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District Court 25 August 2015

Jawid v R

[2015] NSWDC 358

Public order & justice offences
CRIMINAL LAW CONVICTION APPEAL VOICE MESSAGES LEFT ON TELEPHONE POSSIBLE MISPRONUNCIATION APPELLANT ASSERTED INTENT TO SAY “SHOW” REASONABLE DOUBT PRESENT

Citation: Jawid v R [2015] NSWDC 358
Court: District Court of New South Wales
Date: 25 August 2015
Judge: Neilson DCJ

Background

The appellant was an Afghan national living in Pyrmont who had a dispute with a former flatmate over an unpaid bond. On the morning of 20 August 2014, after finishing a 12-hour security shift and consuming alcohol, the appellant made a series of phone calls, sent a text message, and left two voicemail messages on the complainant's phone. The communications arose from the appellant's anger that the complainant had twice visited his co-tenant's workplace and publicly abused him in front of customers over the bond money.

The appellant was charged under s 474.15(2) of the Criminal Code Act 1995 (Cth) with using a carriage service to make a threat to cause serious harm. The Local Court magistrate convicted him on the basis of the first voicemail, finding beyond reasonable doubt that it contained the words "I'll shoot you, motherfucker, fuck you, motherfucker."

The appellant appealed to the District Court, contending that the critical word in the voicemail was not "shoot" but either "shoo" or "show."

  • Whether the first voicemail message contained the word "shoot," establishing a threat to cause serious harm under s 474.15(2) of the Criminal Code Act 1995 (Cth).
  • Whether the prosecution had proved beyond reasonable doubt that the appellant intended to threaten to shoot the complainant, given his status as a non-native English speaker, his emotional state, and his alcohol consumption at the time.

Decision

Neilson DCJ listened closely to both voicemail recordings himself. He could not discern the word "shoot" in the first message. What he heard was the sound "shoo," which he noted could equally have been written as "shoe." This diverged from the magistrate's finding.

The District Court examined whether the absence of a terminal "T" sound could be explained by the appellant's Afghani background and Farsi as his first language. The court conducted a careful analysis of the appellant's cross-examination transcript, identifying multiple instances where the appellant clearly and correctly pronounced words ending in a terminal "T," including "went," "that," "text," and "night." This showed he was capable of pronouncing the terminal "T" in "shoot" had he intended to say it.

The court accepted that the appellant had said the word "shoo" or "shoe," and that the question was whether he intended "shoot" or "show." The appellant maintained he intended "show." Neilson DCJ observed that both "shoe" and "show" end in diphthongs, and that a person who was emotionally agitated and affected by alcohol might plausibly confuse the two sounds. The text message sent as part of the same exchange provided contextual support for the appellant's account of what he intended to communicate.

In those circumstances, the District Court was not persuaded beyond reasonable doubt that the appellant intended to say "I will shoot you." Reasonable doubt existed, and the conviction could not stand.

Orders Made

  • The conviction recorded by Magistrate Crompton in the Downing Centre Local Court on 9 March 2015 was set aside.
  • The sentence passed on the same date was also set aside.

Key Takeaways

  • A conviction under s 474.15(2) of the Criminal Code Act 1995 (Cth) requires proof beyond reasonable doubt that the defendant made an actual threat to cause serious harm; an ambiguous or unclear word in a recording does not automatically satisfy that standard.
  • Where the critical evidence is a voice recording, an appellate court may listen to the recording afresh and form its own view of the words used, independent of the findings made by the original tribunal.
  • A defendant's capacity to pronounce particular sounds is a relevant factual consideration when assessing whether a disputed word in a recording was mispronounced. Here, the District Court examined the transcript of the appellant's cross-examination to determine whether he was capable of pronouncing a terminal "T."
  • Emotional agitation and alcohol consumption at the time of the relevant communication were treated as factors that could plausibly explain a diphthong substitution (saying "shoe" when intending "show"), contributing to the existence of reasonable doubt.
  • Where multiple communications form part of a single course of conduct, the content of one communication (here, the text message) can be used to shed light on the meaning intended in another (the voicemail).

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.15(2) (using a carriage service to make a threat to cause serious harm)

Cases:
- R v Murray (1987) 11 NSWLR 11 (direction concerning assessment of witness evidence where there is a possible motive to fabricate)