Spence v The Queen

Case •

[2020] NSWDC 442

•

07 August 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Spence v R [2020] NSWDC 442
Hearing dates: 6 August 2020
Date of orders: 7 August 2020
Decision date: 07 August 2020
Jurisdiction:Criminal
Before: Priestley SC
Decision:

See [30]

Catchwords:

MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Use of carriage service to Menace, Harass or Offend.

CRIME — Domestic violence — Stalking or intimidation

APPEALS — Jurisdiction of appellate court — District Court – Appeal Upheld.

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Commonwealth Criminal Code 1995 (Cth)

Crimes (Appeal and Review) Act 2001 (NSW)

Supreme Court Act 1970 (NSW)

Cases Cited:

Englebrecht v DPP [2016] NSWCA 290

Dyason v Butterworth,[68]

Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39

B v Director of Public Prosecutions [2014] NSWCA 232

Fleming v R (1998) 197 CLR 250

Category:Principal judgment
Parties: Crown (Regina)
Spence (Appellant)
Representation: Solicitors:
Cramer for the Department of Public Prosecutions
Manwaring for the Appellant
File Number(s): 2018/00023173
Publication restriction: Unrestricted
 Decision under appeal 
Court or tribunal:
Local Court
Jurisdiction:
Crime

Contents

Judgment

Introduction

The hearing below

The facts

Count 1

Count 2

Count 3

Determination

Count 1

Count 2

Count 3

Sundry matters

Orders

Judgment

Introduction

  1. This is an appeal by Roger Andrew Spence (“the appellant”) of convictions by Magistrate Ryan on the following 3 charges:

  1. Contravening section 474.17 (1) of the Commonwealth Criminal Code by using a carriage service to menace/harass/offend between 4 November 2016 and 24 July 2017.

  2. Contravening section 13 (1) of the Crimes (Domestic and Personal Violence) Act on 6 May 2017 by intimidating the complainant with the intention of causing her to fear psychological or physical harm.

  3. Contravening section 13 (1) of the Crimes (Domestic and Personal Violence) Act on 16 June 2017 by intimidating the complainant with the intention of causing her to fear psychological or physical harm.

  1. Whilst this is described as an all grounds appeal there is no challenge to the sentences imposed. Accordingly should the challenge to the convictions fail in respect of one or more of the charges it follows that the sentence will remain as imposed by the magistrate for that charge or charges.

  2. By section 18 of the Crimes (Appeal and Review) Act 2001 an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings except as provided for by section 19 and subject also to fresh evidence being given by way of leave pursuant to section 18 (2). The nature of a s18 appeal was considered in Englebrecht v DPP [2016] NSWCA 290, where at [89] it was said:

  3. The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth,[68] as follows:

  4. [26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] – [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P’s reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).

  1. [27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 (‘McKellar’) (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The ‘judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court’: Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate’s reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).

  1. [28] The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ.”

The hearing below

  1. The hearing before the Magistrate took 3 days and extends to some 275 pages of transcript. I am indebted to those conducting this appeal that they were able to focus on the key factual matters going to the conduct said to constitute the 3 offences I need to determine.

  2. A great amount of the evidence in the Local Court that goes beyond those key matters was to a large extent evidence of the history of the relationship between the appellant and the complainant and of marginal relevance. It suffices to say that the relationship between them which was an intimate one commenced in 2015 when the complainant was married. After the relationship had become an intimate one the complainant took up a job at the place of work of the appellant. In the hierarchy of that workplace the appellant was the superior of the complainant. Submissions were made before the Magistrate and again before me suggesting that this was a power imbalance and coloured the conduct complained of. It seems common ground that the relationship was an on again off again relationship and was to some extent volatile and certainly one in which great emotions were experienced, a fact perhaps best evidenced by the complainant falling pregnant to the appellant and a subsequent decision to terminate that pregnancy. The appellant stated that he would not play a part in the life of that child though was prepared to financially support the child and also accompanied the complainant on the day of the termination. Another hallmark of the relationship was a high volume of communication by mobile phone either by voice messages or text messages whether by use of SMS messages or by way of applications such as WhatsApp.

  3. This background is relevant perhaps in respect of the Commonwealth offence which relates to the making of phone calls and of text messages. It gives context to the making of the calls in question which I will seek to particularise below. It also gives context to the alleged intimidatory conduct relied on for counts 2 and 3. Both those counts are charges under section 13 of the Crimes (Domestic and Personal Violence) Act. The words of that section refer to “stalks or intimidates” however the Crown case was not one of stalking but of intimidating. The allegation in both counts is that by the conduct I will particularise below the appellant intimidated the complainant with the intention of causing the complainant to fear physical or mental harm.

  4. The Crown’s position on this appeal understandably was to support the findings of the magistrate as being correct and by drawing my attention to parts of the transcript showing the conduct to be menacing in respect of count 1 and intimidatory in respect of the conduct for counts 2 and 3. There is some strength in those submissions based on the conduct of the appellant based on the appellant’s own evidence. As noted above weight was also placed on the so-called power imbalance in the working relationship of the parties.

  5. The points being made by the appellant were threefold. They were:

  1. That seen in the context of the overall relationship the conduct complained of does not make out any of the offences. The appellant does not deny that his behaviour at least in part was poor but that did not make it criminal. The appellant conceded that he treated the complainant “like shit” but that did not amount to a criminal conduct alleged.

  2. That the magistrate failed to make a proper assessment of the credibility of the complainant. The approach of the magistrate was to find that the evidence of the complainant in chief was credible and that she appeared to be able to recollect the incidents of intimidation and harassing behaviour reasonably well despite the passage of time. The magistrate then said that in cross examination the complainant was not so forthcoming and was less credible, often replying “I can’t recall”. The magistrate then seemed to be somewhat forgiving of this by saying “it appears that she was not able to recall the exact dates of what was put to her and it is unclear whether the lack of remembering the exact dates of an event that took place on that date muddied the waters”. Beyond this there was no great consideration of the complainant’s credibility or conclusion drawn expressly about it though inferentially she was accepted in respect of the charges that were made out. Some indication contrary to this as to the view of the magistrate as to the complainant’s credibility is given by the fact that she gave herself a Murray direction which I refer to below. As to the credibility of the appellant there was no direct discussion in the judgement. The magistrate rejected evidence that on 16 June 2017 in the circumstances giving rise to count 3 that the appellant was with Roxanne Connor yet at the same time the appellant undoubtedly made significant concessions against his own interest including as to how he treated the complainant which in my view gives a basis to accept the appellant as having credibility. It should be remembered that it is always open to a finder of fact to accept some parts of the evidence of a witness and to reject other parts.

  3. The appellant also relied on conduct of the parties together subsequent to the matters alleged including travelling from Raymond Terrace in the one car to suggest a lack of fear on the part of the complainant. The view I take of this point is that it is just one of a number of factors to take into account but is far from determinative.

  1. I accept that there is an issue arising here as to the credibility of the complainant. Given the presence of that issue it is I think relevant to note that in addition to the above 3 offences the appellant had been charged with 2 other offences. One of them, sequence 5 was dismissed on the basis it could not reach a prima facie level. That charge was of disseminating an intimate image. There was a lack of evidence that this had been intentionally distributed by the accused. The other charge sequence 4 was not proven beyond a reasonable doubt. The basis for this was because the charge was of using a carriage service to menace/harass/offend by way of sending an image of the bare legs of the complainant who allegedly had not given permission for that photo to be taken. The photo was not in evidence nor was there in evidence the message to which it was attached allegedly. It was therefore a case of word against word, for the appellant denied the charge. The learned magistrate gave herself a Murray direction and found the offence not proven beyond reasonable doubt. The magistrate added that if it was a civil burden she would have a different view.

  2. It is relevant to note what a Murray direction actually is. It is a direction given to a jury or a finder of fact such as magistrates or judges conducting Judge alone trials where the Crown case is based largely or exclusively on a single witness as was the case with count 4. The direction commonly given is that unless the factfinder is satisfied beyond reasonable doubt that the witness is both an honest and accurate witness you cannot find the accused guilty. The direction continues "before you can convict the accused you should examine the evidence of the essential Crown witness very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial".

  3. Given the way in which the magistrate dealt with count 4 it must be that at least in so far as the facts of counts 4 were concerned the magistrate did not consider that she could safely act upon that evidence to the high standard required.

  4. That finding together with the finding as to the complainant’s credit in cross examination suggest that at least in some respects the magistrate had some misgivings about the reliability of the complainant. Having read the transcript of the cross examination of the complainant I would endorse entirely such misgivings. I consider the evidence given by the complainant in cross examination to be self evidently evasive. For example at T 69 of 8 July 2019 she could not recall if her sexual relationship with the appellant had commenced before she started at PCYC. On the next page asked about the ID photo which was relevant to count 5 she answered “I don’t recall”. This question of the ID photo shows the complainant in a far different light to a harassed victim. It concerned her sending a photograph of her wearing her PCYC uniform shirt for the purpose of allowing the appellant to prepare her ID photograph but with her raising the shirt so as to show her naked breast. The appellant cropped this photograph so that it could be used for ID purposes. It was obviously a joke and in my view the whole incident something you would be likely to remember. While she said that she did remember that particular photo she was vague on other matters concerning that incident. The next page at T71 sees a string of “I don’t recall” answers. This included 2 questions as to when she was to tell her husband of her relationship with the appellant and events that may have happened on Christmas day.

  5. Apart from the Murray direction the reasoning of the magistrate is notable for the absence of any of what might be termed the “General directions” in even a very short hand form as may be expected in a Local Court judgement. That said it is plain that the magistrate was aware of the high standard of proof required namely beyond reasonable doubt as is evident from her reference to a possible different result if the civil standard applied and there can be no doubt that she realised that the onus lay upon the Crown. No other directions were given. I note in particular given the Murray direction and the failure of count 4 that there was no direction along the lines of the Markuleski direction. That direction which I give myself now in my consideration of these facts is that giving separate consideration to the individual counts means that the finder of fact is entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome. The essence of the direction is to note that if the finder of fact were to find the accused not guilty on any count, particularly if that was because of doubts about the reliability of the complainant’s evidence, you would have to consider how that conclusion affected your consideration of the remaining counts. As I understand the magistrate’s reasoning this is what happened here; that is having given herself the Murray direction she was not satisfied or in other words had doubts about the reliability of the complainant’s evidence in respect of count 4 and there is no consideration in her reasons as to how that conclusion affected her consideration of the remaining counts.

  6. I set out in short form other relevant general directions:

  1. I must act impartially dispassionately and fearlessly and not let sympathy or emotion sway my judgement. I need to act rationally.

  2. I am expected to use my individual qualities of reasoning, my experience and my understanding of people and human affairs and my common sense. I consider this direction to be of particular relevance in a case such as this with such an intimate and personal relationship at its core.

  3. The parties’ submissions are not evidence.

  4. As noted above the evidence of a witness can be accepted in whole or in part or not at all. A question is not evidence unless accepted or other evidence proves the proposition being put.

  5. I may draw inferences from proven facts if the inference is the only reasonable inference that can properly be drawn from the proven facts.

  6. The onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. This means that even if I was to reject the case put by the accused it does not follow that the Crown case succeeds. Rather it is then for me to consider the Crown case and determine whether each of the elements of the alleged offences has been made out beyond reasonable doubt. The accused is presumed innocent unless and until proved guilty beyond reasonable doubt.

  1. I would also note that the Court is not a court of morals or ethics. My view is it is very useful to remind oneself of these very commonplace and orthodox directions which of course is what Fleming v R (1998) 197 CLR 250 requires. It is of perhaps particular relevance in cases such as this one where part of the case of the accused was to frankly concede that his conduct towards the complainant was for want of a better word distasteful and nothing to be proud of.

The facts

  1. Having read the transcript and with the benefit of the parties representatives in submissions I have been able to isolate the evidence in respect of each of the charges. What I propose to do is set out what those facts are and then set out my findings.

  2. In doing so I note the approach to a section 18 appeals which I have set out above. In my view there has already been identified areas of error by the learned magistrate in failing to give to herself sufficient directions, and failing to set out her considerations of the impact of not being satisfied of the complainant’s evidence in respect of one charge when considering the others. Furthermore if I was to carry out the task of determining these facts and also recognising the advantage that the magistrate has of seeing the witnesses, as I intend to do, and arrive at different verdicts than the magistrate, then my view is there must necessarily be some error of law fact or discretion in the magistrate’s decision. That is if I determine that the verdict should be not guilty in respect of any of the 3 charges then in my view as a matter of logic there must be an error on the part of the magistrate either of fact or law or of placing too much or too little weight on a matter to such an extent as to arrive at the wrong result. Of course it would assist in the conduct of appeals if such errors were particularised in the appeal to assist the appeal court in focusing on what exactly is being said to have been the error. A section 18 appeal is not conducted that way, but rather consists of an appeal notice stating that the appellant is appealing “because I am not guilty”. Whilst section 18 appeals have been likened to section 75A Supreme Court Act appeals, the section 75A appeals are conducted with the benefit of significant statements of appeal grounds and particularisation of them. For this reason there is open a very sensible argument that from a practical point of view if not a theory based view that a section 18 appeal requires the matter to be reheard with the outcome indicating whether there has indeed been an error rather than an error being identified in the first place as the basis of the appeal.

Count 1

  1. The Court attendance notice alleges the appellant “did use a carriage service, namely a mobile phone, in such a way that reasonable persons would regard that use as being menacing, harassing or offensive” between 1 AM on 4 November 2016 and 11 AM on 24 July 2017 at Lithgow. There was an application by the appellant at the Local Court hearing requesting the Crown to identify whether the offence being alleged was to be menacing or to harassing or offensive but that application was unsuccessful so that the case proceeded on the basis of whether the evidence could make out any one of those allegations. There was no application before me to request the Crown to particularise the charge in this way. The magistrate made found the offence established on the basis of the use on 6 May 2017 being menacing, and the calls on 17 and 18 June as being harassing. The use of the carriage service on 16 June was not found to breach the section.

  1. There is no definition of “menace” for the purposes of section 474.17. I note however the code contains a definition of “menaces” at section 138.2 in relation to offences involving unwarranted demands with menaces. For the purposes of that provision menaces includes a threat of conduct detrimental or unpleasant to another person. I note that the Cambridge online dictionary defines menace as something that is threatening and may cause harm.

  2. I note further that in the submissions before me, despite the way the Crown conducted the case below that the submissions were based on upholding the finding of the magistrate, that is that the use of the carriage service was to menace, and although not expressly the subject of submissions, presumably to also uphold the finding in connection with the use of the carriage service on 17 and 18 June of being harassing. Interestingly, noting the authorities referred to above stating that a s18 appeal is akin to a section 75A Supreme Court Act appeal, if this appeal was conducted as such an appeal and the Crown wanted to allege that the use of the carriage service was alternatively harassing or offensive (re 6 May), or menacing or offensive (in respect of 17 or 18 June), so other than as found by the magistrate, it would be expected that the Crown would file a notice of contention to the effect that if it was found that the magistrate was wrong then the magistrate should have found that the use of the carriage service was to harass or offensive / was menacing or offensive. I would immediately note that there is no such practice provided for in the rules governing the conduct of these hearings nor to my limited experience is such a course adopted as a matter of practice. It raises an interesting question because it seems in my view to be procedurally unfair on the appellant who may successfully challenge the findings of the magistrate on appeal, and where as here, the Crown seeks only to argue for the maintenance of the Magistrate’s findings, and yet the appellant may be vulnerable to the appeal Court concluding that whilst the magistrate was wrong in their view the conduct amounted to harassment or was offensive. If this is the accepted approach, then in my view it would mean a s18 hearing is closer to a s17 de novo hearing than it is to a s75A hearing, contrary to the authority referred to above. It turns out this is a matter of some significance in this case, and I have sought to deal with it below.

  3. The use of the telephone relied upon was of use on the following dates:

  1. 3 calls made on 6 May 2017. These calls were made by the appellant to the complainant following the events at the PCYC which are relied on for count 2. These calls are evidenced by the evidence of the complainant, officer Goodwin, and the appellant. Their respective versions are set out in the following table.

Complainant

Goodwin

Appellant

First Call

Appellant: You’ve ruined my night, you’ve ruined my fucking life, I hate you, you’re a bitch, don’t bother coming to work on Monday (things to that effect)

Comp: I “believe” I asked “why are you ringing me” “what do you want me to say “and possibly “Please just leave me alone””

You’ve wrecked my life, I hate you, you’re fired don’t bother coming back to work on Monday

Comp said “don’t call me, I didn’t call you, I don’t want this”

Why do you have to do this, why do you always have to make it about you, why should you still work here after what you’ve done

Comp: I didn’t call you why are you calling me, and he said if I have to miserable you can be miserable too

The complainant said she took this as a threat that she not welcome in the workplace and she was fired

Second Call

Much the same. “You’ve ruined my night, you’ve ruined my life”. Things to that effect. I can’t go out and have a good time. If I can’t sleep you’re not going to be able to sleep either”

Comp: why do you keep ringing me

Same type of call; reference to ruining the night and being fired; similar response

Why should you work here, why should you keep working here if you want, if you did what you did. I said she ruined my life, that’s she’s a nasty person, that I hated her. I think I said I wish we never got together I wished this never happened

Comp: I didn’t call you, I didn’t call you why are you saying these things to me

Third call

Exactly the same as the others. Complainant believes she told him to please stop calling, it’s not going to make a difference, its not making things any better for you or any better for me

“You’ve wrecked my life” that sort of thing

Rang back to reiterate his point. Perrin took phone from him

After this call she said she felt very upset.

After this call he asked what’s going on and the complainant disclosed certain things, ie the relationship

  1. With all due respect to all involved, given the time this case took, amazingly there was very little if any cross examination on these different versions.

  2. A message was sent on 12 May 2017. Evidence of this call was in Exhibit 5 which was a volume of screenshots from the phone of the complainant. This meant the text of these messages is known. The text of this message was as follows:

  1. why are you aloud (sic) to ignore me and every time you wanted to talk or needed something you got it?

  2. Say something

  3. okay the fact you won’t respond to me request on taking that as you resignation

  4. The Crown relied on the last entry just set out. It is unclear to me whether they are 3 separate messages or one message. The text suggests that they are 3 separate messages. The nature of these 3 messages perhaps gives some indication as to why there were so much communication between the parties. That is they may be in the form of what I might term “rolling” messages where together they actually form one message rather than multiple messages. This is relevant later where it is alleged there is some 50 to 100 messages relied upon but their content is not known. It may be therefore that there is only 50 occasions and that those 50 occasions may amount to say 15 messages, as in completed thoughts.

  1. Calls on 16 June which were evidenced in the complainant’s evidence in chief. Her evidence was that on that day at about 8 or 9 o’clock she was on the telephone to her mother and phone calls and text messages started. The complainant said this caused her to be upset and distressed. The complainant was asked to give a rough estimate from her memory of how many calls or text messages she received. The answer was somewhere between 50 to 100 over a period of an hour, an answer which should be considered in light of my comments above about the extent to which she could not recall certain things in cross examination. Her evidence was she did not answer the calls and she did not look at the text messages until after she got off the phone. When asked what they were about she said she did not recall the exact nature. She said she believed they were threatening her to answer the phone and she thought it was in terms of job security. She concluded by saying “I can’t recall”. Following this she heard a car on her driveway which is the subject of count 3.

  2. The Crown also relied on use of the carriage service on 17 and 18 June. The magistrate found in effect that it was not able to be determined what the content of these calls were. This is because there is nothing about Exhibit 5 which identifies texts as being on these dates. The complainant’s evidence at T45 on 8 July 2019 was that on 18 June she received somewhere in the vicinity of 50-100 calls again. .

Count 2

  1. The facts of this count occurred on 6 May 2017 at an event at the PCYC. This is the first of 2 counts under section 13(1) of the Crimes (Domestic and Personal Violence) Act.

  2. There was much evidence of the lead up to this event and not just of earlier in the evening but extending back and in some detail to 2015. The facts said to give rise to the offence can be shortly stated. The complainant’s version is at T25 of 8 July 2019 where she gave evidence to the following effect:

  1. The complainant was outside the PCYC building. “Everybody” and I would include the complainant in this had had a few drinks. The complainant was with people named Kate, Ash, Jamie and a police officer Sgt Darrell Goodwin pulled up. Sgt Goodwin went inside.

  2. The appellant came running out of the building yelling and swearing at the complainant and she believes the Sergeant and a person named Perrin.

  3. The actual words said to be used by the appellant were “get the fuck out of here you’ve ruined my night you’re a bitch I fucking hate you”.

  4. The complainant said she was scared of the appellant and that she was hiding behind Sgt Goodwin. The complainant described the appellant as running out through the doors in a very intimidating manner in her direction.

  5. In cross examination it was put to the complainant that what had been yelled at her was “why do you have to fuck up everyone’s night all the time. If you can’t hold your liquor don’t fucking drink”. She agreed that he had said something along those words.

  6. Also in cross examination when it was put to her that at no stage had the appellant raised his fists or done anything to make her think he was to hit her she said “he had his arms raised in the air and he was very intimidating when he came running out”. I note there was no reference to arms raised at transcript page 25.

  1. The appellant’s evidence was that at this time he pointed at her with his right hand and said “if you can’t hold your fuckin liquor why do you drink so much, why do you have to spoil everybody’s night and make everybody your problem?”. The appellant said he has a memory of holding onto the door but could have been leaning forward. Soon after his evidence was that he said to the complainant “just go the fuck home just take her home what are you still doing here”.

  2. When the appellant was cross-examined there were many questions about drinking on 6 May but the version of events said to give rise to the offence was not put to him nor was the version given by the appellant in his evidence in chief challenged.

  3. As to the surrounding circumstances the prelude to this allegation, was in neutral terms, of the appellant witnessing the complainant on the floor of the bathroom. He believed she had vomited something she denies. The appellant believed that the complainant had been making a scene, had behaved in a manner badly affected by alcohol, and had disclosed the nature of their relationship.

Count 3

  1. This count arises from the events of 16 June 2017 when the appellant attended the complainant’s home. The evidence in chief of the complainant was to the following effect:

  1. The events in question were the next thing to happen after she had been speaking to her mother on the phone whilst the numerous messages/calls were being made by the appellant which were the subject of count 1 above.

  2. This means this is happening at approximately 10-10.30 p.m, though the complainant gave a time range of between 10-12pm. The complainant heard a car pull up in the driveway of her home in her residential street.

  3. She looked outside and saw the appellant in a car.

  4. The appellant got out of the car with the implication being that he was the driver and came up to the front door and in fact she said he was in the driver’s seat. Despite the above timing this was said to have happened sometime between 10 and 12 and then maybe as early as 9 though I do not think anything turns on this. It may be of significance that the earlier these events happen the less likely they are to constitute the offence.

  5. The appellant told her to open the door and let him in. She refused. He said “why are you fucking scared of me” and “you’re seen a little bit of the beast that I keep on a very short lease - leash and now your fucking scared of me”. She did not let him in because she was scared of him. She described his voice as aggressive and he was yelling.

  6. He said to open the door and let him in and stop leaving him out on the street like a wife beater. When she refused to let him in he said she need not worry about coming back to work that she had no job.

  7. She was then scared of what might happen so she took a photograph and the flash went off so he came back up the stairs and according to the complainant verbally abused her and swore at her again along the same lines of “I don’t have a job that he hates me and just making threats”. She said he made threats as to how she would regret it and that he was going to harm himself. She took this seriously enough to try and call him to tell him not to do anything stupid but to go home and also said she believes she called Roxanne and said she was sorry to call at this time but she wanted her to know what had happened.

  1. Relevantly in cross examination emerged the following:

  1. After the complainant said “go away I’m scared of you” the appellant said “what do you think am going to do. If I was out to hurt you Nikki a door or a window wouldn’t stop me”. The complainant agreed with this or words to that effect.

  2. When it was put to her that the appellant phoned her and said “I was only there to check on you and for you to leave me outside like that I don’t know why I bother anymore”. She did not deny the phone call but said she did not recall him saying that. Given my concerns about the quality of her evidence and her retreat to the “I don’t recall” answer this is significant. She then insisted he made threats.

  3. It was then that she rang him back due to her concerns about his threat to self-harm.

  1. The appellant’s evidence in chief was to the following effect:

  1. the prelude to him attending at the home was what might be termed workplace disharmony where he required the complainant to attend to getting new car tyres, followed by some management issues about who was to do what classes and also that the appellant was doing some administration and payroll which required some assistance from the appellant. The appellant had left work and this was the reason in part at least why he was ringing her in the way described above in respect of count 1.

  2. He concedes that his attempts to call her were about 30 to 40 times.

  3. He said he was concerned for her because the last time she had acted like this she had ended up in a hospital.

  4. He tried to contact the complainant through Kate without success and then rang Roxanne to ask her to take him to the complainant’s house. There is an issue as to whether Roxanne was involved at all concerning whether or not the appellant was licensed though not much really turns on this other than to perhaps to suggest some lack of frankness. He says Roxanne waited outside the property which would explain why the complainant said she saw the appellant get out of the driver’s seat of the car.

  5. The appellant says he knocked on the door, the complainant looked through the window and they spoke. In short he said he wanted to come in to see if she was all right and she said she did not want him to. He said it was about 10 o’clock any was not yelling. He said he wanted to see if she was all right and to talk to her a bit and she said she did not want to let him in. He said can you just let me in to see if you’re all right and she said I don’t want to let you in I don’t trust you. He said Nikki if I wanted to get in a door or window wouldn’t stop me. He said by that he was trying to say he was not there to do anything wrong or to hurt her.

  6. He said he saw the flash go off when he was leaving so he went back to the door to find out why she had taken a photo and she said it was because she does not trust him

  7. It was on this second trip to the door that he said “you’ve seen you seen the beast in me and now you’re scared of me”. He said that they had spoken numerous times before about a big fear of his of becoming his father. He was referring to emotional hurt that he had caused to unspecified people. He said his intention in saying that to the complainant was to confirm something that he had said to her a long time ago. He said he was trying to make a point that “this was never a good idea I told you that I had some emotional scars and I was right in that we shouldn’t even be together”.

  1. When the appellant was cross-examined the following occurred:   

  1. It was put to him that when he made the comment about kicking the door down he would have to know that would put fear in her mind and he said no.

  2. It was put that the beast remark would cause fear to the complainant and he answered that was in reference to something different. It was put that he would know that would cause her concern and he answered no. He went on to say that he did not understand that at the time that his actions would have caused fear.

  1. In re-examination in relation to the beast comments he was asked what they meant and he stated that he had confided to the complainant what his childhood was like and it was in reference to his father who was a raging alcoholic and that he was a beast and he had fears of becoming just like him through destroying a marriage, destroying the children’s family making, and decisions to terminate a pregnancy.

Determination

Count 1

  1. The elements of section 474.17 are:

  1. To use a carriage service; I am satisfied beyond reasonable doubt that this occurred.

  2. 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”. I determine in the following paragraphs whether this element in respect of each of the occasions the Crown relies upon has been made out beyond reasonable doubt.

  1. The calls on 6 May were made following the incident at the PCYC. The complainant and appellant were on my reading of the evidence, well affected by alcohol. As to the first call, on the versions of the complainant and officer Goodwin, there was a liberal use of profanity. I find this likely to be the case. However it was not put to the appellant that he had used those words. The appellant gave his version, profanity free, and was not challenged about that. Even accepting the words to be as per the complainant, my view is those words are not menacing, as in threatening. They are borderline harassing, but given the high standard on the Crown I do not find them to be so. In fact the words of the appellant on his own evidence are “if I have to be miserable you can be miserable too”, suggesting his purpose is to make her miserable, which I take to mean he is acting to that end, which I consider constitutes harassment. But that was not the Crown case; the Crown case here, at least on appeal, was that the appellant was being menacing (having the meaning discussed above) by the use of the words to the effect of not to bother to come to work, which the Crown argues constitutes a threat. In all the circumstances of the case, namely the volatility and intensity of the relationship, I would not find that conversation offensive. In my view, these conflicting versions result in reasonable doubt as to this first call being in breach of the section. Significantly however, even on the appellant’s more tempered version, the words of the complainant suggest she does not want to speak to him; she says, on his version “I didn’t call you why are you calling me”.

  2. The second call in my view constitutes harassment on any version of the words used. The appellant calls the complainant nasty, and says he hates her. A reasonable person in my view would consider it harassment to be rung up by a former (or possibly current) lover to be offered that gratuitous assessment. Further, s474.17 refers to the method of use of the carriage device, which I take to include repeated calls, as happened here. That in itself in these circumstances is harassment. I do not considering it menacing; the arguably veiled threat of not having a job is insufficient to meet the high standard required and so I do not consider it menacing. Subject to the issue I have raised about the nature of this appeal above, I would find beyond reasonable doubt that this second call constituted harassment. I would not find it offensive for the same reasons as stated for the first call.

  1. I make the same determination in respect of the third call as I do for the second call. I come to this conclusion because the offender’s own evidence is that he rang back to reiterate his point, that is, of the earlier second call. This is now the third call, so is harassing in these circumstances due to the manner of the use of the phone. Further, that the appellant’s friend had to take the phone off him supports this conclusion.

  2. The above reasoning takes account of the unreliability aspect of the complainant’s evidence.

  3. In summary therefore, concerning the calls of 6 May 2017:

  1. I am satisfied beyond reasonable doubt that the elements of the offence are made out in respect of the second and third calls on the basis that a reasonable person would in all the circumstance consider them harassing both by their content and the manner of the use of the phone. I am not satisfied beyond reasonable doubt that any of the three calls is either menacing or offensive.

  2. On the basis that the Crown ran its case at first instance on the basis that these calls were one of menacing, harassing or offensive, I find the offence has been made out. I will not however make orders based on this determination before first hearing from the parties as to whether it is open to me in the way this appeal has been conducted for that result to emerge. That is, is it open to the Crown to argue that the calls of 6 May are anything other than menacing? If it is not, then the charge would not be made out in respect of these calls on 6 May. If it is open to the Crown to so argue, then the charge is made out based on the second and third calls of 6 May.

  1. The message of 12 May is argued by the Crown to be a threat. I disagree. The previous text was “say something”. The text in question, consistent with that, is seeking to obtain a response. A threat would be to say the complainant is fired if she does not respond. This is saying, as you won’t respond I take it you are resigning. Nor in all the circumstances is this harassing or offensive.

  2. In terms of the calls / texts on 16 June 2017 the evidence in chief of the complainant at T39 is that she does not recall their exact nature and the evidence is then of what she believes they said. The time of these calls is said to be about 9-10 pm. In exhibit 5 there is some evidence of texts on this date; see at p6 of 27. I note firstly this style of message is consistent with my observations above, that a second or third message is a continuation of the preceding message. The background to these calls is of the complainant having left work and the appellant needing some information. Based on the messages that are evidenced, I am not satisfied beyond reasonable doubt that they are menacing, harassing or offensive. The most likely fault in them is to be harassing; chasing a work colleague for information at this time of night is clearly vulnerable to being so categorised. Yet these people had a history of frequent communication and not at conventional times. And it would seem the appellant was working late. Hence I am not satisfied beyond reasonable doubt in respect of these calls. I am even more of this view given that beyond the texts at p6 of 27 of exhibit 5, I cannot see where there is any evidence of these texts or of any voice messages, if any were in fact left.

  3. In short, beyond p6 of 27 there is no evidence of what the words on these messages were. The complainant frankly says that she cannot recall and that she did not read them. Without knowing the content, this charge could not be made out on the content basis. It arguably could be made out on the manner of use of the carriage service basis, ie so many messages in about an hour. However I am not satisfied on that basis given the message history of these people, and also of the nature of what I have described as “rolling” messages. I also consider the broad range of the number of calls / messages of between 50-100 to be unreliable. The appellant seems to accept in cross examination that there were 58 contacts on 16 June, but the transcript at T54-55 for 10 July refers to a time of 10.50am, so just how many were within the hour is not so clear. In any event the appellant’s evidence was that there was “an inordinate” (prosecutors words) number of calls, “at different stages”; that is, as I take it, at other times of their relationship.

  4. As to the calls/texts of 17 and 18 June 2017, I note in the judgement reference is made to a message sent on 17 June about a boy who was successful in a boxing title and that the complainant was pleased to hear this news. Thus although on the night before the complainant did not want to hear from the appellant this finding shows that she was pleased to hear from him the next day with this pleasing news. Frankly I have been unable to find a reference to that evidence in the transcript but no challenge was made by either party to this finding and I was not taken to any evidence of what the calls were on this day. I would be hesitant to accept the evidence of the quantity of calls put so broadly as 50-100 calls for the same reasons as above. The content of the calls/texts is not known so it could not be established beyond reasonable doubt that they were menacing, harassing or offensive. The only basis for the offence being made out based on calls/texts of 17 and 18 June could be frequency (the use aspect of the offence) but in my view the evidence is inadequate for this in the circumstances of the history of communication between these parties.

  5. There is also the character of the “rolling” message I have referred to above. And, if as seems to be accepted there was a pleasing call about the boxing on the 17th it is plainly wrong for the magistrate to have found that the calls on those dates in an all-encompassing statement were harassing.

Count 2

  1. The terms of s13(1) of the Crimes (Domestic & Personal Violence) Act are as follows:

13 STALKING OR INTIMIDATION WITH INTENT TO CAUSE FEAR OF PHYSICAL OR MENTAL HARM

(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

: Maximum penalty--Imprisonment for 5 years or 50 penalty units, or both.

(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

  1. It is accepted that this is an offence of specific intent as is made clear by subsection 1. Subsection 3 should also be noted so that if it is established that the defendant knows the conduct is likely to cause fear in the other person then they are deemed to have intended to cause the relevant fear.

  2. It should also be noted that the relevant intention is to cause fear of physical or mental harm.

  3. The elements of this offence are:

  1. That a person must intimidate another person (the Crown does not rely on stalking).

  2. With the intention of causing fear in the other person. I would note that intention equates to meaning something to happen.

  3. That the necessary fear is of physical or mental harm.

  1. For the reasons set out at [25] above I find the facts of this part of the matter to be as per the evidence of the appellant in chief as set out above and for convenience was of him hanging onto a door and saying “if you can’t hold your fuckin liquor why do you drink so much, why do you have to spoil everybody’s night and make everybody your problem?”

  2. As far as I can see in the transcript it was never put to the appellant that by acting this way he intended to cause the complainant to fear physical or mental harm. Further those words in all the circumstances can be viewed as somebody criticising the other person. This could lead to that person having a feeling of upset or disappointment or anger or regret. All these are reasonable alternative conclusions as to what might have been intended by the appellant none of which have been negated by the Crown. Nor is there any evidence that would satisfy me beyond reasonable doubt that subsection 3 of section 13 is made out, that is there is no evidence that the appellant knew that by so acting it would cause fear in the complainant.

  3. Arguably to speak in a drunken state a man to a woman in a critical way is intimidating so that the first element of the offence may have been made out. Let us assume that for argument sake, though I do not so find that to be the case here.

  4. Despite the appellant giving evidence there is no direct evidence of his intentions so that it needs to be inferred. This is the element I find is not made out for the reasons set out above. It is therefore not necessary to consider the third element.

  5. In my view the Crown is not satisfied me beyond reasonable doubt of count 2.

Count 3

  1. In assessing the facts concerning count 3, I note that this is another instance, just like the dismissed count 4 of it being a case of the word of the complainant against the word of the appellant.

  2. There are a number of different currents running in these events. There is the fact that there is the relationship that had previously existed between these parties. There is the fact that there was disharmony at the workplace earlier that day and no real reason not to accept that there was information that the appellant needed from the complainant in order to attend to some of his work tasks. Against that he has tried for some time to contact her without success suggesting that she does not want to have contact with him and therefore counter indicating a personal appearance by him at her home. Against that however is the unchallenged evidence of her previous ill-health and his assertions that he was concerned for her. The fact that she calls him to enquire after his well-being after he leaves the house is consistent with the parties having a level of concern for each other at this time. Furthermore the explanation of the beast remark also shows a degree of connection at this time not altogether consistent with a person seeking to intimidate the complainant with the intention of causing her fear for her physical or mental health.

  3. Having considered the evidence as set out above there remains a reasonable doubt in my mind as to whether what the appellant did on the evening of 16 June in attending at the complainant’s home amounted to intimidation. The evidence recounted above leave open a reasonable prospect that there was concern by the appellant for the complainant. I would find a verdict of not guilty on this basis alone. I would add however even if that was wrong there is express evidence by the appellant’s denials that he did not do what he did with the intention required by section 13. The matters just referred to suggesting a degree of connection between the parties of some concern give some support to this view. In saying that however it needs always to be borne in mind that it is not for the appellant to show that he did not have the intention of causing the necessary fear of physical or mental harm but it is for the Crown to prove that he did have that intention. In my view there is insufficient evidence to draw that inference contrary to the express denial of the appellant. Even if the evidence were sufficient there would remain a reasonable alternative conclusion namely that the conduct was carried out either for the misguided purpose of obtaining work information or to make enquiries as to the well-being of the complainant or both.

  4. The Crown has not satisfied me beyond reasonable doubt as to count 3.

Sundry matters

  1. There are two sundry matters to mention. Firstly it should be recognised that it became apparent in the course of the hearing that the particulars on the court attendance notices for counts 2 and 3 were in effect transposed. This meant that the facts alleged to constitute those offences as particularised in those notices did not match up with the evidence. Mr Manwaring for the appellant pointed out that this would appear to have been what happened and did not seek to take the point that without amendment those two counts would fail. Whilst that sort of frank concession is to be expected of a practitioner adhering to his duty to the court it is always refreshing to see it in action and it should be recognised and appreciated and it is. This also meant that there was no opposition to the application by the Crown to make the necessary amendment so that I formally give leave for that amendment to occur.

  2. The second sundry matter is the evidence of the appellant that he treated the complainant like shit. This was something noted by the Magistrate. This evidence emerged from a text message the evidence suggests was on 1 March so some 2 months before the first of the events particularised in any of the charges ultimately relied upon by the Crown and the message was not part of the matters relied upon for count 1, nor for that matter counts 2 or 3. Further that message which appears on page 12 of 27 of Exhibit 5 is in almost reconciliation tones and reads as one of the more sensible discussions between the appellant and the complainant. I place no weight on this text message other than it shows favourably to the appellant a willingness to make a concession, and I suspect that the Magistrate may have placed undue weight on it.

ADDENDUM

  1. These reasons were delivered subject to revision and without formal orders being made pending hearing from the parties as requested at [37(2)] above. The appellant initially informed the Court that he accepts that it is open to the Crown to rely on the calls of 6 May being harassing, and that the Crown is not limited to the finding of the Magistrate of the calls being menacing. However the Crown indicated otherwise and cited authority to the affect that where the Crown eschews a position, it is held to the position it did adopt. Accordingly the Crown stated its position on count 1 to be that if the calls of 6 May were not found to be menacing, even if, as I had found, that some of them were harassing. The Crown accepted that on my findings appeal should succeed as to count 1 and the charge should be dismissed. Accordingly, there will be orders to that effect.

Orders

  1. I make the following orders:

  1. Grant leave to the Crown to amend the particulars of counts 2 and 3 in the manner stated at [56] above.

  2. Appeal allowed.

  3. The verdicts entered in respect of counts 1, 2 and 3 are set aside and in lieu thereof counts 1, 2 and 3 are dismissed.

  4. The sentencing orders made in respect of counts 1, 2 and 3 are set aside.

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Decision last updated: 14 August 2020

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Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
Charara v R [2006] NSWCCA 244
B v Director of Public Prosecutions [2014] NSWCA 232