Smart v The Queen
[2021] WASCA 175
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMART -v- THE QUEEN [2021] WASCA 175
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 10 AUGUST 2021
DELIVERED : 29 SEPTEMBER 2021
FILE NO/S: CACR 99 of 2019
BETWEEN: ANDREW JACOB SMART
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND 893 of 2018
Catchwords:
Criminal law - Commonwealth offences - Telecommunication offences - Using a carriage service in a way that reasonable persons would regard as menacing or harassing - Using a carriage service to make a threat to cause serious harm to a person with the intention that the person would fear that the threat would be carried out - Whether trial judge erred in directing the jury as to the elements of the offences - Whether trial should have been aborted after reception of inadmissible prejudicial evidence - Turns on own facts
Legislation:
Criminal Code (Cth), s 474.15(2), s 474.17(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | A C Willinge |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Commonwealth Director of Public Prosecutions |
Case(s) referred to in decision(s):
Huggins v The State of Western Australia [2018] WASCA 61
Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92
Taylor v The State of Western Australia [2020] WASCA 113
JUDGMENT OF THE COURT:
Summary
The appellant was convicted after trial of the following two offences charged on the same indictment:
Count 2: Between 8 January 2017 and 10 January 2017 at Perth the appellant used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth) (Code).
Count 3: On 8 January 2017 at Perth the appellant used a carriage service to make to a person a threat to cause serious harm to that person with the intention that the person to whom the threat was made would fear that the threat would be carried out; contrary to s 474.15(2) of the Code.
On 5 June 2019, the appellant was sentenced to 3 months' immediate imprisonment on count 2, and 10 months' immediate imprisonment on count 3. The sentences were ordered to be served concurrently, and backdated to 12 June 2018 to take account of time spent in custody on remand.
The appellant now appeals against his convictions on a number of grounds. For the following reasons, none of the grounds has any merit. Leave to appeal should be refused and the appeal should be dismissed.
Statutory provisions
Section 474.15(2) of the Code provides for the following offence:
A person (the first person) commits an offence if:
(a)the first person uses a carriage service to make to another person (the second person) a threat to cause serious harm to the second person or a third person; and
(b)the first person intends the second person to fear that the threat will be carried out.
Section 474.15(3) provides that it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out. Section 474.15(4) defines 'fear' to include apprehension, and 'threat to cause serious harm to a person' to include a threat to substantially contribute to serious harm to the person.
'Serious harm' is defined in the following terms in the Dictionary to the Code:
serious harm means harm (including the cumulative effect of any harm):
(a)that endangers, or is likely to endanger, a person's life; or
(b)that is or is likely to be significant and longstanding.
Section 474.17(1) of the Code provides for the following offence:
A person commits an offence if:
(a)the person uses a carriage service; and
(b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
The fault element for the physical element provided for in s 474.17(1)(b) is recklessness.[1] Under s 5.4(1) of the Code:
A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
[1] Section 5.6(2) of the Code.
A similarly worded offence to s 474.17(1), relating to the use of postal services, is contained in s 471.12 of the Code. The validity and operation of that provision, so far as it related to use of a postal service in a way that reasonable persons would regard as 'offensive', was considered by the High Court in Monis v The Queen.[2] That question does not arise in the present case however, as the Crown did not contend that the appellant's communications were 'offensive'. However, it is relevant to note that the statutory majority in that case, Crennan, Kiefel and Bell JJ, observed that a communication which has the quality of being menacing or harassing 'can be seen to be personally directed and deliberately so'. Their Honours held that the words 'menacing' and 'harassing' in s 471.12:[3]
imply a serious potential effect upon an addressee, one which causes apprehension, if not fear, for that person's safety. (citation omitted)
[2] Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92.
[3] Monis [310].
Hayne J proceeded on the assumption that 'menacing' connotes uttering or holding out threats and that 'harassing' connotes troubling or vexing by repeated attacks.[4]
[4] Monis [154].
The evidence at trial
Much of the evidence concerning the circumstances of the alleged offences was not contentious at trial. The appellant made a series of formal admissions under s 32 of the Evidence Act 1906 (WA),[5] and all but two of the communications which were the subject of the charges were recorded. The Crown relied on the evidence of the two complainants, Ms Smith and Mr Bloor. The appellant gave evidence in his own defence. The circumstances of the alleged offences are set out below, together with a summary of the competing evidence as to the two communications which were not recorded.
Party in January 2016
[5] Trial ts 82 - 83.
The circumstances of the alleged offending arose out of a party which had occurred at a house on the opposite side of the street from the appellant's residence in January 2016, which was about 12 months before the alleged offending. It was uncontroversial that Ms Smith attended that party, and that the appellant became involved in an altercation with other persons in attendance at the party. While there was considerable debate at trial about events which occurred at the party, it is unnecessary to enter into that debate for the purposes of resolving this appeal.
On 10 January 2016, the appellant was charged with criminal offences that allegedly occurred at the party. Those charges were still the subject of pre-trial proceedings at the date of the appellant's trial in the current matters.
On 14 December 2016, the appellant's lawyers filed a witness summons requiring police to produce the names and addresses of persons interviewed by police. Police did not respond to this summons.
First call to Ms Smith at 1.42 pm on 8 January 2017
At 1.42 pm on 8 January 2017, the appellant called Ms Smith's mobile number from his mobile number.
Ms Smith gave the following account of that conversation. When she received the call, she was at her nephew's first birthday party. She did not recognise the appellant's number, but answered the call. The appellant, who Ms Smith did not know, asked if she was Ms Smith, and she responded, 'Yes'. The appellant said, 'I'd like to speak to you about an out-of-control party you were at a year ago'. The appellant asked Ms Smith if she lived at an address in Kenwick. Ms Smith asked who the caller was. The appellant said, 'You need to start telling the truth about this party'.[6]
[6] Trial ts 85 - 86.
Ms Smith told the appellant that she did not know what he was talking about, and that she was not a witness to anything that happened at the party. The appellant called Ms Smith a 'crackhead' and repeatedly said that she needed to start telling the truth about the party. When the call ended, Ms Smith telephoned her friend, Ashleigh, whose birthday party she had attended the previous year and whose party the appellant was referring to in the call.[7]
[7] Trial ts 86.
The appellant's evidence was that he had a photograph of Ms Smith standing on his front lawn at the time of the party, and that he had obtained some details of Ms Smith through prosecution disclosure.[8] He rang Ms Smith at 1.42 pm on 8 January 2017, and gave her his name and address. The appellant told Ms Smith that he believed she was standing on his front lawn in one of the photographs that he had taken. The appellant told Ms Smith that he wanted to summons her as a witness. Ms Smith 'went hysterical' and denied being there.[9]
[8] Trial ts 129.
[9] Trial ts 130.
The appellant's evidence was that, after this call, he received a threatening telephone call from Ashleigh who told him to leave Ms Smith alone.[10]
Second call to Ms Smith at 2.14 pm on 8 January 2017
[10] Trial ts 131.
The appellant called Ms Smith again at 2.14 pm on 8 January 2017. The call was not answered, and the appellant left a voice message. The following is a transcript of the recorded message:
There's no point ringing your friend Ashleigh, and getting her to call and threaten me when I've already thrashed them when they attacked me five on one. And it's recognised as a five-on-one attack; that's why I'm not charged over it. But they were convincingly flogged that night. So call them in for help; you're wasting your time. You want to call the police over this? They're the ones that gave me your details. So good luck with that, too. You can talk to me about what happened at the party the easy way, or the hard way. I can do either, and I'm quite happy to do both. But hopefully you'll be sensible and start talking some truth about what happened that night. Thanks. Bye.
Conversation with Mr Bloor at 2.49 pm on 8 January 2017
At 2.49 pm on 8 January 2017, the appellant spoke to Mr Bloor, who was Ms Smith's brother, on Ms Smith's mobile phone. There was some debate at trial about whether Mr Bloor answered a call from the appellant to Ms Smith's mobile phone or whether Mr Bloor called the appellant using Ms Smith's mobile phone. It is unnecessary to resolve that debate in this appeal.
Mr Bloor's evidence was that he spoke with the appellant on Ms Smith's phone. The appellant said 'You lesbian fucking psycho bitch, you finally answered your phone'. Mr Bloor explained that he was Ms Smith's brother, and asked why the appellant was calling her. The appellant said something about a statement that Ms Smith had made with information that was wrong and needed to be corrected. The appellant said that police had given him the details.[11]
[11] Trial ts 100 - 101.
Mr Bloor responded, 'There's no way. That's absolute bullshit'. The appellant replied, 'What would you know'. Mr Bloor said, 'Well, I may or may not be involved in the police'. (At this time, Mr Bloor had been accepted into the Police Academy of WA pending final medical review).[12]
[12] Trial ts 101 - 102.
The appellant then 'let loose' and was:[13]
Screaming, yelling, swearing. He threatened to bash me. He said he was going to find where I live, he'll break my legs.
[13] Trial ts 102.
Mr Bloor responded, 'No, you're not. You're not going to bash me'. The appellant said that he was a 'cop basher'. Mr Bloor responded, 'You may be talking to one now. You don't know'. The appellant called Mr Bloor a hero, and said that Mr Bloor was 'on his list'.[14]
[14] Trial ts 103.
The appellant told Mr Bloor that he had bashed a man called Kenneth and that it had something to do with a party that Ms Smith had attended. Mr Bloor said that he was sure his sister had nothing to do with it. He told the appellant, 'You need to stop ringing her. Leave her alone'.[15]
[15] Trial ts 102.
The appellant's evidence was that Mr Bloor called him using Ms Smith's telephone and:[16]
then entered into an eight-minute tirade of threats, abuse and, when that didn't work, he then claimed to be a police officer and then he tried if not three different ways to intimidate me and, after eight minutes, realised that he wasn't intimidating me and hung up.
[16] Trial ts 131.
The appellant said that Mr Bloor was threatening to bash and kill the appellant. The appellant did not believe that he said that he would break Mr Bloor's legs.[17] In cross-examination the appellant denied telling Mr Bloor that he would break Mr Bloor's legs.[18]
Third call to Ms Smith at 3.02 pm on 8 January 2017
[17] Trial ts 131.
[18] Trial ts 159.
The appellant called Ms Smith again at 3.02 pm on 8 January 2017. The call was not answered, and he left a voicemail message. The following is a transcript of that recorded message:
As the call records will show, I just got a phone call from this number claiming - from someone claiming to be Elizabeth's brother, and then went on to say that he reckons he's with the WA Police. I'm going to warn you right now that it's a serious offence to impersonate police. And then he wanted to make threats that he will come down here and bash me.
Well, I said to him that he needs to come down and try that out, because I've bashed police; I've bashed murderers; I've bashed rapists; and I'd love to add him to the list, and I'd like to do it and put the photos up on Facebook like the last two ones, including Kenneth Unsworth as occurred.
So your problem is that I'm legally entitled to take a course of action in contacting people that were at the party that night. You can put whoever you like on the phone; I don't give a fuck who they are. They're not going to stop me in doing that. And if they want to claim [...] wrongly claim to be police and so forth, and try and intimidate me that way, before the - and - you know - trying to fucking intimidate me by threatening to bash me, it's not going to work very well for you, because I'm the priest of the bashing fucking body here [...] So - yeah, I will be tracking your brother down now for a conversation with him, whether he's a WA cop or not. And I would say 'or not'.
First attendance at Ms Smith's home at 4 pm on 8 January 2017
At about 4 pm on 8 January 2017, the appellant attended Ms Smith's home address in Kenwick. He knocked and no one answered. The appellant left photographs of Ms Smith at the party in the flyscreen door.[19]
Fourth call to Ms Smith at 4.52 pm on 8 January 2017
[19] Trial ts 83.
At 4.52 pm on 8 January 2017, the appellant again called Ms Smith. The call was not answered, and he left a voicemail message.[20] The following is a transcript of that recorded message:
Hey you lesbian fruitcake do you know where I'm going to find Daniel William Harding? The address that the cops gave isn't his current address. So - or his current phone number. So if you know where I would find him, that would be really helpful too, because he was at the same party. Bye.
Second attendance at Ms Smith's home at 9.30 pm on 8 January 2017
[20] Trial ts 83.
The appellant attended Ms Smith's home again on 8 January 2017. His evidence was that this occurred at about 9.30 pm, when he was trying to serve a piece of paper, and there were children running about. The appellant said that his car accidently clipped Ms Smith's gate at this point.[21]
Fifth call to Ms Smith at 9.42 pm on 8 January 2017
[21] Trial ts 169 - 170.
At 9.42 pm on 8 January 2017, the appellant again called Ms Smith. Again, the call was not answered. He left the following voice message:
Come on, where's big bro, that first of all reckoned he was a cop, and then threatened to bash me? Well, he's going to work out pretty quick that that don't go but thanks for telling me which house you're hiding in, you know. That's fucking brilliant. And what are your kids doing out on the fucking road at 9.30 at night, for fuck's sake? Not that I went anywhere near any of them, at any speed, but I'm certainly entitled to drive down the road and turn around sensibly, like I did.
Something may have accidentally been clipped on the way out, but that was due to having to drive around at less than five kilometres an hour. All the people that were out on the street at 9.30 pm - which seems a bit odd to me. But you people should really start realising now that your only option is to start telling the truth about what happened a year ago at that out-of-control party. Because the cops gave me your details. It's now up to me to get witness statements for the defence, and I'm actively going to be going about doing that. You people want to be obstructive to me, well, I've got ways of dealing with that. You might not like them, but that's the law. See you.
Sixth and seventh calls to Ms Smith on 9 and 10 January 2017
At 2.11 am on 9 January 2017 and 7.04 am on 10 January 2017, the appellant again called Ms Smith but she did not answer his calls.[22]
Appellant's evidence as to his intention and knowledge
[22] Trial ts 83.
The appellant's evidence was that, in leaving the voice messages, he 'had a few things to say' but his intention was to summons Ms Smith as a witness in relation to the January 2016 incident.[23] In cross-examination the appellant said that he did not intend to intimidate Ms Smith in his first call to her, but that he had been threatened and certainly was not going to back down.[24] He said that his intention in leaving a message on the third call was to say, 'You've threatened me and I don't find you very threatening'.[25]
[23] Trial ts 132.
[24] Trial ts 144.
[25] Trial ts 167.
The prosecution case at trial
The prosecution case was that the messages to Ms Smith constituted use of a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing and harassing, as alleged in count 2. The prosecution did not contend that the communications were 'offensive'. The prosecution contended that the appellant was reckless as to whether a reasonable person would regard the messages as menacing or harassing.[26]
[26] Trial ts 76 - 78.
The prosecution identified the appellant's threat to break Mr Bloor's legs (see [24] above) as the threat of serious harm, being significant and long-standing harm, as the subject of count 3. The prosecution contended that the appellant intended to cause Mr Bloor to fear that the threat would be carried out.[27]
[27] Trial ts 76, 78 - 79.
The trial judge's direction as to the elements of the offences
Count 2 on the indictment
The trial judge provided the jury with a handout that identified the following elements of the offence against s 474.17(1) of the Code:[28]
Before you could find [the appellant] guilty of count [2], the Crown would need to satisfy you beyond reasonable doubt that the following five elements have been proven:
1. Identity;
2. [the appellant] used a carriage service;
3. [the appellant] intended to use the carriage service;
4. [the appellant's] use of the carriage service (whether by the method of use or the content of a communication or both) is such that reasonable persons would regard it as being, in all of the circumstances, menacing, harassing or offensive; and
5. [the appellant] was reckless as to whether reasonable persons would regard his use of the carriage service as being menacing, harassing or offensive in all the circumstances.
[28] Blue/green AB, 6.
In providing the handout to the jury, the trial judge directed them that:[29]
And whilst that's being handed out, can I just say this, members of the jury. That you should not use this document in substitution for the more detailed directions that I am going to give you, orally. This is just a summary of the element [sic] of each of the two offences.
[29] Trial ts 190.
The trial judge gave the jury directions about the first three elements in the jury handout, reproduced at [38] above, noting that these elements were not in dispute. In relation to the fourth element, the trial judge gave the following directions:[30]
[30] Trial ts 191 - 192.
The fourth element is that the Crown must prove beyond reasonable doubt that [the appellant's] use of the carriage service, whether by the method of use or the content of a communication or both, is such that reasonable persons would regard it as being, in all of the circumstances, menacing, harassing or offensive.
Now, there is no requirement for any person to be actually offended, harassed or menaced. The test is whether the carriage service was used in such a way that reasonable persons would regard it as being menacing, harassing or offensive.
Now, in this case, you don't have to consider whether it was offensive. And that is because the Crown are not submitting to you that it is offensive. The Crown are submitting that the communications, however, were menacing and or harassing.
Now, menacing in this context, means a communication of such a nature that it is likely to cause a person of normal stability and courage to become apprehensive for their own safety and wellbeing. It must be something more than a communication which is distasteful or causes a sense of unease. It must be communication of such a nature, as I say, to cause a person of normal stability and courage to become apprehensive for their own safety and wellbeing.
Harassing means to trouble or vex by repeated communications that are again, likely to cause a person of normal stability and courage to become apprehensive for their own safety and wellbeing. The words menacing and harassing imply a serious potential threat upon the recipient. One which causes apprehension, if not fear, for their safety.
So in this case, the Crown case is that the communications to Ms Smith were menacing or harassing because [the appellant], the Crown submits, used language to suggest that he'd used violence in the past and would be prepared to use it again.
The Crown say that he rang her, on a number of occasions, in circumstances where she did not respond to him. And in the context of him having gone around to her place, on a couple of occasions, and in the context of him having caused some damage to her gate.
Now, the defence submit that the communications were not menacing or harassing because you need to understand the context and background for what [the appellant] is saying. That is, that he was attempting to persuade Ms Smith that she needed to help him, in relation to the case that he was facing in 2017, which came out of the incidents at the party in 2016.
So [the appellant's trial counsel] submits to you that reasonable persons could not have understood what he was saying to Ms Smith as being menacing or harassing.
Now, [the appellant's trial counsel] submits to you that whilst his language might have been a bit colourful and a bit excited and he was clearly upset, the State cannot prove to you, beyond reasonable doubt, that it had that characteristic of being menacing or harassing. (emphasis added)
The trial judge gave the following directions as to the fifth element identified in the handout:[31]
Now, the fifth element the Crown would need to prove beyond reasonable doubt is that [the appellant] was reckless as to whether reasonable persons would regard the communications as being menacing, harassing or offensive in all of the circumstances.
And again, here we're concerned with whether the communications [were] menacing or harassing because the Crown do not submit that the communications were - met the definition of offensive.
Now, [the appellant] would be reckless as to whether reasonable persons would regard the communications as being menacing, harassing or offensive if [the appellant] was aware of a substantial risk that the communications would be regarded by reasonable persons as being menacing, harassing or offensive, and having regard to all of the circumstances you find were known to [the appellant], that it was unjustified of him to take that risk.
So here the Crown must establish that [the appellant] was consciously aware of the substantial risk that the communications would be regarded by reasonable persons as being menacing, harassing or offensive.
It is not sufficient to show that the risk that reasonable persons would regard the communications as being menacing or harassing was obvious or well known. Also, it doesn't matter whether [the appellant] believed he was justified in taking the substantial risk that the communications would be regarded by reasonable persons as being menacing or harassing.
So it is up to you, members of the jury, to make a judgment as to whether in all of the circumstances you find were known to [the appellant] it was unjustifiable for him to take that risk.
So in deciding this, you assess this from the facts as you [sic] were known to [the appellant]. And some of those facts, for example, are that he rang Ms Smith a number of times and that she except perhaps on one occasion did not return his calls.
Secondly, the Crown submit he used language which was clearly intimidating, i.e. talking about having bashed others, implying that the police had given him her number and so on. (emphasis added)
[31] Trial ts 192 - 193.
After the jury retired to consider their verdicts, the trial judge called the jury back and gave them the following further direction:[32]
The Crown are not alleging that this communication - these communications the subject of count [2] were offensive so if you were to think that the communications were offensive then you should put that to one side because the Crown case is that the communications were menacing or harassing so they're the two things that you have to consider. I've made that clear. Everyone's nodding. Excellent.
Count 3 on the indictment
[32] Trial ts 201.
The jury handout identified the following elements of the offence against s 474.15(2) of the Code:[33]
Before you could find [the appellant] guilty of count [3], the Crown would need to satisfy you beyond reasonable doubt that the following five elements have been proven:
1. Identity;
2. [the appellant] used a carriage service;
3. [the appellant] intended to use the carriage service;
4. [the appellant] made a threat to cause serious harm to Mr Bloor; and
5. [the appellant] intended Mr Bloor to fear that the threat will be carried out.
[33] Blue/green AB, 6.
In her Honour's oral direction, the judge again noted that the first three elements identified in the handout, reproduced above, were not in issue. The trial judge identified the fourth element, which was in issue, as being whether there was a threat to cause serious harm to Mr Bloor. The judge directed the jury that:[34]
A threat to cause serious harm to a person includes a threat to substantially contribute to serious harm to a person. Serious harm means harm that is likely to be significant and longstanding.
[34] Trial ts 193.
The trial judge then directed the jury that:[35]
Now, the fifth element that the Crown must prove beyond reasonable doubt is that [the appellant] intended to cause Mr Bloor to fear that the threat would be carried out. And here, fear includes apprehension. The Crown does not have to prove that Mr Bloor actually feared that the threat would be carried out.
[35] Trial ts 193.
Hearing of the appeal
The appellant sought to appeal against his convictions on 9 numbered grounds, two of which were numbered '2'. On 29 October 2019, leave to appeal on grounds 5 and 7 was refused. The application for leave to appeal on the remaining grounds was referred to the hearing of the appeal.
The appellant, who was self-represented and no longer in custody, was provided with over 2 months' notice of the hearing of the appeal on 10 August 2021. He did not appear at the time appointed for the hearing of the appeal. The court indicated that it would reserve its decision and determine the appeal on the written material.
After the court had adjourned, the appellant arrived at court blaming the weather and transport delays for his failure to appear at the appointed time. The court reconvened, and provided the appellant with a further opportunity to make oral submissions.
The appellant applied for an adjournment of the hearing based on a medical certificate indicating the appellant was suffering from shingles, for which he was prescribed analgesia, and would be unfit for work or study for 3 months. The court did not consider it to be in the interests of justice to grant an adjournment having regard to the delays which had already been occasioned in the appeal, the extended period for which the appellant's symptoms were expected to continue and the limited extent to which the appellant appeared unable to advance oral submissions due to his medical condition.
When the adjournment was refused, the appellant in effect indicated that all of his documents were in storage and he was not in a position to make oral submissions. The court then indicated that the appellant would be given an opportunity to provide the court with any further written submissions he wished to advance by 4.00 pm on 10 September 2021, and again reserved its decision.
The appellant did not take the opportunity to file any further submissions by 10 September 2021.
Ground 1: trial judge's direction
The appellant's first ground of appeal, in effect, contends that the trial judge erred in her direction to the jury as to the elements of the offences in two respects. First, the appellant complains that the trial judge did not direct the jury that if they only found the messages to be offensive then they should find the appellant not guilty. Secondly, the appellant complains that the jury handout referred to the communication being regarded as 'menacing, harassing or offensive'.
There is no merit to this ground. The Crown's opening made it clear that the prosecution was not alleging the communications to be offensive. The emphasised parts of the trial judge's oral direction quoted at [40] and [41] above, and the redirection quoted at [42] above, also made this clear. The jury was also told that the jury handout was not a substitute for the trial judge's oral directions. The judge's direction as to the meaning of the terms 'menacing' and 'harassing' clearly excluded communications which a reasonable person would only regard as being, in all of the circumstances, offensive and communications which would not be likely to cause a person of normal stability and courage to become apprehensive about their own safety and well-being.
Ground 2(1): Ms Smith's evidence about the photographs
Ground 2 contends that the trial judge 'failed to properly consider ramifications of' Ms Smith's evidence that she was shown in photographs taken on the appellant's front lawn on the night of the January 2016 party.
The ground arises in the context of Ms Smith having given evidence in cross‑examination that, during the party, she was in the backyard of the house at the time of a commotion at the front of the property, and did not witness the events.[36] Ms Smith was shown photographs which she accepted showed her at the front of the property on the night of the party.[37] In re-examination, she gave evidence that the photo was taken 'maybe half an hour' after she heard that someone had been throwing bottles, and she had come out the front.[38] The appellant's evidence was that the photographs were taken less than 2 minutes after the altercation ceased.[39]
[36] Trial ts 92.
[37] Trial ts 117 - 119.
[38] Trial ts 120.
[39] Trial ts 126.
There is no merit to this ground as expressed. It was a matter for the jury rather than the trial judge to assess the impact, if any, of this evidence on the credibility and reliability of Ms Smith's evidence. Nor was this a matter on which any special direction was required by the trial judge to avoid the perceptible risk of a miscarriage of justice. There was no impact that this evidence, which was peripheral to the matters in issue at trial, might have had which would not have been apparent to the jury.
Ground 2(2): Evidence as to the timing of the calls
A second ground, also designated as ground 2, concerns the appellant's evidence and admissions as to the timing of the relevant telephone calls. The appellant's trial counsel formally admitted the times at which calls were made.[40]
[40] Trial ts 82 - 83.
Under cross-examination on the first day of the trial, the appellant sought to explain his reference to calling the police in the second call to Ms Smith at 2.14 pm as a response to what Mr Bloor had said to him.[41] The prosecutor put to the appellant that he had not spoken to Mr Bloor when he left the voice message at 2.14 pm on 8 January 2017.[42] When cross-examination resumed on the second day of trial, the appellant said, in effect, that the times shown on phone records were not accurate and may not have been referring to Perth time.[43]
[41] Trial ts 147.
[42] Trial ts 148.
[43] Trial ts 153 - 154.
The prosecutor did not make any particular point about this evidence in his closing submissions to the jury. The trial judge gave the following direction:[44]
Now, you will recall that at the beginning of the trial that defence counsel made some admissions on behalf of [the appellant], and those admissions were read out to you. Now, because [the appellant] has admitted those facts the Crown does not have to prove those facts by other evidence.
So, for example, there was admissions made in relation to the making of phone calls and the timing of those phone calls. So because those facts were admitted, that means that the Crown does not then have to call somebody from the telecommunications company to prove the timing of those calls.
Now, in his evidence [the appellant] said that he did not necessarily agree with all of those details, but he didn't resile from the fact that those facts were admitted. Now, as for his evidence that he was not sure about the times of the phone calls and so on, you can use his evidence to assess his credibility in giving answers which might be seen to be inconsistent with the earlier admissions that he made, however as I said to you, members of the jury, the fact that he made those admissions is taken to be proof of those admissions.
[44] Trial ts 183 - 184.
There was no misrepresentation of the admissions by the prosecutor. Nor was there any error in the trial judge's direction on this issue. There is no merit in this ground.
Ground 3: prejudicial material
Ground 3 relates to prejudicial evidence said to have been adduced by the prosecutor. Three matters are referred to in this ground.
The first matter concerns references to the appellant damaging Ms Smith's gate during his second attendance at her home at about 9.30 pm on 8 January 2017.
Reference to the gate was made in the voice message left by the appellant on his fifth call to Ms Smith, when the appellant said that something 'may have been accidentally clipped on the way out'. After this message was played during the trial, Ms Smith gave evidence that no children lived at her house and she had noticed that her front gate was pushed in consistently with having been clipped by a car.[45] The appellant was cross-examined at some length about how he came to make contact with the gate. It was put to him by the prosecutor that he deliberately drove his car into the gate, which the appellant denied.[46]
[45] Trial ts 89 - 90.
[46] Trial ts 169 - 172.
It was open to the prosecutor to call evidence about damage to the gate and cross-examine the appellant about that issue. The incident when the gate was damaged formed part of the narrative of the events which occurred on 8 January 2017. The appellant admitted making contact with the gate, and referred to doing so in his voice message. The damage to the gate formed part of the factual context in which the menacing or harassing nature of the sixth and seventh calls to Ms Smith were to be evaluated. The prosecutor was not required to accept what the appellant said about the inadvertent nature of the contact with the gate, and was entitled to put an alternate version to the appellant. The appellant's answers to these questions could legitimately be considered by the jury in evaluating the credibility and reliability of the appellant's evidence generally.
The second matter about which the appellant complains concerns cross-examination about the following statements in the appellant's third call to Ms Smith:
Well, I said to him that he needs to come down and try that out, because I've bashed police; I've bashed murderers; I've bashed rapists; and I'd love to add him to the list, and I'd like to do it and put the photos upon Facebook like the last two ones, including Kenneth Unsworth as occurred.
The cross-examination was as follows:[47]
That's what you said, isn't it? You'd like to bash him up. You said that?---No, I've made him aware that if he wants to come down and try, I will publicly make a fool of him.
By beating him. That's what you're saying?---He wants to come down and attack, it's highly likely that he's going to get knocked out and I will take photos and put them up on Facebook.
Because when you tell someone you're going to knock them out that's what you plan to do?---I didn't tell him I was going to knock him out.
Just bash him?---That's generally what has happened in the past, that when people have mouthed off and then actually turned up or ambushed me they've been knocked out and the photos are up on Facebook. It's not a criminal offence.
[47] Trial ts 167.
The reference to Facebook and Mr Unsworth was contained in the appellant's message. It was open to the prosecutor to put to the appellant that he intended to convey that he would bash Mr Bloor. The additional information about the appellant's past acts of violence was volunteered by the appellant in non-responsive answers to the prosecutor's questions.
The third matter to which the appellant referred concerned references to his living arrangements in January 2016. In his evidence-in‑chief, the appellant gave evidence of his arrangement with the owner of the house he was staying at in January 2016. The appellant said that:[48]
I ended up helping him out with people that weren't paying rent in his flat down at Orelia and all sorts of things that would be well outside the scope of a normal rental agreement.
[48] Trial ts 122.
In cross-examination, the prosecutor asked the appellant about this 'arrangement', and put to the appellant that he had threatened the tenants who had not paid rent. The appellant responded:[49]
Well, you've got to – the video's up on YouTube if you really want to watch it. But it was a crack house. I walked in. There's - - -
[49] Trial ts 140.
The trial judge then interrupted the appellant's answer, and told the prosecutor that she was 'not sure that you can go here with these questions'. The judge then asked the prosecutor to 'move onto another area' and the prosecutor agreed to do so.[50]
[50] Trial ts 141.
The trial judge was correct to interrupt the appellant's answer and the prosecutor's line of questioning. While the appellant had raised the issue of helping the owner of his residence to collect rent from tenants, the question of whether he had threatened violence to those tenants was not relevant to any fact in issue in the appellant's trial for the charged offences. However, the prejudicial effect of the question had to be considered in the context where the evidence properly before the jury contained the appellant's own references to past acts of violence against a wide range of people. The trial judge properly took the view that the prejudicial effect of the questioning could be cured by a direction to the jury, rather than by aborting the trial. There was, in any event, no application by either party to abort the trial.
It is established that the inadvertent reception of inadmissible prejudicial evidence does not necessarily require the trial judge to discharge the jury on the basis that a fair trial is no longer possible. The critical question for this court is whether, in light of the directions given, there was a miscarriage of justice. That turns upon whether, in this court's assessment, there was a real and perceptible, as distinct from remote or fanciful, risk that the impugned evidence might lead the jury to reason impermissibly or otherwise result in an unfair trial.[51]
[51] See Taylor v The State of Western Australia [2020] WASCA 113 [71] - [72].
The direction which the trial judge gave to the jury was adequate to avoid any perceptible risk of a miscarriage of justice arising from the prosecutor's question. The judge directed the jury that:[52]
You should also put aside … any prejudices you may have about the suggestion that [the appellant] may have behaved in a certain way prior to the events in question.
And in this case you've heard some suggestion that [the appellant] may have behaved violently on previous occasions, and if you were to consider that that was a possibility or even a probability, you should put that to one side, because what he has done on a previous occasion obviously can't prove what he's done on this occasion, and you need to focus on the evidence that relates to these two charges. So do not decide the case based on feelings of prejudice or sympathy.
[52] Trial ts 197.
There is no merit in any of the complaints made in ground 3.
Ground 4: incompetence of defence counsel
Ground 4 contains assertions that the performance of the appellant's trial counsel was 'seriously below par from a lack of preparation and an inability to follow directions. Having regard to the well-established principles as to allegations of incompetence of trial counsel,[53] we see no evidentiary basis for the submission that counsel's conduct of the appellant's defence gave rise to a miscarriage of justice. The appellant's subjective assertion falls far short of establishing a miscarriage of justice. There is no proper factual basis for the assertions made in ground 4.
[53] See Huggins v The State of Western Australia [2018] WASCA 61 [375] - [382].
Grounds 6 and 8: allegations of perjury
Grounds 6 and 8 contain assertions that aspects of the evidence of Ms Smith and Mr Bloor were knowingly false. There is no proper evidentiary basis for those unsubstantiated assertions, and consequently no merit to these grounds of appeal.
Grounds 5 and 7: other matters
Grounds 5 and 7 raised matters not connected with the appellant's convictions of the offences which are the subject of this appeal. Leave to appeal has already been refused on these grounds.
Orders
For the above reasons, none of the appellant's grounds of appeal has any reasonable prospect of succeeding. Leave to appeal should be refused on all remaining grounds of appeal, and the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
29 SEPTEMBER 2021
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