Pellegrino v Harman
[2016] ACTSC 366
•13 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pellegrino v Harman |
Citation: | [2016] ACTSC 366 |
Hearing Date: | 27 July 2016 |
DecisionDate: | 13 December 2016 |
Before: | Refshauge J |
Decision: | 1. The appeal be upheld in part. 2. The convictions entered on 29 September 2015 for the following charges be confirmed: (i) using a carriage service on 4 June 2014 in a way that reasonable people would in all the circumstances regard as being menacing (CC2014/10356); and (ii) between 31 January 2014 and 1 March 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3604); 3. The convictions entered on 29 September 2015 for the following charges be set aside: (i) between 30 April 2013 and 1 June 2013, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3601); (ii) between 31 May 2013 and 1 July 2013, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3602); (iii) between 31 January 2014 and 1 March 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3603); (iv) between 21 January 2014 and 4 June 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3605); (v) between 30 November 2013 and 13 June 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3606); and (vi) between 1 January 2014 and 31 January 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3607). 4. The proceedings in respect of the charges set out in order 3 be remitted to the ACT Magistrates Court for re-trial before a different Magistrate. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against conviction entered in the Magistrates Court – findings of guilt unreasonable having regard to all of the evidence – the learned Magistrate made findings of fact not available on the evidence – using a carriage service to menace – committing an act of indecency – elements of the offence – application of the wrong test of culpability – credibility of witness – appeal upheld in part – re-trial |
Legislation Cited: | Crimes Act 1900 (ACT), ss 60, 60(1) Crimes Act 1914 (Cth), s 85ZE Criminal Code 2002 (ACT), s 16 |
Cases Cited: | Anderson [2001] NSWCCA 488; 127 A Crim R 116 Barlow v Wiseman [2014] ACTSC 166 |
Texts Cited: | Macquarie Dictionary (Macquarie Publishing, 2nd ed, 1995) |
Parties: | Aldo Pellegrino (Appellant) Sarah Harman Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Ms R Christensen (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 93 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Doogan Date of Decision: 29 September 2015 Case Title: Harman v Pellegrino Court File Number: CC No 3601 of 2015 |
REFSHAUGE J:
The appellant, Aldo Renado Pellegrino, and the complainant met as a result of them communicating on the social media website, Facebook, and entered into a relationship from about the end of May 2013. At the time, Mr Pellegrino was 39 years old and the complainant was 25 years old.
The relationship developed later, in about July or August 2013, into an intimate sexual relationship, but they only had sexual intercourse for the first time in about December 2013. The complainant, however, considered that the relationship was problematic because she regarded Mr Pellegrino’s attitude to her to be verbally abusive and he engaged in acts to which she did not consent.
The relationship ended on 4 June 2014 after a disagreement between them. The complainant alleged that, in that conversation, Mr Pellegrino made a serious threat of harm to her. There were subsequent conversations and text messages between them and these continued until about 14 June 2014, and these included further comments that the complainant also said were threats to her.
Subsequently, the complainant spoke to police about the phone call and text messages. Mr Pellegrino was summonsed for the offence of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, an offence prohibited by s 474.17(1) of the Criminal Code Act 1995 (Cth). I shall refer to this offence as using a carriage service to menace.
Mr Pellegrino appeared in Court on 17 December 2014 and the proceedings were adjourned from time-to-time. When he appeared on 7 April 2015, he was charged with seven further offences, each of them being that, between certain specified dates, he committed an act of indecency on the complainant without her consent and being reckless as to whether she consented. These offences were contrary to s 60(1) of the Crimes Act 1900 (ACT). I shall refer to each of these offences as committing an act of indecency.
Mr Pellegrino pleaded not guilty to each count and the trial of them in the Magistrates Court commenced on 19 August 2015. On 29 September 2015, Mr Pellegrino was convicted of all charges and the proceedings were adjourned for sentence.
On 26 October 2015, Mr Pellegrino filed a Notice of Appeal against the convictions. This is permissible under the Magistrates Court Act 1930 (ACT): Parkinson v Alexander [2016] ACTFC 1; 11 ACTLR 190.
Jurisdiction
Appeals against conviction entered in the Magistrates Court are made under ss 207 and 208(1)(b) and (e) of the Magistrates Court Act.
The appeal is by way of re-hearing. I described the requirements for such an appeal in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at 303-4; [4]-[5], as follows:
[4]An appeal under this provision is a rehearing on the evidence before the Magistrate with any other evidence that this Court permits to be adduced: Lukatela v Birch (2008) 164 ACTR 24 at 28-9; [17]-[24].
[5]I summarised the position in Peverill v Crampton [2010] ACTSC 79 at [24] where I said:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1.The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2.The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3.The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4.The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5.The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6.In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7.The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
Notice of Appeal
As noted above (at [7]), a Notice of Appeal was filed in this Court on 26 October 2015. It specified the following grounds of appeal:
(a) The findings of guilt are unreasonable having regard to all of the evidence.
(b) The learned Magistrate made findings of fact not available on the evidence.
The allegations
The offence of using a carriage service to menace (CC2014/10356) was said to arise from Mr Pellegrino saying in the telephone call and in the writing of text messages on 4 June 2014, when the relationship was terminated, as follows:
(a) Saying, in a telephone call: “If anything happens I will break your neck and every cunt’s neck that is with you”;
(b) Writing in a text message: “Another alternation [sic] what if I come around with a sledge hammer and finish it properly?”;
(c) Writing in a text message: “I’m on the way mother fucker”.
The offences of committing an act of indecency may be briefly described as follows:
1. (CC2015/3601) : Two acts of Mr Pellegrino lifting up the complainant’s dress and exposing her underwear, followed by an act of simulated sexual intercourse from behind the complainant, described as “dry humping”.
2. (CC2015/3602) : Mr Pellegrino touching the complainant’s genital area on the outside of her clothing while she was seated on his motorcycle.
3. (CC2015/3603) : Mr Pellegrino pulling down the complainant’s upper clothing to expose one of her breasts.
4. (CC2015/3604) : Mr Pellegrino taking a photograph of the complainant while she was partially undressed.
5. (CC2015/3605) : Mr Pellegrino taking a photograph of the complainant when she was masturbating him.
6. (CC2015/3606) : Mr Pellegrino forcefully putting his finger in the anus of the complainant on the outside of her clothing, which were leather leggings.
7. (CC2015/3607) : Mr Pellegrino forcefully putting his finger in the anus of the complainant on the outside of her clothing, which were yellow shorts.
It is not necessary for the purposes of the appeal to specify the precise dates of these offences which occurred within the total period between 3 April 2013 and 4 June 2014.
The evidence
The complainant gave evidence in which she outlined the circumstances of each of the offences of committing an act of indecency. She also gave evidence of the telephone conversations on 4 June 2014.
A copy of each of the text messages sent between the complainant and Mr Pellegrino between 4 and 12 June 2014 was admitted in evidence. Also admitted was a copy of the Facebook page which recorded a communication between the complainant and a friend sent on 4 June 2014.
The photograph, the subject of the fourth count of committing an act of indecency, was admitted into evidence. In relation to the photograph, there were issues as to whether the complainant had consented to the taking of the photograph and whether it was indecent.
A video of events that occurred on New Year’s Eve 2013 was played to the complainant and a copy of it on a Universal Serial Bus (USB – that is, a common interface to connect several different types of electronic devices and allow for easy transfer of information) was admitted into evidence as an exhibit.
The respondent’s submissions asserted that the informant, Constable Sarah Harman, gave evidence of admissions made by Mr Pellegrino. The submissions of counsel refer to that evidence and suggest that Mr Pellegrino made some admission. The learned Magistrate referred to this evidence, which did seem to confirm some of the evidence given by the complainant. There was, however, in the transcript provided to me, no reference to that evidence. I have divined from these references enough of what Constable Harman said for the purposes of the appeal.
Mr Pellegrino gave evidence. He denied that the acts alleged to have been indecent occurred. He accepted that the photograph, the subject of the fourth charge of committing an act of indecency, had been taken but said that the complainant consented to it being taken.
He also denied that the statements made by him were menacing or intended to be so.
A photograph of the motorcycle on which the second count of committing an act of indecency was admitted into evidence.
Because of the way that the appeal was conducted, it is not necessary to detail the whole of the evidence.
I shall, however, briefly summarise the evidence so that the context of the appeal can be understood.
The first count of committing an act of indecency without consent (CC2015/3601) is said to have occurred before the complainant and Mr Pellegrino commenced an intimate sexual relationship. They dined at a restaurant and then returned to Mr Pellegrino’s house where he admitted that he had lied about his age; he was 39 and not 32. They were playing a game of “Jenga”, a Swahili word used to name a
block-stacking, block-crashing game.
The complainant said that, while she was standing at the end of the kitchen bench, Mr Pellegrino grabbed her skirt and pulled it up, exposing her underwear and stockings. Later, he approached her from behind, again pulled up the bottom part of her dress and began thrusting his pelvis into her backside and simulated intercourse, while they were both clothed, described as “dry humping”.
The complainant said she did not agree to these acts and that Mr Pellegrino did not ask her if she agreed, but said, “I’m only mucking around”. Mr Pellegrino denied doing any of these acts.
The second count of committing an act of indecency (CC2015/3602) is said to have occurred when Mr Pellegrino took the complainant for a ride on his motorcycle.
The complainant said that, when she got onto his bike, there was “a gap” between them and he reached back and “roughly” grabbed her crotch tightly in the area of her vagina; it hurt for a couple of seconds and then he just drove them away.
Mr Pellegrino said that the complainant was seated too far behind him and was likely to fall off. That, he said, had happened before. He said that what he did was to reach round behind him and round the complainant’s body, touching her bottom, and pulled her in closer to him. He said he may have touched her crotch accidentally.
The complainant said that she was not told by Mr Pellegrino that he was going to do this and she did not consent to it happening.
The third court of committing an act of indecency (CC2015/3603) was said to have occurred as the two were travelling to Sydney. Just after they had turned off Horse Park Drive onto the Federal Highway, Mr Pellegrino is said to have “ripped” the complainant’s top and bra so that her breast was exposed. The complainant remonstrated, saying that she felt he treated her “like a piece of shit, a piece of meat” and Mr Pellegrino said “Blah, blah, blah” and that the windows were tinted. He also said that she was “his property”. Mr Pellegrino denied that it happened or that he had made those remarks.
The fourth count of committing an act of indecency (CC2015/3604) occurred after they had engaged in consensual sexual intercourse in about February 2014. The complainant says that she had put her lace panties back on and was going to the toilet when she saw a flash and said, “Aldo, don’t take photos of me”, but he had done so and he showed her the photo. She asked him to delete it. He sent it as a text message to her.
Mr Pellegrino agreed that he took the photograph. He said that he could not recall any conversation about the photograph; he did not deny that the complainant had requested him not to take such a photograph of her, though in cross-examination he denied having any discussions with the complainant about taking the photograph afterwards. He said that he did not really think about what he was doing at the time. In fact, he said that she asked to look at the photograph, and agreed that she did ask him to delete it, which he says he did. He also agreed that he did not ask whether he could take the photograph. He did not, he said, assume that he could take the photograph because they had had consensual sex but, he said, he “just took a picture because I just took a picture”. He agreed that he did not think about whether the complainant agreed to the picture being taken or not.
The fifth offence of committing an act of indecency (CC2015/3605) is said to have occurred when the complainant was masturbating Mr Pellegrino. As she was doing so Mr Pellegrino took a photograph, but she did not know that he had taken a photograph of her engaging in that conduct until he later showed her the photograph. The complainant says that she did not give him permission to take the photograph and, indeed, he did not ask her whether he could.
Mr Pellegrino agreed that there were occasions when the complainant masturbated him but could not recall taking a photograph of her doing so and denied that he did take the photograph.
The sixth offence of committing an act of indecency (CC2015/3606) was said to have happened when the complainant was walking upstairs at Mr Pellegrino’s house. She said that he walked up behind her and pushed his fingers into her clothing and into her anus. She said he made a comment about having fat fingers. The complainant did not consent to the act.
Mr Pellegrino denied doing that, though he admitted that he may have held her backside, which he described as “what you’d do normally with your girlfriend”, it was, he said, “like a pat, like a cuddle”, but on the buttock cheeks. He said he would do that frequently.
The last count of committing an act of indecency (CC2015/3607) was a similar incident, but at the house of the complainant’s parents. As everyone else walked outside, Mr Pellegrino and the complainant followed last. The complainant was wearing yellow shorts. As they passed the sink in the laundry, Mr Pellegrino again pushed his finger into the anus of the complainant over her shorts. She jumped and said, “What are you doing? Don’t do that” and Mr Pellegrino just laughed.
Mr Pellegrino denied doing this. His evidence initially addressed both this and the earlier count as set out above (at [36]-[37]). He admitted that the complainant had a pair of yellow shorts and he did recall attending at the home of the complainant’s parents, and did so quite frequently. He explicitly denied this allegation as well, saying that he may have “held her” which was, he described, a “sort of half hug” and said that his hand may have made contact, presumably with her anus.
The final count was of using a carriage service to menace (CC2014/10356). This arose after the complainant and Mr Pellegrino had had a disagreement on 4 June 2014 over his expressed wish to go to Las Vegas with his friends. She felt aggrieved because she said that he assumed he could go where he wanted without reference to her, but that she had to seek his permission. During the argument, she said Mr Pellegrino said to her:
All right, all right, all right you can go where you want to go, but if anything happens I’ll break your neck and every cunt’s neck that’s with you.
The complainant told Mr Pellegrino not to threaten her and ended the call.
Mr Pellegrino agreed that the complainant was upset at his proposal to go to Las Vegas and that it developed into an argument, which included telephone calls and text messages. Mr Pellegrino initially denied saying these words, especially, “I’ll break your neck”; he said he was “very sure” that he would not have said it because he had never said it to anyone else. He agreed in cross-examination that if he had said this it would have been threatening. He agreed, however, that he may have said on the telephone that he would break the necks or, at least, that he would bash, the “other people in the ear”.
Later he and the complainant messaged each other through their phones. The messages were in evidence.
One of those texts included the following exchange:
MR PELLEGRINO: Your [sic] the fucking hero saying over it.
COMPLAINANT: I’m over yours too ..if
You do this Iwill [sic] break your neck and every other cunts neck..that’s a lala story when nothing’s even happened lol
Mr Pellegrino agreed that the complainant was repeating back to him what he had said in his telephone call.
He texted the complainant, “I’m warning you and any rubbish around you that’s all”. In cross-examination he questioned whether that was “really a threat”.
The texts sent by Mr Pellegrino included the following:
Another alternation [sic – agreed to be “ultimatum”] !!!! what if I come around with a sledge hammer and finish it properly?
He said that he did not intend to go to her house with a sledgehammer and he did not believe that she would think so. In cross-examination, Mr Pellegrino said that he did not use a sledgehammer at work as a builder. He said that he meant to respond to her stated intention of breaking up with him and said:
like for a proper reason to break up if I come around with a sledgehammer and just started wrecking something or whatever, then she’s got a good excuse to break up with me, that’s an excuse, yes.
So you’re threatening that you would come round with a sledgehammer? --- I said what if? What, did you want me to do that or something? It’s like she’s pushing me into – like I said in the message underneath, ‘You love chaos,’ she just loves it, she writes me a thousand messages, I try to call to talk, she doesn’t talk, she just writes.
He said it was a question; it was not a statement of what he was going to do.
In the end, Mr Pellegrino took the position that the text about the sledgehammer ended with a question mark, so it was a question and not a threat.
He later texted her, “I’m on my way mother fucker”.
He agreed that the complainant was feeling threatened, but denied that he was threatening her. He suggested, “... she thinks everything’s a threat”, though he agreed that he was “a bit hot headed”.
As to the second comment referred to above (at [51]), he said that he sent that “just to try and make her answer her phone”, because she was not answering his calls. He said that he was not going to go over to see the complainant, but that he “kind of” wanted to give her the impression that he was. He agreed, however, that he wanted her to believe that he was going to go to her place.
Later, he texted, “Sorry for scaring you”, saying that he said that “because she said she got scared of everything”. He grudgingly admitted, “She probably was scared, who knows, yes.”
There was also evidence of a number of “uncharged acts”. These are, as Callinan J described them in Tully v The Queen [2006] HCA 56; 230 CLR 234 at 264; [103], “allegations of acts which were criminal but which were not subject of any counts on the indictment”. They are led, Ireland J explained in R v AH (1997) 42 NSWLR 702 at 708, for generally two purposes: to put the evidence of the offences charged into a true context as part of the background against which the complainant’s evidence is to be evaluated and may, if admitted for that purpose, expose the guilty passions of the accused, though there is no particular limit to the ways in which the evidence may be relevant to proof of a fact in issue.
The uncharged acts were as follows:
· Evidence of events in Thailand where the complainant and Mr Pellegrino went on holiday. She said that he “ripped” her dress and bikini top to the side, exposing her left breast and the next day shoved her out of the way when a worker tried to pass them. When the complainant said she was going home, Mr Pellegrino said, “I’ll fucking kill you before I let you go home”. Mr Pellegrino denied that he had exposed the complainant’s breast but was not asked, either in examination-in-chief or cross-examination about the threat.
· Evidence of the complainant saying that Mr Pellegrino had a habit of “pulling” or “ripping” her upper garments so as to expose her breast or breasts as a common occurrence, including on one occasion as they were driving to Port Stephens on New Year’s Eve. The complainant said to him that she felt that Mr Pellegrino “treated her like a piece of meat”, but he said that he was “only mucking around” and that she should stop “sooking”. The complainant said she felt humiliated by these incidents.
In relation to this evidence, the complainant was shown a video of the New Year’s Eve party they attended at Port Stephens later that evening, which was said to show a joyful night. It showed the complainant as happy, talking to Mr Pellegrino suggesting that in the New Year, they would be “getting married” and “making babies” to which the complainant agreed and laughed.
Mr Pellegrino denied that he did expose her breast as alleged. His denial implied clearly that he did not do it on the other alleged occasions.
· Evidence of other occasions where the complainant said he poked his finger into her anus, which Mr Pellegrino denied had happened, saying he only patted her backside.
·
Evidence of an occasion in summer when the complainant said that Mr Pellegrino held his hand on her mouth and nose until she could not breathe and, when he let go, he walked away laughing. This matter did not seem to have been put to Mr Pellegrino when he gave evidence, either in chief or under
cross-examination and so he did not explicitly deny that it occurred.
· Evidence of the complainant that Mr Pellegrino grabbed the complainant’s crotch or vagina, telling her that “that was the happy button” and that this was a regular occurrence. This does not seem to have been addressed by Mr Pellegrino in examination-in-chief and it was not raised in cross-examination, and so he did not explicitly deny that it occurred.
·
Evidence of the complainant that Mr Pellegrino threatened to break her front teeth and smash her parent’s house, in the context of expressing his opinion that the complainant was “his property”. This matter does not seem to have been put to Mr Pellegrino in examination-in-chief and it was not raised in
cross-examination, and so it was not explicitly denied. He denied, however, thinking of the complainant as his “property”.
· [Redacted].
In addition, Mr Pellegrino gave evidence that he worked in what might be called a “robust” workplace, where the culture was “bogansy ... a bit rough” and where he was exposed to swearing on site “almost every day”, including swearing at people in “normal conversation”. It was submitted that, as a result, this was how Mr Pellegrino interacted with people generally.
The conduct of the appeal
Mr Pellegrino challenged the convictions on three bases:
1. So far as the convictions for the majority of the charges of committing an act of indecency was concerned, he submitted that the learned Magistrate had applied the wrong test of culpability and had failed to require the prosecution to prove the offences beyond reasonable doubt.
2. So far as the charge of committing an act of indecency, being the fourth of those charges, Mr Pellegrino submitted that the conduct was consensual and that, in any event, it was not indecent.
3. So far as the charge of using a carriage service to menace was concerned, he submitted that the messages were not, in fact, menacing.
The respondent challenged each of these submissions and submitted that they could not be made out. In any event, the respondent submitted, the evidence was so strong that a conviction was inevitable.
I shall deal with each of Mr Pellegrino’s challenges in turn.
Application of the wrong test for culpability
The learned Magistrate reserved her decision and delivered reasons for convicting Mr Pellegrino of all the charged offences on 29 September 2015. Her Honour recounted the evidence and I do not need to summarise that. No complaint is made on the appeal about her Honour’s summary.
Her Honour then referred to the test for culpability articulated by Higgins CJ (though referring to his Honour as Higgins J) in R v Maan [2009] ACTSC 160 at [100], where his Honour said:
Nevertheless, I accept that in order to find guilt it is necessary to find not only that the complainant’s account is completely convincing but also that the sworn denials of the accused are so unconvincing that a conclusion may be reached as to guilt beyond reasonable doubt (see Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214, 218).
Unfortunately, her Honour both failed to quote this passage correctly, inserting “not” between “conclusion may” and “be reached”, which curiously distorted the test, but also did not continue with what his Honour added at [101], namely:
It must be emphasised that it is not necessary for a verdict of acquittal that I be persuaded that the accused’s account is, or is even probably, truthful (see R v E (1995) 89 A Crim R 325 (NSW), 330).
This latter point is important, for it is an essential step in the process of reasoning that the decision-maker in a criminal trial must follow. As Kirby J, with whom Sheller AJ and Dowd J agreed in Anderson [2001] NSWCCA 488; 127 A Crim R 116 at 121; [26], after describing the standard directions to juries in Canada as to “oath on oath” cases following W(D) [1991] SCR 742 at 757-8, explained:
Directions along these lines are customarily given, although I prefer the following formulation:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
Thus, it is clear that, to find Mr Pellegrino guilty of the offences, it was not only necessary for her Honour to reject his evidence but also positively accept the evidence of the complainant. In particular, it was not sufficient for her Honour merely to prefer the evidence of the complainant.
Her Honour started to address that issue correctly, saying:
So in order to do this I have to assess the evidence given by the complainant and the defendant and decide whether the evidence given by each of them is, firstly, truthful and, secondly, reliable. I need to consider whether there’s any corroboration for the differing versions and determine which version is the more credible.
There is a worrying reference to “more credible” in the second sentence and that then led on to her Honour developing in a very problematic direction, saying:
And I say, Mr Pellegrino, that having considered the evidence given by [the complainant] and you I find that the defendant – rather, that the version given by [the complainant] is more reliable and more credible than the one given by you. She had a better recollection of the events and the details than you did and I found her to be a truthful witness.
Her Honour then assessed Mr Pellegrino’s evidence, finding him evasive and relying on his admitted deceit to the complainant about his age and the fact that he was a deceitful to her when he had unprotected sexual intercourse though he knew that he had a sexually transmissible disease with which, in fact, he did infect the complainant.
Her Honour criticised the “crude, disrespectful and demeaning” text messages he sent and then concluded:
As I commented earlier, I prefer the evidence of the complainant to that of the defendant.
Given the preceding assessment of Mr Pellegrino’s evidence, this can only suggest that her Honour applied the wrong, inadequate test for guilt.
It was also submitted that her Honour had erred by applying an illogical test of Mr Pellegrino’s credibility, namely that as he had been deceptive in the past, he could not be believed. Further, her Honour referred to the photograph the subject of the fourth count of committing an act of indecency, namely taking the photograph of the partly naked complainant, which she had asked him to delete. Her Honour said:
You also admitted being untruthful – or you were untruthful when you told her that you had, as she requested – she asked you to delete the photo that you had taken of her while she was naked – the photo that became an exhibit. And you hadn’t.
Her Honour was clearly relying on the fact that the photograph was produced in Court from Mr Pellegrino’s phone. That, however, does not mean that the photograph had not been deleted. What Mr Pellegrino had done was to send it to the complainant attached to a text message.
The last message said “Lol [which I understand to mean either ‘lots of laughs’ or ‘laugh out loud’] deleted”. That is to say, Mr Pellegrino is suggesting, and there was no contrary evidence, that he had deleted the photo. Inevitably, however, it existed in the message, even if deleted from the photo storage area of his phone. Mr Pellegrino also said in his evidence that he had deleted it. There was no evidence that it remained in the photo storage area of his phone.
Deletion from the photo storage area is important, but to send it and thus, in effect, save it by including it in the memory of the phone as “sent mail” seems to me to amount to a rather ineffective way of deleting the photograph.
Nevertheless, the real issue is the apparent application by the learned Magistrate of a quite incorrect test as referred to above (at [66]). That it was the incorrect test was not contested by the respondent.
The respondent submitted, however, that, when the reasoning process of the learned Magistrate is taken as a whole, it can be seen to have been a sound and proper reasoning process.
Thus, it was pointed out and may be accepted that the learned Magistrate accurately described the onus and standard of proof, accepting that “the defendant cannot be found guilty of any offence or offences unless the evidence, which I ultimately accept, satisfies me beyond reasonable doubt of his guilt”. The learned Magistrate also correctly described the presumption of innocence and the need for proof beyond reasonable doubt of each of the elements of each offence. Her Honour also accepted that the case was one which is often referred to as one of “oath on oath” (see R v O’Rafferty [2016] ACTSC 141 at [18]) and that, also, her Honour noted, correctly:
So in order to do this I have to assess the evidence given by the complainant and the defendant and decide whether the evidence given by each of them is, firstly, truthful and, secondly, reliable.
That her Honour had earlier correctly described the task is not enough. The proper test has to actually be applied, as pointed out in Murray v The Queen [2002] HCA 26; 211 CLR 193 at 201-2; [23] (per Gaudron J), 212-3; [57] (per Gummow and Hayne JJ). Indeed, in Douglass v The Queen [2012] HCA 34; 290 ALR 699 at 702-3; [12], expressly rejected the proposition that, when a finding turns on credibility, it is enough for a judge to state that he or she believes one witness in preference to another, saying:
It was an error to view the appellant’s trial as reducing to a case of ‘word against word’. It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The point is made by Gummow and Hayne JJ in Murray v The Queen (at [57]):
[57]... The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
The respondent, however, further submitted that the Court of Appeal had considered the comments of Higgins CJ in R v Maan referred to above (at [62]-[63]), which had been challenged as, it was suggested, improperly “compartmentalising the evidence”: Director of Public Prosecutions v Maan [2010] ACTCA 27 at [17].
Thus, reliance was placed by the respondent on what fell from the Court of Appeal in Director of Public Prosecutions v Maan at [20]-[21], as follows:
20. The process of evaluation, by a tribunal of fact, of the credibility and reliability of the evidence given by witnesses to a disputed event cannot be arrived at by a precise or single scientific process that must be applied in every case. The reasoning process used by a fact finder in assessing and finding evidence that should be accepted often can involve close analysis of what the written or oral evidence contains. In an oral trial, the demeanour of witnesses, their manner, modes of expression and personalities, as displayed in the witness box while testifying, can influence a fact finder, consciously and unconsciously. In trials by judge alone, he or she must give reasons for his or her decision.
21. But the process of choosing what evidence to accept when a judge is confronted by conflicting accounts of two apparently credible witnesses (or, in a criminal trial, where one witness who is credible and the other who is not wholly incredible) cannot always be explained in the same way as the selection of a rule of law or legal principle. Appellate courts must allow judges some latitude in their choices of expression for explaining why they made credibility based findings. This is because there is no, and should not be any, a priori formula for doing so.
The difficulty for the respondent, however, is that this does not address the issue raised on this appeal. The issue is not the way in which the trial judge assesses the credibility of witnesses or articulate the method of doing so. This is what these paragraphs consider.
The issue is, having decided issues of credibility, how the Court decides on culpability.
Indeed, so far as that issue is concerned, the comments of the Court of Appeal in Director of Public Prosecutions v Maan at [18]-[19], which directly addressed the statements of Higgins CJ cited above (at [62]-[63]), are apposite, where the Court said:
18. However, we do not take his Honour’s remarks as indicating that he took an impermissible two stage approach in determining whether the Crown had established the guilt of the respondent. All that his Honour did was to assess the competing versions in the case, with an appreciation that a finding that the complainant’s evidence was convincing would be insufficient to establish guilt if it was countered by defence evidence which was sufficient to raise a reasonable doubt. The respondent’s denials in this case, being “sworn denials of a man of good character” were sufficient for that purpose.
19. As will emerge from our discussion of the second and third grounds of appeal, the Crown case against the respondent was entirely dependent upon the evidence of the complainant. Other than evidence of flight, which his Honour rightly considered to be of minimal weight in the circumstances, all the evidence in the Crown case emanated from the complainant herself. It follows that his Honour was forced to concentrate on the two competing versions of events. Indeed the Director himself, in his oral submissions relating to the second ground of appeal, said, ‘The real test is, in our submission, whether on the whole of the evidence the complainant’s version could be accepted and the accused’s version rejected’. This is precisely the test which was posed by his Honour in the passages complained of by the Crown.
This is, however, the very difficulty confronting the respondent. Her Honour only said that the complainant’s account was “more reliable and more credible” than that given by Mr Pellegrino. She found the complainant a truthful witness. It was in that context that her Honour said that she preferred the evidence of the complainant.
Indeed, considering her Honour’s reasons as a whole, this was consistent with her approach in, for example, the comments she made as extracted above (at [66]-[67]).
As is clear from the statements of the learned Magistrate herself, these are only stages along the way: she must find the complainant truthful but also reliable and accept her evidence beyond reasonable doubt; it is not a case of preferring the evidence of the complainant over that of Mr Pellegrino. As the High Court has made clear, the Court has to be satisfied as well that the evidence of the complainant is reliable and able to be accepted beyond reasonable doubt. This is not the test applied by the learned Magistrate.
In my view, this ground succeeds so far as the first, second, third, fifth, sixth and seventh counts of committing an act of indecency are concerned.
The respondent, however, submitted in written submissions that the required real and independent review of the evidence I am required to conduct would “result in the appellant court finding the appellant not guilty of all charges”. I think that what was intended is that I would find him guilty following such a review.
Thus, reliance was placed by the respondent on the following matters:
(a)the complainant gave direct evidence of the conduct involved in each of the sexual offences;
(b)the complainant’s account as to the acts involved in each of the sexual offences remained consistent during cross-examination;
(c)the complainant’s version was plausible, particularly given the relationship evidence; and
(d)evidence that corroborates the complainant’s version in terms of the texts, Facebook messages, and the photograph produced by the defence.
It is to be accepted that the matters referred to at (a) and (b) applied here, but apply in many cases. That is not, in itself, sufficient to find Mr Pellegrino not guilty. It was, however, not submitted that, by themselves, these matters are sufficient.
As to the matters referred to at (c) is concerned, they fall largely into the same category. On the other hand, there are problematic issues. For example, I have some doubts about the physical possibility of Mr Pellegrino being able to touch the complainant’s crotch while seated on the motorcycle as alleged. I did not, however, see the demonstration in Court.
As to the matter referred to at (d), I am not satisfied that, other than the fourth count of committing an act of indecency or the offence of using a carriage service to menace, any other of the offences are directly corroborated by any of the texts, Facebook messages, or the photograph. These matters certainly support a finding that the complainant and Mr Pellegrino had a problematic relationship, where the complainant appears to have been exposed to demeaning behaviour, and that provides what might be regarded as contextual corroboration, but not enough to amount to direct or real corroboration of the evidence by the complainant of the actual offences.
I must give due weight to the advantage of the learned Magistrate who saw and heard the complainant. See, for example, Connelly v Allan [2011] ACTSC 170; 212 A Crim R 320 at 324; [12] and Barlow v Wiseman [2014] ACTSC 166 at [3].
Nevertheless, I cannot assume that her Honour would have come to the same conclusion had she applied the correct test.
That is not to say that she could not have done so. The assessment of the evidence by the respondent is not inaccurate. It would be open to a court to convict Mr Pellegrino and, applying the correct test, may well do so.
While Mr J Lawton, counsel for Mr Pellegrino, did submit that I should find Mr Pellegrino not guilty, I certainly cannot do that. The evidence is not so weak that a court, applying the proper test correctly, could not be satisfied of his guilt.
He submitted that I would not be able to reject the evidence of Mr Pellegrino beyond reasonable doubt. In that event, he submitted, Mr Pellegrino must be acquitted. I reject that approach. While I have some difficulty with some of the reasoning of the learned Magistrate, it is by no means clear that her Honour was not entitled to reject Mr Pellegrino’s evidence. As noted above (at [90]), I need to give due regard to the advantage that the learned Magistrate had of seeing and hearing Mr Pellegrino give evidence.
The real and independent review that must be conducted as I have noted above (at [9] being point 3 in the quotation from Peverill v Crampton) can usefully be guided by the approach to the transcript, when demeanour cannot, of course, be assessed, as explained by Teague AJ in DF v The Queen [2011] ACTCA 11 at [45]. Even then, I am not satisfied that a court applying the proper test, after hearing Mr Pellegrino give evidence, could not property convict him.
I also have regard to the admissions made by Mr Pellegrino to Constable Harman, which do undermine to a certain extent the denials in his evidence.
There must be a new trial on the first, second, third, fifth, sixth and seventh counts of committing an act of indecency.
Fourth count of committing an act of indecency
This count is separate from the others for a number of reasons. I have briefly described it above (at [32]-[33]). Given that the photograph and accompanying text are objective items of evidence, I am not in the same position with respect to this count when conducting “a real and independent review of the evidence” as I am with respect to the others, where I must rely almost entirely on the oral evidence of the complainant and Mr Pellegrino which I did not see or hear them give.
The elements of the offence are as follows:
(a)Mr Pellegrino commits an act;
(b)he intended to commit the act;
(c)the act is indecent;
(d)the act is committed on or in the presence of the complainant;
(e)the complainant does not consent to the act; and
(f)Mr Pellegrino is reckless as to whether the complainant consents to the act.
There was no real issue about elements (a) to (d) or (f). What was really in issue was (e) – did the complainant consent to the photograph being taken?
The test of indecency was not in doubt; in R v DM [2010] ACTSC 137 at [219]-[221], I considered the matter and accepted that it meant overtly sexual conduct that
right-minded persons would consider to be contrary to community standards of decency.
In addition to the summary of the evidence above, I note that there were some discrepancies in the evidence between that of Mr Pellegrino and that of the complainant, so it is necessary to address a little more of the evidence.
The complainant said that Mr Pellegrino took the photograph and the complainant said, “Aldo, don’t take photos of me”. She said that he showed her the photo after she had gone to the toilet and she asked him to delete it. She said that she did not know if he did, but she trusted him to do so. She said that he did not ask if he could take the photo. She had never given him any kind of “general consent” to photograph her partially naked.
In cross-examination, the complainant denied that she made light of the incident. She also denied that she did not really mind him taking the photograph; at most, she regarded it as “cheeky”. It was put to her that she actually responded to Mr Pellegrino sending the photograph to her by using the word “naughty”, which was said to amount to merely regarding the taking of the photograph as “cheeky”. The word “naughty” does appear as her response to Mr Pellegrino sending a copy of the photograph to her with the message “Lol deleted”.
As the complainant commented, however, by using the word “naughty”, “it’s not saying that the photo was okay”.
Further, following that comment, the complainant sent to Mr Pellegrino about five minutes later a photograph of the complainant, smiling with a bunch of roses and a “smiley face” emoticon (an icon representing a smiling face). Her explanation was:
All I wrote was ‘naughty’. I wasn’t happy with it, but I just tried to move past it. Aldo always told me he’s only mucking around I’m his girlfriend, I’m too uptight so I just had to let it go. But never did I consent to it, never was I happy about it. And like you said earlier I never put a smiley face after the word ‘naughty’ my smiley face was after the picture with the roses that I received on Valentine’s Day. There’s a big difference there.
The complainant denied that this meant that she did not, in fact, have the unhappy feelings about the photograph that she expressed in her evidence. She was clear that she did not consent to Mr Pellegrino taking the photograph.
There was other cross-examination about the complainant not including this material in other complaints she later made about the incident, though she said she had made the complaint at the time and the photograph had been deleted.
I note that s 71 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) applies to these proceedings, because the offence is an offence against s 60(1) of the Crimes Act; that section appears in Pt 3, and so, under s 37 of the Evidence (Miscellaneous Provisions) Act, it is a sexual offence. Section 71 of that Act provides that a delay in making a complaint does not necessarily indicate that the allegation that the offence was committed was false. There may be a good reason why a complainant may not make or may hesitate in making a complaint. I must take this into account.
In his evidence, Mr Pellegrino said that he did not “totally recall the incident” but agreed that he had sent a message to the complainant with the photograph and that she had replied. He then said that he could not recall any conversation at the time he took the photograph. That was all his evidence about it when he gave his evidence-in-chief. In cross-examination, he was a little more positive, saying that he did not have a discussion with the complainant about him taking the photograph.
It is, of course, required that I also have regard to the provisions of s 72 of the Evidence (Miscellaneous Provisions) Act, which provides that, in proceedings for a sexual offence, a person is not to be regarded as having consented to a sexual act just because of the following matters set out in the section, namely:
(a)the person did not say or do anything to indicate that the person did not consent; or
(b)the person did not protest or physically resist; or
(c)the person did not sustain a physical injury; or
(d)on that or an earlier occasion, the person had consented to engage in a sexual act (whether or not of the same kind) with the accused person or someone else.
He did say that, “[s]traight after I pulled the photo she goes, Give me a look, so I’m showing her the picture”. He said that, as they had just engaged in consensual sexual intercourse, it was his right to take a photograph of her partially naked, though he said that he did not really think about it.
He then said that the complainant had asked him to delete it after he had sent it to her, but that is not how the messages show it. He speculated that she wanted it deleted because “maybe she didn’t look the best in the photo”. He agreed that he did not ask the complainant whether he could take the photograph and that he had never before taken a photograph of her naked or partially naked; this was the first time. He said he took the photograph “[n]ot because we had sex [I] just took a picture because I took a picture”. He did not think about whether she would agree or not.
This count seems to me to be relevantly different from the other counts of committing an act of indecency in that there is no doubt that the photograph was taken and that it was agreed by Mr Pellegrino to be deleted.
It was conceded that the taking of the photograph could be indecent. There can be no doubt about that: R v DM at [225]-[228]. As I pointed out in R v McDonald [2013] ACTSC 122; 233 A Crim R 185 at 196; [53], the circumstances may be relevant. Here, it seems to me that the act of taking a photograph of the complainant partially naked was an act of indecency. It would, of course, not be an offence if she had consented. I do not have to consider whether her consent ceased to make it an act of indecency; that is a difficult question but it does not arise here.
In this case, the only real issue is whether the complainant consented. Mr Pellegrino prevaricated a little but it seems to me in the end that he agreed that he had never given a thought as to whether the complainant was consenting or not and did not rely on the fact that they had just engaged in consensual intercourse, as I do not consider he could. It does not seem to me that consent to sexual intercourse would, without more, extend to such conduct.
This is clearly a case of “non-advertent recklessness” which applies to offences against s 60(1) of the Crimes Act until 1 July 2017: s 16 of the Criminal Code 2002 (ACT). This was held to be the law in Sims v Drewson [2008] ACTSC 91; 188 A Crim R 445 at 453-4 and approved, it appears, in Director of Public Prosecutions v Walker [2011] ACTCA 1; 176 ACTR 1 at 13; [53]. See Gillard v The Queen [2013] ACTCA 17; 275 FLR 416 at 443; [105], though reversed by the High Court in Gillard v The Queen [2014] HCA 16; 308 ALR 190, but on other grounds without disturbing this finding. Non-advertent recklessness is sufficient a mental element for this offence.
As to consent, the evidence of the complainant was clear, though strenuously challenged in cross-examination. She did not, however, resile from the position that she did not consent.
In support of a finding that she did not consent are the following features. In the photograph which, on all accounts, was unexpected by her, she was covering her breasts, indicating a degree of reserve consistent with her not wanting to be photographed (even though she did not expect to be photographed).
Mr Pellegrino’s counsel before the Magistrates Court submitted that, however, so far as her face could be seen, she was not frowning. I have two difficulties with that. In the first place, it is very hard to see her face and, in my view, impossible to see any realistic facial expression. In the second place, it is unclear why she would be frowning for, at the instant the camera photographed her, she did not know it was going to happen and would not then be expressing a negative expression to the incident.
Her comment “naughty” might suggest that the complainant was not as upset as she expressed, but it is only realistically consistent with her lack of consent. That it is not as expressive of her views as she explained them in her evidence may be justified by the fact that the message said that the photograph had been deleted. It is also consistent with the fact that she was, at that time, continuing with the relationship and wanting to affirm that, which the following photograph and emoticon also show.
I do not accept that an appropriate and respectful relationship between the complainant and Mr Pellegrino, especially as it had only developed into being expressed through sexual intercourse for about two months at this time, would permit Mr Pellegrino to assume consent for such conduct without some express acknowledgement of such consent by the complainant. I cannot see in the evidence any basis for finding that the complainant consented to the photograph being taken.
Having carefully reviewed the evidence, I am satisfied that Mr Pellegrino was rightly convicted of this offence.
Using a carriage service to menace
The evidence about this offence is summarised above (at [40]-[54]), but in more detail than for the other offences. Again, the evidence is largely set out in documents, which makes the “real and independent review of the evidence” easier.
The elements of the offence are:
(a)Mr Pellegrino used a carriage service (that is a service for carrying communications by means of guided and/or unguided electromagnetic energy: s 7 of the Telecommunications Act 1997 (Cth) and so includes making a telephone call and sending an SMS message: R v McDonald at 191; [22]);
(b)Mr Pellegrino intended to use the carriage service;
(c)The carriage service was used in a way that reasonable people would regard as, in all the circumstances menacing; and
(d)Mr Pellegrino was reckless as to whether reasonable people would regard the use in all the circumstances as being menacing.
Again, there were two issues in this case, that is whether the conversations on the phone had occurred as stated and whether that conversation and the following text messages were menacing.
The conversation by telephone alleged to have constituted the offence were not seriously challenged. No submissions were made to the learned Magistrate that they were not said.
As noted above (at [11]), the comments on which the prosecution relied were:
Phone:“If anything happens I will break your neck and every cunt’s neck that is with you”.
Text Message: “Another alternation [sic: ultimatum] !!!! what if I come around with a sledge hammer and finish it properly?”
“I’m on the way mother fucker.”
The circumstances under which it was submitted that these uses of the carriage service had to be considered were in the light of one of the uncharged acts, namely where Mr Pellegrino was said to have put his hand over the complainant’s mouth and nose until she could not breathe. That shows a degree of violence towards her that would be known to the complainant. It is also relevant that he later sent a text to the complainant, “Sorry I scared you”. Mr Pellegrino also gave evidence that he was frustrated that the complainant would not speak to him on the telephone so he sent the third communication, the second text message.
There was no dispute that the text messages were sent. Mr Pellegrino did prevaricate about the phone conversation but admitted that the text message in which the words appeared, as set out above (at [44]), was to be taken as the complainant repeating back to him what he had said over the phone.
It was submitted by Mr Pellegrino’s counsel, both at trial and on appeal, that the second communication, the first text message, was merely a question which could not be menacing. It is in interrogative form but it seems to me to be at best a rhetorical question. Even if not, then the implication is that, if asked, Mr Pellegrino would do what he is stating he could do in the question, that is he is offering to do a very violent act.
In isolation, it could be intended to be an excessively exaggerated suggestion borne out of frustration that what he proposed to do – namely travel to Las Vegas with some friends without the complainant – was so inconsequential as a basis for ending their relationship that he had to do something much more severe. The problem with that is that this makes no sense. That would only make sense if what he proposed (the Las Vegas trip) was inadequate to justify the breakup of the relationship and that he wanted such a break up. That is, however, not what is happening here. In any event, it gives no force to the word he agreed was “ultimatum”. I do not accept such an anodyne description of the statement.
In Crowther v Sala [2007] QCA 133; [2008] 1 Qd R 127 the Queensland Court of Appeal considered s 474.17 of the Commonwealth Criminal Code. McMurdo J, with whom Muir J agreed, considered at 135-7; [41]-[48], the elements of the offence. His Honour considered that the prosecution had to prove that the person accused of such an offence was at least aware of a substantial risk that a reasonable person would regard the conduct of the accused person as menacing and that it was unjustifiable to take that risk. That would, his Honour continued, require at least proof that the accused person realised that the words of the communication alleged to be menacing could be understood as a genuine threat.
In R v Rae (1998) 45 NSWLR 546, the Court considered the earlier version of this offence in s 85ZE of the Crimes Act 1914 (Cth). It considered the meaning of “menace” and relied on the meaning in the Macquarie Dictionary (Macquarie Publishing, 2nd ed, 1995) at 1110 which, at that stage was in the following terms:
Something that threatens to cause evil, harm, injure etc a threat. 2. Colloq – nuisance. Vt 3. To utter or direct a threat against; threaten. 4. To serve as a probably cause of evil, etc, to.
In that decision, Wood CJ at CL, with whom Beazley JA and Dunford J agreed, expressed agreement with what Hidden J has said in J L Holland v C J Cocks (Unreported, Supreme Court of NSW, Hidden J, 23 May 1997) at 3-5, where his Honour said:
It is clear that the word ‘menace’ means a threat and should be construed liberally so as to encompass more than the threat of physical violence: R v Tomlinson [1985] 1 QB 706 at 709, per Lord Russell CJ; R v Boyle [1914] 3 QB 339 at 343-345, per Lord Reading CJ; Thorne v Motor Trade Association [1937] AC 797 at 817, per Lord Wright. In R v Boyle, Lord Reading CJ said (at 344-345):
When there is evidence of such threat as is calculated to operate upon the mind of a person of ordinarily firm mind, and the jury have been properly directed, it is for them to determine whether in fact the conduct of the accused has brought them within the section, and whether in the particular case the ‘menace’ is established. If the threat is of such a character that it is not calculated to deprive any person of reasonably sound mind and ordinarily firm mind of the free and voluntary action of his mind, it would not be a menace within the meaning of the section.
In R v Clear [1968] 1 QB 670, Sellers LJ explained the element of ‘menaces’ in this way (at 679):
Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces ... but threats and conduct of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand would be sufficient for a jury’s consideration.
In the Federal Court of Australia the formulation of Sellers LJ was adopted in Benasic v The Queen (1987) 77 ALR 340 at 341, per Fox J and Kelly J and Pincus J (at 344). As that case also makes clear, whether the terms of the demand are menacing in the relevant sense is determined objectively, but evidence of the reaction of the victim to the demand is admissible (although, of course, not conclusive) of that issue.
Although those cases were dealing with an offence significantly different from that charged here, I consider that the expressions used in them are a useful guide to the construction of the word ‘menace’ in s 85ZE. Relevantly, what must be established is that the phone call in question was such that a recipient of ‘normal stability and courage’ might be ‘made apprehensive’ for his or her safety or well being (to borrow the words of Sellers LJ in Clear to which I have referred).
Wood CJ at CL continued at 554-5:
I am not persuaded that the objective test favoured by Hidden J in L J Holland [sic] is inappropriate. It accords with ordinary usage; indeed it is difficult to conceive of anything more likely to engender fear of serious physical injury than a bomb call. Inevitably such a call leads to the immediate evacuation of the building or are believed to be affected. Often it occasions panic, because the consequences of a bomb exploding in areas occupied by civilians are well-known.
I do not consider it necessary that the call convey the threat that actual physical harm will occur to any particular person or persons, although in this case that would have been a probable consequence if a bomb did exist that was not found before it exploded.
It is my view that if a person of normal stability and courage, in the place of the intended recipient, might be made apprehensive as to his safety or well-being, by a message conveyed by the use of a telephone service, then the service can properly be held to have been used for the offending purpose.
I would add, although it is not specifically raised on the stated case, that I would regard it as at least arguable that the offence is made out if the message conveyed is one giving rise to apprehension as to the safety of property of the intended recipient. Although it is not necessary to decide the point in this case there is no logical reason to confine ‘menace’, or the test adopted by Hidden J, to personal injury.
That approach was followed by Simpson J in Director of Public Prosecutions v Kuo [1999] NSWSC 1201; 49 NSWLR 226 at 229-30; [12], who accepted that the test is not limited to a threat of physical injury to persons but includes a threat to property.
Thus, if, as was suggested by Mr Pellegrino, he was intending to smash up the complainant’s property, at least hypothetically, that would still constitute a menace.
It was submitted that, contrary to her evidence, the complainant was not actually made apprehensive. That, of course, is irrelevant. The issue is what a reasonable person would believe.
In my view, there is no doubt that a reasonable person would at least be apprehensive in all the circumstances as outlined in these proceedings.
As to whether Mr Pellegrino realised this, there seems to me to be plenty of evidence to support that, but two inevitable items are of proof of this. The first is that he intended by the third communication, the second text, to influence the complainant to answer her phone. This can only reasonably be on the basis that this was a threat and a threat of some unspecified harm of some kind. The second is that his later text, “Sorry for scaring you”, makes it clear that he was aware that a reasonable person may feel apprehensive about the threats he was making.
In my view, this offence was properly found proved by the learned Magistrate.
Conclusion
The appeal must be upheld in part and dismissed in part. I will make appropriate orders. These include orders for a retrial of the six offences of committing an act of indecency. The convictions for the other two offences must be confirmed.
Under s 43A of the Evidence (Miscellaneous Provisions) Act, the evidence of the complainant was given by audio-visual link from a remote location. Under s 43A of that Act, the evidence will have been recorded and can be played as the complainant’s evidence at the retrial, though clearly those parts relevant to the two convictions may need to be edited out of the recording under s 43A(4). I cannot tell whether the complainant will be required to give evidence under s 43A(5), though there are significant restrictions under s 43A(6) on that.
I will make orders to give effect to these reasons.
| I certify that the preceding one hundred and forty-eight [148] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 13 December 2016 |
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