Frank Patrick Barbaro v David Patrick Quilty [1999] ACTSC 119 (11 November 1999)

Last Updated: 12 November 1999

FRANK PATRICK BARBARO v DAVID PATRICK QUILTY [1999] ACTSC 119 (11 November 1999)

CATCHWORDS

CRIMINAL APPEAL - appeal from Magistrate - appellant convicted of making an intentional threat to kill during an argument with relative - history of mutual violent verbal abuse - whether Magistrate erred in law in finding offence established - elements of the offence considered - two elements not established - not established that a reasonable bystander would conclude that the appellant actually intended to attempt to commit murder - not established that the appellant's intention was to cause the person threatened to believe that the threat would actually be carried out - appeal upheld.

Crimes Act 1900, s 30

State Rail Authority of New South Wales v Earthline Constructions P/L (in liquidation) [1999] HCA 3; (1999) 160 ALR 588

Doyle v Ranse [1991] ACTSC 46; (1991) 103 FLR 419

R v Leece 125 (1995) ACTR 1; (1996) 65 FCR 544; 86 ACrimR 494

Tuberville v Savage (1669) 1 Mod. 3

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 95 of 1998

Judge: Higgins J

Supreme Court of the ACT

Date: 11 November 1999

IN THE SUPREME COURT OF THE )

) No. SCA 95 of 1998

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: FRANK PATRICK BARBARO

Appellant

AND: DAVID PATRICK QUILTY

Respondent

ORDER

Judge: Higgins J

Date: 11 November 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The conviction and penalty are set aside.

3. In lieu thereof, the information is dismissed.

1. On 13 October 1998, the appellant was convicted by Magistrate Doogan of making an "intentional threat to kill". The charge was laid on 26 October 1997. It alleged that the applicant:

"...in the Australian Capital Territory, on the 25^th October 1997, did make a threat to another person, namely, Robyn Jones, to kill the said Robyn Jones and did intend that the said Robyn Jones 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."

2. This is an appeal against that conviction.

3. Such conduct, if proved, constitutes an offence against s 30 of the Crimes Act 1900 (ACT) punishable, on conviction, by imprisonment for ten years.

4. The person named in the charge, Robyn Jones, gave evidence that she had known the appellant for sixteen years. He was married to her cousin. She had, with her husband, been co-proprietor of a business known as "Sugar Plum" in Federation Square, Gunghalin. That business had, as at that date, been sold. It was a sweets shop.

5. Although not the subject of this appeal, it also appeared that, in September 1997, Ms Jones had obtained an interim restraining order against the appellant. That order purported to prohibit the appellant from, inter alia:

* threatening to cause personal injury

* harassing, threatening or otherwise intimidating the applicant and "the children"

* being on the following premises (inter alia)

"Sugar Plum", Federation Square, Gungahlin being premises at which the Applicant works

* approaching within one hundred metres of the Applicant and "the children" except at Court.

6. Ms Jones deposed that she had sought that order because of:

"Continuous phone calls and threats from Mr Barbaro."

"He would tell me that he was going to have me done in. He would ring Coffs Harbour all the time saying he would come up to take our car and things like that and he had someone to do us both in, my husband and my children."

7. On 25 October 1997, she was at "Sugar Plum". She was working there that day. An associate of the appellant, Mr Zoran Troselj, entered those premises and asked to speak to Rob Jones, Ms Jones' husband. He had two sons of the appellant with him though, perhaps, only one initially. They had wanted to buy sweets. She phoned her husband and handed the phone to Mr Troselj.

8. She then, as she put it, "immediately took off next door". When asked why she did that she responded that she wanted to get her friends next door to come and see that "he" was in her shop.

9. As she returned from those next door premises she saw the appellant seated in a car about twenty metres away from those premises.

10. Mr Troselj emerged and told her to go back into her shop and "do as I was told". She replied, she said, "I wouldn't and that I was going to ring the police".

11. At about the same time, she said, the appellant "...moved his arm like that" [apparently an indecent gesture] and said either "You are going to be dead tonight slut" or "You will be dead tonight slut."

12. She then said "All right, I will ring the detective."

13. Mr Troselj went to the car and said words to the effect that she would be "dead tonight".

14. She further stated that she felt "scared" by these threats and took them "seriously", "because I know Frank".

15. She agreed that she did not see any weapon. However, she stated that she feared that the threat would be carried out "with a gun". She said she had seen a gun in the appellant's possession four to five years before.

16. Ms Jones, in cross-examination, denied a suggestion that she had made threatening and harassing phone calls to the appellant. She denied that there had been a falling out between their two families over a loan of $5,000 made by the appellant to assist Ms Jones and her husband in a dressmaking business. The falling out, she claimed, was over an incident at her father-in-law's funeral in September 1997.

17. She agreed that her husband had "probably" threatened the appellant in the course of a phone conversation between them and, contradicting her previous assertion, conceded she "probably" also spoke with the appellant on that occasion.

18. Mr Hovan, for the appellant, then played a tape recording, purporting to be of a conversation over the telephone, between the appellant and Mr & Ms Jones. It revealed obscene, abusive and threatening conversation emanating from each of them.

19. She conceded that on 25 October 1997 she had yelled at the appellant when she first saw him, to the effect that "he wasn't supposed to be anywhere near me." That is, contradicting her assertion that he had spoken first to her.

20. Ms Jones claimed, when pressed for details by Mr Hovan, that she had seen the gun she referred to. It had been "a small gun" of "a grey colour". She also claimed that the appellant had "shot at his brother". She then, without any apparent embarrassment and within a few minutes, resiled from that statement, agreeing that she didn't know what, if anything, the appellant had shot at. She conceded she had seen no gun. She denied that she had said that she had, though the transcript clearly belied that denial. Her revised testimony was "...It's common knowledge Frank has a gun" and "I didn't actually see the gun that time, but I did hear it."

21. Ms Jones' daughter, Dorothy Gorman, was present at the incident. She gave evidence. She said that she saw the appellant, Mr Troselj, and Ms Jones in heated conversation. Her account was:

"...I heard the word `slut' but wasn't sure who - whether - I'm not sure whether Frank had said that or not. I'm pretty sure he did. And I just seen Zoran and Robyn standing face to face having an argument and calling each other names and things and I went back into the shop to look after my children."

22. The appellant, she estimated, was ten to fifteen metres away at the time.

23. Ms Rose Oliver, a shop assistant employed at the neighbouring shop, also observed the appellant in his car although she did not hear any threat. Nor did Matthew Gafa, Ms Jones' nephew, who also was present in the "Sugar Plum" shop. He did not conclude that Mr Troselj appeared in any way threatening.

24. Another daughter of Ms Jones, Sara Crowley, was also present. She saw the appellant in his car, she said, 300 to 400 metres away, but her estimate of distance appeared faulty. She estimated a known fifteen metre distance in the court room as "100 metres". She said that she had greeted the appellant when she first saw him in what she regarded, apparently, as a normal manner, that is, by making an obscene gesture towards him. She believed that the appellant "was not allowed to be there".

25. Her account was that, whilst Mr Troselj said nothing remarkable, her mother told him to "get fucked". Ms Jones then pointed at the appellant and said he was not allowed to be there and she would call the police. Her mother then said something (presumably abusive) to the appellant. He replied, she said:

"When you leave work tonight, you're dead."

26. Mr Troselj repeated "You're dead".

27. They then drove off.

28. Constable Quilty also gave evidence. He was the informant. His evidence did provide some more accurate estimates of the distances involved at the scene. However, little turns on that for present purposes.

29. Constable Quilty did conduct a record of interview with the appellant who denied making any threats, though conceding he had been in the vicinity.

30. The appellant gave oral evidence. He suggested that the obviously bad relations between himself and Ms Jones arose over a sum of $5,000 he loaned the Joneses for business purposes and which had not been repaid. He described dropping his sons off with Mr Troselj to buy sweets. He had not expected Ms Jones to be there as the Joneses had sold the business and moved to Coffs Harbour (that they had done so was not disputed). He observed some argument between Mr Troselj and Ms Jones and drove up to retrieve him and his sons. Ms Jones saw him and commenced to hurl abuse at him. He gave her "the Italian salute". She said "I'm going to call the police you fat wog bastard" (or words to that effect). He said "Go ahead and call them, they can't do nothing, I've done nothing wrong". He called her a "low life slut". He denied making the alleged threat. He denied firing any gun at his brother. He denied that he ever had any gun in his possession. He knew of no rumour that he had. He claimed that he had not intended to breach the restraining order.

31. Mr Hovan, for the appellant, called Ms Julianne Hunt, a sister of Ms Jones. She deposed that the deterioration in the relationship between the appellant and the Joneses was over the unpaid loan of $5,000. She said that outside the court she had been abused, in obscene terms, by Ms Jones, without any apparent provocation.

32. Mr Troselj also gave evidence. Relevantly, so far as the appellant's case was concerned, he gave evidence as to the altercation involving Ms Jones. He gave evidence that, after Ms Jones had verbally abused him, she had then directed verbal abuse towards the appellant. He (Mr Troselj) then told Ms Jones to "get fucked". The appellant, he said, gestured "like that" (presumably obscenely) and also told Ms Jones to "get fucked". He conceded that the appellant could have called her other names but denied that he had said "you will be dead, tonight" or any like statement. He denied, further, that he (Mr Troselj) made any such statement.

33. Mrs Jacqueline Barbaro, the appellant's wife, also gave evidence. She is Ms Jones' cousin. She supported Ms Hunt's evidence as to the vile abuse directed towards her outside the court room by Ms Jones. She confirmed other instances of verbal abuse emanating from Ms Jones. That was not challenged by the prosecutor. She also rejected any suggestion that the appellant had ever had a firearm.

34. Mr Guiseppe Barbaro, the appellant's brother, the subject of the shooting rumour recounted by Ms Jones, was also called. He denied that there was any foundation to the rumour. The prosecutor did not dispute that aspect of the matter.

35. For some reason not clear to me, the appellant's counsel addressed first, though nothing turns on that for present purposes.

36. I will not recite those submissions, they were extensive and relevantly pointed to matters which might have caused her Worship, had she accepted them, to have found the prosecution case to fail.

37. Mr Sahu Khan, for the informant, correctly identified the main issue as one of credibility. He relied on the obvious hostility and ill-will exhibited by the parties to each other. He correctly pointed out that it was not necessary for the person uttering the threat to intend that it be carried out. The complainant had said she took the threats "seriously". That, he suggested, satisfied the other elements of the offence.

38. Her Worship reserved her decision, delivering it on 13 October 1998. She accepted the prosecution submission that the issue was "clearly one of credibility of witnesses". However, she also stated that:

"If I accept the evidence of Robyn Jones and that of the other prosecution witnesses insofar as they support her version of events and (sic) the charges against each of the defendants are made out. On the other hand if I accept the evidence of the defendant or rather both the defendants then the charges fail."

39. Mr Robertson, for the prosecution, conceded that this statement was incorrect as a matter of law. Even if the threats were uttered, there was still a real issue as to whether, in the circumstances, the remaining elements of the offence were made out, particularly having regard to the content of the taped telephone call. Further, it was conceded that there was no onus on the appellant and Mr Troselj to persuade her Worship to accept their version of events.

40. Her Worship accepted there was "bad blood" between the Barbaros and the Joneses. The taped conversation clearly demonstrated mutual hostility and aggression and, although her Worship did not expressly refer to it, it included threats to "do in" the appellant.

41. Her Worship reviewed the other evidence. No complaint is made that her Worship misstated or misapprehended that evidence.

42. So far as the appellant's evidence is concerned, her Worship simply stated:

"I find his evidence incredible and reject most of it."

43. She did, however, accept that the appellant knew of the restraining order in favour of Ms Jones and that he did believe that the Joneses owed him $5,000. She rejected Mr Troselj's evidence.

44. Her Worship then found that the threats and gestures were uttered and made as Ms Jones claimed and that:

"...she was scared at what was said to her by these men because, as she put it, she knew Frank Barbaro and knew or believed that he had a gun."

45. In consequence, her Worship declared herself satisfied that the offence was made out, particularly in that:

"...the defendants intended that Ms Jones fear that the threat would be carried out."

46. A conviction was recorded but, without passing sentence, the appellant was released upon a recognizance, self in the sum of $2,000, to be of good behaviour for two years and accept supervision by the Director of ACT Corrective Services for twelve months.

Submissions of the parties

47. The appellant submitted that evidence adverse to the prosecution case was overlooked or disregarded.

48. It is not necessary to recite each of the criticisms advanced by Mr Lloyd QC of her Worship's decision. So far as the issue as to what was said to Ms Jones by the appellant, there would, from the transcript, be matters which could have led a tribunal of fact to be satisfied or otherwise that the words alleged to constitute the threat were used by the appellant.

49. It is important to bear in mind the nature of this appeal. It is by way of rehearing. The Court may admit further evidence and has the power to draw factual inferences.

50. Nevertheless, it cannot be overlooked that a trial judge (or magistrate) has an advantage in forming a first-hand impression of witnesses he or she has observed giving evidence. That advantage need not be one upon which the court appealed from has expressly relied. However, it cannot be accorded such weight that it overwhelms a plainly unjust result - see State Rail Authority of New South Wales v Earthline Constructions P/L (in liquidation) [1999] HCA 3; (1999) 160 ALR 588.

51. It is true, as Mr Robertson concedes, that her Worship gave no reasons for preferring to accept Ms Jones and her daughter, Sara, as truthful and accurate witnesses and to reject the evidence of the appellant and Mr Troselj on the central issue.

52. On the other hand, unless the criticisms made of the witnesses who were accepted were clearly compelling, as was the case in State Rail Authority of New South Wales v Earthline Constructions P/L (in liquidation), it is difficult for an appellate court to be expected to find that the original decision-maker was in error in accepting their evidence.

53. It is true that the taped phone message, objectively, contradicts the view that it was unlikely that Ms Jones, on seeing the appellant, would have refrained from using violently abusive language towards him. It is also true that she contradicted herself on the important issue as to whether the appellant had displayed or used a firearm in her presence.

54. However, neither of those considerations makes a finding that the appellant uttered the threat complained of any the less open to her Worship.

55. Her Worship's finding as to what was said is, consequently, not tainted by error.

56. In so finding, I am mindful that her Worship did, in terms, misdirect herself as to the onus and burden of proof at the outset of her remarks. However, in coming to her findings, she correctly noted that she had to be satisfied of the fact of the utterance of the threat beyond reasonable doubt and that, to be so satisfied, it was necessary that she be similarly satisfied that the denials of the appellant and Mr Troselj should be rejected.

57. Her Worship was, similarly, entitled to find that Ms Jones took the threat "seriously". Ms Jones' belief that the defendant had a gun was equally open to acceptance, though, whether it was a reasonable belief is another issue.

58. Mr Lloyd QC raised a further issue as to whether her Worship was correct to conclude that the appellant intended Ms Jones to take his threat towards her "seriously".

59. I will further consider those two issues.

The elements of the offence

60. I considered the elements necessary to find an offence under s 30 of the Crimes Act in Doyle v Ranse [1991] ACTSC 46; (1991) 103 FLR 419.

61. The first point to make is that s 30 carries a maximum sentence of ten years imprisonment. The legislature has ranked it more seriously than an actual assault occasioning actual bodily harm (s 23) or intentional wounding (s 21). It ranks with aiding suicide (s 17) and recklessly inflicting grievous bodily harm (s 20).

62. The threat must be one of inflicting physical harm so as to cause death. That is, that the person threatened will be murdered (though not necessarily by the defendant personally nor then and there).

63. Doyle v Ranse (supra) illustrates that the person threatened must be expressly put in fear not merely that the alleged offender might offer violence, but that the alleged offender would attempt to kill (personally or otherwise) the person threatened. It is not enough that the person threatened says that he or she took the threat "seriously", assuming that is to be equated with a belief that it would be carried out. There is also an objective element. It is whether a reasonable person in the position of the person threatened would fear that the threat would be carried out.

64. Further, the circumstances must be such as to satisfy the tribunal of fact that the person threatened was intended to believe that the threat would be carried out. In Doyle v Ranse neither of those elements was made out.

65. In R v Leece (1996) 65 FCR 544; 86 ACrimR 494, a prosecution under s 30 had been stayed on the ground that the evidence to be adduced by the Crown was insufficient to support a conviction (see R v Leece 125 (1995) ACTR 1). A Full Federal Court (Gallop and Hill JJ, Burchett J contra) set aside the stay. In the view of the majority such a remedy ought not to have been granted merely on the basis that evidence proposed to be lead would not support a conviction. The words used had been capable of being interpreted as a threat to kill. It required an assessment of the evidence when given to be able to decide whether that threat was actually taken as such by the person threatened and would be so taken by a "reasonable bystander". The interpretation of the elements of the offence adopted at first instance were not disputed.

The subjective test

66. I have considerable doubt, having regard to the history of the relationship between the appellant and Ms Jones, whether she seriously believed that the appellant would actually have attempted to have her murdered. It is plain from the objective evidence of the taped telephone conversation that each of the appellant and Ms Jones was given to violent invective, including threats to kill and to injure. No history of other than verbal abuse between them was led in evidence. The cause of the "bad blood" between the parties was trivial whatever the source of it. How the interim restraining order came to be issued was not explored. However, it was wrong for it to have been used as it was to support a conclusion that Ms Jones had a physical fear of the appellant. Her conduct, even on the day of the hearing, clearly belied such a suggestion. The restraining order was, more importantly, granted ex parte. The appellant had never had any opportunity to oppose it.

67. Then there was the issue as to the gun. The fear asserted by Ms Jones was expressly based by her on an assertion that she "knew" the appellant had a gun. In cross-examination it became clear that she "knew" no such thing. She relied on a rumour that the appellant had shot (at?) his brother. The brother denied that there was any foundation in fact for that rumour. His evidence was not challenged by the prosecution.

68. However, her Worship had the advantage of seeing and hearing Ms Jones give evidence. It was open to her to accept Ms Jones' assertion that she did believe, whether unreasonably or not, that the appellant was serious in his threat and that he had access to a gun.

The objective test

69. Only one other person, Sara Crowley, claimed to have heard the threat to kill. She gave evidence that it was Ms Jones who commenced the abuse and made threats, albeit understandably, of police action, presumably with a view to enforcing the interim restraining order. Nevertheless, the violence of Ms Jones' language was bound to provoke a reaction. Ms Crowley did not assert, and was not asked, whether she gained the impression that the threat she heard uttered by the appellant appeared intended to be taken literally.

70. However, apart from the fact of the restraining order and the terms of the threat itself, it is difficult to justify a conclusion that the reasonable bystander would conclude that the appellant (or Mr Troselj for that matter) seriously intended to attempt to murder Ms Jones.

71. To my mind, an objective bystander knowing the history of mutual animosity, abuse and prior threats, not only made by the appellant but also returned by both Mr & Ms Jones, would have concluded that none of them intended their statements to be taken literally. It was merely colourful abuse. Certainly it constituted verbal violence. Such violent language is not to be encouraged. It was a breach, prima facie, of the restraining order. However, it beggars belief to assume that a reasonable bystander, knowing of the relationship between the protagonists, would imagine for one moment that the threats uttered would be regarded as representing the appellant's real intention.

72. It should be borne in mind that, whilst it is not an element of the offence that the offender intended to carry out his or her threat, it is an element that the person threatened actually believed that to have been the offender's intention. That must also be the belief of the objective reasonable bystander.

73. One advantage the objective bystander would have had over Ms Jones in coming to that conclusion would be an absence of any belief that the appellant possessed a gun. There were no reasonable grounds established for a reasonable bystander to have made such an assumption. Nor would that bystander have any grounds to believe that Ms Jones entertained such a belief.

74. There is, as has been acknowledged, an advantage enjoyed by a tribunal of fact at first instance. However, that advantage, though it assists even with an assessment of the "objective test", is, on that issue, more capable of evaluation from the transcript and the objective evidence than issues of credibility. It does not depend more than marginally on the demeanour of witnesses. Further, it is not clear to me from her Worship's brief reasons on the critical questions what objective test her Worship applied.

75. From my evaluation of the objective circumstances, whatever Ms Jones subjective belief may have been, it is my view that no reasonable bystander, knowing the material facts, would have believed that the threats uttered by the appellant and Mr Troselj were serious threats of an intended murder attempt.

The intention of the Appellant

76. Again, her Worship's reasons for deciding this issue adversely to the appellant are not articulated. The fact that he, falsely as her Worship concluded, denied making the threat at all does not mandate a finding that, if the threat was made, it was intended that the person threatened should believe that it would be carried out.

77. Of course, it is not necessary that the person threatened be intended to believe that the alleged offender had an immediate capacity to carry it out, as would be the case for an assault (see Tuberville v Savage (1669) 1 Mod. 3). However, when such a threat occurs in the context of mutual verbal abuse, it does seem to me unlikely that a threat uttered in such an angry exchange, would be intended to be taken literally. That is further given support when it is borne in mind that not dissimilar threats had been made by both the Joneses and the appellant on at least one other occasion and probably others.

78. In my view, this element of the offence has not been established.

Conclusion

79. The appeal is allowed. The conviction and penalty are set aside. In lieu thereof, the information is dismissed.

80. I will hear the parties as to costs.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 11 November 1999

Counsel for the Appellant: Mr Ian Lloyd QC

Solicitor for the Appellant: Hovan & Co

Counsel for the Respondent: Mr Adrian Robertson

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 19 August 1999

Date of judgment: 11 November 1999