R v Thompson - [2008] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v THOMPSON
[2008] SASC 44
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
29 February 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against conviction - application to adduce fresh evidence and application for permission to appeal against conviction – appellant convicted on two counts of threatening to kill another – permission to appeal to the Court of Criminal Appeal against conviction granted on one count – whether Judge erred in finding appellant threatened to kill person named in charge – appellant applies for permission to appeal on other grounds and applies to adduce fresh evidence.
Held: appeal dismissed – unnecessary for prosecution to allege and prove the identity of person subject of threat to kill – application for permission to appeal and application for permission to adduce fresh evidence refused.
Criminal Law Consolidation Act 1935 (SA) s19(1), referred to.
The Queen v Thamm (1989) 152 LSJS 92, applied.
Tofilau v The Queen (2007) 81 ALJR 1688, distinguished.

R v THOMPSON
[2008] SASC 44
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: Mr Thompson was charged with two counts of threatening to kill another, contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The charges were tried by a District Court Judge sitting without a jury. The Judge found Mr Thompson guilty on each count.
Mr Thompson appeals against his conviction. He complains that the Judge should have excluded evidence from Ms Blackeby, a prosecution witness, in the exercise of the Judge’s discretion to prevent unfairness, and in the alternative, argues that her evidence (of admissions made by Mr Thompson) was unreliable because Mr Thompson was upset when speaking to her. These matters are raised by ground 2 of the grounds of appeal. In the alternative, Mr Thompson complains that the Judge erred in finding that the evidence of Ms Blackeby was relevant to the question of Mr Thompson’s intention when he made the alleged threat. This is ground 1. Mr Thompson complains that the Judge erred in failing to exclude evidence of an interview with the police (although no objection was made to the evidence at trial) on the ground that admission of the events gave rise to unfairness, and he complains in the alternative that the Judge gave “undue weight” to the evidence. This is ground 3. Ground 4 complains that the Judge erred in finding that Mr Thompson threatened to kill the person named in count 2.
A Judge of this Court granted permission to appeal on ground 4. The Judge refused permission to appeal on the other grounds. Mr Thompson has requested that this Court consider the application for permission to appeal on grounds 1 to 3.
Mr Thompson was represented at trial, but not on appeal. He put brief oral submissions in support of his application for permission to appeal and his appeal. The Court had the benefit of the thorough written submissions that were prepared in support of his application for permission to appeal.
The case at trial
Both counts arose from a single incident on 4 August 2004 at the office of the Department of Children and Youth and Family Services (“the department”) at Elizabeth.
The particulars of count 1 allege that on that day at that office without lawful excuse, Mr Thompson threatened to kill Mr Cope, “intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.”
Count 2 relates to the same time and place and occasion, and alleges a threat to kill Mr Zwart, with the like allegation as to intention and reckless indifference.
What follows is drawn from the reasons of the Judge and from the evidence at trial.
Mr Cope, a social worker, was based at the Elizabeth office of the department. In 1999 Mr Thompson had told Mr Cope that he believed that his son was being abused while in his mother’s care. Mr Cope investigated the matter, but decided that the allegation was not substantiated. Other evidence indicates that Mr Thompson was dissatisfied with the outcome. He was also dissatisfied with the response of the department, and in particular with officers at the Elizabeth office, to other allegations he made relating to the welfare of children. Mr Thompson made complaints to the department, and to others about the manner in which the department dealt with allegations made by him. In the words of a written submission that Mr Thompson presented on appeal, he was “building a case” against the department.
Mr Zwart is a police officer. In June 2001 he investigated allegations of mistreatment of one of Mr Thompson’s children. In 2002 he was called to give evidence in Family Court proceedings in which Mr Thompson appeared on his own behalf. Mr Zwart said that Mr Thompson was agitated and aggressive in his dealings with Mr Zwart. He did not see Mr Thompson after the occasion when he gave evidence at the Family Court.
On 4 August 2004 Mr Thompson went to the offices of the department at Elizabeth. He told the receptionist that he wanted to speak to the duty social worker about the welfare of certain children. At one stage he became agitated and slammed his fist on the counter.
In due course he was interviewed by Mr Vi in the presence of Ms Lee. Mr Vi said that Mr Thompson made adverse allegations about a certain family, and said they were neglecting their children. Mr Thompson became agitated. As the interview wore on, Mr Thompson said that he was “very unhappy” with the department’s handling of his son’s situation. He said that the matter had been handled by the Elizabeth office. Mr Thompson named Mr Cope and two other persons. According to Mr Vi, Mr Thompson then said:
… that he would put a bullet into the head of each of them and a bullet into the head of a certain police officer – he didn’t name the police officer – and then a bullet into his own head.
Mr Vi said that when Mr Thompson said this, he was “agitated and animated.”
It was suggested in cross-examination that Mr Thompson said that the relevant persons “deserved” a bullet through the head, rather than that they “will get” a bullet through the head. Mr Vi and Ms Lee denied this, maintaining that what Mr Thompson said was to the effect of what Mr Vi said in evidence.
The Judge found each of Mr Vi and Ms Lee to be honest and reliable witnesses. He accepted their evidence.
As a result of this conversation, Mr Vi spoke to Detective Lachman. Detective Lachman and an officer from the department subsequently spoke to Ms Blackeby. She was a counsellor with Relationships Australia. She had been counselling Mr Thompson since May 2004 in relation to difficulties that he had obtaining employment. Apparently they knew that Mr Thompson was to see Ms Blackeby on the afternoon of 6 August. The officer of the department who telephoned Ms Blackeby informed her of the alleged threats.
Ms Blackeby gave evidence that at the start of the interview she asked Mr Thompson if he had threatened staff of the department. According to her he said that he had threatened staff, because:
He did not feel listened to or respected and threatened to shoot FAYS staff.
She said that he became “teary”. She asked him whether he intended to carry out the threat and he said:
… that he would kill FAYS staff, maybe not today or tomorrow but it would happen.
She wrote this down as he said it.
She told Mr Thompson that she would contact the police because of her concern about the safety of the staff. She did so.
Later that day the police arrested Mr Thompson. Detective Bavey interviewed him. He told Detective Bavey that when he went to the department office on 4 August he wanted to be sure that arrangements were made for the care of a child of a drug dealer who was about to be arrested. He said that he also wanted to talk about certain other children who were “in jeopardy”. He was dissatisfied with the response of the persons to whom he spoke. He said, in effect, that they were not treating his concerns seriously. He said to Detective Bavey:
I told them that I’m not going to have them do to these children what they did to my son and … three officers at FAYS involved with my son’s case deserve a bullet through the head for what they did to my son.
He then named them, including Mr Cope. He repeated that they “deserve a bullet through the head”. He denied saying that he would “put a bullet” through the head of the officers. When Detective Bavey asked him had he made any reference to a police officer Mr Thompson said that he had said (to Mr Vi):
Senior Constable Zwart deserves one as well.
When asked what his intention was at the time of making this statement, he said:
None, except to state the fact that they deserve a bullet in the head for their treatment of this, of these children.
The Judge was satisfied, on all of the evidence before him, that Mr Thompson “harbours a very deep-seated grievance against [the department] and its workers, and the police …”: at [53].
Mr Thompson did not give evidence.
The Judge accepted the substance of the evidence for the prosecution witnesses. He found them to be honest and reliable.
The Judge found that during the interview with Mr Vi and Ms Lee Mr Thompson said that he would put a bullet in the head of the three named persons, including Mr Cope, and also through the head of a “certain police officer” whom he subsequently identified as Detective Zwart. He rejected the suggestion that Mr Thompson merely said that they “deserve” a bullet to the head.
The Judge found that Mr Thompson intended these words to be taken seriously, and that they were a threat to kill the persons concerned. He found that they aroused in Mr Vi and Ms Lee an apprehension that the threat was likely to be carried out. He found that Mr Thompson intended to arouse that apprehension.
He made those findings beyond reasonable doubt, relying on the background to the events of 4 August, the evidence of Mr Vi and Ms Lee, and the evidence of Ms Blackeby and of the police interview.
He found Mr Thompson guilty on each count.
Ground 2
At trial counsel for Mr Thompson asked the Judge to exclude the evidence from Ms Blackeby of the admissions made to her on 6 August 2004. Counsel also submitted that Ms Blackeby had spoken to Detective Lachman before she spoke to Mr Thompson, and that the Judge should find that Ms Blackeby “engaged in an evidence gathering exercise for the police” and that this amounted to trickery or impropriety, and so it was unfair to admit the evidence.
But when the Judge enquired whether counsel wished the Judge to hear evidence from Detective Lachman and Ms Blackeby, or from Mr Thompson, counsel told the Judge that she made no such application.
In light of that, unsurprisingly, the Judge was not satisfied that a basis was made out upon which he could or should exclude the evidence, and he declined to do so.
When Detective Lachman gave evidence he agreed that he spoke to Ms Blackeby on 6 August. He said that he asked her for “her views about Mr Thompson’s intents”. He said that Ms Blackeby told him that she did not think Mr Thompson was a threat. This was before she spoke to Mr Thompson. He asked Ms Blackeby to speak to him again after she spoke to Mr Thompson. He was not asked whether he asked her to obtain information for him. The topic was not raised.
Ms Blackeby in her evidence agreed that she spoke to Detective Lachman after she interviewed Mr Thompson, and that she did so at his request. It was not suggested to her that Detective Lachman asked her to ask any questions on his behalf, although it is obvious that each of them had a concern about the threat allegedly made by Mr Thompson.
The application for the exclusion of the evidence was not renewed during the trial.
The short answer to the submission made in support of ground 2 is that a basis for the exclusion of the evidence was not identified. The Judge would rightly have thought that the application was, in effect, abandoned.
In any event, on the evidence there is no basis for an argument that Ms Blackeby was to be regarded as a person in authority, for the purposes of the principle by reference to which admissions made to such a person may be excluded if not made voluntarily: Tofilau v The Queen [2007] HCA 39; (2007) 81 ALJR 1688. There is no hint, in any event, that Ms Blackeby offered any inducement or applied any pressure to Mr Thompson.
Nor is there any evidence to suggest that the admissions that Mr Thompson made to her were not voluntary, in the sense that Mr Thompson’s will was overborne.
In relation to the discretion to exclude evidence for unfairness, it is true that Ms Blackeby did not tell Mr Thompson that she had spoken to Detective Lachman, or to officers of the department. She told him that she would speak to the police, but only after he had made the admissions of which he gave evidence.
But there is no basis for a suggestion that she misled Mr Thompson in any way. The existence of a confidential relationship between her and Mr Thompson (if one arose from the counselling she had given him in the past) does not itself call for exclusion of her evidence. There is no indication or suggestion that Ms Blackeby exploited or used that relationship. On Ms Blackeby’s evidence the admissions made by Mr Thompson were matters that were properly brought to the attention of the police. As I have already said, there is no reason to think that the evidence of the admissions was unreliable. There was no evidence from Mr Thompson to suggest anything on his part that would support a discretionary exclusion of the evidence, linked either to unfairness or to unreliability.
In short, there is nothing in the evidence to support the exclusion of Ms Blackeby’s evidence on the basis of unfairness: cf Tofilau at [107]-[114] Gummow and Hayne JJ.
It was also argued under this ground that the Judge gave Ms Blackeby’s evidence “undue weight”. The fact that Mr Thompson was upset when speaking to her is not a reason to conclude that the admissions that he made were so unreliable as to call for their exclusion. I consider that there is no substance at all in this ground. I would refuse permission to appeal.
Ground 1
The submission under this heading is that the evidence of Ms Blackeby could throw no light on Mr Thompson’s intent when, two days earlier, the threats were allegedly made in the conversation with Mr Vi. The Judge said at [44] that the evidence was relevant to Mr Thompson’s intent on 4 August 2004. I take it that the Judge meant that the evidence was relevant on the question of whether Mr Thompson intended to arouse a fear that the threat would be or was likely to be carried out, or was recklessly indifferent as to whether such a fear was aroused.
I agree with the submission by Mr Hinton QC for the Director of Public Prosecutions that Mr Thompson’s statement to Ms Blackeby that “it will happen …” was evidence relevant to Mr Thompson’s intent on 4 August 2004. What he said to Ms Blackeby amounts to an admission that on 6 August he intended to carry out his threat, and that evidence could support an inference that he had the same intent on 4 August, and support an inference that the words he used were those deposed to by Ms Blackeby.
This ground is not reasonably arguable, I would refuse permission to appeal.
Ground 3
The submission that the evidence of the interview with police on 6 August 2004 should be excluded faces the initial difficulty that there was no objection at trial to the admission of the evidence. Nor is there any evidence from Mr Thompson about his state of mind during the interview.
The submission on appeal is that because Mr Thompson was very upset during part of the interview, it was unfair to admit the evidence. The Judge noted at [49] that a little less than midway through the interview Mr Thompson was sobbing and continued to do so for much of the rest of the interview. But by this stage relevant admissions had already been made.
I consider that Mr Thompson is bound by the conduct of the trial. In any event, the mere fact that he was upset during the interview is not a basis for exclusion of the evidence.
This ground is not reasonably arguable, and I would refuse permission to appeal.
Ground 4
The threat that Mr Thompson made on 4 August 2004 included a threat relating to “a certain police officer”. A charge under s 19(1) of the CLCA does not necessarily require proof of the name or identity of the person to whom the threat relates. A charge might be based on a threat to kill “the next person who insults me” or “the next person I see”: The Queen v Thamm (1989) 152 LSJS 92 at 95 Duggan J.
Count 2 on the Information identifies Detective Zwart as the person to whom the threat related. Admissions made by Mr Thompson in the police interview support a finding that the police officer to whom he referred on 4 August was Detective Zwart. This evidence is capable of supporting a conclusion that, on 4 August 2004, the person to whom Mr Thompson was referring was Detective Zwart. Accordingly, while it was unnecessary to allege and prove that the person in question was Detective Zwart, there was adequate evidence upon which the Judge could find that the allegation was established.
There is no error of by the Judge in that respect. I reject Ground 4.
Fresh evidence
On the hearing of the appeal Mr Thompson tendered a document which the Court marked for identification as exhibit A1. It is described as an affidavit, but does not appear to be properly sworn. It comprises 44 paragraphs. It contains information about Mr Thompson’s dispute with the department and with others relating to the protection of children; it contains some criticisms of Mr Vi; it makes some comments on the trial and includes some comments on the Judge’s reasons.
The tender of this document should be rejected. Most of the material is irrelevant. If there is anything in it that is relevant, which I doubt, there is no adequate explanation for the failure to present the evidence at trial. There is nothing in the document that I can identify that would or might affect the Judge’s conclusions.
Conclusion
I would refuse permission to appeal on grounds 1, 2 and 3. I would dismiss the appeal against the convictions.
BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons.
GRAY J: I agree with the orders proposed by the Chief Justice. I agree with his reasons.