Mokdassi v Commonwealth Director of Public Prosecutions No. Scgrg-99-275 Judgment No. S209

MOKDASSI v COMMONWEALTH DPP
[1999] SASC 209

Magistrates Appeal: Criminal

PERRY J. The appellant appeals against both conviction and sentence following a hearing in the Magistrates Court sitting at Elizabeth on a charge that on 11 June 1998 at Salisbury he knowingly or recklessly used a carrier service to menace another person contrary to s85ZE(a) of the Crimes Act 1914 (Cth). Particulars of the offence as set out in the complaint and summons are:
“At about 4.30 pm on the alleged date the defendant telephoned Thomas More College where he spoke to a receptionist and threatened to kill Mr Brian Christopher Johnston, a teacher employed at the college.”
After finding the charge proved, the learned trial magistrate entered a conviction and fined the appellant $5,000.
The appellant is aged 40 years. He has five children. One of them, his son Loutfallah, was a student at the college. In 1998 he was in year 11 and left school at the end of that year.
One of his teachers at the college was Brian Johnston. He was an experienced teacher, having been employed as such at the college for seventeen years. In the first semester of 1998, he taught Loutfallah Australian Studies. Two years before, he had taught him English.
On the day in question, Mr Johnston noticed that Loutfallah had not submitted his final piece of work, which was a written exercise on an assigned topic. In order to obtain the exercise from Loutfallah, he rang him by telephoning him at the appellant’s home from the college library at about 3.40 pm. Apparently, although he spoke to Loutfallah, the telephone call was not a success, in the sense that it did not result in any understanding being reached as to the submission of what Mr Johnston regarded as an overdue exercise.
Mr Johnston then attended a committee meeting at the college.
While he was at the meeting, between 4.20 and 4.30 pm, the appellant rang the college from his home He spoke to Ms Wendy Villa, who was an assistant at the school, engaged in the front office reception. She dealt with parents, with incoming telephone calls and with students. She knew Loutfallah.
When she took the call, the caller identified himself as the appellant. According to her evidence before the learned trial magistrate:
“He went on to say that his son, Loutfallah, was being ‘picked on’ by Brian Johnston. He had worked on an assignment that he handed up and Brian had either misplaced it or lost it and Loutfallah was failed for it and he was angry about it. He said if he was not called back on that day that he would kill Brian.”
Ms Villa was aware that at that stage Mr Johnston was at the committee meeting. She described the appellant’s tone as “very angry, ranting and raving. I really couldn’t get a word in until the end of the conversation”.
Her evidence continued:
“... he went on to say that he was from Lebanon and that Lebanese people could either be very, very good people or very, very bad people, that he would do anything for his son and that he would have no hesitation in killing Brian. .... I actually got to speak at that point and I told him that I would pass on the message straight away and tell Brian to ring him immediately and then he closed off by saying that if he wasn’t happy with the outcome, he would kill Brian.”
When asked how many times the appellant had used the word “kill”, she said that he had done so three times.
After the call was completed, Ms Villa spoke to her supervisor, the school bursar, who suggested that she make a note of the call, which she did. She typed up the note and gave it to the bursar, who went immediately to the meeting and handed the note to Mr Johnston.
In the meantime, Ms Villa made a second note in which she set out a more detailed account of the call.
On receipt of the note brought to him by the bursar, Mr Johnston went to see the school principal. Security guards were placed outside his house that night and for the next two nights.
In the meantime, the principal, Mr Daw, rang Mr Mokdassi on the evening of the same day. He told the appellant that there was concern over lost work, but that that was a problem that the college should be able to “fix up”; that Loutfallah would not be failed on that account; and that if indeed the work was lost, there were other approaches which the school “could work ... through”. When he informed the appellant that he was concerned by the threat, and there might be no alternative but for him to call the police, the appellant said, “.. if that’s the case, so be it”. The appellant did not deny having made the threat.
Mr Daw informed the police.
The appellant gave evidence at the trial. He said that Loutfallah had approached him and seemed to be upset. He said to his father that Mr Johnston had rung him and told him that he had not passed his last assignment. According to the appellant’s evidence, Loutfallah told him that he had in turn been warned by Mr Johnston that he had 24 hours to do the assignment, or else he would fail.
In his cross-examination by counsel on behalf of the appellant, Mr Johnston denied that he had given any such warning.
At all events, the appellant conceded that he had rung the school in consequence of his discussion with his son; that he explained to Ms Villa exactly what had happened; and that he protested that his son had done the assignment and was sure that it had been delivered.
His evidence was that he went on to ask that Mr Johnston give him a ring as soon as possible.
In his evidence in chief, the appellant said that during the call he had said:
“Look, we Lebanese. We very good people, because I know Mr Daw and I have meeting with him and he know me from the service station. Sometimes he get petrol from there, and he know me, I come from good family - I mean we very good people, but if someone hurt me I not good any more - that’s what I mean by that word. And I said to her, look, if my son get hurt in the school, get killed, I kill Mr Johnston, if tomorrow - get him to ring me, but if something happen tomorrow, because I was upset for my son, how my son would do something to him or get some children to work against my son, who knows? ... But if something happened to my son tomorrow, if he get killed I going to kill Mr Johnston. But I didn’t say threaten to kill him. Unless something happen to my son.” (emphasis added)
Later he said that he had not threatened to kill Mr Johnston, unless something happened to his son.
At the conclusion of the trial, the learned trial magistrate gave an ex tempore judgment. He described Ms Villa as an “intelligent and professional person”. He said that he had difficulty in “conceiving as a reasonable possibility” that she could have made a mistake in the notes which she made of the threats.
As for the appellant’s account of the matter, he said:
“The defendant has conceded saying that he would kill Mr Johnston but has claimed that his threats were conditioned on his son being killed or injured. This is patently nonsense. The only issue between the defendant, his son and Mr Johnston was Mr Johnston requiring the son to attend to a school project. There was nothing to cause the defendant to be raising any issue of his son being killed or injured in the course of the telephone conversation.”
He rejected the appellant’s evidence as to the critical issues and concluded that he was satisfied beyond reasonable doubt with the account given by Ms Villa. He went on to find:
“I am satisfied beyond reasonable doubt that a person of normal stability and courage would have been apprehensive of his safety on receiving the threat and that Mr Johnston was as affected and that the defendant is guilty as charged.”
At the forefront of his argument for the appellant, Mr M.F. Gray QC, emphasised the elements of the defence as defined by the section.
The section reads:
“85ZE.. A person shall not knowingly or recklessly:
(a).... use a carrier service supplied by a carrier to menace or harass another person; or
(b)... use a carriage service supplied by a carrier in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive.
Penalty: imprisonment for one year.”
It was common ground that the telephone service utilised by the appellant when he rang the school, is a “carriage service supplied by a carrier” within the meaning of the section.
Here, the charge was a use of the service to “menace” rather than “harass” Mr Johnston.
Mr Gray QC submitted that the words “knowingly” or “recklessly” in the section make it plain that the essence of the offence is an intention to use the telephone service to achieve the proscribed result: see Daly v Medwell[1] which concerned a case of use of a telephone service to harass, where White J observed:[2]
“The thrust of the complaint against the appellant was that his calls ... constituted the use of the telephone service .... for the purpose of harassment of the young woman.” (emphasis added)
[1] (1986) 40 SASR 281.
[2] Ibid 285.
I have no hesitation in accepting the proposition that in this case, for the charge to be made out, it was necessary for the prosecution to prove that the appellant had the intention of menacing Mr Johnston.
In my opinion, the complainant discharged that onus. In the first place, there is no good reason to challenge the preference by the learned trial magistrate of the evidence of Ms Villa over that of the appellant where they conflict. On her account of the conversation, there is no doubt that it constituted a threat to kill Mr Johnston, albeit conditionally upon his failure to ring the appellant back.
Mr Gray QC next contended that where the communication was not addressed directly to the victim, it was necessary for the complainant to prove that the caller intended the words to be communicated to that person.
In support of that proposition he referred to an unreported decision of the Court of Criminal Appeal of New South Wales, R v Rae.[3] In that case, the defendant called the customer service operator of Telstra to say that there was a bomb in Woolworth’s store at Cessnock that would detonate at a particular time. He was charged with using a telecommunications service to menace another person, contrary to s85ZE(a). [At that time the section referred to a telecommunications service rather than a “carriage service”.] It was held by Woods CJ at CL, with whom Beazley JA and Dunford J agreed, that:
“The call may be placed directly to the person intended to be menaced, or to an intermediary, so long as the caller intended his words to be communicated to the former, or to a person or persons acting for or on his behalf.” (emphasis added)
[3] 2 November 1998, Beazley JA, Woods CJ at CL and Dunford J, No 60292/98.
I accept that statement of principle.
In this case, while the matter is susceptible of argument, I assume that Ms Villa was not a person “acting for or on behalf” of Mr Johnston in the relevant sense. The question then is whether it is right to infer beyond reasonable doubt that when he spoke to Ms Villa the appellant intended that the threat be communicated to Mr Johnston.
In my opinion, there is no doubt that he intended to do so. In the first place, he asked for Mr Johnston. When told that the latter was not available to answer the call, he demanded that he ring back. Such a demand would be meaningless unless he intended that the request that he call back be communicated to Mr Johnston. Furthermore, having regard to the terms of the conversation as recorded and deposed to by Ms Villa, it is inconceivable that the appellant did not at the same time intend that the threat, which, after all, was in aid of his request that Mr Johnston call him back, would not likewise be conveyed to Mr Johnston.
Mr Gray QC has put everything which could be put in favour of the appeal against conviction. But at the end of the day, I am satisfied that the learned trial magistrate correctly found all the elements of the charge to have been made out.
The appeal against sentence may be disposed of shortly. In my opinion, the learned trial magistrate was right to take a serious view of the threat conveyed to Mr Johnston. It is a regrettable feature of every-day life that threats of one kind or another to school teachers, often culminating in violence, are common. Whatever the rights and wrongs of the fate of the assignment which the appellant’s son was to submit, there was no excuse for the appellant’s conduct in making the threat. On the evidence, it is clear that Mr Johnston took the threat seriously and was upset by it.
Having regard to the formula in s4B(2) of the Crimes Act, the maximum fine was $6,600. Such a fine may be imposed instead of or in addition to a penalty of imprisonment, in this case the maximum term being one year.
In my opinion, the appellant has not discharged the onus of demonstrating that the fine was manifestly excessive.
I would dismiss the appeal both as to conviction and as to sentence.
I will hear the parties as to costs.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1986) 40 SASR 281.
Ibid 285.
2 November 1998, Beazley JA, Woods CJ at CL and Dunford J, No 60292/98.

[1999] SASC 209

26 May 1999