Wrightson v Holmes
[2000] WASCA 35
•24 FEBRUARY 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WRIGHTSON -v- HOLMES [2000] WASCA 35
CORAM: STEYTLER J
HEARD: 31 JANUARY 2000
DELIVERED : 24 FEBRUARY 2000
FILE NO/S: SJA 1183 of 1999
BETWEEN: BRETT ERNEST WRIGHTSON
Appellant
AND
MICHAEL THOMAS HOLMES
Respondent
Catchwords:
Criminal law - Particular offences - Miscellaneous offences and matters - Breach of violence restraining order - Appeal against conviction - Appeal allowed - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Representation:
Counsel:
Appellant: Mr R G W Bayly
Respondent: Ms C Bathurst
Solicitors:
Appellant: Bayly & O'Brien
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Driscoll v The Queen (1977) 137 CLR 517
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gebert v The Queen [1992] SASR 110
Jones v Hyde (1989) 63 ALJR 349
Kelly v The Queen [1999] WASCA 264
McLeod v Buchanan [1940] 2 All ER 179
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220
R v Briggs (1987) 24 A Crim R 98
R v Zorad [1979] 2 NSWLR 764
Shave v Rosner [1954] 2 KB 113
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
STEYTLER J: This is an appeal, by leave, against the appellant's conviction, in the Perth Court of Petty Sessions, on a charge of breaching a violence restraining order.
The appellant was married to the complainant, Linda Ann Wrightson. However their relationship deteriorated to the point at which they separated and later divorced and a restraining order was taken out against the appellant at the behest of the complainant. One of the terms of that order was that the appellant should not "cause or allow" any person to engage in conduct of the kind prohibited, including communicating or attempting to communicate with the complainant.
The prosecution case was that on 6 May 1999 the appellant caused his girlfriend Julie Claire Davies to make "nuisance" telephone calls to the complainant.
The complainant gave evidence at the trial. She said that she was at her home on the night of 6 May 1999. At approximately 11.40 pm on that night the telephone rang. The caller said nothing when she answered and she removed the handset of the telephone from its resting place for a period of two minutes. Thereafter she restored the handset to its resting place. However the situation was repeated and the telephone rang four times. On each occasion the caller said nothing.
The complainant said that, at the time of taking the telephone handset off its rest, she noticed a car near the side of her house flashing its lights into her home. She did not recognise the car. There were two or three people in it.
The complainant knew of Ms Davies and said that in November 1998 (prior to the restraining order being taken out) Ms Davies had telephoned her at 2 o'clock in the morning and made a number of accusations against her.
Ms Davies was called by the Crown. She said that on the evening of 6 May 1999 she went out to dinner with the appellant. She said that she returned home at about 11.30 pm and that she then telephoned the complainant. She was asked whether she had ever previously telephoned the complainant and she said that she had not. She was asked why she telephoned her on that night and said that she did not remember. When asked whether the appellant had asked her to ring the complainant she said "No".
She said that she telephoned the appellant on his mobile telephone several times that night. At first she said that she was unable to speak to him as she "got cut off". Thereafter she said she could not remember if she spoke to him. She said that she tried to contact him after 11.30 pm when he had dropped her off at her house.
Later in the course of her evidence she acknowledged that she had telephoned the complainant previously in an attempt to contact the appellant. She could not remember the dates.
The prosecutor thereafter informed the Magistrate that Ms Davies had previously given a statement to the police which was contrary to her evidence in court. The Magistrate declared her to be a hostile witness and permitted the prosecutor to cross‑examine her. The prior statement which Ms Davies had given to the police was thereupon put to her. She acknowledged that she said, in that statement, that after 11.00 pm on 6 May 1999 she and the appellant had been talking, at her home, about the appellant's ex‑wife, the complainant. She said, in her statement, that the appellant suggested to her (apparently while still in her home) that she ring his ex‑wife and then hang up. She said that he told her what number to ring. She went on, in her statement, to say that when the complainant answered the telephone she hung up and that, a short time later, she rang up again and then hung up again when the complainant answered. She said, in the statement, that she was not sure how many times she rang the complainant at that time.
Ms Davies said in her evidence before the court that what she had said in the statement given by her to the police was untrue. She said that the police did not want to hear the truth and so she told them "what they wanted to hear". She said that they threatened to charge her. She said that the truth was that the appellant had no knowledge of the telephone calls made on 6 May 1999.
It was put to Ms Davies that she had, at 11.35 pm on 6 May 1999, telephoned the appellant on his mobile telephone number and that she had a conversation with him for 3 minutes and 26 seconds. She said that she did not remember and that the telephone "drops out all the time". It was put to her that Telstra records showed that she phoned the complainant 7 minutes later at 11.42 pm. She acknowledged that that could be possible. She also acknowledged that at 11.45 pm she rang the appellant's mobile telephone number, that she rang that number again at 11.47 pm, that she rang the complainant at 11.48 pm, that she rang the appellant's mobile telephone number immediately thereafter, that she rang the appellant's mobile telephone number again at 11.49 pm and 11.50 pm, that she rang the complainant at 11.51 pm and 11.52 pm, that she rang the appellant's mobile telephone at 11.55 pm and that she rang the complainant at 11.57 pm.
It was also put to Ms Davies in the course of cross‑examination that she had, in her evidence‑in‑chief, given as her reason for ringing the complainant the fact that she had wanted to speak to the appellant but that she had, in truth, known where he was. She responded by saying that she had not known where he was.
Later in the course of cross‑examination Ms Davies said that she had had no ulterior motive in ringing the complainant's telephone number and that she might have left a message on the appellant's voice mail. However she also said, in response to a question whether she spoke to the appellant on the telephone that night, that she thought that they had "got cut off several times". She denied that the appellant told her, at any stage, to contact the complainant.
Finally I should add that, in the course of her evidence, she said that her purpose in trying to contact the appellant was that she wanted to have him stay with her that night.
At the conclusion of the Crown case the appellant submitted that he had no case to answer. This found no favour with the learned Magistrate and the appellant gave evidence.
He said that after dropping Ms Davies off on the night of 6 May 1999 he drove to his parents' house in order to go to bed. He said that he had his mobile phone with him but that it was switched off. He said that he consequently did not speak to Ms Davies after leaving her home. He said that his mobile phone diverts to his car phone which has voice mail on it. He could not remember whether or not there were any messages from Ms Davies on the following morning.
The learned Magistrate, in the course of his reasons for decision, rejected the evidence of Ms Davies. He found that she was not credible. However he accepted that she made the various telephone calls the subject of the Telstra records, including one for 3 minutes and 26 seconds to the appellant's mobile telephone number.
After referring to the telephone records the learned Magistrate said:
"So, I would have to find that that evidence is just too strong. His [the appellant's] denial that he received calls from her [Ms Davies], of course, doesn't really answer the question why she would phone him for … 3 minutes 26 [seconds], … [1 minute 15 seconds], and then these other calls at the end -- 2 minutes 16 [seconds], interspersing calls to Mrs Wrightson … [T]he only inference that can be drawn from that was that he was a party to these phone calls and it was at his instigation or at least with his knowledge; and as she had no interest in Mrs Wrightson I would have to find that he's put her up to it. So, … [I] find the charge proved beyond reasonable doubt."
The appellant pursued only two grounds of appeal. The first was that there was no evidence upon which the appellant could be convicted and the second, which really covered the same proposition, was that the conviction was unreasonable and could not be supported by the evidence.
Essentially the appellant's contentions centred around the proposition that there was no evidence that he was a party to the telephone calls made to the complainant by Ms Davies.
There is no doubt that there was no direct evidence to that effect. The complainant did not know who had telephoned her or why. Ms Davies, in her oral evidence, denied that the appellant had encouraged her to make the telephone calls to the complainant and said that he had not known about them. Her prior statement to the police to the effect that it was the appellant who had suggested that she telephone the complainant was admissible only for the purpose of attacking her credit and not for the truth of its contents (see Driscoll v The Queen (1977) 137 CLR 517 at 536). The appellant himself denied that he had known of the telephone calls.
It consequently followed that the appellant could only be convicted if the inference drawn by the learned Magistrate was the only reasonable inference available on the evidence.
While I am unable to accept the contention advanced by counsel for the appellant that the inference drawn by the learned Magistrate was one which was not open to him at all it seems to me, with due respect, that the learned Magistrate erred in finding that it was the only reasonable inference which might be drawn from the admissible evidence.
It seems to me that, notwithstanding Ms Davies' lack of credibility as found by the learned Magistrate, there remained, on the admissible evidence, a reasonable possibility that she had acted on her own in telephoning the complainant. Ms Davies had previously telephoned the complainant and the prospect is consequently open that she still had the complainant's telephone number. Also, if the appellant did urge Ms Davies to telephone the complainant some question, at least, arises as to why he would have done so only in the course of a telephone conversation on his mobile telephone after dropping Ms Davies off, and not prior to then. There is nothing to suggest that he was one of the occupants of the vehicle observed by the complainant and, indeed, it seems unlikely that it was his vehicle having regard for the fact that there was more than one person in it.
Moreover there is no explanation why so many calls should have been made to his mobile telephone number in between the calls made to the complainant. Nor is there any explanation for the gap of some minutes between the first telephone call to the appellant's mobile telephone number and the first call to the complainant.
It consequently seems to me that it is simply not open on the evidence, particularly in circumstances in which there was no evidence directly implicating the appellant, to exclude other reasonable possibilities than that accepted by the learned Magistrate as, for example, that Ms Davies had herself independently decided to harass the complainant or that suggested by counsel for the appellant to the effect that Ms Davies had telephoned the complainant in order to make sure that the appellant had not gone to her home. The second of these possibilities, while I would not regard it as more probable than that found by the learned Magistrate, is reasonably open in circumstances in which so many telephone calls were made to the appellant's mobile telephone number with the calls to Mrs Wrightson's telephone number being interspersed among them.
In all of the circumstances it seems to me that it would be unsafe to allow the conviction to stand. I consequently propose to uphold the appeal and to quash the conviction.
0
2
1