Wantling v Commissioner of Police
[2014] QDC 126
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- Unreported Judgment
- Wantling v Commissioner of Police[2014] QDC 126
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Wantling v Commissioner of Police[2014] QDC 126
Wantling v Commissioner of Police[2014] QDC 126
DISTRICT COURT OF QUEENSLAND
CITATION: | Wantling v Commissioner of Police [2014] QDC 126 |
PARTIES: | KAREN LINDA WANTLING (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | Registry Stanthorpe Number D3/13 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Stanthorpe Magistrates Court |
DELIVERED ON: | 30 May 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 April 2014 |
JUDGE: | Samios DCJ |
ORDERS: | 1. Appeal dismissed. 2. I direct that the respondent file and serve submissions as to costs if any within seven days. I direct the appellant to file and serve submissions as to costs if any within seven days thereafter. 3. I direct that these reasons be sent by the registrar of the District Court of Toowoomba to the learned magistrate sitting at Stanthorpe so the matter can be listed for sentence. |
CATCHWORDS: | Appeal and new trial – Commonwealth offences – using a carriage service in a way that reasonable persons would regard as being in all the circumstances offensive – whether appellant fit to represent herself – whether appellant criminally responsible – whether learned Magistrate could find second charge made out – whether learned Magistrate erred by not considering element of recklessness. Criminal Code (Commonwealth) ss 7.3, 471.12, 473.4 and 474.17 Justices Act 1886 ss 222(1), 223(1), 223(2) and 223(3) Allesch v Maunz (2000) 203 CLR 172, 180 Crowther v Sala (2007) QCA 133 Fox v Percy (2003) 214 CLR 118, 126-7 Monis v The Queen (2013) 249 CLR 92 R v Cain (2010) QCA 373 R v Starkey (2013) QDC 124 |
COUNSEL: | Mr Burns Solicitor for the appellant Mr Hamlyn-Harris for the respondent |
SOLICITORS: | Burns Lawyers for the applicant Commonwealth Director of Public Prosecutions for the respondent |
- [1]This is an appeal against the decision of Magistrate Lee who, sitting at Stanthorpe, found the appellant guilty of using a carriage service (telephone) on 3 January 2013 and 4 January 2013 in a way that reasonable persons would regard as being, in all the circumstances, offensive contrary to s 474.17 of the Criminal Code (Commonwealth).
- [2]The hearing before the learned Magistrate was a summary hearing. The appellant represented herself at the hearing. The appellant pleaded not guilty to the charges.
- [3]The principal witness for the prosecution was Lisa Karen Blake. She was employed at the Stanthorpe police station as an administration officer. She said that on 3 January 2013 she received a telephone call at the police station. Her evidence was that she said “good morning. Stanthorpe police station, Lisa speaking”. Her evidence was that the caller said “Oh fuck, are you still fucking there, you fucking bitch?” She then said “excuse me?” And the caller said “put Mark on”. She said as she assumed the call was for Senior Sergeant Mark Ireland her boss she then replied “who’s calling?” She said the caller said “you don’t need to know. You’re just a government employee”. She said she then rang the extension for Sergeant Ireland. She had a brief conversation with him. By the time she got back to the caller the phone was disconnected.
- [4]Ms Blake’s evidence was that the caller was the appellant with whom she has had dealings before. She said once in court in regards to a DV matter and the appellant’s voice is very distinctive and she had heard it before. She said the DV was a matter where there was a police application with the appellant as the respondent. I assume Ms Blake meant “applicant”. The appellant had lodged a private application the day of DV court. The court occurred and the appellant was upset because the DV was not mentioned. She stated it was not mentioned because it had not been received by the police station for it to be served on the respondent. She said this was in 2010 some time. She said the day after DV court the appellant telephoned the station to find out if it had been served. Ms Blake said it had not been served because they had not even received it yet. She was still waiting for it from the courthouse. She said the appellant got upset. The appellant was quite aggressive on the phone and they ended the conversation.
- [5]Ms Blake also gave evidence that on 4 January 2013 she received a phone call and she answered it “good morning. Stanthorpe police station, Lisa speaking”. She said she then got “put Mark on, you fucking fat bitch”. She said she then tried her boss Senior Sergeant Mark Ireland’s extension and had gone to put it through but by the time she got to hit the transfer key the caller had disconnected.
- [6]Regarding the two phone calls Ms Blake said she felt upset and quite insulted. She said she had no interaction with the appellant outside her police work at all. There had not been any arguments down the street or over the kids at school or anything like that. She said other calls that have been received since 4 January 2013 from the appellant were just rude.
- [7]In coming to his decision the learned Magistrate accepted Ms Blake’s evidence. There is no contest in this appeal that it was open to the learned Magistrate to accept Ms Blake’s evidence. Further, the learned magistrate found the remarks by the appellant in the telephone calls on 3 and 4 January 2013 would be offensive to any reasonable person.
- [8]The appellant’s appeal is pursuant to s 222(1) of the Justices Act 1886. In addition to the evidence before the learned Magistrate the respondent did not object to additional evidence being adduced by the appellant from Dr Wilkie a consultant psychiatrist. Therefore, this appeal is by way of rehearing on the original evidence and on the new evidence adduced (s 223(1), s 223(2) and s 223(3) Justices Act 1886).
- [9]The grounds of appeal are:
- (a)The appellant was not fit to represent herself and/or she was not criminally responsible due to suffering from a mental impairment at the time of committing the alleged offences;
- (b)The learned Magistrate erred in law by failing to consider and apply s 473.4 Commonwealth Criminal Code 1995 “determining whether material is offensive” test in determining whether the particular use made of the carriage service for each count was “in all the circumstances offensive”;
- (c)Further and in the alternative to ground 2 the learned Magistrate erred in law by failing to take certain mandated matters into account in deciding whether an element of the offence – whether reasonable persons would regard the particular use of a carriage service as being in all the circumstances offensive – had been established by the prosecution;
- (d)Further and in the alternative the learned Magistrate failed to provide adequate reasons for his finding, particularly in relation to the element whether reasonable persons would regard the particular use of the carriage services being in all the circumstances offensive.
- (a)
- [10]As this is an appeal by way of rehearing my powers are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error (Allesh v Maunz (2000) 203 CLR 172, 180). However I am obliged to conduct a real review of the trial and, in a case where the trial was conducted before the magistrate sitting alone, of the magistrate’s reasons (Fox v Percy (2003) 214 CLR 118, 126-7).
- [11]At the commencement of the trial before the learned Magistrate the appellant advised the learned Magistrate she suffers from a severe medical condition and that she had a disability. She told him she suffered from severe post traumatic stress and that she was on medication for it. The learned Magistrate enquired whether she was ok and she responded “well, I get upset. That’s why I get upset”. The learned Magistrate asked if she felt quite able to defend herself today and she replied that at that moment “yes”. The learned Magistrate’s assessment was that she seemed to him to be quite up tune and quite on the ball and quite informed and reasonably informed. The trial then proceeded.
- [12]In Dr Wilkie’s report dated 28 February 2014 he states in his opinion the appellant was not fit for trial. He states she is suffering from post traumatic stress disorder of a severe degree and she is severely disabled by it. He states in his experience it would take at least five years of active psychotherapy for her to improve sufficiently for her to be able to cope with legal proceedings. He states as she is now living in Stanthorpe she will have less access to specialists with experience in treating post traumatic stress disorder, it may take up to 10 years before she is well enough to cope with legal proceedings. In his opinion although her PTSD condition is not permanent she will ultimately make a full recovery.
- [13]Dr Wilkie in his report dated 10 April 2014 states he has read a psychiatric report dated 14 February 2011 by Dr Bartholomew Klug. Dr Klug’s opinion was that the appellant developed a moderate adjustment disorder with anxiety as a result of stresses associated with her employment as a custodial correctional officer. Based on the appellant’s history he was of the opinion that her capacity to fulfil the roles and responsibilities of her position was adversely affected by her poor relationship with her supervisor and resulting in anxiety depression. Dr Wilkie states he interviewed the appellant three days after the medical-legal examination by Dr Klug and he has seen the appellant regularly since then. He states during the last three years the stresses have multiplied and the appellant is now suffering from severe post traumatic stress disorder. He states the condition is now so severe that the appellant is mentally incapable of defending herself in a Court of Law and complaints against her need to be dealt with through a Mental Health Court.
- [14]Dr Wilkie in this report refers to many aspects of the appellant’s life including her childhood, working for Queensland Corrective Services and working at the Royal Australian Air Force base where she worked as a leading aircraft women in the RAAF reserves. Her complaints to Dr Wilkie include complaints of being the victim of violence and discrimination and a very unhappy life in many respects. Dr Wilkie states he has a great number of emails from the appellant expressing her anger at the way she perceives herself to have been treated at Corrective Services and at the RAAF base at Amberley. She claimed to him the police were deliberately pushing her towards suicide. He believes the appellant is definitely at risk of suicide. He states she knows that her pattern of overreacting to perceived bullying and putting in official complaints is continually causing new difficulties for herself. He states however she says she cannot stop herself from reacting. While he has asked her to send a draft copy of any proposed email before she sends it, he says she usually acts on impulse. He states the appellant’s current emotional state is such that having to deal with police officers and officers in the Magistrates Court will cause a stress breakdown in her which will be manifested by displays of rage and defensive verbal abuse as well as inability to think rationally. He states in his opinion she is not able to defend herself against charges brought by police and the current legal matters should be dealt with in the Mental Health Court. He states she needs ongoing treatment with SSRI antidepressant medication and regular psychotherapy. Her current diagnosis is post-traumatic stress disorder.
- [15]Dr Wilkie also gave oral evidence. In his oral evidence he confirmed first seeing the appellant on 17 February 2011 when he diagnosed her as having an adjustment disorder caused by perceived victimisation. He later diagnosed her as suffering from post-traumatic stress disorder because she had all the symptoms of it.
- [16]He said the symptoms were firstly re-experiencing symptoms where people have nightmares and dreams of these events that have traumatised them and they often get flashback episodes. Secondly, there is avoidance symptoms where people tend to avoid the places and situations where that trauma was experienced. Thirdly there is persistent ongoing anxiety. The person is anxious, nervous and on edge all the time. Finally, there is the feeling of sort of emotional numbness of your life having been irrevocably changed. With this the person feels like their life has been truncated, that you will not live a normal life span, and she experiences a suicidal feeling. With the appellant he said she sends him e-mails to the effect that she thinks the police are trying to drive her to suicide and she has suffered a great deal of stress.
- [17]He said while she was off work with Corrective Services, she worked at the Amberley base and apparently assaulted someone, and she said that people seemed to be treating her in a very odd sort of and negative dismissive sort of manner. She made the assumption that somebody had spread some negative information about her up there at the Amberley base. In Dr Wilkie’s opinion, the appellant is not suffering a personality disorder. He says she is quite a pleasant person. She seems to have a generous personality. He said she has never been nasty, abusive or angry or anything with his receptionists or with him. She is a rather warm person by nature. He said he has a fair amount of confidence in the Police Service but he does not think a person with a severe personality disorder would have been accepted as a candidate trainee at the police academy at Oxley nor would such a person have been accepted to work in Corrections, and somehow he thinks that she would not have been taken into the Air Force Reserve if she was so disordered that she had an ongoing personality disorder because her personality disorder will show up all the time, most of the time. However with her post-traumatic stress disorder, in his opinion, it is severe. However when these charges were brought, in his opinion, she was suffering to a severe level of post-traumatic stress disorder. Dr Wilkie states the appellant presents to him in a way that she thinks the police might be planning to try to drive her into suicide. Dr Wilkie states, regarding the transcript of the proceedings before the learned Magistrate, although it might appear that she was in control of herself he did not think she did very well, in fact, presenting her case. Regarding her understanding what she was charged with, he states she considers that she may have used extravagant language in speaking to people but she considered that she was provoked into this, and she is a country girl with a colourful vocabulary, and this was her response to what she regarded as provocation, whether indeed it was provocation or not, but she considered it was. She made outlandish statements, and although she might say she would blow somebody up, she would put that down to just sort of explosive speech on the spur of the moment, and if a person planned to really badly hurt somebody and use the telephone or email to hurt somebody badly that would be a crime in her eyes, just responding explosively she would not think that she has been charged with anything serious. He states she did not do anything serious but just simply exploded the way that somebody might if they were being provoked.
- [18]Dr Wilkie further stated that even if there was no provocation for her response on the telephone, she was calm back in 2011 and he assumed she was a reasonable, sensible person when she joined the Police Force or Corrective Services and the Air Force, but the provocation by confronting Mr Coyne over losing her job and then being actually battered and bruised and left handcuffed in the car park outside Corrective Services with her breast exposed, feeling very humiliated, and Dr Coyne had seen the photographs of her covered in bruises, the police did not charge the people who had assaulted her but then charged her for assaulting Mr Coyne. Dr Wilkie states with all those previous provocations, in her disordered mind there may have been no provocation from the particular person that she overreacted to, there has in her mind been quite extensive provocation from the police from other places. He states while that did not justify what she did, he is quite sure that the woman she verbally abused over the phone did not provoke her, but the provocation is from the police in general, and if she were not so disordered, she would see that, but what happens with post-traumatic stress disorder, the response becomes generalised. So a person might respond to the sound of the helicopters although it was a helicopter in the warzone, or she might respond to a fairly short comment from a police officer as though this police officer were baiting her or victimising her, and that is what happens in post-traumatic stress disorder. He states the objectivity or the focus is lost and there is a general response. He states it is actually a change in the structure of the nervous system and it is actually beyond the conscious control of the sufferer. He confirmed what he meant was that the appellant is reacting not to the alleged provocation from the person that she abused over the phone but from police in general. He states this is caused by a change in the structure of the nervous system.
- [19]Dr Wilkie further confirmed his opinion that she was not capable of pleading to what she was being charged with. Further, he said the use of the language she used in the telephone calls to Ms Blake were part of the post-traumatic stress disorder. Further, in his opinion she would not have been able to understand the nature of the proceedings or the nature of the charges. Further, in his opinion the appellant is suffering from a mental illness. In his opinion she is suffering from an underlying, pathological infirmity of the mind. However he states that the appellant’s mind is quite healthy in relation to other aspects of her life. However in her daily activity she could be irrational if someone treated her in such a way that recalls the trauma of being victimised by people in authority where you cannot come back at them at all because of their position. He states her behaviour is quite irrational, but in other areas it is not. He sees her as having a disturbed mind.
- [20]When Dr Wilkie was cross-examined, a recording of a conversation between Sergeant Ireland and the appellant over the telephone on 4 January 2013 was played to Dr Wilkie. A transcript of this conversation follows:
“
Mark Ireland | Just on a side issue |
Karen Wantling | Hmm |
Mark Ireland | Have you got something against Lisa Blake here the admin officer that you spoke to |
Karen Wantling | Oh no, no she’s a lovely girl no, no definitely not, she’s lovely |
Mark Ireland | Yeah was there any comment for the |
Karen Wantling | Hmm |
Mark Ireland | Any reason for the comment yesterday |
Karen Wantling | Probably her smart arse comment |
Mark Ireland | And what was that |
Karen Wantling | Tit for tat uh well you know that’s just a public thing so you know but anyway we’ll leave it at that Mark and I’ll just leave the ticket in your hand |
Mark Ireland | No, no, no, no look we won’t leave it at that because I won’t have you or anybody else |
Karen Wantling | Oh I will I will |
Mark Ireland | Ringing up abusing my staff |
Karen Wantling | You public servants and I certainly will especially when she’s being a bitch herself. |
Mark Ireland | Yeah what, what did she say? |
Karen Wantling | There’s more to this and um I’m gonna leave it at that |
Mark Ireland | If she was a bitch |
Karen Wantling | And if you want me to put a complaint in I certainly will and I’m not gonna get upset and angry over this incident ok. |
Mark Ireland | Yeah. |
Karen Wantling | She needs to learn how to speak to people on the phone |
Mark Ireland | Well I’m asking you what |
Karen Wantling | As far as I’m concerned she’s a nasty, um gossiping, awful person and that’s the rumours goings around Stanthorpe as well as I’m not the only one having had to dealt with her and I will speak to her any way I want she’s a public servant, ok? Just like youse are and I won’t put up with the tickets to my daughter, me being harassed by police or anything like that, and that’s gone on in our lives. |
Mark Ireland | Well if she |
Karen Wantling | Including false domestic violence orders taken out against me by Shane Gleeson and, and, and all the rest of the stuff that’s gone on. So yeah I will speak to her anyway if she’s gonna speak to me like that I’ll speak to her. |
Mark Ireland | How does she speak to you though if she’s not speaking to people properly I’d like to know so I can rectify. |
Karen Wantling | I’ve already made a complaint about this a number of times and what went through, it went right through to Warwick ok and then nothing come back. She’s a rude, nasty, awful girl and the way she speaks on the phone especially as representing the Police is disgusting. I am a member of the public and I don’t deserve to be spoken to like that and I’ll speak to her anyway I want because I am a pu, I’m not a public servant she is. Ok, so I’ll leave it with you with what I complained about and have a great day. |
Mark Ireland | Ok Karen bye. [Phone disconnects] |
Unknown Male Person | Laughing |
Mark Ireland | I’ll hit her with a with a summons, that’ll … she … can’t … can’t have that attitude |
”
- [21]When cross-examined, Dr Wilkie said of this telephone conversation that speaking at normal pace, then speeding up and degenerating into abuse again is seen in post traumatic stress disorder. He said her tone changed through the conversation from calling Ms Blake a lovely girl and then engaging in abuse. Dr Wilkie said that Sergeant Ireland was the authoritative person and the appellant was the victim. He stated this recreates the whole scenario. He stated there is the stress that caused her to break down when she was working in Corrective Services. She was being victimised, in her view anyway, by people who had authority over her. Dr Wilkie said this is an example of decompensation. She moved from a person obeying the rules of conversation to somebody who was just irrational. Dr Wilkie agreed at the beginning of the conversation when she called Ms Blake a lovely girl, she was telling a lie. He did not agree she was being sarcastic. Regarding her parting comment in the telephone conversation of “have a lovely day”, he did not agree that sounded like a pleasant voice but rather was facetious or sarcastic. When it was suggested to Dr Wilkie the appellant said, “I will speak to her any way I want: she’s a public servant just like you”, she was speaking with plenty of control, Dr Wilkie said she was speaking not as a victim but as a persecutor. In his opinion she was switching the roles; that is, she would do as she likes, this was defensive arrogance. He saw it as part of her defensive toolbox. When it was suggested to him that the statement “I will speak to her any way I want: she’s a public servant just like you” suggests when she does speak to someone like that offensively she does it deliberately rather than because of a loss of control, Dr Wilkie said it sounded to him arrogant. However Dr Wilkie did agree that the appellant was trying to stop the conversation with Sergeant Ireland and that indicated that she was exercising control. However he said while there was control on her part at the beginning of the conversation, when the Sergeant indicated that it would not be forgotten about and he had control of the conversation, she just decompensated. He agreed when at the end of the conversation she said that she was going to leave it there and then “have a lovely day”, that suggested control again.
- [22]Regarding the calls on 3 and 4 January 2013, Dr Wilkie agreed there was no provocation from Ms Blake. He also agreed that the appellant in those two calls did not have any loss of control. However he said it suggested to him she had something in her mind, some issue that she was not thinking clearly. It was not something caused by anything Ms Blake said or did. It related to some presuppositions about the Stanthorpe Police. He said the appellant had some basic idea that one could call paranoid, if it was false, that was really related to the behaviour of police in general. However he agreed it could be regarded as being deliberately offensive. However he questioned how such a person could be accepted in the police or public service or the Air Force Reserve if they had a really nasty sort of mealy mouth or were just an offensive person. He does not think that is how she is. In his opinion she is not basically an offensive person but she is certainly an offensive person on occasions.
- [23]Regarding the transcript of the trial, Dr Wilkie had read it. He agreed that she had sufficient capacity to be able to decide what defence she would rely on. He also agreed she had sufficient capacity to make that defence and to make her version of facts known to the court. However he stated where she is in a situation where she is challenged, she will become irrational. He accepted she would not have any difficulty understanding that she was charged with an offence which was effectively an offence of using a telephone in a way that people would regard as being offensive. Further, that she understood that her defence to that charge was that she did not say the words that she was alleged to have said. However regarding making out her defence, he thought she made a shoddy job of it. Further, that other experiences that she has had in court, she has probably made a real mess of defending herself.
- [24]Dr Wilkie agreed in cross-examination that in her exchanges with the learned Magistrate the appellant was able to deal with the Magistrate in a polite way. Dr Wilkie referred again to her going to the police college and working in the public service and that the appellant knows the etiquette of these places, and so if she is in a controlled environment, she is different. He said he would agree that she was making a reasonable fist of representing herself in court.
- [25]Regarding the ground of appeal that the appellant was not fit to represent herself at the hearing before the learned Magistrate, Fraser JA in R v Cain (2010) QCA 373 at para [43], set out these propositions:
“
- (a)The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial;
- (b)The fact that a person suffers from a mental disorder which may cause him or her to conduct the defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial;
- (c)The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial;
- (d)The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.
”
- [26]Further at para [45] Fraser JA referred to R v T where Chesterman J (as his Honour then was) held that an accused person was fit for trial even though he had delusions that there was an organised conspiracy against him which might cause him to give an unbalanced account to his lawyers. Further it was not necessary that the accused could give a balanced account of the facts to his lawyers. It was enough that the accused understood the evidence against him and could provide an account of his conduct. Fraser JA quoted Chesterman J’s observations that:
“The authorities show a consistency of approach. An accused is fit for trial if he is able to answer the charge brought by the prosecution. To do so he must understand that he is on trial, and what that means, and he must understand the evidence led in support of the charge so that he could put forward whatever answer he has to it.
…
The authorities also suggest that the test is not a demanding one. If an accused realises, in general terms, what it is to be put on trial and can make sense of the evidence against him he can take a sufficient part in proceedings for the trial to proceed.”
- [27]Although Dr Wilkie in his reports and evidence in chief was of the view the appellant was not fit to represent herself at the hearing before the learned Magistrate, in my opinion the contents of the conversations with Ms Blake on 3 and 4 January 2013 and the content of the conversation between the appellant and Sergeant Ireland on 4 January 2013 show the appellant to be in control. In the conversations with Ms Blake the appellant is given no provocation for what she said and did not have any loss of control. Dr Wilkie agreed with that. Further during the call with Sergeant Ireland, the appellant at times was under control according to Dr Wilkie, although in my opinion the appellant showed control throughout.
- [28]Further I have conducted a review of the proceedings before the learned Magistrate. At the beginning of the proceedings the learned Magistrate sought to enquire about the possibility of a mediation to resolve the matter. When the learned Magistrate indicated that in a mediation there might be some degree of acceptance on the appellant’s part that she had done something wrong, the appellant expressed she was not prepared to be involved in such a process. She perceived that the complainant would have more of a say than the appellant in a mediation. She saw the process as leading possibly to her having to admit guilt which she was not prepared to do. She saw it as being not really all about her but all about the complainant. In that respect I consider she showed clear understanding of what might happen in such a procedure and an ability to avoid being put in that position which was adverse to her.
- [29]Further during the preliminary discussions with a view to the matter going to mediation the appellant expressed that as she saw matters there was no recording and no evidence of the alleged telephone conversations and in addition she expressed that she had a witness. She was also able to express that she had made numerous complaints against Ms Blake and a number of Stanthorpe Police and she has made a public interest disclosure and she saw that the charges being brought against her before the learned Magistrate involved reprisals for her actions. Even if she were wrong about her conclusion, in my opinion, she demonstrated a capacity to allege that the charges before the learned Magistrate were not bona fide. In that respect I do not accept she should be seen as being delusional. Rather, it is open for someone to think this way and it does not follow they are lacking in some capacity to be able to adequately defend themselves.
- [30]The appellant also gave evidence that the charges were reprisals for the complaints she has made. She also gave evidence that although she admitted making the calls, she denied swearing at Ms Blake during those calls.
- [31]Further, while Ms Blake was being cross-examined, the recording between the appellant and Sergeant Ireland was played to Ms Blake. When the appellant cross-examined Ms Blake, the appellant was able to show that Ms Blake had said in her statement that she was present for the conversation whereas she was saying in evidence before the learned Magistrate she was present for part of the conversation. The appellant was also able to suggest there was no proof that she swore during these conversations. Although the appellant did not seem to appreciate that the learned Magistrate could accept the evidence of Ms Blake at the end of the hearing, the appellant was able to press the suggestion that the prosecution had nothing at all to prove its case although Ms Blake reminded the appellant the prosecution had Ms Blake’s word.
- [32]The appellant also asked Ms Blake that if the appellant swore at Ms Blake during the 2010 exchange then why was no complaint made then and further, why complaints were now being made on 3 and 4 January 2013. Although Ms Blake’s answer was that the 2010 phone call did not mean anything, with regard to the 3 and 4 January phone calls, it was Sergeant Ireland who made the complaint, not Ms Blake. Even so, the thought behind this question leads me to conclude that the appellant was quite able to defend herself in this case. Further, the appellant took Ms Blake to task because one can hear laughter at the end of the recording between the appellant and Sergeant Ireland. The appellant took issue with Ms Blake being present. The appellant’s position was that as Ms Blake was not a police officer, she should not have been present during that conversation. In my opinion this shows the appellant can make a point that has some sense to it. The point may not prove anything, however, it shows the appellant is capable of making a point.
- [33]Further, when the appellant cross-examined Sergeant Ireland, she was able to deal with the same issues directly with him. She did not have any difficulty putting her case to him.
- [34]When the appellant gave evidence she was also able to advance her case. She denied that she swore or used any bad language towards Ms Blake. She denied that she did anything offensive and said she was ringing up the police station to honestly speak to one of the police officers concerning a family matter. She denied she ever spoke to Ms Blake as alleged. She explained what happened on 3 and 4 January. She referred to her daughter being present when she made these phone calls. She said it was Ms Blake that was abrupt. She also said she never rung up in any manner to be offensive to anybody. She did not intentionally mean to ever come across in that manner as Sergeant Ireland has portrayed her. She believed he was trying to provoke her in the telephone conversation that was recorded and she was getting upset about it and did not want to talk about it. She said she was offended actually by the whole conversation because it ended up where they were laughing at her and she was highly offended by it.
- [35]Therefore in my opinion the appellant was able to put her case. She was also able to defend herself when cross-examined.
- [36]In addition she called her daughter. However, this did not go well. The daughter appears to have been unable to come up to proof. That is the appellant expected her to say she was present for both telephone conversations with Ms Blake. However, her daughter said she was present for the first conversation but as far as a second conversation was concerned, her daughter did not say she was present for the second conversation with Ms Blake but said she was present for the telephone conversation the appellant had with Sergeant Ireland. Her daughter did give evidence that she never heard her mother be rude. However, during the daughter’s evidence the appellant was able to say that the daughter was only guessing about a topic or questioning why some question was relevant and further, that she was being confused by the cross-examiner.
- [37]Finally, when the appellant made submissions, in my opinion, they were sensible submissions and they were considered submissions in the circumstances. She was able to say she never swore at Ms Blake whatsoever and she was denying that right to the nth degree.
- [38]Therefore, the appellant in my opinion understood the evidence against her and was able to provide an account of her conduct. She was able to answer the charges. She understood she was on trial and what that meant and was able to understand the evidence led in support of the charges so that she could put forward her answer to the charges. She clearly could make sense of the evidence against her to take a sufficient part in the proceedings for the hearing to proceed.
- [39]I do not accept Dr Wilkie’s evidence that the appellant was not fit for trial or that the appellant’s condition was so severe that she could not defend herself in a Court of Law. I do not accept Dr Wilkie’s opinion that the appellant made a shoddy job of defending herself.
- [40]In my opinion, following the relevant test for the appellant’s fitness for trial, no jury, acting reasonably, could conclude that the appellant was not fit for trial (R v Cain per Fraser JA para [47]).
- [41]The next ground of appeal is that the appellant was not criminally responsible for these offences.
- [42]Section 7.3 of the Code provides:
“7.3 Mental Impairment
(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a) The person did not know the nature and quality of the conduct; or
(b) The person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) The person was unable to control the conduct.
- (2)The question whether the person was suffering from a mental impairment is one of fact.
[…]
- (8)In this Code:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
- (9)The reference in s (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.”
- [43]The appellant told the learned magistrate that she was suffering from post traumatic stress disorder. She told the learned magistrate she gets upset. Sergeant Ireland confirmed that in his dealings with the appellant over the telephone she gets quite upset. The appellant also described her condition as a disability. When cross-examined by the prosecutor she said that the side effects of her post traumatic stress is that she gets upset. She said she has a serious medical condition and the police’s accusations towards her and the fact that she had to continue to defend herself her psychiatrist has told her aggravated her condition further by having to deal with these things.
- [44]The learned magistrate had no medical evidence before him regarding the appellant’s condition. He found there was no provision of the code regarding criminal responsibility that applied in the circumstances before him. In my opinion the learned magistrate was correct to come to that conclusion.
- [45]However I have before me the evidence of Dr Wilkie. His evidence does satisfy me that the appellant was suffering from post traumatic stress disorder to a severe degree when she made the phone calls. I accept Dr Wilkie’s evidence that the appellant had a mental impairment being a mental illness when she made the phone calls. However I do not accept her mental impairment had the effect that she did not know the nature and quality of the conduct or did not know that the conduct was wrong or that she was unable to control the conduct.
- [46]I have already said Dr Wilkie accepted that the appellant showed control during the recording. It is my opinion the appellant showed during the recording she could withhold her true opinion of Ms Blake by referring to her as “a lovely girl”. However, based on the content of the recording the appellant had significant reservations about Ms Blake. Further as the conversation proceeds during the recording the appellant shows she is able to put her real view forward. That is while in these proceedings she denies using the words alleged she tells Sergeant Ireland that she will speak to public servants as she thinks fit. In my opinion the conclusion to be reached from what the appellant said is that she could do as she wanted. In my opinion that is not the response from someone who is unable to control their conduct. In addition in my opinion there was no provocation from Ms Blake for the appellant to speak to Ms Blake the way the appellant did. In my opinion when the appellant used the words in the telephone calls with Ms Blake the appellant deliberately used those words.
- [47]Therefore I am satisfied beyond reasonable doubt the appellant was criminally responsible for the offences.
- [48]The remaining grounds of appeal are in my view different ways of saying the same thing. That is that the learned magistrate should not have found the words relied on by the prosecution were used by the appellant in a way that reasonable persons would regard as being in all the circumstances offensive.
- [49]A submission was made during the hearing of the appeal that as the learned magistrate said the words used on both occasions were “you fucking bitch” he could not find the second offence was made out because the words relied upon for that offence were “you fucking fat bitch”.
- [50]While it is correct the learned magistrate during his reasons referred to the words in both offences being “you fucking bitch” in my view that was merely a slip on his part. At the end of his reasons he accepted Ms Blake’s evidence which must carry with it an acceptance that the words used in the second telephone call were “you fucking fat bitch”. Therefore this point does not lead me to conclude the appeal should be allowed.
- [51]The section relied upon by the prosecution before the learned Magistrate was s 474.17 of the Code which provides as follows:
“474.17 Using a carriage service to menace, harass or cause offence
- (1)A person is guilty of an offence if:
- (a)The person uses a carriage service; and
- (b)The person does so in a way (whether by the method of use or the content of the communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 3 years.”
- [52]The prosecution were not relying upon the menacing or harassing aspect of the offence.
- [53]Section 473.4 of the Code relevantly provides:
“473.4 Determining whether material is offensive
- (1)The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:
- (a)The standards of morality, decency and propriety generally accepted by reasonable adults; and
- (b)The literary, artistic or educational merit (if any) of the material; and
- (c)The general character of the material (including whether it is of a medical, legal or scientific character).”
- [54]Section 473.4 of the Code is to be found in the same part (part 10.6) in which s 474.17 is to be found.
- [55]In coming to his decision the learned Magistrate said that if Ms Blake’s evidence was accepted that the appellant said those things to her on the 3rd and 4th of January those remarks would be offensive to any reasonable person. It is correct that the learned magistrate did not refer to s 473.4 and consider the relevant circumstances including those listed in s 473.4 to come to his conclusion.
- [56]In addition, the learned Magistrate did not have the benefit of the decision of Monis v The Queen (2013) 249 CLR 92 which was referred to me on this appeal.
- [57]In Monis the High Court dealt with the question whether a similar provision to s 474.17 of the Code namely s 471.12 of the Code was constitutionally valid. Section 471.12 is to be found in part 10.5 of the Code and is as follows:
“471.12 Using a postal or similar service to menace, harass or cause offence
A person is guilty of an offence if:
- (a)The person uses a postal or similar service; and
- (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.
Penalty: Imprisonment for 2 years.”
- [58]In Monis as the court was equally divided the decision of the Supreme Court of New South Wales was affirmed. That decision was that s 471.12 was constitutionally valid.
- [59]Three judges of the High Court in Monis Crennan, Kiefel and Bell JJ said that the word offensive in s 471.12 relevantly characterises the contents of a communication which is made using a postal service. It is a relative term, capable of referring to material ranging in degree of offensiveness. The section applies an objective standard, namely that of a reasonable person, and enquires whether that person would regard the use of the postal service in all the circumstances as offensive ([287]). Further, they said the enquiry under s 471.12 is not merely whether the recipient is offended, but whether the content of the communication or the method of sending it is offensive, judged by that objective standard ([288]).
- [60]Basically in Monis the appellant had been charged with a number of counts of using a postal service in a way that reasonable persons would regard as being in all the circumstances offensive. It was alleged he sent letters or a compact disc to the fathers, the wives or other relatives of Australian soldiers who had been killed whilst in active service in Afghanistan. The letters contained statements which were critical of the Australian Government’s role in maintaining troops in Afghanistan. While the letters opened with expressions of sympathy for the grieving family member or members to whom they were addressed if the recipients read on, they were confronted with accusations that the dead soldier was a murderer of innocent civilians and children and, in some cases, was to be likened to Hitler.
- [61]At paragraph 310 Crennan, Kiefel and Bell JJ said “offensive” is used in s 471.12 in conjunction with “menacing” or “harassing”. They said importantly the grouping of the three words and the subjection to the same objective standard of assessment for the purposes of the offences in s 471.12 suggests that what is offensive will have a quality at least as serious in effect upon a person as the other words convey. They said the words “menacing” and “harassing” imply a serious potential effect upon an addressee, one which causes apprehension, if not fear, for that person’s safety. They said for consistency, to be offensive, a communication must be likely to have a serious effect upon the emotional wellbeing of an addressee. In addition they said ([311]) that it has long been accepted that penalty is an indication of the seriousness with which the legislature views and offence. They also said in ([327]) there are stronger reasons than context for reading the word “offensive” in s 471.12 as confined to seriously offensive communications. Further they said ([333]) it is unlikely that parliament intended to prohibit all communications which happen to contain some matter which may cause offense. Finally they said ([336]) the cases concerned with statutory prohibition or regulation of offensive conduct or communications make plain, and the judgments in the Court of Appeal confirm, that it is well understood that the protection intended to be provided by provisions such as s 471.12 relates to a degree of offensiveness at the higher end of the spectrum, although not necessarily the most extreme. Words such as “very”, “seriously” or “significantly” offensive are apt to convey this. It is difficult to accept that this would be insufficient for the purposes of the application of the objective standard of the reasonable person, who may be taken to reflect contemporary societal standards, including those relating to robust political debate. As I read their Honours’ judgment communications with such serious effects are to be contrasted with those which cause mere hurt feelings ([338]).
- [62]The high standard for offensiveness for a communication was accepted by Dorney QC, DCJ in Starkey v Commonwealth Director of Public Prosecutions (2013) QDC 124 at [50]. In that case his Honour dealt with emails sent to politicians, political and Government organisations and prominent media groups which in some instances implied that politicians should be killed. His Honour applied the high standard for offensiveness. It was a prosecution before his Honour under s 474.17 of the Code. His Honour found the emails were not in the circumstances offensive.
- [63]The appellant said she did not intend to be offensive to any body. Although I accept the appellant rang to speak to Sergeant Ireland in my opinion once the appellant recognised Ms Blake’s voice the appellant deliberately chose the words she spoke to Ms Blake. Although Ms Blake said she was upset and insulted, how Ms Blake felt is not the test. However, in my opinion taking into account the standards of morality, decency and proprietary generally accepted by reasonable adults these words “you fucking bitch” and “you fucking fat bitch” would be regarded by reasonable persons as being in all the circumstances, offensive.
- [64]I do not accept that the “history” between Ms Blake and the appellant arising out of the 2010 DV issue or that the appellant felt that police were singling her out or her family out or that there was gossip in the town about the appellant in which Ms Blake may have participated as far as the appellant was concerned or the appellant’s post traumatic stress disorder are circumstances that would lead reasonable persons to not regard the words as offensive. That is because in my opinion reasonable persons would accept Ms Blake did not offer the appellant any provocation and the circumstances relied upon by the appellant do not justify the use of those words.
- [65]While the judgments in Monis and the judgment of his Honour Judge Dorney in Starkey confirm a high standard for “offensiveness” I am satisfied reasonable persons would regard these words as being in all the circumstances offensive.
- [66]I am satisfied reasonable persons would regard what the appellant said to Ms Blake was in the circumstances a seriously offensive communication. I do not accept that the use of these words to Ms Blake a public servant can be described as just causing hurt feelings. In my opinion it is a relevant circumstance that as a public servant Ms Blake answering the telephone cannot escape being a recipient of the offensive communication.
- [67]Therefore reviewing the evidence before the learned magistrate and the additional evidence and considering the learned magistrate’s reasons for the reasons I have given I am satisfied the learned magistrate came to the correct conclusion that the remarks in the telephone calls were offensive to any reasonable person. That is, that reasonable persons would regard those remarks in the circumstances were offensive.
- [68]Finally, on the hearing of this appeal the appellant submitted the learned magistrate did not deal with the element of recklessness. That is there are two elements to be satisfied beyond reasonable doubt by the prosecution. The first was dealt with by the learned magistrate namely intention with respect to subparagraph (a) of s 474.17. In my opinion the learned magistrate was correct in his conclusion that the appellant meant to use the telephone. She may not have intended to use it for offensive purposes when she commenced the call because she wanted to speak to Sergeant Ireland to have the ticket issued to her daughter cancelled. However as I have found once she knew that Ms Blake had answered the phone she used the telephone in a way reasonable persons would regard as being in all the circumstances offensive.
- [69]However regarding recklessness that is the element relevant to subparagraph (b) of s 474.17. This involves the prosecution having to establish beyond reasonable doubt that the appellant was aware of a substantial risk that the way in which she used the service would be regarded by reasonable persons as being in all the circumstances offensive and further having regard to the circumstances known to the appellant it was unjustifiable to take the risk.
- [70]Reviewing the evidence before the learned magistrate and considering the additional evidence from Dr Wilkie I am satisfied the appellant was able to control herself. Further that she was deliberate about what she said. As she said in the recording if it suits her she would say what she likes to a public servant. In all the circumstances I am satisfied beyond reasonable doubt that the appellant was aware of the substantial risk that the way in which she used the telephone would be regarded by reasonable persons as being in all the circumstances offensive. She could be left with no other conclusion once she used those words over the telephone to Ms Blake. Further I am satisfied beyond a reasonable doubt that in circumstances known to the appellant it was unjustifiable to take the risk. That is Ms Blake was a captive recipient whose employment would make it impossible for her to avoid the appellant’s offensive remarks.
- [71]Therefore even though the learned magistrate did not deal with the element of recklessness I am satisfied on the hearing of this appeal beyond a reasonable doubt that the element of recklessness is made out by the prosecution.
- [72]Therefore there is no basis in my opinion for setting aside the decision of the learned magistrate. In my opinion he was correct to find the appellant guilty of the two offences.
- [73]Therefore I dismiss the appeal.
- [74]I direct that the respondent file and serve submissions as to costs if any within seven days. I direct the appellant to file and serve submissions as to costs if any within seven days thereafter.
- [75]I direct that these reasons be sent by the registrar of the District Court of Toowoomba to the learned magistrate sitting at Stanthorpe so the matter can be listed for sentence.