(2) Where—
(a) a person, without lawful excuse, threatens to cause harm to the person or property of another; and
(b) the person making the threat intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 5 years.
(3)This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct.
Following a trial, the appellant was found guilty on 3 November 2004 and was convicted and sentenced on 11 February 2005 to four months imprisonment which was concurrent with another longer sentence of imprisonment for another offence not before me.
Preliminary issues
The appellant sought an extension of time within which to appeal. An affidavit of Nicholas Vadasz sworn on 15 June 2005 was filed herein. Essentially the delay was caused by a combination of circumstances which included that the appellant was found guilty on 3 November 2004 and was not convicted and sentenced until 11 February 2005. Thereafter the appellant’s solicitor overlooked the filing of the Notice of Appeal following the conviction and sentence which was in part caused by waiting for funding confirmation from the Legal Services Commission to file the Notice. No objection was raised to an extension of time by counsel for the respondent. I granted an extension of time.
Issues on appeal
In this case, the Director of Public Prosecution (DPP) quite appropriately conceded that the appeal should be allowed. The concession was made on the basis that although there was “some evidence” before the Magistrate from which an inference could properly be drawn that the telephone caller making the threats was the appellant, there was also a real risk that the Magistrate may have had regard to the evidence given by Constable McManus’ of his knowledge that Ms Dewar was the mother of Kaitlyn and was therefore related to the appellant, which was inadmissible. It was submitted by counsel for the DPP that I should order a retrial and that at such rehearing, additional admissible evidence would be sought to be adduced as to the basis of Constable McManus knowledge of a relationship between Ms Dewar, Kaitlyn and the appellant.
The issues before me were therefore, whether I should accede to the request by the DPP to exercise my discretion pursuant to section 42(5) of the Magistrates Court Act 1991 (SA) and remit the matter for re-hearing before the same or another magistrate, or whether I should allow the appeal and quash the conviction.
Background Facts
The factual basis for the offence consisted of the content of a telephone call in which it was alleged the appellant made threats to a Police officer, namely Constable Derrick Anthony McManus, about the safety and well-being of a child, Kaitlyn Leigep.
At trial, Constable McManus and Constable Cools gave evidence that on 9 November 2003, they were on patrol and were called to an address in Klemzig in response to a communication that a Ms Dewar was alleging her daughter had been abducted. The police officers both gave evidence to the effect that they attended the address and spoke with a distressed Ms Dewar who told them that her daughter was in a car with her daughters father Mark Leigep, who was the ex-partner of Ms Dewar. Constable Cools went back to the police car and Constable McManus stayed in the house and whilst he was there Ms Dewar received a mobile telephone call. The mobile telephone was passed to Constable McManus who spoke to the caller and the content of this conversation was the subject matter of the offence.
Trial process
Apart from the evidence given by Constables McManus and Cools the only other evidence was given by Police Officer Paul Bahr who received information about allegations which was passed on to the two Constables. Police Officer Bahr also later arranged, through the police communications centre, for a police helicopter and an aircrew to be placed on standby and requested a police negotiator to be available. He also passed a message to police officers in all metropolitan and nearby country areas alerting them to the alleged abduction.
The prosecution did not call Ms Dewar. The defendant did not give evidence and called no witnesses. The Magistrate delivered an ex tempore judgment.
Evidence at trial
Constable McManus, after giving evidence of the initiating call to go to the address at Klemzig, continued with his evidence as to what he was told by Ms Dewar, as indicated in paragraph 8 above.
Constable McManus said that after Constable Cools left the house, Ms Dewar answered her mobile telephone and he could hear a male voice shouting on the telephone. Ms Dewar mouthed silently to the Constable “It’s him, it’s him”. He then heard Ms Dewar pleading with the person on the other end of the telephone to bring back “the child”. Constable McManus was handed the telephone. Initially he heard silence and returned the telephone to Ms Dewar, who after speaking again, then handed the telephone to him for the second time. The Constable then had a conversation with a person with a male voice. In examination-in-chief Constable McManus gave the following evidence:[1]
[1] Trial transcript at p 5 line 38, p 6 to line 31.
A.Exact words, I don’t know, I would have identified myself by name and rank and station to the effect of “This is Constable McManus from the Holden Hill Police Station. Is this –“ and I think I said at that stage “Is this Mark?”.
Q.    When you said “Is this Mark?” or “Is that Mark?”, can you recall what he said?
A.Something to the effect of “Of course it fucking is, are you stupid?” or something along that line, the exact words I can’t remember.
Q.    What did that give you to believe?
A.    I believed it was Mark Leigep on the phone.
Q.    Did you have a further conversation with him?
A.    I did. The conversation was essentially one-sided.
Q.    When you say it was one-sided, can you describe what you mean by that?
A.Mark did a lot of talking and he was abusing me being a police officer telling me that if we tried to follow him, if we tried to stop him, he would just get into a high speed chase or he will run from the police, I can’t remember exactly what the words were there, but he would run the car into a stobie pole and he would kill the daughter.
Q.When he mentioned his daughter and the stobie pole, was that mentioned more than once?
A. It certainly was. It was mentioned over and over again in different ways. “I’ll just run it into a pole, I’ll run it into a stobie pole, I’ll wipe out her side of the car”, he referred to his daughter by name at least twice.
Q.      Can you recall what name he used?
A.      Kaitlyn.
When cross-examined, Constable McManus gave the following evidence: [2]
[2] Trial Transcript p 11 lines 21-31.
Q.    Is it your evidence you said “Is this Mark?”?
A.    That’s correct.
Q.    Are they your exact words?
A.    At this stage I wouldn’t say they were my exact words and whether I clarified it was Mark or Mark Leigep, I couldn’t tell you. In fact I would probably tend to go towards saying that I would have asked if this was Mark Leigep.
Q.    Did you say “Who is this?”?
A.    I might have said that, I would have [to] refer to my notes to see what I said on that day.
After referring to his notes the Constable gave the following evidence:[3]
[3] Trial Transcript p 13 lines 3-34.
Q.    What did he say?
A.I have written here I asked him if it was Mark and he said “Of course it fucking is. Who do you think it would be?”?
Q.It’s your evidence that you said “Is this Mark?” rather than “Who is this?”.
A.That’s correct.
Q.Based on that response you assumed it was Mark Leigep.
A.That’s correct.
Q.But obviously you couldn’t see who was on the other end of that phone, could you?
A.No.
Q.So you couldn’t be absolutely sure it was Mark Leigep?
A.No.
Q.You just assumed.
A.I did.
Q.You said that whilst you were having that conversation with this person they mentioned certain threats about running a car into a car or a pole and you just gave evidence to say that this person used or that a daughter’s name Kaitlyn on perhaps two occasions?
A.Yes.
Q.That’s not in your statement, is it?
A.No.
Q.Why is that?
A.Obviously I didn’t put it in there and maybe it’s an oversight on my part and perhaps it’s something I should have noted.
Q.Because it’s quite important that he’s actually mentioned someone’s name specifically.
A.On reflection, yes.
In this evidence, using his notes, the Constable reverted to having said the name “Mark” without a surname and there was no reference to the name “Kaitlyn”.
On further cross-examination the Constable gave evidence:[4]
Q.Is it your evidence that after you received a response from a male voice on the end of this mobile, your question “Is this Mark?”, the response “Of course it fucking is. Who do you think it is?”, you just assumed it was Mark Leigep?
A.That’s correct. That combined with the fact that Rebecca Dewer had told me that it was him.
Q.But there is nothing else by way of evidence that you can present to confirm that it was actually him on the end of that phone?
A.No.
Constable McManus also gave evidence that as a consequence of the conversation:[5]
…he was immediately fearful for the child. He did say that he would only do it if the police were to chase him. He didn’t say he was going to do it spontaneously or anything else like that. I felt he was only doing it to intimidate police and to stop them from chasing him, but I believed that he was genuine in that if the police did chase him he would run it into a pole or a stobie pole in an effort to kill his daughter.
[4] Trial Transcript, p 15 line 30 - p 16 line 2.
[5] Trial Transcript p 6 line 34 – p 7 line 3.
Judgment of the Magistrate
The learned Magistrate found that the charge was made out. The ex tempore reasons given by his Honour suffer from the fact that the transcript is not complete and there are portions which are inaudible. The Magistrate indicated that “the real crux” of the issue was the telephone call which Constable McManus took and stated:
There are other objective facts, about the evidence which to my mind make it abundantly clear that [it was] the defendant who has made threats…[6]
[6] Police v Leigep Reasons for Decision, Magistrate Clark, p. 1.
The Magistrate found that Constable McManus was a frank and honest witness and further that:
I find that the evidence of McManus has not been compromised by the absence of Dwyer(sic).[7]
[7] Police v Leigep, Reasons for Decision, Magistrate Clark, pp. 2-3.
The Magistrate also found that the defendant had no lawful excuse to threaten harm to Kaitlyn, he was not simply “sounding off” and that there were “real, substantial and genuine threats” made by him about the safety of Kaitlyn.
His Honour in finding the charged proved, then sentenced the appellant.
Grounds of Appeal
The appellant’s major ground of appeal is that the Magistrate erred in finding beyond a reasonable doubt that the telephone call was made by the appellant. This has effectively been conceded on appeal and, as indicated above, the issue is whether the remedy should be a re-trial or simply a quashing of the conviction.
Should there be a retrial?
There are a number of cases which deal with the principles which are relevant to the exercise of the discretion as to whether or not to order a retrial. The essential principle to be gleaned from the High Court decisions on whether there should be a retrial, is that it would be inconsistent to order a new trial in a case in which “evidence at the original trial was insufficient to justify a conviction”.[8] A similar expression was also used in a joint judgment of the High Court in Director of Public Prosecutions for Nauru v Fowler:[9]
The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test.
[8] Gerakiteys v R (1984) 153 CLR 317 at 321, 331.
[9] (1984) 154 CLR 627 at 630.
On the basis of these authorities, the starting point is to consider whether the evidence already adduced at trial was sufficient to justify a conviction and in particular that a retrial is not being used for the purpose of giving the prosecution an opportunity to supplement a defective case.
In this case counsel for the appellant argued that the evidence before the trial Judge was deficient and that the only way in which that could be remedied would be an opportunity for the prosecution to supplement the evidence.
Counsel for the DPP submitted that upon a retrial, the prosecution would seek to call further evidence from Constable McManus to supplement the evidence which he could otherwise have given but he was unable to amplify because of the Magistrate’s intervention. This additional evidence was in relation to the basis of the knowledge of Constable McManus as to the relationship between Ms Dewar, Kaitlyn and the appellant. It was submitted that this evidence was prevented from being given at trial. The passage of the transcript which is relevant to the intervention of the Magistrate indicates as follows:[10]
[10] Trial Transcript, p 2 line 331 – p 3 line 19.
Q. You mentioned Rebecca Dewer(sic). Did you know Rebecca Dewer(sic) prior to this date?
A. I did.
Q.      In what capacity was that?
A. As a complainant, a victim of previous offences. She was related to Mark Leigep who was a person of interest to the LSA, or sorry the –
HIS HONOUR:    Ms Ferris, you don’t object to this. I have a concern as to how far this will go and it could tend to be prejudicial.
MS FERRIS:       It could.
HIS HONOUR:    It might be a wiser course albeit there is no objection made on the record that Mr Devlin I think I should get your witness to stop.
APP DEVLIN:    Yes, thank you.
HIS HONOUR:    I’m not going to quiz you why and how it becomes relevant, but I think we need to move on unless there is some issue here that some attack is going to be made on Dewer’s (sic) character. Ms Ferris, this needs to be canvassed.
MS FERRISShe’s not here. It’s really not relevant. I think what we need to get to is the crux of the issue.
HIS HONOUR:    That’s exactly right, but if there is no issue about Ms Dewer (sic) we will just stop it all there and move on. He and his partner were called out by Ms Dewer (sic) to this address in The Parkway Klemzig.
It can be seen from this transcript that the intervention by the Magistrate was not as to the relationship per se, but rather appeared to relate to whether or not the appellant was a “person of interest” to the “LSA” in conjunction with the complainant having been a victim of previous offences. That it was not an intervention by his Honour on the matter of relationship, was made more manifest when Constable McManus was permitted by the Magistrate without objection by the counsel for the defence, to give evidence that upon arrival at the house there
… would have been a discussion having known that she and Mark had been in a relationship, we would have discussed the fact that it [was] Mark who had taken the child and when she spoke to me about the person on the phone, she was just saying “It’s him, it’s him.”[11]
[11] Trial Transcript, p4 line 37 – p 5 line 4.
This evidence was clearly inadmissible hearsay.
In relation to what further admissible evidence would be sought to be adduced from Constable McManus at the hearing of any retrial of the matter, it is to be noted that the DPP was unable to indicate what admissible evidence could be given by Constable McManus as to the relationship between Ms Dewar, Kaitlyn and the appellant. Nonetheless, the DPP maintained that it was not seeking to make good a defective case but rather to supplement the evidence to “make the relationship more apparent.”
These respective submissions need to be considered in the context of the actual admissible evidence and the legal principles to be applied.
Telephone Calls: Evidence of Identity
Certain cases were cited by the DPP to support the admissibility of the telephone call taken by Constable McManus and that it could be used to establish the identity of the caller who made the threats, as being the appellant.
The first of the authorities is the case of R v Firman[12]. This case concerns an appellant and co-accused who were charged with and convicted of possessing heroin for sale. The heroin was found in front of the car in which they were both travelling and the jury was asked to find that there was joint possession of the heroin by both accused. Evidence was given by a detective that upon entering the house in which both of the accused lived, he answered a number of telephone calls at the house. Most were plainly inquiries concerning drugs and in five of those calls there was a reference to “Prue”, which was the name of the appellant in that case. It was contended that the evidence of the telephone calls was inadmissible as hearsay and should have been excluded.
[12] (1989) 52 SASR 391.

King CJ, who wrote the leading decision with whom the other members of the Court concurred, stated:
The content of the telephone calls was relevant as tending to prove the existence of a business [of selling drugs] and the appellant's involvement in it, because it consisted of inquiries for drugs apparently made by potential customers. A necessary incident of the business of selling a commodity is the receipt of inquiries and offers to buy from customers…. [t]he purpose for which the evidence was tendered and admitted was therefore not to prove the truth of anything stated by the telephone callers but to prove the fact of the making of the inquiries or offers.[13]
[13] (1989) 52 SASR 391 at 394.
Further the Chief Justice continued that words in a telephone call are admissible for many purposes without infringement of the hearsay rule and cited examples where they were admissible to establish the identity of the party to the telephone conversation. The Chief Justice declined to follow the reasoning of a single Judge in Fingleton v Lowen[14] and further reinforced that what was admissible was:
…not the truth of anything said but the fact of the making of the inquiry or offer to bet. If the words spoken in telephone calls are admissible to prove the existence and nature of the business or activity, there is no reason in principle or logic, in my opinion, why they are not admissible to prove the identity of a participant in the business or activity.
The Chief Justice continued to reinforce,
…the purpose of the evidence of the telephone calls in the present case was not to prove the truth of anything stated in them. It was to prove the making of the sort of inquiries and offers which one would expect if a drug-vending business or activity was being carried on at the premises and by the person sought in the inquiries, namely “Prue”. [15]
[14] (1979) 20 SASR 312 per Zelling J.
[15] (1989) 52 SASR 391 at 396.
This case cannot, in my view, support the contention by the DPP that the content of the telephone call between Constable McManus and the male caller in which there was an apparent affirmation that the caller was “Mark”, is admissible as proof that the caller was in fact “Mark Leigep”. Further, it is unclear from the evidence of the Constable McManus of the telephone conversation, as to who was the victim of the alleged threat; in particular, it is uncertain as to whether the caller indicated that the victim was a “daughter” or whether the reference was specifically to the name of “Kaitlyn”. This evidence appears to have been used as evidence to prove the truth, that the caller was the appellant and that the victim was Kaitlyn Leigep.
Further, the facts in Firman did not concern a telephone call made by an alleged accused, rather it concerned telephone calls made by persons other than an alleged accused in which the name of the alleged accused was referred to in connection with a relevant circumstance. Namely, that the accused was regularly involved in a business of the type to which the offence was related. It was in the nature of circumstantial evidence.
Another decision relied upon by counsel for the DPP was The Queen v Benz[16]. This case concerned the trial of Mrs Murray, (“the mother”) and Ms Benz (“the daughter”) for the murder of the mother's de facto husband (“the deceased”). There was evidence that the body of the deceased was found in the river downstream from a bridge and that he had died from drowning after having sustained extensive injuries to his body. There was also other evidence suggestive of the mother being involved.
[16] (1989) 168 CLR 110.
Without objection from the defence, the prosecution led evidence from a motor vehicle driver who passed over the relevant bridge on the night when the murder was alleged to have been committed. He gave evidence that he spoke to two women, whom he described, asking them if everything was all right. He said that the younger one said to him “It's all right, my mother's just feeling sick”.
The issue in the case was whether or not this statement, “It's all right, my mother's just feeling sick”, was admissible against one or both of the accused as to identity. Four separate judgments were delivered by the High Court, one being a joint judgment. Opinions varied between the Judges as to the reasons for admission of the statement, the circumstances in which it was admissible and against whom the statement was admissible.
The joint judgment of Gaudron and McHugh JJ concluded:
We think that the evidence concerning the statement made to [the driver] was admissible and could have been used against the respondents subject to an initial finding by the jury that the two women on the bridge were the murderers and were disposing of the deceased's body when seen by [the driver]. Upon making that finding the jury could use the statement as part of the res gestae... But, until there was a finding that what occurred on the bridge was part of the res gestae, the statement made to [the driver] could not be used as evidence against either of the respondents. Hence, the jury should have been directed that they could not use the statement unless they first found that the two women had killed the deceased and were disposing of his body when seen by [the driver].[17]
[17] Ibid at 144.
A similar approach was taken on this point by Dawson J who said that:
What was relevant was the fact that the younger woman referred to the older woman as her mother, thus suggesting, together with the other evidence, that the two women on the bridge were the respondents. In other words, in referring to the older woman as her mother, the younger woman was acting in accordance with the relationship known to exist between the respondents and it was that fact which was relevant... The behaviour of the younger woman as a daughter in referring to the older woman as her mother was as much a fact as any of the other circumstances described by [the driver] and the jury were entitled to have regard to it in drawing their conclusions about the identity of those two women.[18]
[18] Ibid at 134.
Dawson J added:
The younger woman's statement did not form part of the narrative but constituted conduct from which, together with the other evidence, it might be inferred that the two women on the bridge were the respondents…The making of the statement constituted conduct which went to the identity of the two women on the bridge and was admissible, not as an exception to the hearsay rule, but as a relevant fact.[19]
[19] Ibid.
Further, his Honour concluded that the statement in question accompanied the act of being present on the bridge and was part of the res gestae but it was not necessary to rely on the doctrine because the statement was not excluded by the hearsay rule and was admissible on the ground of relevance only.[20]
[20] Ibid at 135.
Mason CJ, on the other hand, decided the matter on a different basis. His Honour regarded the statement as part of the res gestae, being a statement made by a person who is engaged in the enterprise of disposing of the body of a man who had been murdered. It was a statement made at the scene at the time of the disposal of the body and it tended to suggest that the two women on the bridge were the respondents since they stood in a mother - daughter relationship. The Chief Justice further added, that it was a matter of everyday life that persons gave “expressions of belief” as to a close relationship and that those utterances were “generally speaking reliable” and stood outside the hearsay rule.[21] The Chief Justice also noted that the statement was:
…a spontaneous utterance, made in response to the sudden and unexpected arrival of a stranger...[and that the] response…should be treated as trustworthy and reliable… But the truth or falsity of that assertion, itself not in issue, provides no reason for thinking that the description given of the other woman was also invented.[22]
And further stated, at p119:
But on any view the jury would not have used the evidence for the purpose stated unless they had concluded that the women on the bridge disposed of the deceased's body in the river, a conclusion that was, in the light of the evidence, irresistible.[23]
[21] Ibid at 117.
[22] Ibid at 118.
[23] Ibid at 119.
In summary, although the reasoning of the Judges varied, there seems to have been unanimity that the evidence of the driver of the conversation was admissible as part of the res gestae but importantly its admissibility was dependant upon there being other evidence that the two accused were related, that they were the murderers and that they were in the process of disposing of the body when the statement was made.
This analysis of the case if applied to the circumstances here, requires that although the telephone conversation is admissible evidence of the threat and the content is part of the res gestae, there must already be evidence by some other means, other than the telephone conversation, of the relationship between Ms Dewar, Kaitlyn and the appellant before evidence of the telephone call could be used to prove the identity of the caller as being the accused.
It is therefore necessary to see if whether, apart from the content of the telephone conversation there was any other such admissible evidence as to relationship.
In my view, there is considerable doubt. The discussion between Constable McManus and Ms Dewar involves hearsay and is admissible only as part of the general background circumstances. That evidence cannot be used to establish the involvement of the appellant or the identity of the caller. There is no evidence other than hearsay evidence as to whether Kaitlyn was even the daughter of either Ms Dewar or the appellant. Further, at no time did Ms Dewar even say that it was the appellant who was on the telephone[24] nor indeed was there any evidence as to who owned the mobile phone. The evidence of Constable McManus was that he assumed the caller to be the appellant by reason of him “knowing” of a relationship which existed between Ms Dewar and the appellant and which also involved Kaitlyn.
[24] Trial Transcript at pp 3-6.
Therefore using the analogy of the Benz case, there was no other admissible evidence of relationship which linked the appellant as being the caller to allow the telephone conversation to be used as evidence of identity of the caller as distinct from it being evidence of a threat being made.
There is however another way in which the content of the telephone call may have been relevant admissible evidence as implicating the appellant as being the caller. This involves consideration as to whether the content of the telephone conversation disclosed esoteric knowledge from which it could be implied that the caller was the appellant[25]. This approach to the evidence was not specifically argued before me. Leaving aside the reference to the caller’s acceptance as being “Mark” and questionable reference to “Kaitlyn” which has been discussed above, and which may have been characterised as esoteric knowledge, there was a reference to another item of potential esoteric evidence in the telephone conversation. Namely, the statement by the caller about running the car into a stobie pole and killing his daughter and that if the police tried to chase him, he would get into a high speed chase. This may have implied that the caller was the appellant, if for example it could be proved by other means that the appellant was in a car and that his daughter was missing from home and was likely to be with him in the car. This statement of the caller would not be admissible as evidence of the truth of what he said, but could be used as evidence which would tend to implicate the appellant as being the caller because these particular circumstances would have been known by him and was not in the public domain. However, that implication could only be made if there was other evidence as to that esoteric fact. There was no such evidence in this case.
[25] See discussion of esoteric evidence in R v Kamleh [2003] SASC 3; R v Kamleh [2003] SASC 269; and on appeal to the High Court of Australia Kamleh v R (2005) 213 ALR 97 at [14]-[16].
In summary, in the absence of there being evidence as to relationship or evidence of other identifying features before the Magistrate which could link the content of the telephone conversation with the appellant, I consider that it was a defective hearing in the first place. It was known that Ms Dewar was not to be called and there was no other admissible evidence adduced to fill this gap. This alone would suggest that it is inappropriate to order a retrial.
Even if this assessment was incorrect, there are some other factors such as the justice of the situation which I also think mitigate against a retrial being appropriate.
Delay
This offence occurred in November 2003 and any retrial would have to be at the earliest late 2005. There would be prejudice not only to the accused but also to the witnesses who would have to go through another trial process after this length of time.
Sentence
A further significant consideration is that the sentence imposed by the Magistrate was four months imprisonment dating from February 2005, which was ordered to be concurrent with another sentence that has not yet expired. The appellant has already served his sentence. It is unjust, having regard to those circumstances, that the appellant should have to undergo another trial in order to be potentially convicted in relation to an offence for which he has already been punished. On this basis alone I consider that it would not be just to order a retrial.
Seriousness of the offence
Counsel for the DPP submitted that a factor which supported the appropriateness of a retrial, was the seriousness of the crime which was illustrated by the resources utilised by the police in order to respond to be threats made by the appellant. I agree that the seriousness of the crime is a consideration and I note that the threat which was made by the caller was a conditional threat, namely, that the child would be injured if the police tried to stop him in a motor vehicle. This of course did not amount to a conditional threat such as to be a defence, but it does indicate a lesser level of seriousness than if there was a direct and unqualified threat to the child. I note that Constable McManus gave evidence that formed the view that:
I felt he was only doing it to intimidate police and to stop them from chasing him, but I believed that he was genuine in that if the police did chase him he would run it into a pole or a stobie pole in an effort to kill his daughter.
Having said this, it was a serious offence and the police and Ms Dewar were appropriately very concerned about the conduct being exhibited by the caller. It is merely an ameliorating condition which makes the offence less serious than it would otherwise have been.
I therefore consider in all of the circumstances, that notwithstanding the serious nature of the offence, that it is inappropriate to order a retrial. I consider the appeal should be allowed and that pursuant to s 42(5) of the Magistrates Court Act 1991 (SA), the conviction should be quashed.