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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leigep v Police

Details

AGLC: Leigep v Police [2005] SASC 275
Case: [2005] SASC 275
Decision Date: 20 July 2005

CaseChat Overview and Summary

The appellant, Leigep, appeals against his conviction for the offence of threatening to cause harm, contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). The primary issue before the court was whether the evidence, which consisted of a phone call, was sufficient to identify the appellant as the person who made the threat. Additionally, the court had to determine whether the magistrate erred in finding beyond a reasonable doubt that the telephone call was made by the appellant, and if there was any other admissible material before the magistrate to establish the identity of the caller. The court also had to decide whether it was appropriate to order a retrial under s 42(5) of the Magistrates Court Act 1991 (SA).

The court considered the principles relevant to the exercise of the discretion to order a retrial. The High Court has established that it would be inconsistent to order a new trial in cases where "evidence at the original trial was insufficient to justify a conviction." The court found that the evidence given at the original trial, including the testimony of Constable McManus, was sufficiently cogent to justify a conviction. However, the court found that the magistrate erred in relying solely on Ms. Dewar's identification of the caller as the appellant without proper corroboration. Consequently, the court allowed the appeal, quashed the conviction, and ordered that the appellant's conviction be quashed.

Orders

Orders of the court

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Background

Background to the litigation

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”.

Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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