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District Court 3 October 2023

Hemphill v R

[2023] NSWDC 398

Public order & justice offences
CRIMINAL APPEAL FROM LOCAL COURT CONVICTION INTIMIDATION PROOF OF INTENT

Citation: Hemphill v R [2023] NSWDC 398
Court: District Court of NSW
Date: 3 October 2023
Judge: Newlinds SC DCJ

Background

The appellant was a corrections officer employed by Corrective Services NSW, working at the Prince of Wales Hospital prison annexe. On 5 September 2021, he was supervising an inmate who was awaiting emergency electroconvulsive therapy for severe schizophrenia. The inmate could communicate with officers through an audio-visual intercom system known as a "knock up" system.

Over the course of approximately one hour, a series of exchanges took place via that intercom between the appellant, the inmate, and a nurse colleague. The exchanges were frequently crude and hostile in tone on both sides. The Local Court Magistrate found the appellant guilty of intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), based principally on one statement: "Oi, watch your mouth or I'll come in there and I'll smack it."

The appellant appealed his conviction to the District Court. The appeal also raised the question of the sentence, but by agreement the parties deferred the sentence question pending the outcome of the conviction appeal.

  • Whether the appellant's statement ("watch your mouth or I'll come in there and I'll smack it") constituted intimidation within the meaning of s 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • Whether the appellant made that statement with the intention of causing the victim fear of physical or mental harm, as required by s 13(1) of the Act.
  • Whether, alternatively, the totality of the exchanges across the evening independently amounted to intimidation.
  • The correct approach to a conviction appeal by way of rehearing under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW).

Decision

The District Court allowed the appeal and set aside the conviction. The central question was not whether the words were said seriously, but what intent lay behind them. The appellant had conceded at the original hearing that he was "not joking" when he made the statement. The magistrate took that concession as fatal to any "friendly banter" defence, and concluded that the requisite intention to cause fear had been proved beyond reasonable doubt.

Newlinds SC DCJ identified a third possibility that had not been clearly put to the magistrate: that the words were spoken seriously, but as a figure of speech, intending only to convey that the officer was genuinely frustrated rather than to cause the inmate to fear physical harm. After personally listening to the audio recordings, his Honour concluded that this interpretation was reasonably available on the evidence, and that the Crown had therefore not proved the required intent beyond reasonable doubt.

On the Crown's alternative argument, that the full sequence of exchanges across the evening collectively amounted to intimidation, the court also rejected that submission. After listening to the recordings, his Honour formed the view that the exchanges, taken as a whole and in context, had the character of mutual, largely light-hearted banter. They did not, even on an objective standard, engage the statutory definition of intimidation in s 7.

The court noted that the basis on which it resolved the appeal had not been clearly articulated before the magistrate. Under a s 18 rehearing, however, the appellate court is not confined to identifying error in the decision below. It is required to form its own independent judgment on guilt from the evidence and submissions before it, as confirmed in McNab v Director of Public Prosecutions [2021] NSWCA 298.

Orders Made

  • The appeal is allowed.
  • The conviction entered by Price LCM on 27 March 2023 is set aside.

Key Takeaways

  • A conviction for intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) requires proof beyond reasonable doubt that the defendant intended to cause fear of physical or mental harm, not merely that the words were said seriously or in anger.
  • Where an accused concedes that words were not a joke, that concession does not automatically establish the requisite intent. The court recognised a third possibility: words spoken seriously as a figure of speech, conveying frustration without any intent to cause fear.
  • Under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW), a District Court hearing a conviction appeal by way of rehearing must form its own independent judgment on the evidence and is not limited to identifying error in the magistrate's reasoning.
  • Audio recordings of the relevant exchanges were a significant factor. The District Court's direct assessment of tone and context led to a different conclusion from that reached by the magistrate, illustrating how much such evidence can depend on the quality and character of the recording itself.
  • Assessing the totality of a series of exchanges for intimidation requires contextual analysis. The District Court found that exchanges which were mutual, crude, and largely reciprocal in tone did not, taken as a whole, meet the statutory definition.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 18, s 20
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7(1), 13(1)

Cases
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- Director of Public Prosecutions (NSW) v Nikolovski
- Lee v R [2023] NSWCCA 70
- R v Blair (2005) NSWCCA 78
- R v MacDonald [2019] NSWSC 839