Martin v Henderson - [2020] WASC 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MARTIN -v- HENDERSON [2020] WASC 473
CORAM:   ALLANSON J
HEARD:   3 DECEMBER 2020
DELIVERED          :   24 DECEMBER 2020
FILE NO/S:   SJA 1162 of 2019
BETWEEN:   ROBERT MARTIN
Appellant

AND

JACOB HENDERSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L J ATKINS
File Number            :   RO 7345 of 2018, RO 7346 of 2018

Catchwords:

Criminal law - Appeal against conviction - Telecommunications offence - Where appellant convicted of sending messages that were menacing, harassing or offensive to son‑in‑law - Where appellant admitted to sending certain messages at trial - Where appellant now seeks to adduce fresh evidence that he could not have sent the messages - Whether evidence relevant or capable of affecting decision - Turns on own facts

Criminal law - Appeal against conviction - Where appellant alleges bias - Turns on own facts

Criminal law - Appeal against conviction - Whether appellant's legal representation at trial was inadequate - Whether miscarriage of justice - Turns on own facts

Legislation:

Crimes Act 1914 (Cth), s 20
Criminal Code Act 1995 (Cth), s 5.6, s 474.17

Result:

Leave to appeal refused on each ground
Leave to adduce additional evidence refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	A Seen

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor for Western Australia

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

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jeffery v The State of Western Australia [2018] WASCA 219
Smart v Power [2019] WASCA 106

ALLANSON J:

Title

On 1 August 2019, the appellant, Robert Martin, was convicted in the Magistrates Court on two charges that he used a carriage service in such a way that reasonable persons would regard as being, in all the circumstances menacing, harassing or offensive. The charges were brought under the Criminal Code Act 1995 (Cth). The offences were alleged to have occurred on 15 April 2016 and 17 April 2016.
On conviction, an order was made under s 20(1)(a) of the Crimes Act 1914 (Cth), requiring Mr Martin to be of good behaviour for 6 months, on a recognisance of $1,000.
On 18 December 2019, Mr Martin lodged an appeal notice, appealing against both conviction and sentence. The grounds of appeal, however, go only to the conviction.
Mr Martin was represented at trial but unrepresented on the appeal.

The trial

The prosecution case was that on 15 April 2016 and 17 April 2016, Mr Martin sent a series of text messages by telephone to his son‑in‑law, Mr Clinton. The charges did not specify from what telephone number the messages were sent.
The statement of material facts referred to text messages from two phone numbers. In opening, the prosecution stated that the messages which were the subject of the charges were from a particular number (ending in 311) and throughout the trial relied only on messages from that number.
Before evidence was called, counsel for Mr Martin made an opening statement in which he conceded that the phone number (ending in 311) from which the messages were alleged to have been sent was Mr Martin's number at the time. The defence contended that the matter was a family issue, not one between strangers. Further, the defence contended that some of the messages allegedly sent to Mr Clinton were not sent to Mr Clinton, but to his wife. The defence said that a reasonable person, in all the circumstances, would not regard the words used as menacing, harassing or offensive.
The trial appears to have proceeded on the basis that it was necessary to prove that the messages were sent to Mr Clinton. I doubt that is so, but it is not necessary to decide the question for the purposes of this appeal.
Mr Clinton gave evidence that on Friday, 15 April 2016, he received messages with the time of receipt recorded as 10.11 pm, 10.14 pm and 10.21 pm.[1] He said that, after he received the last message, Mr Martin phoned him, using the same number from which the messages had been sent. Mr Clinton said that it was only as a result of that telephone call that he knew that the messages were from Mr Martin.[2]
[1] ts 14 - 15.
[2] ts 16 ‑ 17, 37.
On Sunday, 17 April 2016, when he woke, Mr Clinton found more messages on his phone from the same number, and also some from a different number.[3] Mr Clinton said there were seven or eight messages, but he could not remember exactly how many from each number.[4]
[3] ts 18.
[4] ts 20.
Mr Clinton gave evidence about six messages which had been sent from the same number as those he received on Friday, and were received on his phone between 5.29 am and 5.47 am.[5] A seventh message was received at 6.27 am.[6]
[5] ts 18, 23.
[6] ts 27.
While Mr Clinton said he also received messages from a different number (ending in 415), the prosecutor did not lead any further evidence about those messages.
The content of the messages was put into evidence through Mr Clinton. It is not necessary to set out all of them. The magistrate found that only three messages sent to Mr Clinton, two on 15 April and one on 17 April 2016, were menacing, harassing or offensive.
In argument on the appeal, Mr Martin disputed that the messages were menacing, harassing or offensive, but none of his grounds of appeal challenged the finding that they were.
In cross-examination, Mr Clinton was asked about the messages received from the phone number ending in 415. He said that he did not know whose number that was.[7] Mr Clinton said one of the worrying things about the messages was that he did not understand what they meant.[8]
[7] ts 40.
[8] ts 41.
Mr Martin gave evidence.
Each of the three messages of 15 April 2016 was put to him in evidence‑in‑chief and he said:
(1)he initially sent the first message to another person but forwarded it to Mr Clinton;[9]
(2)he sent the second message to Mr Clinton, but a few minutes after he had called Mr Clinton because 'I was mad about it';[10]
(3)he sent the third message to Mr Clinton.[11]
[9] ts 46.
[10] ts 47.
[11] ts 48.
Mr Martin said that, in his telephone conversation with Mr Clinton, he could hear Mr Clinton speaking to someone else with him and repeatedly refer to Mr Martin as a 'nutter'.[12]
[12] ts 47.
Mr Martin similarly gave evidence about the messages of 17 April 2016:
(1)he agreed he sent the first message but he thought he had sent it to his daughter;[13]
(2)of the next two messages, he could not remember to whom he sent one, and said he sent the other to his daughter;[14]
(3)he agreed he sent the next message to Mr Clinton because, 'he opened fire. And I returned fire too, so to speak';[15]
(4)he remembered sending the next message, but denied sending it to his daughter or Mr Clinton;[16]
(5)he agreed that he sent the next message to Mr Clinton;[17]
(6)the last message he said he sent to his daughter, and it was not sent to Mr Clinton.[18]
[13] ts 49.
[14] ts 50.
[15] ts 50.
[16] ts 51.
[17] ts 51.
[18] ts 51.
In cross‑examination, Mr Martin confirmed sending at least some of the messages. He said, in effect, that the words used were not threats but 'that's the way we talk in Scotland'.[19]
[19] ts 66.
Significantly, Mr Martin did not deny sending the messages, although he did not agree that he sent all of them to Mr Clinton.
The only other witness was Mr Martin's wife. She gave evidence that on 15 April 2016, she was babysitting for her daughter. At the time Mr Clinton was working 'up north' or in the Goldfields somewhere.[20] Mrs Martin said that her daughter got home around 10.30 pm. She started to give evidence about what her daughter told her when she arrived. An objection was taken to her giving evidence of the content of that conversation on the basis that it was hearsay. The magistrate upheld the objection but permitted Mrs Martin to give evidence that there was a conversation; Mrs Martin said that it was at about 10.30 pm to 10.45 pm.[21]
[20] ts 72 ‑ 73.
[21] ts 74.
Mrs Martin also said that she had previously owned a telephone with the number ending 415, but no longer had it in 2016. She got a new number when she replaced her phone.[22]
[22] ts 72.
Mrs Martin was not cross-examined.
In closing submissions, counsel for Mr Martin said, in substance, that:
(1)section 474.17 of the Criminal Code should be construed with an element of common sense or robustness to allow for the way people speak in real life;[23]
(2)some of the messages were sent because Mr Martin 'had issues' and were really a cry for help;[24]
(3)Mr Martin was responding to having been called 'a nutter' in his phone conversation with Mr Clinton and that set him off, but it was not intended to be menacing;[25]
(4)some of the messages were not addressed to Mr Clinton, but to his wife;[26]
(5)the messages did not say from whom they came, and, for those which were disputed, there was no independent evidence of that fact;[27] and
(6)some of the messages may have been forwarded to Mr Clinton by his wife.[28]
[23] ts 76.
[24] ts 76.
[25] ts 76.
[26] ts 76.
[27] ts 77.
[28] ts 79.

The magistrate's decision

The magistrate gave oral reasons for her decision, after a short adjournment. Her Honour concerned herself only with those messages from the telephone number ending 311. She found that the messages in question fell within the definition of a communication and the use of a carriage service. She found that in sending the messages, Mr Martin used the carriage service. The main issue was 'whether reasonable persons would regard such [messages] as being in all the circumstances, menacing, harassing or offensive'.[29]
[29] ts 82.
Her Honour referred to the relevant fault elements for the physical elements of the offence,[30] and found that Mr Martin intended to use a carriage service and did so 'aware of a substantial risk that the way in which he used the service will be regarded by reasonable persons as being in all the circumstances offensive, menacing or harassing'.[31] Her Honour was satisfied that Mr Martin took an unjustifiable risk.[32]
[30] See Criminal Code s 5.6.
[31] ts 83, 87.
[32] ts 87.
Her Honour found, and it was not in dispute, that Mr Martin and Mr Clinton had not spoken for six years before 15 April 2016.[33]
[33] ts 84.
Dealing with the messages of 15 April 2016, her Honour found that the first message, reading it objectively and recognising the lack of communication between the parties for six years, was menacing in nature. She described the second message as a 'call for help' which did not fall within the definition of menacing, harassing or offensive. Her Honour found the third message to be threatening.[34]
[34] ts 85.
Her Honour further found that the phone call from Mr Martin was after the first three messages on 15 April 2016, noting that the message on 17 April 2016 referred specifically to Mr Martin having been called a 'nutter', but those of 15 April did not. Her Honour noted that Mr Martin said in his evidence that the messages of 17 April were 'returning fire'.[35]
[35] ts 85 ‑ 86.
Her Honour found that the evidence of Mrs Martin did not assist in trying to tie down the time when the messages were sent.[36]
[36] ts 85.
With regard to the messages on 17 April 2016, her Honour found the last of the messages to be threatening but was not satisfied beyond reasonable doubt that Mr Martin sent it to Mr Clinton.[37]
[37] ts 87.
Her Honour said that, having listened to Mr Martin and the manner in which he spoke, only one of the other messages (which she found had been sent by Mr Martin to Mr Clinton) was such that a reasonable person would find it to be menacing and threatening in the circumstances.[38] The message included:
Any more of the nutter talk and I will personally come up there where you are and take that gun off you and ram it right up your skinny little arse ‑ bullets and all ‑ then kick your arse all the way back to Scotland you little skank.[39]
[38] ts 86.
[39] ts 86.

The appeal

The appeal was commenced by notice filed 18 December 2019.
On 30 June 2020, Mr Martin filed an application in the appeal in which, in substance, he sought to adduce new evidence.
On 9 July 2020, the Principal Registrar ordered that the application to adduce additional evidence and the application for leave to appeal be heard together with the appeal.
Mr Martin filed three affidavits dated 13 July 2020 (jointly with his wife), 13 November 2020, and 23 November 2020. He also provided the court with a call log from Optus. He filed submissions dated 21 July 2020.

Grounds of appeal

Mr Martin did not identify discrete grounds of appeal in his appeal notice. From that notice, and the written submissions and affidavits he filed in the appeal, it is possible to identify a series of complaints that he makes about the trial and which I have characterised as his grounds of appeal:
(a)there is now compelling evidence that Mr Martin did not have access to the relevant phone number at the time of the alleged offending;
(b)the magistrate refused to hear evidence from Mrs Martin;
(c)the magistrate exhibited actual or apprehended bias;
(d)there was interference with Mr Martin's computer; and
(e)Mr Martin's legal representation was inadequate.
The application in the appeal of 30 June 2020 can be read as raising additional grounds.

Fresh evidence about access to telephone numbers

Mr Martin contended that there is compelling evidence, not available at the time of trial, confirming that he did not have access to the telephone number claimed by the prosecution.
It was difficult, in the course of argument, to identify to which telephone number the complaint in this ground was directed. Mr Martin sought to adduce evidence of his communication in 2018 with Amaysim, a telecommunications provider, to the effect that the number ending in 311 had been cancelled in December 2015.[40] Yet Mr Martin accepted that he sent messages to Mr Clinton from that number in April 2016, and had testified to that effect at trial.
[40] The communications were attached to the appeal notice.
Mr Martin also made submissions and sought to adduce evidence regarding the telephone number ending 415. Although that number was mentioned in the statement of material facts, the prosecution did not allege at trial that any of the messages the subject of the charges came from that number.
Mr Martin's grounds and submissions did not identify any error of fact or law by the trial magistrate in relation to this issue. The allegations related to identified messages from the phone number ending in 311. The prosecution confined itself to those messages.
The proposed evidence could not raise any doubt about the verdict.

Refusal to hear evidence from Mrs Martin

Mr Martin complained that the magistrate refused to hear evidence from his wife that she did not have access to the 415 number at the relevant time. The allegation is without substance. I have carefully examined the transcript. There is no occasion on which her Honour refused to hear evidence as alleged. To the contrary, Mrs Martin gave evidence about when she had the 415 number, and that she no longer had it in 2016. She gave that evidence in her evidence‑in‑chief, without objection and without interruption.[41]
[41] ts 72.
It is true that her Honour said, in the reasons for decision, that Mrs Martin 'didn't appear particularly credible in her recollection of what was actually happening on that day and was hesitant in examination‑in‑chief, so I do not find her evidence particularly persuasive as to time'.[42] But the trial magistrate's assessment of the credibility of a witness should not be interfered with unless that finding is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because it appears that the magistrate failed to use or has palpably misused her advantage as a trial judge.[43]
[42] ts 85.
[43] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] ‑ [29]; Smart v Power [2019] WASCA 106 [104].
Her Honour's comments on Mrs Martin's lack of recollection are, to some extent, supported by transcript: when asked what she was doing on the night of 15 April 2016, Mrs Martin asked counsel if that was the night she was babysitting. She then said 'I think I was babysitting that night'.[44]
[44] ts 72.
It is not possible from transcript to assess her Honour's comment that Mrs Martin appeared to be hesitant. Mr Martin pointed to nothing in the evidence which could call into question her Honour's assessment.

Bias or apprehended bias

The onus of establishing bias is on the party alleging it. The test for apprehended bias is whether a fair minded observer might reasonably consider that the magistrate might not carry out her functions with an impartial and unprejudiced mind. The test is objective.
Mr Martin alleged that her Honour was biased 'as she had dealt with my witness on another matter some months before and was peeved my witness chose not to co‑operate which she was entitled to do'.[45] But he adduced no evidence about the other matter, or her Honour's conduct on that occasion.
[45] Appeal notice, 2.
In oral submissions, Mr Martin also suggested bias from her Honour's conduct of the trial, including her questioning of his counsel in the course of the trial.
I have read the whole of the transcript. Her Honour did ask questions, but they were reasonable in number and content. My assessment from transcript is that her Honour attempted, quite reasonably, to tease out the defence position on the issues which she was required to determine. Her Honour intervened in the questioning of witnesses on one occasion, to rule on an objection to evidence; and on one occasion in the cross-examination of Mr Clinton to point out (correctly) that a particular question had been previously asked and answered. There could be no suggestion that she departed from the proper role of a judicial officer.
I find no support for any allegation of bias, whether actual or apparent, in any evidence presented on the appeal or in the trial material.

Interference with Mr Martin's computer

In a further ground, Mr Martin refers to 'compelling evidence' that his computer had been hacked at around the time he was accused of sending messages from a number he did not have access to. If he is referring to the messages upon which the charges were based, as I have pointed out above, Mr Martin's evidence at trial was that he sent them.
If he was referring to messages from the telephone number ending 415, those messages were not relevant to the charge against him. Her Honour made no finding about who had sent them. She did not take them into account.
I can find no connection between interference with Mr Martin's computer and the sending of the relevant messages by telephone, other than the claim Mr Martin made of an underlying conspiracy. The ground is without substance.

Adequacy of representation

Mr Martin made an unparticularised complaint that his representation was 'inadequate'. He sought to adduce evidence that the lawyer acting for him had referred to the cost of certain steps (for example, issuing a subpoena to Mr Martin's daughter) which were beyond Mr Martin's means.
Where an appellant alleges a miscarriage of justice by reason of the conduct of his legal representative it is not necessary, or sufficient, to characterise what the lawyer did or did not do as incompetent. The focus of any inquiry is upon the consequences of the lawyer's conduct and whether it caused a miscarriage of justice.[46]
[46] See, for example, Jeffery v The State of Western Australia [2018] WASCA 219 [173].
It has not been shown that the failure of Mr Martin's daughter to testify ‑ whatever the reason ‑ could have caused a miscarriage of justice. It was common ground at trial that, in April 2016, Mr Clinton was working in Leonora. Mr Martin's daughter had remained in Rockingham. There is no reason to believe that Mr Martin's daughter could have given any evidence, from her own knowledge, of the messages that were sent to Mr Clinton. While there was an issue at trial regarding whether some messages had been sent to Mr Martin's daughter, not to Mr Clinton, the magistrate did not make any finding against Mr Martin in relation to any message that he denied sending to Mr Clinton.

More generally, from examination of the trial transcript, there is nothing to support an allegation that Mr Martin's lawyer failed to represent him competently. The admission at the commencement of the trial that the messages were sent from Mr Martin's phone was entirely consistent with Mr Martin's own evidence that he sent them. Mr Martin's lawyer properly took the points that were open regarding whether, in the circumstances, the messages should be characterised as falling within the prohibition in s 474.17 of the Criminal Code under which he was charged. He properly raised questions about whether it had been proved that the messages had been sent to Mr Clinton, rather than forwarded to him.
If the allegation is that Mr Martin's lawyer failed to raise allegations of conspiracy to which Mr Martin referred in his appeal, in my opinion, the lawyer acted entirely consistently with his obligations as an officer of the court in not advancing those claims.
Mr Martin has not identified any way in which the conduct of his counsel led to a miscarriage of justice.

Other fresh or new evidence

Because Mr Martin was unrepresented, I have read and had regard to all of the affidavit material that he presented in support of his appeal. For that material to be fresh or new evidence, and to be admissible in the appeal, it must in some way be capable of raising a doubt that would lead the court to conclude that Mr Martin ought not to have been convicted.
The material now sought to be introduced is irrelevant and could not have affected the verdict.
The proposed evidence could not affect the finding that Mr Martin used the carriage service by sending the relevant messages. That is something he admitted at trial.
None of the material which Mr Martin filed is relevant to whether he was reckless with respect to whether his messages would be regarded as menacing, harassing or offensive.
I would refuse leave to adduce additional evidence.

Conclusion

None of the grounds of appeal has merit.
I refuse leave on all grounds and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
24 DECEMBER 2020