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District Court 1 November 2022

R v Arkle

[2022] NSWDC 523

Domestic & family violencePublic order & justice offences
CRIMINAL LAW APPEALS AND REVIEW

Citation: R v Arkle [2022] NSWDC 523
Court: District Court of New South Wales
Date: 1 November 2022
Judge: Abadee DCJ

Background

The appellant was convicted in the Sutherland Local Court of using a carriage service (a telephone) in a manner that a reasonable person would regard as menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth). The conduct occurred in the early hours of 7 March 2020 at Burraneer, and the recipient of the calls was the appellant's step-mother.

The prosecution relied primarily on a written statement from the officer in charge and evidence from the complainant. The phone number from which the calls were made was traced to a business associated with the appellant, and the appellant later acknowledged in a police interview that the number was his. The appellant did not give evidence at the Local Court hearing.

The appellant challenged his conviction on appeal to the District Court, arguing that the prosecution had not proved beyond reasonable doubt that it was he, rather than someone else present that night, who had actually used the phone to make the calls.

  • Whether the prosecution established beyond reasonable doubt that the appellant personally used the carriage service to make the offending calls, as distinct from another person who may have had access to his phone.
  • Whether the Magistrate erred in interpreting the appellant's admissions to police as establishing that he was the person who made the calls.
  • The proper approach for the District Court when hearing a conviction appeal from the Local Court by way of rehearing on the evidence.

Decision

Abadee DCJ outlined the applicable appellate framework, drawing on two recent Court of Criminal Appeal decisions: McNab v DPP (NSW) (2021) 106 NSWLR 430 and Lunney v DPP (2021) 105 NSWLR 236. The District Court's jurisdiction to intervene is enlivened only upon demonstration of legal, factual or discretionary error. The Court forms its own view of the facts and guilt beyond reasonable doubt, but is not required to conduct a free-standing review of all evidence in the absence of submissions.

The central factual question was whether someone else, rather than the appellant, had placed the calls. His Honour rejected this hypothesis as not reasonably open on the evidence. The complainant's number was stored on the appellant's phone, the calls were voluminous and extended over many hours into the early morning, and it was inconceivable that friends making prank calls would have remained for that duration. The appellant's use of "we" in his police interview did not materially support the hypothesis that others had made the calls.

His Honour also analysed the appellant's interview carefully. The admission that it was his phone, combined with his defensive and explanatory responses (characterising the calls as mere prank calls made while intoxicated), were treated as amounting to confession and avoidance. His Honour agreed with the Magistrate that the appellant had simply underestimated the likelihood that the complainant would take genuine offence.

The appellant's good character was acknowledged but given limited weight. He had not given evidence in a way that would allow his good character to bolster any exculpatory account, and his intoxicated state at the time was a relevant contextual factor. The appeal against conviction was dismissed and the conviction confirmed.

Orders Made

  • The appeal against conviction was dismissed.
  • The conviction was confirmed.

Key Takeaways

  • The District Court confirmed that conviction appeals from the Local Court proceed by way of rehearing on the evidence, not as a fresh (de novo) trial, and intervention requires demonstrated error.
  • Following McNab v DPP and Lunney v DPP, where the District Court on appeal is not satisfied of guilt beyond reasonable doubt, error will be taken to have occurred, even without identifying a specific legal or factual error in the Magistrate's reasoning.
  • Admissions made in a police interview, even where the questioning was at times leading or imprecise, can still support a finding of guilt where the overall tenor of the responses amounts to confession and avoidance.
  • A hypothesis that a third party (rather than the accused) used the accused's phone will not raise a reasonable doubt where the surrounding circumstances, including the identity of the recipient, the duration of the conduct, and the accused's own admissions, render that hypothesis implausible.
  • Good character carries limited weight in circumstances where the appellant did not give evidence and where intoxication at the time of the offending was a relevant contextual consideration.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth) s 474.17(1) (use of carriage service to menace, harass or offend)
- Crimes (Appeal and Review) Act 2001 (NSW) s 18 (appeals from Local Court by rehearing)
- Crimes Act 1914 (Cth) ss 19B, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 9

Cases:
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- Lunney v DPP (2021) 105 NSWLR 236