R v Ramadan - [2010] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RAMADAN
Criminal Trial by Judge Alone
[2010] SADC 83
Reasons for the Verdict of His Honour Judge Clayton
24 June 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with one count of Aggravated Threaten to Cause Harm. Trial by Judge without a jury. Consideration of elements of offence. Whether words used constituted a threat. Alleged threat not proved beyond reasonable doubt.
Verdict: Not guilty
Criminal Law Consolidation Act 1935 s 19(2), s 5AA(1)(g), referred to.
Carter v R [1994] SASC 4498; R v Meek [1981] 1 NZLR 499; Wood and Barrow v Bowron (1866) LR 2 QB 21; R v Kotzmann (1994) 178 LSJS 15; R v Leece [1995] ACTSC 28, considered.

R v RAMADAN
[2010] SADC 83

Brian Ramadan is charged with the offence of Aggravated Threatening to Cause Harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935.
The particulars in the information allege that on 18 December 2008, Mr Ramadan, without lawful excuse, threatened to cause harm to Michelle Ramadan, intending to arouse the fear that the threat was likely to be carried out, or was recklessly indifferent as to whether such a fear was aroused.
The alleged aggravating feature is that at the time Mr Ramadan committed the offence he knew that Michelle Ramadan was his former spouse.[1]
[1] Criminal Law Consolidation Act 1935 s 5AA(1)(g).
Mr Ramadan elected for trial by judge alone.
Evidence was given by two police officers as to peripheral matters, but the Crown case stands or falls on the evidence of Mrs Michelle Ramadan who is the former wife of the accused. The question is whether the evidence of Mrs Ramadan proves beyond reasonable doubt that on 18 December 2008 Brian Ramadan made a statement to her which amounted to a threat to cause harm.
No evidence was called by the defence. That was the right of the accused and no inference adverse to the accused can be drawn from the exercise of that right.
A threat is the communication of an intention to do ill will or the declaration of hostile intent or menace.[2] It is of the essence of the threat that it should be made with the intention of influencing the mind of the person to whom it is addressed.[3] The statement should be intended to be taken seriously.
[2] Carter v R [1994] SASC 4498, 176 LSJS 112 (20 April 1994) referring to R v Meek [1981] 1 NZLR 499 at 502-503.
[3] R v Meek. Wood and Barrow v Bowron (1866) LR 2 QB 21.
In Carter Olsson J referred to the definition of the word "threat" in the Macquarie Dictionary, namely:
…"a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course" or "an indication of probable evil to come; something that gives indication of causing evil or harm"…[4]
[4] para 20.
The verb "threaten" is defined as "to utter a threat against".
In Carter Olsson J said that it was incumbent on the trial judge:
…to make it clear to the jury that it is, indeed, inherent in the concept of the making of a threat that the words used were intended to be taken seriously by the person to whom they were being addressed; and that, if it remained a reasonable possibility that, in speaking as he did, the appellant was doing no more than merely unburden his feelings in a counselling context, the offence was not made out. [5]
[5] para 21.
Olsson J said that "the critical aspect is the form of words used and the apparent intention of the appellant in uttering them".[6]
[6] para 24.
Prior J, in Carter, drew the distinction between the making of a threat and the bare communication of an intention or expression of a feeling.[7]
[7] para 2.
For a statement to constitute a threat the statement must be something more than merely "sounding off".[8]
[8] R v Carter.
The prosecutor contended that it was not necessary for the Crown to prove beyond reasonable doubt the exact terms of the statement alleged to have been made by the accused, but that all that was necessary was that some statement which constituted a threat was made. Initially I thought there was merit in that submission, but in the passage set out above Olsson J referred to the form of words used as "the critical aspect". There are also other cases which emphasise the need to identify the precise words. When interpreting whether a statement constitutes a threat the actual words used are important.
Mr Morrison, who appeared for the defence, submitted that a conditional threat was not sufficient. He referred to R v Kotzmann (1994) 178 LSJS 15 (4 August 1994). He also submitted that a hypothetical threat was not sufficient. For reasons which will become apparent it is unnecessary for me to address those specific submissions.
Kotzmann is an interesting case. It is not authority for the broad proposition that all conditional threats can be disregarded. It is unnecessary for present purposes to descend to the subtleties discussed in the cases referred to in Kotzmann other than to note that they illustrate the need to identify the nature of the threat. That can only be done by ascertaining the precise words alleged to have been used. In some cases a conditional threat could give rise to an offence.
In R v Leece [1995] ACTSC 28 Higgins J said with respect to the offence of threat to kill:
37. One may infer from these quotations that to be a threat to kill, the relevant utterance or communication must convey, objectively, to the hypothetical reasonable person in the position of the listener or recipient that the publisher proposes to kill the listener or recipient or another person. If it conveys a merely hypothetical proposal that will not suffice, but a conditional threat, particularly when the person threatened is entitled not to meet such conditions, will suffice as "a threat". There may, of course, be a fine line between such a conditional threat and a merely hypothetical one.
Those reasons also demonstrate the importance of ascertaining the exact words relied upon by the prosecution.
The accused and Michelle Ramadan were married in 1991 and divorced in 2007. There are 10 children of the marriage, the youngest of whom is four. On 18 December 2008 Michelle Ramadan had custody of the children. She said that she allowed the accused to see the children when she felt like it. However that was not the situation on 18 December 2008 because of some problem which had arisen a few days earlier.[9]
[9] T 41 l3.
On 18 December 2008 Mrs Ramadan went out in her car with two of her sons leaving the other children at home. On her return she noticed the accused at the front door of the house. She sensed trouble and gave a mobile phone to one of her sons and asked him to call the police. Mrs Ramadan approached the accused and a conversation took place in which the accused is alleged to have made the threatening statement.
The defence challenges the reliability and accuracy of Mrs Ramadan's evidence.
It is necessary for the Crown to prove, beyond reasonable doubt, that the accused made a statement to Mrs Ramadan which is caught by the section.
Mrs Ramadan gave evidence that the conversation commenced with the accused enquiring why he could not see the children. She said that when she approached her husband at the front door he was upset because her oldest daughter would not let the other children out until Mrs Ramadan returned home.
The accused asked why Mrs Ramadan would not allow him to see the children. She replied that she had a reason for not letting him see them that day. The accused raised the question of parenting and their respective rights. She said that the conversation:
…was just mainly about the kids and how he has no respect and they have none for him and they were asking the same questions back and then I said - I said something to Brian, I can't remember what, I don't think - it wasn't anything mean, along, like, he needs to go and he got upset and then he threatened me.[10]
[10] T 43 l22.
Mrs Ramadan said that the accused started swearing at her and said in Arabic "God is the greatest" and then "I should cut your throat". That is the statement upon which the prosecution depends.
In cross-examination it was suggested that the accused never threatened to cut her throat, but Mrs Ramadan maintained her answer.
She was asked whether she was sure as to the words that were spoken and she replied they were "along those lines". She said the accused was looking at her when he spoke the words.[11] Later when Mrs Ramadan was asked again what words the accused had used she responded "I don't remember every word. What I do remember, it was along the lines about cutting my throat".[12]
[11] T 31 l21.
[12] T 43 l37.
The cross examiner put to Mrs Ramadan that she had told the police that the accused said "I will cut her throat and she won't have none of youse and then you'll be anywhere". Mrs Ramadan acknowledged that she had made that statement to the police.
At first Mrs Ramadan did not agree that that statement to the police was different from her evidence to the court: although later she did acknowledge that what she said to the police may have been slightly different from her evidence to the court. She said "may be slightly a bit different, well, missed a few words. Do you want me to put to rest in? I don't remember all of them".
When it was put to her again that the two versions were slightly different Mrs Ramadan said "Actually, I don't think it is, because I think the basis of what has stuck in my mind was the threat". She said "No, I know what was said to me".[13] She agreed that what she told the court in evidence in chief might have been different from what she told the police on 18 December 2008 but said "The basic three words are still there both times"[14] and "It's still the same gist".
[13] T 34 l8.
[14] T 34 l21.
When Mrs Ramadan was given a further opportunity to clarify her evidence and was asked to tell the court what it was that the accused said her answer was "Well he did threaten to cut my throat".[15] That answer is a conclusion rather than evidence of a particular statement made by the accused. I do not regard the evidence as to the conclusion as being of any assistance in determining the actual words that the accused spoke.
[15] T 35 l14.
Later Mrs Ramadan was questioned about a further statement which she had made to the police. That was in point of time the first of the statements that Mrs Ramadan made to the police on 18 December 2008. It was suggested that when first spoken to she told the police that the accused had said: "If you don't let me see my kids I will cut your fucking throat and the welfare can have them".
Mrs Ramadan gave evidence that she did not think that she said that to the police, although she could not be sure.[16] Constable Mills read that statement to the court from a note of what Mrs Ramadan had told her. I accept the evidence of Constable Mills.
[16] T 36 l17.
The only evidence as to what the accused actually said is what Mrs Ramadan told the court. Mrs Ramadan was allowed to be cross-examined about her statements to the police pursuant to s 29 of the Evidence Act. The statements to the police are not evidence in the case and may only be used for the purpose of establishing inconsistencies with her evidence to the court.
I find that there are inconsistencies between the evidence of Mrs Ramadan to the court and what she told the police which cast doubt upon her reliability.
In some cases it may be unnecessary for the prosecution to prove the exact words which are alleged to constitute a threat. However this is not such a case and in this case the exact words that were spoken are important. Mrs Ramadan’s evidence that the accused made statements "along those lines" is not sufficient to convert the statement "I should cut your throat", which for reasons set out below I have found not to constitute a threat, into some other statement which would constitute a threat.
The Crown relies upon the alleged statement "I should cut your throat". Mrs Ramadan said that was the statement made by the accused. She gave specific evidence that the accused did not say "I shall cut your throat".
I find that the statement relied upon by the Crown cannot be interpreted to constitute a threat. The statement could be interpreted in many ways. A statement of what the accused "should" do is not the same as a statement of what he would do or intended to do. A statement of what the accused thought he should do could be interpreted as a comment, or a form of admonishment, for example, "your behaviour is so bad I should cut your throat". It implies that while the maker of the statement should cut the other person’s throat because of her behaviour he was not going to do that. There is a reasonable possibility that the accused could have been unburdening his feelings in the way mentioned by Olsson J in Carter or simply expressing his feelings in the way mentioned by Prior J in Carter. The alleged statement could also be interpreted as the accused just "sounding off".
The statements made by Mrs Ramadan to the police officers are not evidence in the case. Those statements cannot be relied upon to establish a threat. Those statements do establish an inconsistency with the evidence which Mrs Ramadan gave to the court.
Mrs Ramadan's statements to the police create doubt as to whether the accused made the exact statement "I should cut your throat". I could not rely upon the evidence of Mrs Ramadan to find that statement has been proved beyond reasonable doubt.
There is no evidence of any other statement which could amount to a threat. There is therefore no evidence which establishes beyond reasonable doubt that the accused made a relevant threat.
As I have mentioned this is a case where the exact words may be important. Mrs Ramadan's first statement to the police namely: "If you don't let me see my kids I will cut your fucking throat and the welfare can have them" could be interpreted as a conditional threat, but as I have said the statements to the police officers are hearsay and are not evidence in the case. There is no admissible evidence of any statement to the effect that the accused "would" or intended to cut Mrs Ramadan's throat. Because the statement to the police is not evidence in the case it is unnecessary for me to consider the submission of defence counsel as to a conditional threat.
The other statement by Mrs Ramadan to the police, namely; "I will cut her throat and then she won't have none of youse and then you'll be anywhere" is also hearsay and is not evidence in the case. It is therefore unnecessary for me to decide whether that statement could amount to a relevant threat or not.
The prosecutor submitted that Mrs Ramadan was a good witness. That may be the case, but taken at its highest her testimony is not sufficient to make out the charge because I do not regard the words "I should cut your throat" as giving rise to a relevant threat. The onus rests with the Crown to establish beyond reasonable doubt the actual words to be attributed to the accused. The evidence of Mrs Ramadan as to the effect of what the accused said is a conclusion or opinion and that evidence is not admissible. It is not evidence of the actual statement said to have been made by the accused.
I have not found Mrs Ramadan to be an untruthful witness. I am sure that she was doing her best when she gave evidence that the statement by the accused contained the basic three words and that whatever the statement was it was still "the same gist". However, for the reasons which I have mentioned I do not think that the Crown has proved beyond reasonable doubt that the accused has uttered the specific words "I should cut your throat" and the admissible evidence does not establish that the accused uttered any other words which might constitute a relevant threat.
Even if the evidence did establish that the accused had uttered the words "I should cut your throat" the Crown would not have established beyond reasonable doubt that those words should be interpreted as a relevant threat.
The Crown has established other elements of the charge, but in view of my finding that the Crown has not established that the accused made a relevant threat it is unnecessary to discuss that evidence.
The Crown has failed to prove its case beyond reasonable doubt. There will be a verdict of not guilty.