R v John David Leece Also Known As John Edward Quinlan [1995] ACTSC 28; (1995) 125 ACTR 1 (30 March 1995)

SUPREME COURT OF THE ACT

THE QUEEN v. JOHN DAVID LEECE also known as JOHN EDWARD QUINLAN
No. SCC60 of 1994
Number of pages - 7
Criminal Law
[1995] ACTSC 28; (1995) 125 ACTR 1

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Criminal Law - Crown case alleging "threat to kill" under s30 of the Crimes Act (NSW) as amended in its application to the ACT - meaning of "threat to kill" - must be more than mere threat to maim or injure - threat must be sufficient to entitle a reasonable person to interpret it as a threat to kill - discussion of United Kingdom and Canadian case law in the area - Crown evidence as outlined insufficient to make out a case under s30.

Crimes Act 1900, ss30, 31
Offences against the Person Act 1861 (UK), s16

Concise Oxford Dictionary (1984) Oxford, Clarendon

Doyle v Ranse [1991] ACTSC 46; (1991) 103 FLR 419
Carter v R, unreported, Court of Criminal Appeal, South Australia, Olsson J,

23 March 1994.

R v Cousins (1982) QB 526
Perry (1986) 8 Cr App R 132
R v Ross (1986) 26 CCC (3rd) 413
R v Remy (1993) 82 CCC (3rd) 176
R v McCraw (1991) 66 CCC (3rd) 517

HEARING

CANBERRA, 23 February 1995
30:3:1995

Counsel for the Crown: Mr S Madden

Instructing solicitors: ACT Director of Public Prosecutions

Counsel for the Accused: Mr J Purnell

Instructing solicitors: Gilpin and Associates

ORDER

THE COURT ORDERS THAT:

1. Further proceedings in the count against s30 of the Crimes Act 1900
be stayed.
2. Further proceedings in the count alleging assault also be stayed.

DECISION

HIGGINS J On 23 February 1995, Mr Madden, counsel for the Crown, handed up an indictment charging the accused, inter alia:

... That on the 16th day of July 1993 at Canberra in the Australian
Capital Territory JOHN DAVID LEECE also known as JOHN EDWARD QUINLAN
made a threat to Kelly Lesley Buttriss to kill the said Kelly Lesley
Buttriss intending the said Kelly Lesley Buttriss to fear that the
threat would be carried out or being reckless whether or not the said
Kelly Lesley Buttriss would fear that the threat would be carried out
and made the threat without lawful excuse and in circumstances in
which a reasonable person would fear that the threat would be carried
out.

2. Mr Madden informed me that the Crown would allege that, before 16 July 1993, the accused's wife, Ms Buttriss, had been aware that he had been in possession of a rifle. She had disabled it in December 1992. The accused became aware of that fact in January 1993. The relevance of these facts was not entirely clear.

3. On 16 July 1993, at about 9.30am, the accused awoke in an upset state caused by some sort of dispute concerning his employer. He had been unable to obtain some sort of a tax rebate to which he considered he was entitled.

4. He left home at about 9.45am. About 2.00pm he returned home. He told his wife that he had been "at the pub getting pissed". Indeed, his appearance was consistent with his statement. Ms Buttriss made him a sandwich. The accused repeated that he was still "pissed off" about not being paid $58.00 by the Taxation Department. He said, after eating the sandwich, that he intended to return to "the pub". She advised him that she was going out to pay some bills. She did so.

5. She was frightened of the accused at this time, for reasons which the Crown did not advert to and it may well be, unsupported by other evidence, that her state of mind at that time would not have been admissible in evidence.

6. However, she returned home about 6.00pm. The accused was not there. About 7.50pm she heard a crashing noise outside. She went to investigate. She discovered that the accused was in the process of driving his motor vehicle through the rear gates of the premises without first opening them.

7. The accused alighted from the car and staggered towards the laundry. There was a further crashing sound. Apparently, he crashed into and upset the garbage bin. It would be open to infer that some degree of aggression was displayed towards the bin. He was, at this time, swearing and yelling. He entered the house via the laundry. There was nothing except general drunken displeasure at the world at large being conveyed at this time.

8. Ms Buttriss proceeded, as best she could given their condition, to close the rear gates. She had in mind that their dogs might escape if the gates were not closed. She also had in mind to tidy the yard where rubbish had been scattered. As she was closing the rear gates, she heard the back door slam. She saw her husband standing outside the door near or under a fernery. The following exchange took place:

He said to her: What are you doing?
She said: It's me, John. I'm closing the gate.
He said (loudly): Come here, come here. We've got to talk.
She said (also loudly): Hang on, I'm closing the gate. I've got to
close the gates. I'll talk to you in the morning, when you're sober.
He said: Come here, I'm going to end this now.

9. At this point, Ms Buttriss observed that there was an object which resembled a gun in his left hand. It had a 90 degree bend in it. He then said, "Come here, I'm going to fix you once and for all".

10. She then heard a metallic clicking noise and fled. Ms Buttriss feared, at that point, that the accused had a gun and might discharge it at her.

11. Police later attended at the house. They found the accused in fact had a sawn-off single-shot shotgun. Police also found some unused shotgun shells. There had been a single blast fired within the house which had been aimed, it seems, at the telephone. The telephone had been an object of disputation between the accused and Ms Buttriss. The latter had, without the approval or knowledge of the accused, barred STD calls from the phone. That had prevented the accused using it to phone his children by a previous marriage. He had previously expressed resentment about that.

12. The indictment presented also charged other offences in relation to the possession and use of the firearm in question and damage to the property, which belonged to the Commonwealth and to Telecom.

13. Mr Purnell, for the accused, raised a question as to whether, if proved, the above facts would found a prima facie case for an offence against s30 of the Crimes Act 1900. It provides:

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.

14. Section 31 of the Crimes Act provides for a similar offence where the threat is "to inflict grievous bodily harm".

15. It is not open to a jury (or judge sitting alone) where a single count is presented under s30 to enter a verdict finding guilt under s31 if satisfied that a threat of serious injury has been made although not satisfied that a threat to kill has been made in the absence of a count in the indictment alleging also an offence against s31 in the alternative. There was no count in this indictment alleging an offence against s31 of the Crimes Act.

16. The Crown submission was that it was open to a tribunal of fact to construe the words used by the accused, if proved, as a threat to kill Ms Buttriss.

17. It should be noted that the Crown expressly eschewed any reliance on any past conduct of the accused which might have been construed as an attempt or threat to kill Ms Buttriss or which might place some special significance on his words or conduct in the circumstances.

18. It should first be said that there was nothing unreasonable in Ms Buttriss' state of apprehension. The accused was drunk and exhibiting a violent disposition. Whether or not she immediately appreciated that the accused had a firearm, it was reasonable for her to fear that he would be violent towards her. Given that he had some sort of weapon with him, she could reasonably fear serious injury. Once she became aware that he had a gun, it was open to conclude that she feared, again quite reasonably, that, whether intentionally or otherwise, the accused might kill or seriously wound her.

19. The question remains, however, whether it was open to construe the words and conduct attributed to the accused as a "threat to kill".

What is a "threat to kill"?
20. There is no real question as to what is meant by the word "threat". It is a declaration of intention: see Concise Oxford Dictionary (1984) Oxford, Clarendon. The intention so declared has to be that of ending the life of the person or persons allegedly so threatened.

21. The case of Doyle v Ranse [1991] ACTSC 46; (1991) 103 FLR 419 is not of great assistance in this matter. There was no doubt in that case that the threat was "to kill" rather than to maim or injure. I stated there at 423:

It is the threat uttered to which the notional fear must relate not
merely some other act of violence.

22. On the facts as found in the Doyle (supra) case, I held that a reasonable person would not have feared that the threat would be carried out. That issue does not arise in the present case.

23. The most recent case to which I was referred was Carter v R, unreported, Court of Criminal Appeal, South Australia, Olsson J, 23 March 1994. That was a case in which the words spoken referred expressly to killing someone. It is, therefore, also distinguishable from the present case.

24. There is some assistance to be found in authorities concerning s16 of the Offences against the Person Act 1861 (UK) (the UK Act). That section reads (relevantly):

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

25. Until 1977 the word "maliciously" had been used instead of "without lawful excuse". In R v Cousins (1982) QB 526 it was considered that a "lawful excuse" might be self-defence. No suggestion of self-defence arises in the present case.

26. It has also been held that an utterance might be accorded the character of a "threat to kill" by reason of previous circumstances even if it is not literally so expressed.

27. In Perry (1986) 8 Cr App R (s)132, the appellant had previously shot and seriously wounded his wife. He had then turned the gun on himself. Both survived. He was sentenced to imprisonment. On his release he phoned his, by then, ex-wife. He referred, at 133, to his intention to "finish off what he had not succeeded in finishing off earlier".

28. Croom-Johnson LJ, at 133, held that this was "a clear reference to the fact that when he had shot her with the shotgun he had not killed her ...". It was, therefore, a threat to kill her.

29. That case is also distinguishable from the present matter. In this case, there is no previous such history of which evidence was to be tendered.

30. I turn now to the Canadian authorities. The Canadian Criminal Code had proscribed threats to kill only in the context of a communication by "letter, telegram, telephone cable, radio, or otherwise". That had been held not to include an oral communication directly conveying a threat to kill. The Code was amended in 1985 to provide:

Every one commits an offence who, in any manner, knowingly utters,
conveys or causes any person to receive a threat
(a) to cause death or serious bodily harm to any person ...

31. In R v Ross (1986) 26 CCC (3rd) 413 the respondent told an assistant bank manager, who had told him that his bank account was frozen by court order, that he was going home to get his gun. He would then go to see the sheriff and return to the bank. He later rang the police station to threaten that, if a police officer did not leave the vicinity of his residence, that police officer would be "shot". It was unnecessary for the purpose of the Code to decide whether that threat was a threat to cause death or merely to cause "serious bodily harm".

32. The trial judge found the officer had been "warned" rather than threatened. The appeal court (Morden, Grange and Finlayson JJA), held that a conditional statement as uttered by the accused may be a "threat" of the relevant kind.

33. However, it seems to me that a threat to "shoot" a person would not, without more, convey an intention to kill rather than an intention to cause serious bodily injury. It would, no doubt, convey an intention, at least, to cause serious injury.

34. In R v McCraw (1991) 66 CCC (3rd) 517, Cory J stated at 525:

... the nature of the threat must be looked at objectively, that is,
as it would be by the ordinary reasonable person. The words which are
said to constitute a threat must be looked at in the light of various
factors. They must be considered objectively and within the context
of all the written words or conversation in which they occurred. As
well, some thought must be given to the situation of the recipient of
the threat.
The question to be resolved may be put in the following way. Looked
at objectively, in the context of all the words written or spoken and
having regard to the person to whom they were directed, would the
questioned words convey a threat of serious bodily harm to a
reasonable person?

35. There is also the case of R v Remy (1993) 82 CCC (3rd) 176. In that matter, the accused had told a newspaper reporter that he would kill the next police officer who killed a black person in circumstances similar to a recent event. The fact that the specific person to be killed was not identified held not to take the case out of the scope of the Code. Delisle JA referred to the words uttered and said of them at 187:

Examined in the context in which these words were uttered, I have no
hesitation in concluding that a reasonable person would perceive them
as a threat to cause death.

36. Proulx JA noted at 180:

Contrary to what the appellant submits, his words were not purely
hypothetical insofar as the victim is concerned ...

37. One may infer from these quotations that to be a threat to kill, the relevant utterance or communication must convey, objectively, to the hypothetical reasonable person in the position of the listener or recipient that the publisher proposes to kill the listener or recipient or another person. If it conveys a merely hypothetical proposal that will not suffice, but a conditional threat, particularly when the person threatened is entitled not to meet such conditions, will suffice as "a threat". There may, of course, be a fine line between such a conditional threat and a merely hypothetical one.

38. The Canadian Criminal Code, of course, covers threats to cause serious bodily harm as well as death. I have to be able to conclude that the words uttered by the accused towards his wife objectively conveyed, in the circumstances in which he uttered them, not merely an intention to inflict serious bodily harm, but, specifically, that he intended to kill her.

39. In McCraw (supra) the threats were of intent to rape the recipients of the threats. The Supreme Court of Canada decided (La Forest, L'Heureaux-Dube, Spinka, Cory, McLachlin, Stevenson and Iacobucci JJ), that those threats were threats of "serious bodily harm" and would be so perceived by any reasonable person. Even though rape is sometimes accompanied by the death of the victim, it was not suggested that the threat to rape could be construed as a threat to kill.

40. In this case, the terms of the stated intention of the accused can be construed as being to cause bodily harm to Ms Buttriss. It matters not that he may have intended only to shoot the telephone as he in fact did. It is what his posture, conduct and words conveyed that is relevant to the construction which his words and conduct are reasonably capable of bearing.

41. However, there was no indication from the alleged conduct of the accused that he was expressing an intention to kill Ms Buttriss. In the circumstances alleged by the Crown, it is not possible so to construe what was said. It is at least equally likely that the words would convey to the reasonable bystander, an intention to cause serious bodily harm short of death.

42. If there had been a history of threats expressed in part as the accused expressed himself on 16 July 1993 so as to supply a meaning "I'm intending to kill you", the element missing in the circumstances alleged of an expression of an intention to kill, the Crown would have had a prima facie case.

43. I pointed out to Mr Madden that the issue was not capable of resolution by evidence from Ms Buttriss that she feared for her life when she realised the accused had some sort of firearm in his possession. That fear need not necessarily have been generated by the objective circumstances or, indeed, by an understanding of the words uttered by the accused as a statement of an intention on his part to kill her. It would be entirely reasonable to suppose that it arose from a fear that, whatever the accused intended, it was possible that he might shoot her fatally given his state of drunkenness and agitation.

44. In any event, it was the character of the expressed threat which was at issue, not the reasonableness or otherwise of Ms Buttriss' fear.

45. I therefore ruled, on 23 February 1995, that the Crown case, if it conformed to Mr Madden's expressed expectations, would be insufficient to make out a case under s30 of the Crimes Act. I stayed further proceedings on that count accordingly.

46. The Crown, in consequence, invited me to stay the count alleging assault. There having been no presentation of the weapon or a threat to use it by discharging it at Ms Buttriss, it was conceded that count would have no prospects for success in the circumstances. It was stayed also.