Citation: Sultani v R [2019] NSWDC 747
Court: District Court of New South Wales
Date: 11 December 2019
Judge: Abadee DCJ
Background
The appellant was an inmate at Silverwater Correctional Centre on 31 December 2017. While being escorted by a Corrections Officer to a scheduled family visit, the appellant made a series of statements that the officer understood as threatening. Those statements included references to being released in a couple of years, an acknowledgement of the serious offences for which the appellant was on remand, and the words "Not just you" in response to being asked directly whether he was making a threat. The officer cancelled the visit and sought to be relocated.
The appellant was convicted in the Burwood Local Court on 19 June 2019 of intimidating a law enforcement officer in the execution of his duty, contrary to s 60A(1) of the Crimes Act 1900 (NSW). He appealed to the District Court against that conviction.
The central factual dispute was whether the words attributed to the appellant by the officer were actually spoken, and if so, whether they constituted intimidation. The appellant gave a materially different account of the conversation, denying he had made any threatening remarks.
Legal Issues
- Whether a District Court hearing a conviction appeal must identify error in the Local Court's judgment before substituting its own decision, or whether the appeal proceeds as a full rehearing without that threshold requirement.
- Whether the appellant's words, taken in context, constituted intimidation of a law enforcement officer within the meaning of s 60A(1) of the Crimes Act 1900 (NSW).
- Whether the Crown had proved its case beyond reasonable doubt, having regard to the competing versions of events and the credibility of the principal witnesses.
Decision
The rehearing question. Both parties initially submitted that the appeal was a rehearing in which the appellant did not need to identify any error by the Magistrate. Abadee DCJ expressed doubt about this position, referring counsel to Court of Appeal authority suggesting the appellant must establish that the judgment below was wrong before the District Court could substitute its own decision. After an adjournment, the Crown drew the court's attention to Jamal v DPP [2019] NSWCA 121, in which Gleeson JA (with whom White JA and Emmett AJA agreed) had taken the more favourable approach of simply reviewing all the evidence to assess whether the Crown had established the elements of the offence, without requiring the appellant to demonstrate Magistrate error. His Honour noted that the Court of Appeal in Jamal did not resolve the tension between Basten JA and Simpson J in AG v Director of Public Prosecutions [2015] NSWCA 218.
Abadee DCJ proceeded on the assumption, most favourable to the appellant, that it was unnecessary to identify error in the Magistrate's reasoning. The court reviewed the whole of the evidence afresh on that basis.
Findings on the facts. The court preferred the officer's account of the conversation. The corroboration offered by the contemporaneous incident report, the CCTV footage showing the officer's reaction and the abrupt cancellation of the visit, and the internal consistency of his evidence all supported his credibility. The appellant's denial was found to be self-serving, and his account that the officer had acted arbitrarily to cancel the visit was rejected as inconsistent with the evidence.
Intimidation. The court was satisfied beyond reasonable doubt that the appellant's words, spoken in the knowledge that they were likely to cause fear and with the intention of doing so, constituted intimidating conduct within s 60A(1). The appeal was dismissed.
Orders Made
- The conviction appeal was dismissed.
Key Takeaways
- The District Court noted an unresolved tension in Court of Appeal authority about whether a conviction appellant must demonstrate error by the Local Court Magistrate before the District Court can substitute its own verdict. The court proceeded on the approach most favourable to the appellant, considering all the evidence without imposing that threshold requirement, but expressly left the question open.
- In Jamal v DPP [2019] NSWCA 121, the Court of Appeal approved a District Court approach of reviewing all the evidence and assessing whether the Crown had proved each element of the offence beyond reasonable doubt, without requiring the appellant to point to specific Magistrate error. The Court of Appeal did not, however, address the competing approaches in Dyason and Engelbrecht.
- A conviction under s 60A(1) of the Crimes Act 1900 (NSW) for intimidating a law enforcement officer in the execution of duty can be made out by words alone, where those words are intended to cause fear and are likely to do so in the circumstances.
- Where an appellate court proceeds on the record and transcript, it operates under a recognised disadvantage in assessing witness credibility compared with the trial Magistrate who observed the witnesses firsthand.
- Sufficient evidence existed on the record to satisfy the District Court beyond reasonable doubt that the threatening words were spoken and that they amounted to intimidation, notwithstanding the appellant's competing account.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 60A(1), s 545B
- Crimes (Appeal and Review) Act 2001 (NSW), s 11, s 18
Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Charara v The Queen (2006) 164 A Crim R 39
- Dyason v Butterworth [2015] NSWCA 52
- Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
- Fox v Percy (2003) 214 CLR 118
- Francisco v R [2019] NSWDC 720
- Jamal v DPP [2019] NSWCA 121
- Liberato v R (1985) 159 CLR 507
- R v Death [2019] NSWDC 682
- R v Dookheea (2017) 347 ALR 529; [2017] HCA 36
- R v Li (2003) 140 A Crim R 288
- R v Murray (1987) 11 NSWLR 12
- R v Niaas [2005] NSWCCA 120