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District Court 12 April 2017

Darin Christopher Martin v R

[2017] NSWDC 82

Public order & justice offences
SPECIFIC INTENT

Citation: Darin Christopher Martin v R [2017] NSWDC 82
Court: District Court of New South Wales
Date: 12 April 2017
Judge(s): Mahony SC DCJ

Background

The appellant was a police constable on nightshift at Marrickville Police Station on 17 January 2016. He and his partner, Constable Congdon, attended the same residential premises twice that evening in response to a bail compliance check and a report of fighting. In the early hours of the following morning, they observed two men they recognised from those callouts walking along Illawarra Road and stopped them to investigate a further report of fighting.

During the roadside stop, the two men were seated compliantly against a shop front while the appellant checked their identification. A dispute arose about consorting. The complainant, Mr Donoghue, made a remark about a "blood test," and the appellant responded by drawing a folding knife from his pants pocket, pointing it toward Mr Donoghue, and saying words to the effect of "We can do a blood test now if you like." Mr Donoghue immediately stood up and left the scene, then walked to Marrickville Police Station to make a formal complaint.

The appellant was convicted in the Local Court of one count of stalk/intimidate with intent to cause fear of physical or mental harm, contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. He appealed to the District Court, contending that the requisite intention had not been proved beyond reasonable doubt.

Legal Issues

  • Whether the Crown proved the basic element of intimidation under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 beyond reasonable doubt.
  • Whether the Crown proved the specific intent required by section 13(1), as clarified by section 13(3), namely that the appellant knew his conduct was likely to cause fear in Mr Donoghue.
  • Whether the Learned Magistrate erred by treating the case as one based purely on circumstantial evidence, when direct evidence was available.
  • Whether the Magistrate's ultimate conclusion, despite that error, was otherwise correct.

Decision

Issue 1: Intimidation

The court accepted that the objective test for intimidation was satisfied beyond reasonable doubt. The relevant circumstances included: the appellant was a uniformed police officer who had stopped and detained the two men; they were seated compliantly on the footpath; and the appellant drew a folding knife from his pants pocket, advanced two to three steps toward Mr Donoghue, and directed the blade at him for approximately 18 seconds (at [91]). A knife of this kind was not standard police-issue equipment, which formed part of the relevant context (at [100]).

Issue 2: Specific Intent

The central question was whether the appellant knew his conduct was likely to cause fear, as required by section 13(3) (at [92], [95]). The court confirmed, following the Court of Criminal Appeal's decision in McIlwraith v DPP (NSW) [2017] NSWCCA 13, that the offence under section 13(1) is one of specific intent (at [96]). The District Court found that intent was established beyond reasonable doubt. The appellant pointed the knife at a cooperative, seated person for some 18 seconds, advanced toward him while doing so, and made a remark linking the knife to a "blood test." Mr Donoghue immediately left the scene. Constable Congdon corroborated the account and expressed shock at what he had witnessed (at [100]-[102]).

Issue 3: Circumstantial versus Direct Evidence

The court found that the Magistrate erred in characterising the Crown's case as circumstantial. The evidence of Mr Donoghue, Constable Congdon, and the CCTV footage all constituted direct evidence of what occurred (at [94]). Despite that error, the Magistrate reached the correct conclusion.

Issue 4: The Appellant's Evidence

The court rejected the appellant's account. He initially told Acting Sergeant Preston that he produced the knife only to demonstrate the process of taking blood, a version inconsistent with the CCTV footage he had not yet seen. After viewing that footage, he changed his account but continued to deny pointing the blade at Mr Donoghue, a denial plainly contradicted by the recording. His further claim that the knife was used merely as a "visual aid," and his denial that he held a position of authority over the complainant, were also found to be implausible and internally inconsistent (at [102]).

Orders Made

  • Conviction appeal dismissed.

Key Takeaways

  • Under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, the offence of intimidation with intent to cause fear of physical or mental harm is one of specific intent. The Court of Criminal Appeal confirmed in McIlwraith v DPP (NSW) [2017] NSWCCA 13 that the prosecution must prove the defendant knew the relevant conduct was likely to cause fear in the other person (at [96]-[99]).

  • The District Court confirmed that the Crown is not required to prove the complainant actually experienced fear. It is sufficient to establish that the defendant knew the conduct was likely to cause such fear (at [95]).

  • In dismissing the appeal, the court noted that a Magistrate's error in characterising a case as circumstantial does not necessarily infect the conviction if, on a correct analysis, direct evidence independently establishes each element of the offence beyond reasonable doubt (at [94], [103]).

  • An accused's change of account after viewing CCTV footage, combined with internal inconsistencies in their evidence at trial, can provide a sound basis for a court to reject that evidence as implausible (at [102]).

  • Contextual factors, including an officer's position of authority, the complainant's compliance, and the non-standard nature of the weapon used, are relevant to the objective assessment of whether intimidation occurred and whether the requisite intent existed (at [91], [100]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007, s 13
- Criminal Procedure Act 1986

Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- He Kaw Teh v R (1985) 157 CLR 535
- McIlwraith v DPP (NSW) [2017] NSWCCA 13
- Parker v R (1963) 111 CLR 610
- R v Baden-Clay (2016) HCA 35