Manicaros v Rowbottam

[2003] NTSC 115

Manicaros v Rowbottam [2003] NTSC 115

PARTIES:ASHLEY PAUL MANICAROS

v

HELEN MAREE ROWBOTTAM

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:JA 115 of 2003 (20102088)

DELIVERED:  27 November 2003

HEARING DATES:  14 and 15 October 2003

JUDGMENT OF:  ANGEL ACJ

CATCHWORDS:

REPRESENTATION:

Counsel:

Appellant:In person

Respondent:  J Adams

Solicitors:

Appellant:–

Respondent:  Director of Public Prosecutions

Judgment category classification:    C

Judgment ID Number:  ang2003011

Number of pages:  12

ang2003011

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Manicaros v Rowbottam [2003] NTSC 115
No. JA 115 of 2003 (20102088)

BETWEEN:

ASHLEY PAUL MANICAROS

Appellant

AND:

HELEN MAREE ROWBOTTAM

Respondent

CORAM:    ANGEL ACJ

REASONS FOR JUDGMENT

(Delivered 27 November 2003)

1. This is an appeal against conviction and sentence.

1. On 23 May 2003 the Court of Summary Jurisdiction at Darwin found the appellant guilty of three counts of with intent to cause fear, making a threat to kill a person, which threat was of such a nature as to cause fear to any person of reasonable firmness and courage, contrary to s 166 of the Criminal Code, for which the maximum penalty is seven years imprisonment.

2. The three counts related to threats made respectively to Matt Sodoli, John Daulby and Bertram Hofer in February 1999.

3. In relation to Count 1 the appellant was found guilty, convicted and sentenced to 8 months imprisonment, fully suspended, and an operational period of 2 years was specified.  In relation to Count 2 the appellant was found guilty, convicted and fined $600 plus $40 victims’ assistance levy.  In relation to Count 3 the appellant was found guilty, convicted and fined $1000 together with a $40 victims’ assistance levy.  In addition costs of $2,590 were awarded against the appellant.

4. The learned magistrate’s comprehensive reasons extend to more than 50 pages.  He systematically set out the nature of the charges and what the prosecution was required to prove beyond reasonable doubt in order to sustain a conviction.  He comprehensively discussed the evidence, analysed the relevant law and made clear findings of fact.  His Worship referred to Leece (1995) 78 A Crim R 531, on appeal, (1996) 86 A Crim R 494 at 498, and the decision of Mildren J in Bunting v Gokel unreported 12 April 2001.  His Worship correctly stated the relevant law to be that the whole of the contents and circumstances of each communication comprised by Exhibits P4, P5 and P9 said to constitute the threats respectively to Hofer (P4), Sodoli (P5) and Daulby (P9) were to be considered rather than the words or phrases contained therein in isolation.  He correctly addressed the question whether each communication conveyed, objectively, to a hypothetical reasonable person in the position of the recipient that the maker of the threat proposed to kill the recipient or another or whether the threat was merely hypothetical.

5. His Worship after a close analysis of the contents of the three exhibits concluded that each communication constituted a threat meeting the requirements of the section of the Criminal Code.  In each instance he found that the threat was of such a nature as to cause fear to any person of reasonable firmness and courage and further that the threat was made with the intention of causing fear.  His Worship found that the anonymity of the author of the threat added to the sinister nature thereof.

6. His Worship’s conclusions regarding the nature of the threats cannot be assailed on appeal.  It was open on the evidence for the learned magistrate to be satisfied beyond reasonable doubt about these matters.  Thus this Court ought not substitute its own findings for that of the learned magistrate as regards the nature of the threats.  The appellant did not assign any specific error as regards the learned magistrate’s finding concerning the nature of each threat.  Plainly the threats in each instance were serious threats intended to be taken seriously.  There could be no suggestion they were sent as a joke.  They were plainly inter–related and as the learned magistrate said the anonymous nature of the threats made them all the more serious.  There was reference to Hofer’s loved ones and to Sodoli’s wife, Rowena, which would undoubtedly have added fear and apprehension to the recipients.  The threats not being one off or isolated demonstrated a degree of calculation.  None of the threats had the appearance of a joke.  As I have said there was nothing to suggest other than that the sender wished to cause alarm and distress to the recipients.

7. The principal issue at trial was whether the appellant, who strongly denied the charges, was the author of the three threats comprising Exhibits P4, P5 and P9.

8. Exhibits P4, P5 and P9 comprised three envelopes similar in size, colour, appearance and type with similar 45 cent stamps which were post marked at the Darwin Mail Centre.  Each was addressed to the recipient in handwriting which was not so dissimilar as to rule out that it was written by the same person.  All three envelopes contained two A4 sheets of paper, one identical in all three instances containing the words “one by one your gang are going to die” in bold type sideways.  The other A4 sheet of paper in each instance was computer printed sideways across the page.  The police rank and name of the recipient was in enlarged capitals in bold and the messages to Sodoli and Daulby contained the same phrase “you keep stealing my drugs”.  The learned magistrate concluded that Exhibits P4, P5 and P9 were prepared, addressed and posted by the same person or persons.  This finding was inevitable and plainly correct.

9. There was no direct evidence that the appellant was involved in the sending of the threats.  At his record of interview he denied any knowledge of the offences.  The police investigated the appellant’s computer but nothing was found to link him with the envelopes or the contents of the envelopes.  The prosecution case was a circumstantial case based on the following :

   (a)expert evidence that DNA found on the seal of the envelopes in Exhibits P4, P5 and P9 matched the DNA of the appellant;

   (b)expert evidence that the handwriting on the envelope in each instance matched the handwriting of the appellant;

   (c)evidence from Australian Federal Police Officer Quade that on 5 May 2000 in Canberra the appellant made certain allegations against a number of persons including Sodoli, Daulby and Hofer.

1. His Worship carefully analysed the expert evidence relating to DNA and the expert evidence as regards the handwriting.  He found that the expert witnesses were adequately qualified.  He noted that no evidence was called to challenge any of the prosecution expert evidence.  He noted that there was no evidentiary burden upon the defence.  He concluded that based upon the expert evidence he was satisfied in each case that the DNA evidence established that the appellant could not be excluded as the person who sealed the envelopes forming part of Exhibits P4, P5 and P9.  His Worship accepted the expert evidence that the handwriting on the respective envelopes matched the handwriting of the appellant.

1. His Worship accepted the evidence of Quade.  Superintendent Quade of the Australian Federal Police spoke to the appellant on 5 May 2000 when he made allegations alleging, inter alia, that Daulby, Sodoli, Hofer, a police officer named Marchant and others were involved in importing drugs from New Guinea to Cairns in 1998.  Quade said that when asked, the appellant told her that the source of his allegations was “dreams and visions”.  Quade said investigations disclosed no foundation for the appellant’s allegations.

1. His Worship found that the appellant had the motive, the ability and the opportunity to prepare and send Exhibits P4, P5 and P9 based upon the evidence of Quade and the exhibits tendered through her.  Exhibits P2 and P3 were tendered through Quade.  They were given to her by the appellant.  Exhibit P3 is an A4 sheet of paper headed “The Untouchables” printed in large, bold printed sideways across the page and under the heading “Key Players” appeared the names of Daulby, Hofer (misspelt Hoeffer), Sodoli and Marchant.  Exhibit P2 is also an A4 sheet of paper headed “The Untouchables” printed sideways across the page under which were four boxes, one blacked out, the remaining three containing typing.  Exhibit P2 contained descriptions of Daulby as “The boss of the group” and made reference to Hofer being Superintendent of Division 4 of the Police Force and Sodoli as Senior Sergeant.  His Worship found that the similarities between the layout, the names and the drug theme between Exhibits P2, P3 and P4 were such that he was satisfied that they had a common author and that the striking similarities between Exhibits P4, P5 and P9 indicated they all had the same source or origin.  Consideration of these matters led the learned magistrate to the conclusion that the appellant was the source or origin of each of Exhibits P4, P5 and P9.

1. His Worship expressed the view that the expert evidence relating to DNA and handwriting together without reference to the evidence of Superintendent Quade was sufficient to prove all three charges against the appellant beyond reasonable doubt.  He further expressed the view that the evidence of Superintendent Quade and the documents tendered through her in combination with the handwriting evidence without reference to the DNA evidence was sufficient to prove all three charges against the appellant beyond reasonable doubt.  His Worship also concluded that the DNA evidence and the evidence of Quade and the documents tendered through her without reference to the handwriting evidence was sufficient to prove all three charges against the appellant beyond reasonable doubt.  His Worship held that neither the DNA evidence alone, the handwriting evidence alone nor the evidence of Quade and the documents tendered through her alone was sufficient of itself to prove the charges beyond reasonable doubt.

1. The appellant, who appeared on his own behalf on the appeal, made many complaints both in writing and orally about the learned magistrate’s judgment.  He complained that the recipients of the threats had not been demonstrated to be persons of reasonable firmness.  As I endeavored to explain during the hearing that was not the question.  The question was whether a hypothetical reasonable person in the shoes of each recipient as a person of reasonable firmness and courage would have been fearful as a consequence of the threats.  The appellant also complained about what he described as the unaccounted for sample B of DNA that was set aside by the police and the possibility of contamination of samples and the deliberate falsification of test results.  No questions were asked in cross examination concerning an account of what happened to sample B nor was there any cross examination of the forensic witnesses to suggest they had deliberately contaminated the samples or falsified test results.  There is no substance in these complaints.

1. In his record of interview in August 2000 the appellant denied any involvement in the matter.  The learned magistrate in reaching his conclusion must have rejected the appellant’s account as a false denial.  As has been repeatedly said, magistrates do not have to recite in their reasons every matter which they have considered and an appellate court is entitled to assume the magistrate has considered all matters which are necessarily implicit in any conclusion reached.  In the present case the learned magistrate must have rejected the appellant’s denial.  The learned magistrate however, as I recounted above, gave lengthy and detailed reasons and they included, I think, some notable features and notable omissions.  His Worship observed some parallels between Exhibits P2, P3 and the communications containing the threats.  He noted the envelope forming part of Exhibit P4 was addressed to Hofer at Division 4 which division no longer existed at the time the mail was sent in February 1999.  He also noted that on one of the four boxes contained on the A4 sheet of paper comprising Exhibit P2 there was also reference to Division 4 of the Police Force.  Of more significance is that in Exhibit P2 which was admittedly compiled by the appellant, Hofer’s name is misspelt “Hoeffer”.

2. The learned magistrate made a clear finding that the appellant had a motive to threaten each recipient in February 1999.  This finding was apparently based upon the evidence of Superintendent Quade concerning the appellant’s complaints in May 2000 concerning alleged events in 1998.  The appellant’s complaints were said to be without foundation.  When counsel in the court below sought to cross examine Quade concerning investigations made as to whether there was any truth in the appellant’s allegations, the learned magistrate stopped the cross examiner.  He gave as his reason for doing so that some of the people complained about were not before the court to defend themselves against serious allegations.

3. It seems to me, with respect, there was simply no basis for the learned magistrate’s finding of motive.  Even assuming for the moment that the appellant’s allegations to Superintendent Quade were baseless and without foundation, it by no means follows that the appellant was therefore malevolent towards and bore a personal grudge against the subjects of his complaint in May 2000, let alone in February 1999.  Quade did not say the appellant manifested malice.  When asked for the basis of his complaints, as I have already related, the appellant said “dreams and visions”.  Without more that is scant justification for a finding of malevolence at the time of complaint.  If anything, to the contrary, it suggests a want of balance on the part of the complainant.  The finding of malevolent motive in February 1999 is also inconsistent, I think, with the gap in time between the posting of the threats in February 1999 and the appellant’s complaints to the Federal authorities in May 2000.  Ordinarily malevolence enough to make threats to kill would not lie dormant for so lengthy a period.  In my view the learned magistrate’s finding of motive is wrong and against the evidence and his denial to the cross examiner of testing Quade’s assertion that the appellant’s story to her was without foundation was also wrong.

4. The learned magistrate dealt at length with the DNA evidence.  He satisfied himself that the DNA extracted from Exhibits P4, P5 and P9 matched the DNA of the appellant in the sample given to the Police.  Having referred to Pantoja (1996) 88 A Crim R 554 at 578 and Green, unreported NSWCCA 26 March 1993, and a ruling of Riley J in Sultan on 17 October 2002 and GK (2001) 53 NSWLR 317, he drew the inference that the appellant could not be excluded from being the author and sender of the threats and that the matching results could not in the absence of other evidence prove beyond reasonable doubt that the appellant was the person responsible for sending the threats.

5. The learned magistrate in paragraphs 89, 93 and 95 of his reasons for judgment found that the DNA evidence together with the evidence of Quade and the exhibits tendered through her caused him to be satisfied beyond reasonable doubt that the appellant was guilty of charges 3, 1 and 2 respectively.  He said he reached that conclusion because the appellant had the motive, ability and opportunity to prepare and send the respective threats, that the similarity between the layout, the names and what he described as the “drug theme” between the Quade exhibits P2 and P3 and the respective threats reassured him that they had a common author and that the threats in Exhibits P4, P5 and P9 all had the same source or origin.  His Worship reached his conclusions of guilt in paragraphs 89, 93 and 95 before turning to consider the expert evidence on handwriting.

6. His Worship turned to the question of handwriting evidence in paragraph 96 of his reasons.  He carefully analysed the expert evidence of Christopher Anderson whose expertise he accepted.  After a lengthy discussion of Anderson’s evidence His Worship said in paragraphs 114 and 115 as follows:

   “114. I agree with the evidence of Anderson that the range of variation in the specimen documents is also generally present in the questioned documents.  I also agree with and accept his evidence that there was no significant or fundamental differences between the handwriting in the specimen documents and the questioned documents to exclude [the appellant] as the likely author of both.

   115. I am satisfied beyond all reasonable doubt that the writing on the envelope forming part of ExP4 is that of [the appellant].  I therefore find beyond all reasonable doubt that [the appellant] addressed the said envelope.  I am satisfied beyond all reasonable doubt that the writing on the envelope forming part of ExP5 is that of [the appellant].  I therefore find beyond all reasonable doubt that [the appellant] addressed the said envelope.  I am satisfied beyond all reasonable doubt that the writing on the envelope forming part of ExP9 is that of [the appellant].  I therefore find beyond all reasonable doubt that [the appellant] addressed the said envelope.”

1. His Worship said he was satisfied beyond reasonable doubt that the writing on the envelopes forming part of Exhibits P4, P5 and P9 was that of the appellant.  He did so having agreed with and accepted Anderson’s evidence.  This conclusion is inconsistent with His Worship’s statement that the handwriting expert’s evidence alone was not sufficient to found a finding of guilt beyond reasonable doubt.  Mr Anderson, the handwriting expert, gave evidence that there was “conclusive evidence” that the specimen handwriting of the appellant was the same as the author of the handwriting on the exhibits comprising the threats.  The learned magistrate appears to have accepted that evidence as such.  In the circumstances it was not open to His Worship to so conclude for Mr Anderson’s evidence after all was opinion evidence and not “conclusive” proof that the handwriting on the envelopes was that of the appellant.

1. The inconsistency in His Worship’s reasoning regarding the handwriting evidence, His Worship’s wrongful confinement of the cross examination of Superintendent Quade as regards Police investigations into the appellant’s complaints in May 2000 and His Worship’s finding against the evidence that the appellant in February 1999 had a motive to threaten the lives of the recipients of the threats are such that the verdicts in this case can not stand.

2. The verdicts can not be said to be unsafe and unsatisfactory.

3. The appeal is allowed, the verdicts of guilty and sentences and order for costs are set aside and a re–trial ordered.

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