Citation: Regina v Hughes [2003] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 4 April 2003
Judge(s): Grove J, Simpson J, Hidden J
Background
The appellant had been the subject of proceedings brought by the Australian Competition and Consumer Commission relating to a website. A Federal Court judge had made orders requiring changes to the site, and non-compliance led to a contempt order for two weeks' imprisonment, with the warrant held in abeyance.
When the matter returned to the Federal Court on 9 March 2001, the appellant produced a white metal box from a backpack and told the presiding judge it was a bomb, adding that it would go off if he were sent to jail. He was subsequently charged on indictment with intentionally and knowingly attempting to intimidate the judge, a person exercising power under a law of the Commonwealth, contrary to sections 76(1)(b) and 7 of the Crimes Act (Cth).
The appellant was convicted after a jury trial before Finnane DCJ in the District Court and sentenced to eleven months and fifteen days' imprisonment, with release on recognisance after seven months and fifteen days. He had already served his sentence in full by the time the appeal was heard. He appeared unrepresented before the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge gave appropriate directions to the jury on the element of intention for an offence under s 76(1)(b) of the Crimes Act (Cth)
- Whether the proposed fresh evidence (from an usher, the presiding judge, or a psychiatrist) should be admitted on appeal
- Whether the sentence of approximately half the maximum term was excessive
- Whether the various post-conviction complaints and collateral matters fell within the Court of Criminal Appeal's jurisdiction
Decision
The central dispute at trial was whether the appellant possessed the requisite intention to intimidate the judge. Finnane DCJ directed the jury in both oral and written form that, to convict, they had to be satisfied beyond reasonable doubt that the appellant intended to intimidate. The trial judge specifically instructed that an intention merely to annoy the judge or court officials would not be sufficient. The jury found against the appellant on that issue, and the Court of Criminal Appeal held that re-agitating this factual finding was outside its jurisdiction.
On the application to adduce fresh evidence, the court refused leave on all three proposed sources. Evidence from the usher, to whom the appellant claimed to have described the device as a weather data logger before the courtroom exchange, could not affect the state of mind the appellant brought to his words directed at the judge. Evidence from the judge himself was equally irrelevant because the offence required proof of an intention to intimidate, not proof that the judge was actually intimidated. The psychiatrist had not in fact been consulted, so no report existed to place before the court.
Several grounds of appeal were dismissed summarily as falling outside the court's jurisdiction entirely. These included complaints about events occurring after conviction (alleged theft of the appellant's vehicle, fraudulent use of his credit card, and raids on his offices while he was in custody), ongoing Federal Court litigation, and a claim for damages. The ground asserting the trial was political rather than criminal was rejected: the prosecution was plainly brought under the Commonwealth Crimes Act and proceeded as an ordinary criminal trial.
On sentence, the court found no legal error in the sentencing approach. The maximum penalty for the offence was two years' imprisonment. The sentence imposed was roughly half that maximum, and the practical effect of the order was that the appellant was released approximately six weeks after the trial concluded, having spent time on remand beforehand. Grove J found the sentence did not exceed the proper exercise of sentencing discretion.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence refused
- Leave to adduce fresh evidence refused
Key Takeaways
- Under s 76(1)(b) of the Crimes Act (Cth), the prosecution must prove that the defendant intentionally and knowingly attempted to intimidate the relevant officer; proof that the officer was actually intimidated is not required.
- A direction that mere intention to annoy does not satisfy the mental element of the offence correctly captures the distinction between annoyance and intimidation for this charge.
- Proposed fresh evidence from a witness who was told something by the accused before the relevant exchange cannot, as a matter of logic, establish the accused's state of mind at the moment of the conduct charged.
- The Court of Criminal Appeal confirmed it has no jurisdiction to investigate post-conviction grievances, collateral civil claims, or matters pending in other courts, even where those matters are raised by an unrepresented appellant.
- In dismissing the sentence appeal, the court applied the principle that a sentence of roughly half the statutory maximum, with no identifiable legal error in the sentencing approach, will not be disturbed on discretionary grounds.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 76(1)(b) (attempt to intimidate a Commonwealth officer)
- Crimes Act 1914 (Cth), s 7 (attempts punishable as principal offences)
Cases cited: No cases were cited in the judgment text provided.