Ray Arthur Nancarrow v Director of Public Prosecutions (Commonwealth) No. SCGRG 96/1721 Judgment No. 6006 Number of Pages 8 Criminal Law

[1997] SASC 6006

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON

CWDS
Criminal law - complaint countaining two counts alleging improper use of postal services, the first referring to the sending of 24 letters and the second referring to the sending of 44 letters - whether duplicitous - offences found proved - whether convictions and community service order should be set aside - proper case for application of s19B of Crimes Act (Cth) - appeal allowed. Daly v Medwell (1986) 40 SASR 281, applied. Walsh v Tattersall (1996) 139 ALR 27, distinguished.

HRNG ADELAIDE, 16 September, 11 December 1996, 30 January 1997 (hearing), 7 February 1997 (decision) #DATE 7:2:1997 #ADD 19:2:1997

Counsel for applicant:     Mr G P Mead

Solicitors for applicant:    Mr G P Mead

Counsel for respondent:     Mr M Loftus and Ms E M Bolton

Solicitors for respondent: DPP (Cwlth)

ORDER
Appeal allowed.

JUDGE1 MATHESON J

1. The appellant was charged on a complaint in the Adelaide Magistrates Court for that:
    "1. Between the 10th day of December 1994 and the 27th day of
    January 1995 at    Adelaide in the said State, did knowingly or
    recklessly use a postal service supplied by Australia Post in such
    a way as would be regarded by reasonable persons as being, in all
    the circumstances, offensive; contrary to section 85S(b) of the
    Crimes Act 1914.

Particulars

The defendant used the postal service supplied by Australia Post
    to send 24 letters to Ms Rosalie Smith. The letters, written on
    or about the dates indicated below, contained messages that ranged
    from endearment to threat towards Ms Smith É[The dates of the 24
    letters were then set out.]

2. Between the 3rd day of February 1995 and the 6th day of October
    1995 at Adelaide in the said State, did knowingly or recklessly
    use a postal service supplied by Australia Post in such a way as
    would be regarded by reasonable persons as being, in all the
    circumstances, offensive; contrary to section 85S(b) of the Crimes
    Act 1914.

Particulars

The defendant used the postal service supplied by Australia
    Post to send 44 letters to Ms Rosalie Smith. The letters, written
    on or about the dates indicated below, contained messages that
    ranged from endearment to threat towards Ms Smith É[The dates of
    the 44 letters were then set out.]"

2. He pleaded not guilty, but was found guilty and convicted on both counts. Pursuant to s4K of the Crimes Act (Commonwealth), he was ordered to undertake 240 hours of community service within nine months, and ordered to pay $89 court costs.

3. The facts can be summarised briefly. In March 1993 Ms Smith moved into Unit 6 at 148 Edward St, Clarence Gardens. The appellant occupied Unit 5, but Ms Smith did not know him other than to recognise him as a neighbour. A few months before October 1994, Ms Smith said the appellant began to bother her, knocking on her door and trying to talk to her a lot. As a result in October 1994 she moved to 3 Fulton Place, Clarence Gardens, which was an address close by. Ms Smith saw the appellant in the neighbourhood a number of times in November, but did not speak to him. In December 1994, she received the first letters. In January 1995 the appellant came to her front door. She said she told him she was not interested in any kind of contact from him and did not want to hear from him again. The letters were sent to two addresses, to 3 Fulton Place and to Flinders University, where Ms Smith was to the knowledge of the appellant, a student. At the end of January 1995 she left Fulton Place due to her anxiety over the letters. However, she continued to receive letters sent to her via Flinders University until late in 1995. The last letter the subject of the complaints was dated 13 September 1995. She said the letters scared her and made her very anxious. The appellant admitted sending the letters through the postal service. The transcript of his evidence includes the following questions and answers:
    "Q. When you sent the letters to Miss Smith, and I mean this
    question in relation to when you sent all of them, if you can
    answer in relation to all of them. What were you intending to do.

A. Explain to Rosalie and show Rosalie I was being harassed
    constantly.

Q. Did you at any time think that anything you said in the letters
    or the letters themselves would cause her to be anxious or scared.

A. No, I mentioned once that her friends threatened to kill me,
    threatened to her friends to kill me, that's the only reason I
    brought it up. Her friends threatened to kill me on two
    occasions. I said 'How would you like it if I threatened your
    friends to kill them?' I did not threaten Rosalie. I still do
    not believe Rosalie was the cause of my harassment but she was my
    only avenue to find out why.

Q. By that you mean why you were harassed, do you.

A. Yes ...

Q. When you sent the letters, and again I'm asking you about all
    of the letters all at once, did you think that they might be
    offensive to anyone.

A. Only to the people who were harassing me."

4. I do not propose to quote further from the appellant's evidence, but it appears that the appellant believed he was being harassed by some people who were possibly in some way connected to Ms Smith.

5. In the course of his reasons the learned Chief Magistrate said:
    "At the outset I raised with counsel whether there was any issue
    as to whether duplicity was involved in the formulation of the
    complaint but counsel was content to have the matter proceed as
    charged. I don't further consider that point."

6. When the matter was first argued before me, counsel for the appellant did not raise the issue of duplicity. However, on 2 October 1996 the High Court gave judgment in the matter of Walsh v Tattersall, see (1996) 139 ALR 27. After the reporting of that case, I had the subject appeal called on for further argument on two separate occasions. Counsel for the appellant then sought to argue that there was duplicity here. Counsel for the respondent sought to distinguish Walsh v Tattersall. The appellant there had been charged in one count with a breach of s120(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) which relied upon a number of payments having been obtained by the appellant over a period during which he was found not to have been entitled to them, and this had been justified by the prosecution as showing a course of conduct amounting to one compendious false pretence of incapacity for work. By a majority of one, the High Court held the count was bad for duplicity. The minority judges, Dawson and Toohey JJ, held that what was involved was one activity of a continuing kind and that in such a situation it was legitimate to bring a single charge. At p32 they said:
    "While analogies are not always a sure guide, the way in which the
    case against the appellant was presented bears similarities to the
    concurrence of separate acts to prove an offence of 'supply' or
    'trafficking' in drug legislation when some though not all of
    those acts will themselves constitute the offence. (See for
instance Giretti and Giretti v R (1986) 24 A Crim R 112; R v
Locchi (1991) 22 NSWLR 309; Hamzy v R (1994) 74 A Crim R 341.)

Nevertheless, the practice of laying charges of a compendious kind
    can place an accused in a position of difficulty. In most cases
    the uncertainty can be dispelled by further and better
    particulars. But it may be preferable, where various amounts of
    money are paid on different occasions, as in the present case,
    that more specific charges be laid. With a compendious charge,
    various issues might arise, such as whether the prosecution is
    statute barred, which are more difficult of resolution. (See
    s122(3a) of the Act.)"

7. Gaudron and Gummow JJ upheld the appeal on the basis that, upon its proper statutory interpretation, s120(1) did not permit the rolling up in the one count of a number acts of obtaining payments (see p34). They held that because of the wording of s120(1)(a) the offence was limited to the obtaining by dishonest means of a payment (my underlining). As the charge particularised incorporated more than one payment it was therefore bad for duplicity. At p35, their Honours said:
    "... it may be observed that the present case is to be contrasted
    with those dealing with an offence defined in terms of a course of
    conduct or state of affairs, such as keeping a disorderly house or
being a rogue or vagabond. (Loftus v Woodworth [1936] VLR 279)
    There, upon proof of a series of material facts, guilt of the
    offence may follow, although no particular fact suffices by
    itself."

8. Kirby J agreed that the count was duplicitous, but considered at length whether what has been described as the "practical" or "commonsense" approach described in DPP v Merriman (1973) AC 584 should be permitted. He held that it should not, saying that save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amounted to the one activity, separate offences should be the subject of separate charges. At p49 his Honour, however, said:
    "6. Particular problems arose for the application of the
    duplicity rule in the case of offences which, of their definition,
    were constituted by continuous activity. Such offences as keeping
    a brothel, required proof of particular acts at different times.
    Similarly, conduct which need not, but in some circumstances
    might, be constituted by activity over time could quite properly
    be charged in a single count. Instances where this qualification
    to the rule against duplicity has been upheld include cases
    involving charges of harassment (Daly v Medwell (1986) 40 SASR
281; cf Timms v Van Diemen [1968] SASR 379 at 385-6; Romeyko v
Samuels (1972) 2 SASR 529; Lafitte v Samuels (1972) 3 SASR 1) and
trafficking in drugs (Giretti and Giretti (1986) 24 A Crim R 112;
R v Locchi (1991) 22 NSWLR 309 at 312; R v Goodfellow (1994) 33
NSWLR 308; 120 ALR 657)."

9. In the case of Daly v Medwell(1986) 40 SASR 281, the defendant was charged on complaint with having over a period of six weeks used a telecommunication service for the purpose of harassing a person, contrary to Regulation 38 of the Telecommunications Regulations, 1975 (Cth). He was convicted. On appeal it was held by White J, and on further appeal to the Full Court, by King CJ, Prior and Olsson JJ, that the complaint was not bad for duplicity. At pp296-297, in a judgment with which his brethren agreed, King CJ said:
    "It is not difficult to envisage instances, of course, in which a
    single telephone call of itself may not amount to use for the
    purpose of harassment, but in which a number of calls of the same
    kind by reason of the cumulative effect, might be regarded as use
    of the telephone service for the purpose of harassment. Likewise,
    as the learned Judge on appeal recognized, it is not difficult to
    imagine a situation in which a single call by reason of its nature
    might be characterized without more as use of the telephone
    service for the purpose of harassment. But, even where that is
    the case, it does not follow that subsequent telephone calls may
    not be so linked with the initial telephone call as to form part
    of the same use of the telephone service. The concept of
    harassment itself contains within it some element of continuity or
    at least the capacity for some element of continuity. Likewise,
    'use' in one of its senses involves some continuity of conduct and
    it seems to me that the expression 'use for the purpose of
    harassment' can properly cover a continuing course of conduct
    consisting of a number of incidents so identified with one another
    by their nature or by time, place or circumstance, that they can
    properly be regarded as a single course of conduct and a single
    continuing use of the telephone service.

I think therefore that what was alleged against the appellant in
    this case was a single course of conduct between the dates
    specified in the complaint amounting to a single use of the
    telecommunication service for the purpose of harassing. The
    conviction followed the complaint and, in my opinion, was a
    conviction for a single offence.

In my opinion, therefore, neither the complaint nor the conviction
    is bad for duplicity or uncertainty. For those reasons it is my
    opinion the appeal should be dismissed."

10. In the case at bar the course of conduct relied on involved letters containing terms of endearment which may not of themselves have been offensive, but which ultimately by their persistence and their combination with threats became so. In my opinion, the case at bar can be distinguished from the charges and factual circumstances of Walsh v Tattersall.

11. Having regard to the references in Walsh v Tattersall to statutory limitations, I note that the maximum penalty for a breach of s85S of the Crimes Act is "imprisonment for one year". By dint of the language of s15B, the prosecution for a breach of s85S may be commenced at any time.

12. The learned Chief Magistrate referred to the definition of "offensive" in the Oxford Dictionary and said:
    "Some features of these letters contained aggression within that
    definition. Other features in my view were clearly likely to be
    hurtful, harmful or injurious and others causing offence, or
    calculated to cause offence, in the sense of being displeasing,
    annoying and perhaps even insulting.

I have no doubt that a reasonable person knowing the circumstances
    in which the letters were sent via the postal service, the limited
    degree of acquaintanceship, the lack of any encouragement in this
    continued communication, would regard these letters to be
    offensive."

13. His Honour then examined the question of the mens rea of the offences. He adopted the argument of Mr Mead, counsel for the appellant before him and before me, that the prosecution had to satisfy him beyond reasonable doubt that the appellant either knew that the use of the service by him in the way he used it would be judged to be offensive by reasonable people or, in the alternative, he was reckless as to the state of affairs. I think his Honour was correct. He stated his conclusion in this way:
    "If the prosecution is to make out it's case it must rely on
    what inferences firstly may be drawn from the primary facts proven
    and secondly whether those inferences are the only inferences that
    may be properly drawn. If I am left in any doubt as to those
    issues, if there is any other possible thesis, the defendant is
    entitled to acquittal. The most striking evidence giving rise to
    such inferences is of course the contents of the letters
    themselves. The prosecution has focussed on three of the letters,
    each of which contain a tone of aggression or a threatening
    element. Quite apart however from those three letters, the
    continuing obsessive theme of the defendant's apparent attraction
    to Miss Smith comes through in letter after letter. True, it is
    mixed throughout the letters with assertions that Miss Smith
    should in some way take some action which would result in the
    people perceived by the defendant to be harassing him should be
    stopped from so doing. It is equally clear that the defendant was
    obsessed as to that topic as he was obsessed in respect of Miss
    Smith and I have no doubt that at least one of his purposes in
    writing these letters was to attempt to achieve some relief from
    what he believed to be harassment - whether in fact there was any
    harassment or not is irrelevant and it's not for me to decide.
    That is only one theme in the letters. However I am not here
    concerned with the motive or purposes for which these letters were
    sent. It may be that there was more than one purpose. Purpose or
    motive is no part of the load cast on the Prosecution. I find it
    overwhelming that the defendant must have realised that his
    continuing references, repeated references to Miss Smith's
    appearances and manner, his love for her and so on must have been
    known to him to be perceived as being by a reasonable person
    offensive when those letters were received by a young lady barely
    acquainted with him. Quite apart from that referring to the
    highlighted letters:-

Letter 54 'I wish I could hate you but if I did I would kill you
    for that would be the direct opposite of my love for you'. That
    is not viewed in any way as a threat to kill, in fact, quite the
    opposite. He's making clear that he would not. But the degree of
    passion, the degree of obsession which that statement incorporates
    must have been to the defendant recognisable as being offensive to
    a virtual stranger. I believe that there is no other inference
    possibly open.

Letter 56. 'Why don't you bloody ring me. Why do you stay silent
    and let the emptiness in my soul grow so immense with the sense of
    your hatred of me growing each day, and longing to be with Penny a
    greater joy each day. Your beauty and body and soul is so rare,
    to name a flower or a diamond, or any of natures great creations
    after you, would be of a great indignity to you.' And so it goes
    on 'You still have not rang or written me, justifying my revenge
    on you. Proving that you sent them and that you should not be
    allowed to do this to anyone else. Why are you forcing me to
    believe this with your silence. What are you afraid of. It's
    your bloody name, bloody ring or are you that bloody stupid that
    you don't know your name or how to use the bloody phone. And who
    in the bloody hell is John.' Again, it is quite impossible for me
    to infer otherwise than that the defendant must have realised the
    offensive nature of such writings to a virtual stranger.

Letter 57 is in similar terms. 'You still have not rung or
    written me, justifying my revenge on you. Proving that you sent
    them and that you should not be allowed to do this to anyone else.
    Why are you forcing me to believe this with your silence. What
    are you afraid of. How long do you think my love for you can hold
    the growing hatred. Ring me, bring joy to my soul and lift my
    longing heart.' - a clear element of threat. It is beyond belief
    that the defendant wasn't well aware of what he was suggesting and
    that that passage was quite intimidating and threatening to Miss
    Smith. It follows therefore that even applying the more stringent
    test argued for by Mr Mead I am satisfied that beyond a reasonable
    doubt that the defendant well knew that his use of the postal
    system in this manner would be judged offensively by a reasonable
    member of the community knowing all the circumstances. I find
    both counts proved beyond reasonable doubt."

14. In my opinion, his Honour's reasoning and findings were correct. However, I think the case called for an application of section 19B of the Act which, so far as relevant, provides:
     "19B (1) Where -
    (a) a person is charged before a court with a federal offence or
    federal offences; and
    (b) the court is satisfied, in respect of that charge or more than
    one of those charges, that the charge is proved, but is of the
    opinion, having regard to -
     (i) the character, antecedents, cultural background, age, health
     or mental condition of the person;
     (ii) the extent (if any) to which the offence is of a trivial
     nature, or
     (iii) the extent (if any) to which the offence was committed
     under extenuating circumstances,
    that it is inexpedient to inflict any punishment, or to inflict
    any punishment other than a nominal punishment, or that it is
    expedient to release the offender on probation, the court may, by
    order -
    (c) dismiss the charge or charges in respect of which the court is

    so satisfied"

15. Having read the letters and the interrogation of the appellant by Constable Butler, it is abundantly clear to me that the appellant's mental responsibility in writing the letters was diminished. That has caused me much uneasiness, not only in ultimately deciding to uphold his Honour's findings that the charges had been proved, but in considering the appeal against the recording of the convictions and the penalty. No psychiatric evidence was tendered before the learned Chief Magistgrate. No such evidence was tendered on the appeal. Indeed, the appellant was asked at my request whether he wanted me to order a psychiatric report and the suggestion was rejected. However, I do not really consider such a report was necessary here having regard to the content of the letters and his answers in the police interview. It is true that Honour said:
    "I accept what Mr Mead has told me, that you have had poor health.
    I strongly advise you, although it forms no part of my order, that
    you should try and get some assistance to see what it is that
    leaves you with these obsessive attitudes because not only will
    you cause less offence to others should you do that, I suspect
    that you would lead a far less tortured life if you could get some
    assistance in that regard."

16. In addition, his Honour found that the appellant stopped writing the letters immediately he was interviewed, and that he had no convictions since 1971. The appeal will be allowed for the purpose of setting aside the convictions and the community service order. The charges will be dismissed. In all the very unusual circumstances of this case, I will not make any order as to the costs of the appeal.