R v Arkle

[2022] NSWDC 523

District Court

New South Wales

Medium Neutral Citation:

R v Arkle [2022] NSWDC 523

Hearing dates:

1 November 2022

Date of orders:

1 November 2022

Decision date:

01 November 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 36

Catchwords:

CRIMINAL LAW – appeals and review – all grounds appeal from decision of Local Court – use of carriage service to menace, harass or offend

Legislation Cited:

Crimes Act 1914 (Cth) ss 19B, 20

Crimes (Appeal and Review) Act 2001 (NSW) s 18

Criminal Code (Cth) s 474.17

Crimes (Sentencing Procedure) Act1999 (NSW) s 9

Cases Cited:

McNab v DPP (NSW) (2021) 106 NSWLR 430

Lunney v DPP (2021) 105 NSWLR 236

Category:

Principal judgment

Parties:

Commonwealth Director of Public Prosecutions (CDPP)
Mr W Arkle (appellant)

Representation:

Counsel:
Mr R Steward for the appellant

Solicitors:
Mr A Assaad for the CDPP
J Burke Law for the appellant

File Number(s):

2020/00285700

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Sutherland Local Court

Jurisdiction:

Local Court

Date of Decision:

6 May 2020

Before:

Magistrate P Bugden

File Number(s):

2020/00285700

REASONS FOR Judgment

Background

1. On 6 May 2022, Wayde John Arkle was found guilty in the Sutherland Local Court of the offence that early in the morning of 7 March 2020 at Burraneer he used a carriage service, namely a telephone, in such a way that a reasonable person would regard that use as being menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth). The complainant was the appellant’s step-mother.

2. The appellant now appeals that conviction.

Approach to conviction appeals from the Local Court

3. Conviction appeals from the Local Court to this Court are by rehearing, generally on the evidence as it was in the Local Court[1] .

   1. Crimes (Appeal and Review) Act 2001 (NSW), s 18

4. Two recent decisions of the Court of Criminal Appeal shape this Court’s approach to appeals against convictions from the Local Court, being McNab v DPP (NSW) (2021) 106 NSWLR 430 (“McNab”) and Lunney v DPP (2021) 105 NSWLR 236 (“Lunney”). Both decisions affirm that this Court’s jurisdiction to intervene and set aside a conviction is enlivened upon the demonstration of error, be it legal, factual or error in the exercise of discretion.

5. McNab confirms a long-standing practice that a Judge in this Court is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses. In this particular case, however, where the appellant elected not to give evidence, no adverse credit findings were made against the prosecution’s witnesses. At any rate, an appeal against conviction in this Court is not a rehearing de novo.

6. Lunney indicates that how error is demonstrated is shaped by the manner in which the appellant grounds his or her appeal, effectively through grounds of appeal identified through an appellant’s submissions. In this regard, the Court has considered the short written submissions of the appellant’s Counsel filed on 24 October 2022 (MFI 2). There is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence and guidance and submissions from the parties.

7. The approach of a Judge in this Court, indicated by both Lunney and McNab, is to form his or her own judgment of the facts and of the appellant’s guilt beyond reasonable doubt. Contrary to any barrier apparently presented by these principles, as the Court of Criminal Appeal determined in McNab (at [27] & [91]), if this Court is not satisfied beyond reasonable doubt of the appellant’s guilt, then error will be taken to have occurred.

The Local Court hearing

8. In the Local Court, the prosecution relevantly relied on the written statement (admitted without objection) of Constable Worboys (the Officer in Charge) and the complainant, Mrs Arkle. A disc containing messages on the complainant’s phone were taken.

9. Constable Worboys’ statement recounted that he attended the complainant’s house at 9pm on 9 March 2020. The complainant said that she had received multiple phone calls from an unknown caller who had left multiple messages. These had been left by a phone number which was soon identified as being WJ Marine Pty Ltd. This was the business name of the appellant. The appellant later identified it as his number.

10. In Constable Worboys’ witness statement, the officer recounted a conversation that the appellant had with LSC Faulkner at about 7:15pm on 2 October 2020, which Constable Worboys had heard. As the appellant’s Counsel emphasised, this conversation occurred virtually 7 months after the alleged offending. After cautioning the appellant, relevant exchanges with the appellant were as follows:

• questioned whether anyone else had access to the phone, the appellant said “no”;

• questioned whether he rings her, the complainant, the appellant said he did, but then went on to explain that he had been ‘pissed’ one night, ‘we’ rang her and made some prank calls; she had taken it the wrong way “cause we don’t have the best relationship”;

• questioned about the comment he had made about the whipper snipping of her (the complainant’s) face, and what he meant by it, the appellant responded: “Well obviously that has been taken like been this has been blown out of proportion” and, shortly thereafter, added “I don’t even have a whipper snipper”;

• pressed, again, by what he meant, the appellant said “well, to be honest I think you’ll find that if it was at 11 o’clock at night or something we had a few drinks and just a bloody laugh I didn’t think much of it at the time, no”;

• questioned whether he had many other calls similar to this before, he said “Nah”. Questioned further whether this was a one off, he said “Yeah”.

11. I agree with the appellant’s Counsel that reading this, many of the questions assumed that the appellant had made the offending calls.

12. The appellant elected not to give evidence. As will be noted in a short time, it was common ground that the appellant had no prior criminal convictions and, to that extent, was a person of good character.

The Magistrate’s reasons

13. The Magistrate recognised that the Crown’s case was circumstantial. He acknowledged the complainant’s evidence that she could not recognise the voice on the messages, though she did hear the appellant’s name. He referred also to the complainant’s evidence that there were a great many calls.

14. But his Honour referred to the appellant’s evidence and his admission to police that it was his phone that was used. His Honour also referred to the content of the call, referring to the damage to his mother, or stepfather or father. Although he recognised the appellant’s evidence that a group of people were pranking and doing other things, and that he himself had been affected by alcohol, the Magistrate construed the appellant’s evidence to mean that it was he who “effectively” had made the phone calls; even if they were intended only to be prank calls.

15. The Magistrate then went on to consider the other elements of the offence which are not presently in issue.

The appeal

16. In his Counsel’s written submissions, the appellant accepted that the evidence established that calls had been made from the appellant’s phone and were directed to the complainant. The appellant admitted that one of the calls contained a reference to a “whipper snipper” which was conceded to be objectively menacing, harassing or offensive.

17. The appellant stated that, as occurred at the hearing in the Local Court, his appeal turned on whether the Crown could prove beyond reasonable doubt that he had used a carriage service.

18. The appellant referred to aspects of the evidence of the prosecution’s witnesses Constable Worboys and the complainant (the appellant’s step-mother). Constable Worboys’ evidence featured reference to questioning of the appellant seven months or so after the alleged offending.

19. The appellant referred to aspects of Constable Worboys’ evidence which included:

1. that the appellant was a person of prior good character in that he had no prior conviction;

2. that when the appellant was arrested and cautioned he told Constable Worboys that he did not recall uttering the words referring to a whipper snipper to the face;

3. Constable Worboys agreed that the appellant was then questioned further by Senior Constable Falkner who put an incorrect proposition to him when he asked the appellant what he meant by the words used in the call he had already stated he did not recall uttering;

4. Constable Worboys agreed that the conversation he had with the appellant above was seven months after the date the phone calls were made.

20. The appellant then referred to aspects of the complainant’s evidence, which included:

1. she did not recognise the voice on any of the messages;

2. she confirmed she didn't know who the person calling was;

3. in reference to the content of the offending message - the complainant stated she didn't know a young boy named Jamie;

4. the complainant stated she heard someone refer to her stepson's name on the messages;

5. she also confirmed that she didn't know who said the words in the messages.

21. The appellant submitted that it was open to find that: there were other persons present with the appellant on the night in question; those persons took possession of the appellant’s phone; and that they were making prank calls with that phone and it was these other persons, and not the appellant, who used the carriage service to call the complainant.

22. In his oral submissions, the appellant’s Counsel stated that statements attributed to the appellant in his interview were not unequivocal. This was a product of the structure of the questioning; which sometimes contained double questions and which, as indicated, assumed that the appellant did in fact make the menacing call. His Counsel also stated that there were odd references in the evidence which meant that it was reasonably possible that the appellant did not make the call: the complainant referred to a boy called Jamie, about whom nothing was known. The appellant himself stated that he did not own a whipper snipper: why, then, would he threaten the complainant with its use?

23. The appellant submitted that the Crown could not exclude as a reasonable hypothesis that the appellant did not use the carriage service to make the call.

24. The Crown referred to statements that the appellant had made to the police officer, referred to earlier in these reasons. The Crown noted that there were 21 calls over a three and a half hour period The Crown submitted that the Court could accept that there was more than one mobile number stored on the phone, but someone had chosen to ring the complainant. The appellant admitted that he did not have the best of relationships with her. The irresistible inference was that he had selected the complainant. If the complainant did not recognise the voice, the Crown submitted that the appellant conceivably would not have used his natural voice so as to avoid recognition. He did not deny making calls.

Consideration

25. I take into account a range of factors in this circumstantial case. These include, in no particular order:

1. the appellant’s intoxicated state;

2. the large number of calls over a long period;

3. the appellant’s animus towards the complainant.

26. I consider that the content of the exchanges between the police officer and the appellant to be probative. The appellant did not say that others had left the messages on the complainant’s phone. This was left to be a matter of mere inference.

27. As I have now indicated several times, I find that the content of the questioning indicated that LSC Faulkner believed and had assumed that it was the appellant who made the calls. There were also, in some instances, multiple questions within a single question. Nevertheless, contrary to the appellant’s submissions, I find that the appellant well understood what was being asked of him. In particular, it was obvious to him that LSC Faulkner believed and assumed that he had made the calls, and the appellant did nothing to correct any misapprehension. More probative than this however, was, when the particularly offending or menacing message was raised for his consideration, he did not state that he had not left the message. Instead, he tried to justify its being made, by reference to context. Most telling was when asked if it was a one off, he admitted that this was so.

28. The matters I have referred to leave a powerful case that it was the appellant who made the calls.

29. This then leaves the matters raised on the appellant’s behalf. Perhaps the most significant of this was the complainant’s statement that she did not recognise the identity of the caller or the one who left the message(s). However, although he was drunk, there was nothing to suggest that the appellant was stupid and he would likely have known that if he had deployed his voice naturally, he would have been easily recognised.

30. An associated matter was evidence of Constable Worboys in which he accepted that he had left out of his statement the appellant’s denial of making the reference to the whipper snipper to her face. Nevertheless, it was this reference, so the Court was led to believe, that proved that the use of the carriage service was offensive, menacing or harassing. There was no complaint, as an effective ground of appeal, that the Magistrate erred in finding this element of the offence proved to the requisite standard. Indeed, as referenced earlier in this appeal in his written submissions, he admitted to making the reference to whipper snipper in one of the calls. The omission from Constable Worboys’ witness statement was therefore immaterial.

31. Next, there was the appellant’s use of the collective ‘we’, in terms of his explanation that others had been pranking around. However, the significance of this was substantially diluted when, in the same answer where he referred to “we” ringing the complainant and having made some prank calls, he also referred to “we” not having the best relationship with the complainant. With nothing else, it was absurd to suggest that whoever else was present with him at the time, had a negative relationship with the appellant’s step-mother. It is also absurd to suggest that others had rung her. The complainant’s number was on the appellant’s phone. Only he would have rung that number. The significance of the use of ‘we’ was still further diluted when it is recalled that the calls had taken place over a long period of time and were voluminous in number. It is inconceivable that friends intending to make prank calls to a friend’s step-mother would stick around for the passage of time, stretching over hours into the very early part of the morning, as occurred here. The selection of pronoun “we’ in this context does not assist the appellant.

32. I agree with the learned Magistrate that what occurred was that the appellant underestimated or did not take into account the likelihood that the complainant would take offence at it. This was why, when he spoke to LSC Faulkner, the appellant went so quickly on to the defensive; justifying that what had occurred was no more than a prank call. When he stated that “I didn’t think much of it at the time”, he was referring back to something that he had done. In substance, this was an attempt at confession and avoidance.

33. I do not regard it as being odd that a person, in an intoxicated condition, would threaten the person to whom the message was being directed with an instrument which he later claimed he did not own. The content of the offensive message was colourful. That was part of its offensive or menacing aspect. I do not treat it as implying ownership that he actually had a whipper snipper. The reference to ‘Jamie’ was obscure: it was raised by the prosecutor and the complainant was ignorant of it. I did not regard this as weakening the prosecution case.

34. I take into account the appellant’s good character. But he did not give evidence in a way that his character might bolster acceptance of any account he may wish to give. Further, his otherwise good character was apt to be affected by his condition of being “pissed”. It was unsurprising in the circumstances that his Counsel did not emphasise this factor in this appeal.

35. I am satisfied that the prosecution had negatived as a reasonable hypothesis that someone else, and not the appellant, had used the carriage service.

36. That being so, the appeal against conviction is dismissed and the conviction is confirmed.

[THE COURT THEN CONSIDERED THE SEVERITY APPEAL]

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Endnote

Decision last updated: 01 November 2022