Cox v Commissioner of Police[2013] QDC 278

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant, by a notice of appeal filed on 2 April 2013, appeals against his conviction of an offence that he, between 4 and 11 May 2011, used a carriage service in such a way that reasonable persons would regard that use as being menacing, harassing or offensive, pursuant to s 474.17(1) of the Criminal Code (Cth). He was convicted of that offence on 6 March 2013, after a summary hearing conducted by a Magistrate at Caloundra.

2. [2]
   Both in the summary trial at Caloundra and in the proceedings in this court, the appellant was self represented. Although the charge was brought pursuant to Commonwealth legislation, the complainant in the Magistrates Court proceedings was a Queensland police officer and, was represented by a Queensland Police Prosecutor. In this court, the Commonwealth Director of Public Prosecutions appeared to instruct counsel representing the respondent, who was identified as the Commissioner of Police for Queensland.

Proceedings below

3. [3]
   The physical elements of the alleged offence were largely not in dispute. The allegation was essentially based upon evidence that on 5 May 2011, the appellant had telephoned the offices of North Coast Body Corporate on about 30 occasions, with the receptionist acting in accordance with instructions given by the director of the business to terminate the telephone call, without engaging in conversation and immediately upon recognition that it was the appellant calling and the repetition of similar conduct, in approximately a further 30 telephone calls on 10 May 2011.

4. [4]
   This all occurred in the context of an ongoing dispute between the appellant and that business and the Body Corporate of the units where the appellant resided and for whom the business acted in the management of the affairs of the Body Corporate and after the appellant had been advised by email from the director of North Coast Body Corporate, on 3 February 2011, that the business would not take any further telephone calls from him and that he was not permitted in the business office. When pressed about this, in evidence, the director of the business described the basis for this stance as being:

“…an incident where Mr Cox attended our office and when instructed to leave would not leave. It required me to call the police. The police attended. The incident occurred on a Friday afternoon at about 4.50. It wasn’t until about a quarter to six, after Mr Cox being in our office with a  recorder strolling through our office requiring me to answer a certain amount of questions which was quite intimidating. Accusing me of certain acts, which were illegal. And it wasn’t until the police threatened him with being arrested for trespass that he left.”^[1]

5. [5]
   Both before the Magistrate and in this court, the appellant admitted that his conduct in making those repeated calls was wrong and should not have occurred. However he did not admit that he had committed the offence with which he was charged and sought to explain his conduct and his apology for it, by reference to the dispute in which he was involved with the Body Corporate, at that time and his perception and continued assertion of his statutory entitlement to the information which he was seeking and which was being denied to him and by reference to his mental state at the time of the offence, including what he described as tremendous pressures that he was under at the time because of that dispute and related matters and also the extreme ill health of his wife, who subsequently passed away.^[2]

6. [6]
   Subsequently and when considering penalty, the Magistrate described the Appellant as being in an “extreme state of distress”^[3]at the time, particularly in reference to letters the appellant tendered, in the course of the trial, from a psychologist and a consultant physician in psychiatry. One such letter from the consultant physician in psychiatry was dated 11 May 2011 and referred to that practitioner’s review of the appellant on 3 May 2011. Relevantly it recorded:

“I have reviewed Mr Cox most recently on 3^rd May 2011. He describes ongoing problems dealing with the Body Corporate in the home units that he lives in related to ongoing litigation; also in the context that his wife is dying with pancreatic cancer and also ongoing incidents related to the Body Corporate of being assaulted, of being shut out by being caught up in never ending litigation, trying to find some sense of justice.

Subsequent to his perceptions and experience of ongoing stressors and also elements of post-traumatic stress related to the helplessness of it all, the hopelessness and the assaults upon him, he is significantly mentally shut down with symptoms of depression and anxiety very much in this PTSD pattern. Despite high levels of anti-depressant and anti-anxiety medication he remains fragile and vulnerable. He is not very good at thinking on his feet, being too reactive and having difficulty putting things in order and sorting out his priorities. Such that I do not believe that he is medically fit at this time to proceed with any litigation of a voluntary nature.”^[4]

7. [7]
   It can be noted that having found the appellant guilty of the offence, the presiding Magistrate made an order pursuant to s 19B of the Crimes Act 1914 (Cth), discharging the appellant without proceeding to a conviction, upon his entering a reconnaissance of $200 to be of good behaviour for a period of 3 months.

The Issues

8. [8]
   It is not necessary to dwell upon the specific complaints made by the appellant in respect of his conviction. In the first instance many of those complaints mistake the objective nature of the physical elements set out in the statement of the offence in s 474.17(1) of the Criminal Code (Cth), as follows:

“(1) A person is guilty of an offence if:

2. (a)
   the person uses a carriage service; and

2. (b)
   the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.”

9. [9]
   Some of those contentions also misunderstood that, as was the case here, the offence may be constituted by having regard to the method of use of the carriage service as opposed to the content of any communication, as was explained in R v Ogawa.^[5]

10. [10]
    Secondly, a review of the record of the proceedings below discloses what must necessarily be considered as a fundamental legal error. Surprisingly, this was the same error that was identified by the Court of Appeal in Crowther v Sala.^[6]  A review of the record discloses that no reference whatsoever was made to the fundamental requirements of s 3.2 of the Criminal Code (Cth) that:

“In order for a person to be found guilty of committing an offence the following must be proved:

1. (a)
   the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

2. (b)
   in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.”

11. [11]
    It may be seen that no fault element is expressed in s 474.17(1), which otherwise expresses physical elements in the nature of conduct and a circumstance in which such conduct occurs.^[7]Therefore, the effect of Division 5 of Part 2.2 of Chapter 2 of the Criminal Code (Cth) is that:

1. (a)
   Pursuant to s 5.6, the fault element for the physical element consisting only of conduct is intention and for the physical element that consists of a circumstance, recklessness; and

2. (b)
   Having regard to s 5.4(4) proof of intention, knowledge or recklessness will satisfy the fault element of recklessness.^[8]

12. [12]
    Accordingly, in this case the offence alleged against the appellant required proof in respect of his conduct in using the carriage service, of the fault element of intention. More critically and in relation to the accompanying circumstance, proof of the fault element, of recklessness on his part, was required. Pursuant to s 5.4(1) of the Criminal Code (Cth):

“(1) A person is reckless with respect to a circumstance if:

1. (a)
   He or she is aware of a substantial risk that the circumstance exists or will exist; and

2. (b)
   Having regard to the circumstances known to him or her, it is unjustifiable to take the risk.”

Pursuant to s 5.2(2):

“(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.”

Pursuant to s 5.3:

“A person has knowledge of a circumstance… if he or she is aware that it exists or will exist in the ordinary course of events.”

13. [13]
    Having regard to these requirements, this fault element might be established by proof that:

1. (a)
   The appellant was aware of a substantial risk that the manner in which he went about telephoning the complainant was likely to be regarded by reasonable persons as menacing, harassing or offensive and that it was unjustifiable for the appellant to take that risk; or

2. (b)
   The appellant knew (or intended) the use of the carriage service in that way would be regarded by reasonable persons as being in all the circumstances menacing, harassing or offensive.

This expression of the requirements reflects a strict adaption of the combination of s 54(1) and (4) with s 474.17(1)(b). However it may be that a different formulation, as adverted to by the respondent in the further written submissions would suffice, if the reliance was upon proof of knowledge or intention as to the circumstance. That is:

“If the appellant knew or intended the use of the carriage service to be menacing, harassing or offensive.”^[9]

However, it may not be necessary that the prosecution go so far, particularly having regard to the provisions of s 5.2(2) and 5.3, which respectively provide:

“(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist”; and

“ A person has knowledge of a circumstance or as a result if he or she is aware that it exists or will exist in the ordinary course of events”

14. [14]
    On any basis, what is involved is a question of fact^[10]and a question concerned with the actual subjective state of mind of the person at the time of the relevant conduct.

15. [15]
    In this case and as the respondent in this court recognised, on the prosecution case there was no direct evidence that might establish the requisite state of mind of the appellant and the prosecution effectively sought that such a conclusion or inference be drawn from circumstantial evidence. Accordingly and applying conventional principle, that meant establishing such a conclusion or inference as the only rational possibility open on the evidence.

16. [16]
    Although it was not appreciated in the proceedings below, the appellant sought to put this very matter in issue and sought to provide some direct evidence of an absence of the type of awareness which might suffice. When he provided the documents which became Exhibit 11, to the court and particularly sought to point out that the letter from the consultant physician in psychiatry dated 11 May 2011 related to a consultation or review on 3 May 2011 and indicated that he “wasn’t well” on the 5^th and 10^th of May 2011, The Magistrate responded:

“… Let me explain, the prosecution has to prove their case beyond reasonable doubt. If they do that then these – the information supplied herein goes towards mitigation of penalty, okay. That’s what this is. I – I accept that at the time you weren’t well…”^[11]

Subsequently during the course of the appellant’s evidence and when he was addressing material relating to his perception of his statutory entitlement to the information he was seeking and which was being denied to him, the Magistrate said:

“… I’m not in the position to decide whether or not how you were treated by this Body Corporate Manager was correct otherwise. At the end of the day all I’ve got to decide is to whether or not those phone calls that you made were harassing, intimidating or harassing and therefore in breach of the Criminal Code (Cth)…  So that’s all I’ve got to decide you see…”^[12]

Later there was the following exchange between the Magistrate and the appellant:^[13]

“So would you not concede that 35 phone calls in three hours could be seen as menacing, harassing or offensive? – I concede, your Honour, in hindsight I shouldn’t have rung up. But I wasn’t thinking clearly, you Honour I had a lot on my mind and Cheryl was in the middle of radiation, chemo and other things. I just don’t understand why I wasn’t put through to the boss, Gerard McMahon. I cannot understand why. I have no idea of what any dispute is about. I spent from July 2008 and most of – practically all of 2009 and half of 2010 in another state. I had nothing to do with them. Cheryl was diagnosed with cancer in 2010. It’s true I went to their office in November 09 because there were altering documents to make me look bad. Right? - and they wouldn’t give me access. They’ve made my access to documents extremely difficult and – and I should have gone to the Commissioner, but being a former chairperson, your Honour, I know the legislation. I’ve been a member there for 10 years. I know it better than anyone. I just don’t understand why, as I said in my emails, if they just – – –

Well, if you’ve got a dispute, that’s the only way to resolve a dispute with the Body Corporate is to go to the Commissioner? – –

But, your Honour, it, it – – –

You can’t – do not see that that’s unreasonable to make that many phone calls in that period of time? – – I admit it was wrong, your Honour, and I’m sorry. I really am. And I wouldn’t do it again. But I had a lot on my mind. I wasn’t well.

I do accept that, sir, and I do – I will be taking that into account? – –  I wouldn’t do it again.

In accepting that what you did was wrong, are you now changing your plea to guilty? – –

Your honour, I don’t want to plead guilty because I – I – there was reasons why I made those calls.

I accept that that was – that was in your mind, sir, but – but at the end of the day, the legislation is – the legislation is that you can’t use a carriage service or a telephone in a way that a reasonable person would regard as being menacing, harassing or offensive. Now, that’s all – all I’ve got to – – – ? – – ok.

Irrespective of what was – what had gone on between you and the Body Corporate in the past and around this time and – but the way you used – would you accept the way you used that telephone in phoning 35 times in – in three hours, could be seen by a reasonable person to have been menacing, harassing and/or intimidating? – – I accept that I shouldn’t have made the calls, your Honour.

Right, okay – – I was upset and if I did offend anyone, I’m sorry.

Mmm – – I really am. But I had – I had a lot on my mind and I wasn’t well.

I accept that – – And – and – from – – – – –

So, are you – you’ve accepted that you made the phone calls. Are you now providing a defence?  And the only defences available to you would be – well, I don’t know. There’s no defences really?  – – – – ”^[14]

The appellant then went on to detail his attempts and purported justification for seeking information from the Body Corporate Manager and subsequently and after the Magistrate indicated to the appellant that she understood this dispute she said:

“But it’s not what I’ve got to decide? – – Ok your Honour. That’s why the calls were made because I couldn’t understand why they just wouldn’t give me the details.

But 35 in under three hours? – – Pardon

Where they are hanging up on you? – – Look your Honour, in hindsight I wouldn’t do that now but – – –

Right? – – At that time I was self medicating – – – –

I understand and you had – – – ? – – I ended up – – –

– – – – Some difficulties with your wife was very ill?  – –  I had a – I had a fit and I had to get – because I overdosed on the tablets because they were – they were giving me a hard time and they knew they were.”^[15]

17. [17]
    Subsequently and at the conclusion of the evidence and when the appellant again returned to his dispute as to his entitlement to the information he was seeking, the Magistrate said:

“But – stop. That’s got nothing to do with what I’ve got to decide. I’ve got to decide whether or not you used the carriage service to menace, harass or cause offence. That’s what I’ve got to decide.”^[16]

Then and after referring back to the appellant’s admission of making the calls and his apology for them and recognition that in hindsight he wouldn’t do it again, the Magistrate further observed:

“So, that’s the end of it as far as this charge is concerned. It’s not the end of it as far as your dispute with the Body Corporate, clearly, because you’re still living there and – and one way of [sic] another, it has to be resolved and it ought to be done by a mediation. There has to be some sort of accommodation of, I mean, an owner of a unit needs to be able to contact the Body Corporate. One way or the other.

Defendant: Committee.

Bench:  But it can’t be, I mean, sir, if I got 35 calls in a number of hours, three hours, I’d go spare. I couldn’t cope with that. That is menacing. That is harassing. And you can’t do it.”^[17]

18. [18]
    Further and in her Reasons for Decision the Magistrate said:

“Mr Cox, in his evidence, accepted that he made the phone calls, he accepted that in hindsight he should not have made those calls, he did not wish to offend anybody, and he was caught up in his dispute with the Body Corporate which was his over riding concern without, I understand, considering the ramifications of his behaviour.

When I look at the number of telephone calls made in the period of time, I am satisfied that the prosecution has proved its case beyond reasonable doubt, and I do find the defendant guilty of using a carriage service in such a way that that – that a person – a reasonable person would be menaced, harassed or offended by that behaviour. So I do find Mr Cox guilty.”

It can be observed that not only does that passage confirm the absence of appreciation of and reference to any need for any fault element, in the proof of this offence, but the findings as to the appellant being “caught up in his dispute with the Body Corporate which was his over riding concern without … considering the ramifications of his behaviour”, are actually inimicable to any such finding.

Discussion

19. [19]
    Although there was similarly no attention paid to the requirement of the fault element, of intention, in respect of the appellant’s conduct in making the telephone calls^[18], there was no issue in the evidence but that the appellant meant to make the telephone calls.

20. [20]
    However, the same cannot be said in respect of the proof of a fault element for the circumstance which constituted the other physical element of the offence in s 474.17(1) of the Criminal Code (Cth). Although it may ordinarily be expected that proof of recklessness as to or at least knowledge of, the requisite objective circumstance, attaching as a requirement of a proscribed offence, may not be a particular obstacle to a prosecution, it is necessary that this element be proven in the subjective sense of the particular state of mind of the offender, at the time of his or her conduct, rather than upon any basis of what an offender should or might reasonably have been expected to have known or appreciated. Although and particularly where there is no contradictory evidence or circumstances or dispute raised as to those issues, considerations as to what a particular person should or was likely to have appreciated or realized may enable reasoning to allow the requisite finding to be made. 

21. [21]
    In this case and although the allegation was not particularized, in the sense that the allegation in the charge relied upon each of alternative characteristics in s 474.17(1)(b) of “menacing, harassing or offensive”, it is apparent that the case below was viewed and decided on the basis of the “harassing” characteristic. In that regard the respondent pointed to the decision in R v Ogawa^[19]and particularly the observations:

“…The jury were entitled to have regard to the quantity and frequency of telephone calls in the context established by the vituperative emails the subject of count 1 and to conclude on that basis that reasonable persons would regard frequent and apparently random telephone calls made in that context as harassing. The jury were entitled to conclude that the appellant must have understood that her calls were, by reason of their quantity and frequency, unwelcome and unwanted by the recipients.”

Whilst the description of what the appellant there “must have understood” was obviously intended as a description of how the jury may have found the necessary fault element, established in the circumstances of that case and may, generally, be regarded as an adequate description of how knowledge of an objectively harassing characteristic of use of a carriage service might be established, it is, of course, primarily necessary to have regard to the requirements expressed in the relevant legislative provisions. Also, it can be noted that the particular observation was expressed in reference to dealing with and rejecting an argument that proof of the circumstance in s 474.17, required proof of the content rather than just the quantity and frequency of telephone calls and not in reference to any specific contention relating to the necessary fault element.

22. [22]
    Further and even if that description of the fault element were adopted here, it would not allow a conclusion based upon some assumption (according to reasonable standards or otherwise), as opposed to proof of the subjective recklessness of the appellant as to the necessary circumstance.

23. [23]
    Also, the breadth of the approach taken in R v Ogawa may require consideration in the light of the subsequent decision of the High Court in Monis v R^[20]. Although made in the context of direct consideration of the issue of offensiveness, not only did the approach of the majority observe that “a communication which has the quality of being menacing or harassing can be seen to be personally directed and deliberately so,” it was further observed that: “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.” 

24. [24]
    As the passages from the hearing before the Magistrate (which are set out above) demonstrate, notwithstanding that the issue was not recognised below, the appellant specifically raised considerations relevant to the proof of it. First he pointed to the context of the recipient of his calls being the commercially contracted manager of the body corporate, from which he claimed he was being denied information to which he believed he was legally entitled. Secondly, he raised issues as to his mental state distressed at the relevant time, because of this and related matters concerning his relationship with the body corporate and also the dire state of health of his wife.

25. [25]
    The appellant sought to support this contention by reference to the material which became Exhibit 11. It may be that as contended by the respondent the documents were inadmissible (at least in that form) in respect of this issue on the appellant’s trial and that the stated opinions may not sufficiently provide evidence of a mental impairment, within the meaning of s 7.3 of the Criminal Code (Cth).^[21]However, the reliance by the unrepresented appellant was only partly upon the material in Exhibit 11, in this respect and it must be kept in mind that the respondent bore the onus of proof of the physical and fault elements of the charged offence, to the standard of beyond reasonable doubt.^[22]

26. [26]
    Quite apart from any reliance upon any diagnosed mental impairment, due to any mental illness, the appellant raised the issue of his distress, in the outlined circumstances and contended that this had affected his state of mind at the relevant time and the fact remains that the fundamental necessity of attention to this requisite fault element was simply and completely overlooked in the proceedings below.

27. [27]
    Accordingly, the orders of the Magistrate must necessarily be set aside. Whilst and because the nature of this appeal process, conducted as a rehearing, would theoretically allow this court to now reconsider the necessary issues, upon the evidence in the record^[23], the attendant practical difficulty is that because of the fundamental failure in the proceedings below, the necessary issue was not, at least fully and properly, litigated and necessarily the state of the evidence in the record before this court does not appropriately allow for such reconsideration.^[24]Also, the issue is such as to be capable of being influenced by an opportunity to, at least, assess the demeanour of the appellant in giving any evidence relevant to the issue.

Should there be a retrial?

28. [28]
    Therefore the remaining question is whether there should be a retrial ordered pursuant to s 225(2) of the Justices Act 1886. Such an order is sought by the Respondent upon the basis that there was a sufficient case, as to all of the elements, to justify a conviction. Of course, even were such an order to be made, it would remain a matter for the prosecuting authorities to decide whether there remained any utility or public interest in proceeding again and that assessment would require that the observations made in Monis v R be considered, whereas the approach in this court, relied only upon the observations in R v Ogawa.

29. [29]
    However, similar considerations may arise in respect of the power provided in s 225(2), which involves the exercise of a discretion and it does not follow that this matter must, in these circumstances, be sent back for retrial. As discussed in R v Chong^[25], that issue is not necessarily decided by a conclusion that was urged here, that there was a prosecution case sufficiently cogent to justify a conviction. In particular, there is the necessity to have regard to any competing considerations as to justice to the appellant and the public interest in the administration of justice. The last consideration enlivens the relevance of looking at the sentence likely to be imposed, if a conviction was secured on a retrial.

30. [30]
    In this case, that consideration particularly militates against a retrial. The appellant was sentenced to one of the least burdensome alternatives available under the Crimes Act 1916, by on 6 March 2013, being discharged without conviction, upon entering into a reconnaissance of $200 to be of good behaviour for three months.^[26]Such an order is not of a kind which is stayed pursuant to s 222A of the Justices Act 1886 and therefore the consequences of that order have ensued. It can also be noted that the intended outcome upon compliance with the condition, was that there would be no conviction for the offence, if the order had remained. Similar considerations were engaged in the outcome in Crowther v Sala^[27] and where there was no order for retrial.

31. [31]
    In these circumstances and particularly where the reason for setting aside the conviction lies, in the first instance, in the error of the prosecution in not recognizing and assisting the Magistrate as to the fundamental requirement as to the necessary fault elements, it should be concluded that there is not sufficient utility nor public interest in ordering that this matter be retried.

Conclusion

32. [32]
    Accordingly the appeal is allowed and the orders of the Magistrate made on 6 March 2013 are set aside. Consistently with the above stated conclusion as to the undesirability of ordering a retrial and having regard to the desirability of bringing this matter to a final conclusion, there will be a further order, made pursuant to s 225(3) of the Justices Act 1886, that the complaint against the appellant be dismissed.