Colin Patrick Doyle v Gregory Stewart Ranse Sca [1991] ACTSC 46; (1991) 103 FLR 419 (17 July 1991)

SUPREME COURT OF THE ACT

COLIN PATRICK DOYLE v. GREGORY STEWART RANSE
S.C.A. No. 22 of 1991
Appeal from Magistrates Court
[1991] ACTSC 46; (1991) 103 FLR 419

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Appeal from Magistrates Court - Threat to kill - S.30 Crimes Act 1900 (NSW) - Appellant noticably affected by alcohol and/or drugs - Whether actions constituted a crime - Mens Rea - Recklessness - Whether reasonable person would fear that threat would be carried out - Failure by Magistrate to give relevant reasons - Status of hearing - No explicit election by counsel to have matter dealt with summarily.

Crimes Act 1900 (NSW), s.30

Offences against the Person Act 1861 (UK), s.16

Pettitt v Dunkley (1971) 1 NSWLR 376

R v Cousins (1982) QB 526

R v Solanke [1972] UKHL 7; (1970) 1 WLR 1; (1969) 3 All ER 1383

R v Syme (1911) 6 Cr App Rep 257

R v Crabbe [1985] HCA 22; (1985) 156 CLR 464

HEARING

CANBERRA
17:7:1991

Counsel for the Appellant: Mr J. Brewster

Instructing solicitors: Legal Aid Office (A.C.T.)

Counsel for the Respondent: Mr S. Madden

Instructing solicitors: Director of Public Prosecutions

ORDER

The appeal be upheld.

The conviction and penalty be set aside. In lieu thereof, a verdict of acquittal be recorded. The information be dismissed.

DECISION

About 5.00pm on 26 October 1990, the appellant attended the Ainslie Pharmacy. He was in the process of withdrawing from heroin. His doctor had prescribed Rohypnol, a powerful tranquilliser. On that day he had drunk alcohol with Rohypnol.

2. His purpose in attending at Ainslie Pharmacy was to obtain a further supply of Rohypnol. He had a valid prescription for the purpose.

3. Ms Needham was the pharmacist on duty. She noticed the appellant was swaying when he gave her his prescription. She said it would take ten minutes. She noticed that he was staggering as he walked out.

4. He returned a few minutes later and was told, notwithstanding his Health Care card, that he would have to pay for the Rohypnol. He was seen to be swaying.

5. Ms Needham also said to the appellant on this occasion (and I assume this reflected the facts):-
"I couldn't dispense the prescription. I contacted the Doctor

and Health Authority and they said not to dispense it. That if
you need any tranquillizers you have to go to the Woden Drug and
Dependence Unit, Woden Hospital to get them."

6. The following conversation ensured:-

Appellant: "Fuck, I want the script back."
Needham: "I can't give it back to you, it's already in the post
box to be sent to the Doctor."
Appellant: "Fuck."

He continued to swear and demand the drug.

Needham: "No you can't have them."

7. Appellant began to leave. He said:- "Fucking bitch." He then turned to her at the doorway and said:-

"I'm coming back at 6.30pm with a shotgun to
blow your fucking head off."

He hit the door with his fist and left.

8. Not surprisingly, Ms Needham was shaken, frightened and upset by this exchange.

9. About ten minutes later the appellant returned. He spoke again to Ms Needham.

Appellant: "I walked all the way from Dickson to here.
I need my tablets. I have to have them. What do
you want me to do? I have to go out and rob now to get
some money. I want my script back. I know you've got
it there. You'll be sorry. I hope you haven't got any
family."

He then left. Ms Needham, again understandably, was scared and shaking.

10. When later interviewed by police on 27 October 1990 at 12.30am the Appellant said:-

A28 "I went there, ahh trying to get a
prescription of Rohypnol and I was unable to do so, become
abusive in relation to the matter."
Q37 "Why was it that the prescription wasn't
given?"
A "Because I didn't have the money to do it
and she'd also rang up the doctor or just got a prescription off
him, but told her that I didn't have a form.

11. That exchange is a mixture of correct recollection and confused recollection. He described his reaction:-

Q42 "When the female shop assistant in the
chemist informed you that, ah your prescription wouldn't be,
wouldn't be issued - what was your immediate reaction to this?"
A "Upset, I was upset and angry because I used
it, I needed it."

He was asked if he realised he'd frightened Ms Needham.

A43 "I must of, yes, I must have yeah."
Q53 "Did you believe you were, you were right in
abusing the chemist or..."
A "No I wasn't, it was wrong and it shouldn't
have happened, so I am
very sorry (he refers to apology)...it's just I wasn't in the
state of mind to do it."
Q54 "Why did you do it?"
A "I think mainly because I was up in the
influence of..., it didn't help, did not have control of what I
was doing or full control of what I was doing."
Q57 "Do you recall making any specific threats,
threats to the girl?"
A "No I don't."

(The conversation concluded at 12.40am.)

12. Following that conversation, the appellant was charged as follows:-

"That he, (the appellant) in the Australian Capital Territory,
on the 26th October, 1990, did make a threat to another person,
namely, Collette Needham, to kill the said Collette Needham and
was reckless whether or not the said Collette Needham would fear
that the said threat would be carried out and did make the said
threat without lawful excuse and in circumstances in which a
reasonable person would have feared that the said threat would
have been carried out."

13. Clearly, the appellant had a general recollection of the incident. He understood the general effect of his conduct when he spoke to police some seven hours after the incident. Constable Williams, at that later time, found him to be "fully alert".

14. This contrasted with his condition at the Ainslie Pharmacy between 5.00pm and 5.30pm (approximate times), some seven hours earlier.

15. Ms Needham gave evidence that, when she saw the appellant, he "was having trouble standing up", he was "off his face". The latter remark she explained as:-

"...he could hardly stand up properly. He was sort of staring
out to space a bit. He staggered in and out."

16. She agreed with his Worship that the appellant was markedly under the influence at least of drugs. She confirmed this impression quite graphically in cross-examination.

17. Ms Needham also gave expert evidence about the effect of Rohypnol, particularly with alcohol. She said:-

"There has been quite a few deaths when it is taken with
alcohol, large quantities."

18. Although no-one expressly said so, I infer that the doctor requested that the prescription be returned out of concern for the appellant lest the Rohypnol be mixed with other drugs.

19. The learned Magistrate, having found a prima facie case, asked the prosecution whether there was objection to the matter being heard summarily. The prosecutor did not object.

20. At the conclusion of that conversation his Worship said:-

"All right. Very well. I think in the circumstances it is
appropriate that the matter be dealt with summarily if that is
what the defendant wishes to happen. You can think about that.
We will adjourn now."

21. It is true that at the beginning of the hearing Mr Jasinski, for the appellant, indicated that he would be asking his Worship to try this matter summarily. There was an associated committal matter not being summarily dealt with. As a result, his Worship decided, it seems, to proceed as follows:-

"Yes, all right. But the general concern about mixing matters
up is mixing up summary and indictables, which present a
problem. I cannot see any reason why we cannot take her
(Ms Needham's) evidence once in relation to all matters,
including the matter that you are going to ask me to deal with
summarily, and when we come to the summary hearing, if that is
what we ultimately do, well, then we only regard the part that
is really relevant to the third charges, being evidence that we
are concerned with."

22. Following the adjournment, however, the appellant proceeded to give evidence. He was entitled to do so whether the matter proceeded as a committal or as a summary hearing. Neither he nor his counsel had expressly elected to take up his Worship's invitation. He had been charged as required by the Magistrates Court Act in the case of a committal.

23. The appellant's evidence supported his statement to police. He did not resile from it to any extent under cross-examination.

24. The matter was adjourned without any further reference that I can find, to the status of the hearing the matter.

25. On 17 December 1990, his Worship returned to this matter. He said:-

"So far as the matter that is part-heard before me, in the sense
of summary trial, I am quite satisfied beyond reasonable doubt,
particularly on the evidence of Collette Needham that your
client (a reference to the appellant) was the one responsible
and that the offence is made out beyond reasonable doubt. I
find that offence proved."

26. Not only are the reasons brief. They are puzzling. The appellant had never raised identification nor had he denied saying those things he was alleged to have said. He disputed whether what he did constituted a crime, including a question as to whether he had "mens rea". Identification, it seems, is or was a major issue only in the accompanying matter. It may be that his Worship confused one matter with the other. Whatever the explanation, there was still no express statement before verdict consenting to summary trial noted on the transcript before me.

27. There is, however, a note on the bench sheet -

"13.12.90 Jasinski for deft.
Elects summary trial.
Decision reserved."

28. I do not have any record of the material on which it could be concluded that the defendant elected summary trial except that which I have mentioned.

29. In any event, the failure to give relevant reasons for decision is, in itself, an error of law (see, for example, Pettit v Dunkley (1971) 1 NSWLR 376).

30. On 18 February 1991, his Worship recorded a conviction and sentenced the appellant to two years imprisonment with a non-parole period of eight months.

31. On 11 March 1991, a Notice of Appeal was filed. The hearing before this Court took place on 4 July 1991.

32. I assume, without deciding, that the appellant had validly elected summary trial. On that assumption, I have to determine first whether he was rightly convicted and, if so, whether the sentence was excessive.

33. The offence is specified in s.30 Crimes Act 1900 (NSW). It was inserted into that Act on 15 June 1990.

"30. Where:
(a) a person makes a threat to another person to kill that
other person or any third person:
(i) intending that other person to fear that the
threat would be carried out; or
(ii) being reckless whether or not that other person
would fear that the threat would be carried out; and
(b) the threat is made:
(i) without lawful excuse; and
(ii) in circumstances in which a reasonable person
would fear that the threat would be carried out;
the first-mentioned person is guilty of an offence punishable,
on conviction, by imprisonment for 10 years."

34. There is no doubt that the appellant's words constituted a threat to kill. There was no evidence, however, led from Ms Needham that she feared that the threat would be carried out. Certainly, the appellant was not then armed.

35. The offence is in some respects, save the latter, the same as s.16, Offences Against The Person Act 1861 (UK). That offence is defined as follows:-

"16. A person who without lawful excuse makes to another a
threat, intending that the other would fear it would be carried
out, to kill that other or a third person shall be guilty of an
offence...10 years."

36. Section 30 differs only in the express reference to recklessness and the further element that the circumstances in which the threat is made be such that,

"a reasonable person would fear that the threat would be carried
out".

37. In R v Cousins (1982) QB 526 the Court of Appeal held that a threat to shoot someone "when I see him", intending the hearer to believe he was serious was a "threat to kill" contrary to s.16.

38. It is not to the point, self defence or other lawful excuse for making the threat aside, that the person uttering the threat was intending to achieve an innocent objective (for example, to get a lawfully valid prescription filled), nor that he had no intention of carrying out the threat. (See R v Solanke [1972] UKHL 7; (1970) 1 WLR 1; (1969) 3 All ER 1383; R v Syme (1911) 6 Cr App Rep 257.)

39. Of course, Ms Needham reasonably feared that the appellant, clearly drug affected and being denied further supplies, might then and there turn violent. She did not say she feared he would return with a shot gun as he threatened.

40. Assuming the appellant had intended what he said to be taken seriously, it does not follow that the objective test in s.30(b)(ii) would be satisfied. Indeed, that objective test was plainly designed to exclude from punishment those threats which, even if they were intended to be taken seriously, would not be so perceived by a reasonable person.

41. If a note or phone call had been delivered so that the person to whom the threat was conveyed did not have the opportunity to see the appellant, or if the appellant had displayed a shotgun it may have been reasonable to fear that the threat would be carried out. It is the threat uttered to which the notional fear must relate not merely some other act of violence.

42. I am not satisfied that, in the circumstances deposed to by Ms Needham, a reasonable person would fear that the threat would be carried out. Such a hypothetical person would reasonably be apprehensive about some form of violence being perpetrated by the appellant. However, it was likely such person would conclude that the appellant was "off his face" and making a threat intended to be specifically acted on.

43. Further, in this case, the appellant's obvious intoxication when the threat was uttered, combined with his stated history of recent drug and alcohol consumption and lack of memory of the threat raised two matters. First, that he was to be believed (or, at least, not disbelieved) when he claimed a lack of recollection. Indeed, his Worship gives no indication that he disbelieved the appellant. Second, that the statement may not have been made intentionally or even voluntarily, let alone have been intended to create the fear referred to in s.30(a)(i) or with the necessary advertence to consequences contemplated by s.30(a)(ii). (See R v Crabbe [1985] HCA 22; (1985) 156 CLR 464, R v Coleman (1990) 19 NSWLR 467.)

44. To be satisfied that the appellant had the necessary state of mind, it is not necessary to find that he recollects having the relevant advertance to consequences. However, in the light of the evidence as to his apparent mental state when seen by Ms Needham, an expert not biased in his favour, it is impossible to be satisfied that the appellant had, when the threat was uttered the necessary advertence to be "reckless" as alleged.

45. It follows that the appeal must be upheld. I set aside the conviction and penalty. In lieu thereof, I record a verdict of acquittal and dismiss the information.

46. I will hear the parties as to costs.