Wood v Commissioner of Police[2023] QCA 41

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  This is an application for leave to appeal, made under s 118(3) of the District Court of Queensland Act 1967, from a decision which dismissed the applicant’s appeal against his conviction in the Magistrates Court of an offence of using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code (Cth).
2. [2]
   The applicant was convicted upon the basis of emails and Facebook messages which he was found to have sent to his former solicitor and the solicitor’s partner who was the practice manager at the firm.
3. [3]
   In December 2018 the applicant engaged that solicitor, Mr Sibley, in respect of a pending charge against the applicant of an offence of assault occasioning bodily harm.  The applicant and Mr Sibley signed a written agreement for the retainer and the applicant deposited $3,300 into Mr Sibley’s trust account.  It appears that a sentence hearing on that charge was scheduled for 9 January 2019, at which Mr Sibley was to appear for the applicant.  Before long however, Mr Sibley came to the view that he could not act for the applicant and he emailed the applicant on 30 December 2018, purporting to terminate the client agreement.  He wrote that the applicant appeared to have lost confidence in him and did not seem interested in his legal advice, which combined to make it “unnecessarily difficult” for Mr Sibley to represent him.
4. [4]
   The applicant resisted the termination of the retainer.  He demanded that Mr Sibley continue to act for him and that he appear at the hearing scheduled for 9 January.  He maintained that Mr Sibley was not entitled to withdraw, and, in a series of emails, threatened to sue Mr Sibley if he did withdraw.  He said he would sue him for “breach of contract and negligence” as well as for “fraud for taking my money then immediately trying to withdraw your advice”.
5. [5]
   After several emails to this effect were exchanged, on the evening of 1 January 2019, Mr Sibley sent an email in which he said, amongst other things, that the applicant’s emails were “intimidating, menacing and harassing”.  Still, the acrimonious emails from the applicant continued, including one in which the applicant wrote “Oh, and next time your dad has lunch with the police prosecutor handling my case, tell him to say hi from me.”
6. [6]
   On 3 January 2019, the applicant sent an email to Mr Sibley, saying that if Mr Sibley failed to appear at the 9 January hearing, the result would be a disciplinary charge being laid against Mr Sibley for failing to represent him.
7. [7]
   In the last of the emails sent prior to the scheduled court appearance 9 January 2019, the applicant requested from Mr Sibley an invoice for Mr Sibley’s fees.  On 9 January, Ms Sibley emailed the applicant a tax invoice, in the amount of $1,500 plus GST.  Ms Sibley’s email advised:

“No action is required of you in respect to this invoice. The invoice will be satisfied using funds that are already held in the Trust Account seven (7) days from today’s date. …

After payment of the invoice, $1,650.00 will remain in trust. These funds will be refunded in accordance with your written Trust Account Authority …”.

8. [8]
   Seven days passed, and on Saturday, 19 January 2019, the applicant emailed Ms Sibley saying “Hey Kirsty, where’s my money?  If it’s not in my account [on] Tuesday I’ll be coming in to collect it from you personally.”
9. [9]
   On Monday, 21 January 2019, Ms Sibley received a Facebook message from an account entitled, Ian Wood.  The message which she received was:

“Where’s my money Kirsty?”.

That message was sent twice.  About half an hour later, again on the morning of 21 January, Ms Sibley received a further Facebook message which stated “Nice photos of you, Justin and your baby by the way.”

10. [10]
    About 20 minutes later, Ms Sibley received an email from the appellant saying that he would require an itemised invoice to explain the charge of $1,500 on the tax invoice.
11. [11]
    Ms Sibley responded with an email informing the applicant that the refund had been processed.  He continued to send emails to her over the course of that day.  At about 5 pm, he sent an email to her as follows:

“Can’t help but notice it’s 5 pm and you’ve failed to provide a breakdown of costs. If I have to hunt you down and so we have this conversation in person I will.  I’d really rather have it via email so I don’t have to waste my time but I’ll leave the final decision up to you.  Look forward to hearing from you shortly.”

12. [12]
    Ms Sibley received a further email about an hour later as follows:

“Why do people always have to do things the hard way? Look forward to meeting you in person, Kirsty. I really do.”

13. [13]
    Also on 21 January 2019, emails were exchanged between the applicant and Mr Sibley.  Mr Sibley told the applicant that he would be making a complaint to the police of stalking and using a carriage service to menace and harass.  He urged the applicant “to desist engaging in further offences”.  The applicant’s response was to send an email saying “go for it mate” followed by another email asking “where’s my money”.
14. [14]
    At the hearing of the present charge in the Magistrates Court, evidence was given by Mr and Ms Sibley and by a police officer.  The applicant, who was then and remains unrepresented, gave evidence.  He disputed that it was he who had sent the Facebook messages to Ms Sibley or the email to which I have referred earlier at [12].  The relevant facts are otherwise undisputed.
15. [15]
    Mr and Ms Sibley gave evidence that they felt intimidated and fearful as a result of the applicant’s communications.  However the question of whether the communications were menacing, harassing or offensive was an objective one.  What the prosecution had to prove was that a reasonable person would regard the applicant’s conduct as being, in all the circumstances, menacing, harassing or offensive.^[1]
16. [16]
    The magistrate was satisfied, to the requisite standard, that in each case the disputed communications were sent by the applicant.  Her Honour reasoned that this was to be inferred from the subject matter of the communications, namely the applicant’s dissatisfaction with not having received the balance of his money after deduction of the solicitor’s fee, together with the timing of these communications relative to the many other emails which the applicant agreed were sent by him.  She further noted that although the email address for the disputed email was not one which had been previously used by the applicant, it was similar to others in that it used the word “afro”.  And she noted that the name of the profile used for the Facebook messages was Ian Wood and that the applicant’s full name was Ian Andrew Wood.  In my opinion it was open to the magistrate to be satisfied, beyond reasonable doubt, that those messages and the disputed email were sent by the applicant.
17. [17]
    The magistrate identified, correctly, the elements of the offence which was charged.  The first of those elements was that the applicant used a carriage service, and that he did so intentionally.  Save for the Facebook messages and the email which I have just discussed, it was undisputed that the appellant used a carriage service and did so intentionally.  The second element of the charge was that a reasonable person would regard the use of the carriage service as being menacing, harassing or offensive: s 474.17(1)(b).  Her Honour correctly described the fault element in relation to that element as recklessness.^[2]  By s 5.4(4) of the Criminal Code, if recklessness is a fault element, then proof of intention, knowledge or recklessness will satisfy that element.  What had to be proved in this respect was that the applicant was at least aware of a substantial risk that a reasonable person would regard his conduct as being menacing, harassing or offensive, as the case may be.  The need for proof of that matter was recognised by the magistrate.
18. [18]
    The magistrate convicted the applicant upon the basis that a reasonable person would regard his conduct, by the use of the carriage service, as being, in all the circumstances, menacing and harassing.^[3]  Her Honour referred to judgments in Monis v The Queen^[4] for the meaning of the words menacing and harassing in this context.  Monis was a case involving the application of s 471.12 of the Criminal Code (Cth), which proscribes the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.  The passages to which her Honour referred, as to the meaning of “menacing” and “harassing” are clearly authoritative in the application of s 474.17.  In particular, her Honour referred to this statement in the joint judgment of Crennan, Kiefel and Bell JJ:^[5]

“The words ‘menacing’ and ‘harassing’ imply a serious potential effect upon an addressee, one which causes apprehension, if not a fear, for that person's safety.”

and this statement by French CJ:^[6]

“The requirement that the prohibited use of a postal or similar service be one ‘that reasonable persons would regard as being, in all the circumstances, … offensive’ imports an objective but qualitative criterion of criminal liability. … The characteristics of the reasonable person, judicially constructed for the purpose of such statutory criteria, have been variously described.  A ‘reasonable man’ in Ball v McIntyre was ‘reasonably tolerant and understanding, and reasonably contemporary in his reactions.’  A reasonable person was said, in the Supreme Court of New South Wales, to be ‘neither a social anarchist, nor a social cynic’.  The reasonable person is a constructed proxy for the judge or jury.  Like the hypothetical reasonable person who is consulted on questions of apparent bias, the construct is intended to remind the judge or the jury of the need to view the circumstances of allegedly offensive conduct through objective eyes and to put to one side subjective reactions which may be related to specific individual attitudes or sensitivities.”

(Footnotes omitted.)

19. [19]
    The magistrate described the 46 emails which were sent from 30 December 2018, together with the Facebook messages sent to Ms Sibley, as all being “relevant communications and [providing] the context in which this charge is to be considered.”  She described the emails commencing on 30 December 2018 as “demanding and unreasonable in nature, seemingly to coerce or direct Mr Sibley to behave in a particular manner.”^[7]  She said that the applicant’s responses to Mr Sibley’s termination of the agreement were disproportionate and inappropriate, before reminding herself that that was not the test, and that what needed to be demonstrated was that a reasonable person would regard the use of a carriage service as menacing, harassing or offensive.^[8]
20. [20]
    The magistrate described the applicant’s conduct as escalating on 19 January 2019, particularly by the Facebook messages.  She emphasised the applicant’s reference to the photographs of Ms Sibley and her family and the applicant’s statement that he would like to “hunt you down” and that he looked forward to meeting her in person.  The magistrate concluded that in the context of all of the emails and messages, those particular communications would cause a reasonable person to feel intimidated, to feel concern for their safety and to feel threatened such that they would hold some sort of fear or apprehension.^[9]
21. [21]
    The magistrate found that the applicant intended to menace or harass both Mr and Ms Sibley, such that the fault element was established beyond reasonable doubt.  Alternatively, she said that she would have been satisfied beyond reasonable doubt that the appellant was at least reckless as to the nature of his communications.
22. [22]
    The magistrate ordered the applicant to be released upon giving a security by recognizance in the amount of $1,000 upon a number of conditions including that he be of good behaviour for two years and have no contact, directly or indirectly, with the complainants.
23. [23]
    The applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld).  In a reserved judgment, Sheridan DCJ dismissed the appeal.  The judge, like the magistrate, was satisfied beyond reasonable doubt that the Facebook messages and the disputed email of 21 January 2019 came from the appellant.^[10]  However the judge added this statement:

“[141] Even if the Magistrate or I am wrong in this respect, the offence with which the appellant was charged was a continuing offence with reliance being placed upon a very significant number of emails all containing strong language. … These emails were more than sufficient to prove the charge.”

24. [24]
    The judge discussed and rejected arguments by the applicant that the magistrate had wrongly relied upon “repeated misleading and fraudulent statements by the witnesses” who had perjured themselves.  There was no evident error by the judge in dismissing those arguments.  Moreover, as I have noted earlier, much of the evidence was irrelevant to the proof of the charge. 
25. [25]
    The judge also discussed and dismissed a number of arguments which complained of irregularities in the conduct of the trial before the magistrate.  Again there is no apparent error in the judge’s disposition of these points.^[11]
26. [26]
    The judge dismissed, correctly in my view, arguments by the applicant to the effect that the magistrate had failed to adequately “sum up the defence case” in her reasons for her decision.^[12]
27. [27]
    The judge referred to a submission made by counsel for the respondent, which had not been made before the magistrate, namely that the proof of the prosecution case was facilitated by s 475.1B of the Criminal Code.  Section 475.1B provides, in part, as follows:

“Presumption that conduct engaged in using carriage service

3. (1)
   If:

1. (a)
    a physical element of an offence against Subdivision C, D, E, F or J of Division 474 consists of a person using a carriage service to engage in particular conduct; and

2. (b)
    the prosecution proves beyond reasonable doubt that the person engaged in that particular conduct;

then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.”

28. [28]
    The judge was provided with the Explanatory Memorandum in relation to the Bill which inserted s 475.1B,^[13] before confessing that it was unclear to her Honour “what factual circumstance, relevant to this case, is being addressed by the Explanatory Memorandum”.  In any event, her Honour observed, the section was not relied upon by the respondent at the trial or by the magistrate in her reasons, and nor was it raised by the applicant in his grounds of appeal or submissions.  Given the magistrate’s satisfaction with the allegations that the Facebook messages and the disputed email were communications sent by the applicant, with which the judge agreed, she said that there was no necessity to explore the potential operation of s 475.1B.
29. [29]
    The applicant challenges the findings of both the judge and the magistrate that the Facebook messages and the disputed email were communications which were sent by him.  He submits that for this Court to accept this reasoning would set the bar at an unacceptably low level for cases dealing with “the provision of digital evidence as a whole”.  He submits that it would facilitate any person setting up a Facebook page in the name of another person, or an email account in the name of another person, and then sending threatening messages with a consequence of setting up a third party for prosecution.
30. [30]
    The applicant is correct in saying that courts must be careful in examining the evidence where electronic communications apparently have come from a person but that person testifies to the contrary.  Nevertheless, the reasoning of the magistrate and of the judge show the importance of the factual context in determining this question.  The subject matter of the messages was the same dispute which, the applicant had to concede, he had been aggressively agitating in other emails.  The disputed messages went further in that, in my view, they are the messages by which the offence was committed.  But they can be seen as a continuation of the applicant’s complaints which he had made for several weeks.  There is nothing to suggest an alternative hypothesis under which some other person sent these messages, representing that they had come from the applicant.  It was open to the magistrate, and in turn the judge, to be satisfied beyond reasonable doubt that these messages came from the applicant.
31. [31]
    The applicant submits that it can be seen that Mr and Ms Sibley gave dishonest testimony.  This is an allegation made about their evidence, under cross-examination, as to whether they had provided an itemised bill and had duly attended to the refund from the trust account of whatever monies were due to the applicant.  It is unnecessary to explore the accuracy of their testimony on these and other subjects where the same complaint is made.  Whether that evidence was accurate was not relevant to whether the prosecution had proved its case.  The proof of the prosecution case, beyond proving that the Facebook messages and the disputed email came from the applicant, was from the content of the communications themselves, assessed objectively, and from what those messages demonstrated as to the applicant’s intention or recklessness.
32. [32]
    There was also an argument in this Court that there had been a failure to investigate by the arresting officer.  It is said that the prosecution had not provided “most notably any communication prior to the agreement being terminated on the 30^th of December 2018”.  Mr Sibley gave evidence that this material contained privileged information and that it had not been requested by the arresting officer.  There is no reason to doubt what Mr Sibley said in that respect.  In any event, the evidence, relating as it would to communications between the applicant and Mr Sibley, would be evidence already known to the applicant such that it is now incumbent upon the applicant to identify why this evidence should have been tendered in the prosecution case and how that would have assisted the applicant’s defence.  The applicant has failed to do so.
33. [33]
    As I have indicated, the critical communications were those each sent on 21 January 2019, namely the Facebook messages and the email to Ms Sibley, in which the applicant threatened to “hunt [her] down”.  It was open to the magistrate to be satisfied that those messages would be regarded by reasonable persons as being, in all the circumstances, menacing and harassing.  I respectfully disagree with the judge that absent proof that these were communications by the applicant, nevertheless the charge was proved by the other email communications.  However, those emails provided a context which was relevant to the objective assessment of the critical communications.
34. [34]
    In my conclusion there is no identifiable error or injustice which is demonstrated by this application.  I would order that the application for leave to appeal be refused.

35. [35]
    DALTON JA:  I agree with the order proposed by McMurdo JA and with his reasons.
36. [36]
    DAVIS J:  I agree that the application should be dismissed for the reasons explained by McMurdo JA.