Darin Christopher Martin v R

District Court of NSW|2017-04-05|Before: Mason P, Basten JA

Judgment on appeal

The appellant appeals against his conviction for one count of stalk/intimidate, intend to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 ("the CDPV Act"). The section provides as follows: "13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the Prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
The maximum penalty given summary jurisdiction was a period of imprisonment of 2 years and/or a fine of $5,500.00.
The appellant was convicted on 19 August 2016 in the Local Court. The appeal was heard on 5 April 2017.
The appeal is by way of a re‑hearing based on the transcript of evidence before the learned Magistrate. In determining the appeal, I am to apply the principles governing appeals from a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court - see Charara v R [2006] NSWCCA 244 per Mason P at [18].

Background to the offending

The evidence established that the appellant was, as a police constable, on nightshift on Sunday 17 January 2016 at Marrickville Police Station. His shift was from 6pm on that day until 6.30am on 18 January 2016, and he was working with Constable Juan Congdon. At 9.10pm, and again at 11.52pm, the appellant and Constable Congdon attended premises in Arthur Street, Marrickville, for the purpose, first, of a bail compliance check, and then on a report that there was fighting at that address. On the second occasion, other police also attended. A number of people were in the premises, including one Joel Donoghue, who at that time was described by a police witness as being "friendly", "polite" and "calm".
At approximately 1.30am, the appellant and Constable Congdon were again called to a location in Marrickville on a report of two men fighting. As they were driving their police vehicle down Illawarra Road, they observed Joel Donoghue and Mervyn Edwards, who had also been at the premises earlier, on the footpath. The appellant alighted from the police vehicle and asked the two men to stop, and informed them that the police had been summoned on a report that there was fighting in the street. The two men denied they were fighting, and the appellant used his flashlight to check their hands to see whether there were any marks which would indicate they had been fighting. There were none. The appellant asked the two men to sit down on the footpath against a shop front while he checked their identification. Both men were compliant.
After carrying out the police checks, the appellant had walked across the footpath towards the two men and spoke to them about consorting. The two men denied that they were consorting, stating that they were family and related by blood.
Joel Donoghue is alleged to have said words to the effect, "Do you want to do a blood test?", and "We are family", at which point, it was alleged by the Crown that the appellant took out a folding style knife from his right hand side pants pocket and, while pointing the knife at Mr Donoghue, said words to the effect of, "We can do a blood test now if you like". While he said that, he was holding the knife out in front of him at waist height.
Mr Donoghue got to his feet and walked away. Before leaving, he spoke to Constable Congdon, who attempted to calm him down. He then immediately went to Marrickville Police Station where he made a complaint against the appellant.
Exhibit B on the Appeal contained facts which were common ground between the parties. They were as follows: 1. The appellant was at the scene with Const Congdon, Donoghue and Edwards at the relevant time. 2. The appellant agrees he did take out the knife. 3. The prosecution allege he pointed it, he denies this. 4. The prosecution allege he intended to cause fear, he denies this. 5. Const Congdon corroborated Donoghue both in his statement and in his evidence. 6. Donoghue and Edwards made immediate complaint. 7. That complaint was recorded by A/Sgt Preston. 8. The appellant admitted to A/Sgt Preston he had his knife drawn, and it was a stupid thing to do. 9. There is CCTV of the entire incident. 10. The appellant represented himself and gave evidence in the defence case.

Evidence in the Crown case

The following evidence was adduced at the hearing: Exhibit 1 - CCTV Disk of the incident Exhibit 2 - Photo of scene tendered by the Appellant Exhibit 3 - Drawing of the appellant's knife Exhibit 4 - Statement of Senior Constable Joseph Kazzi Exhibit 5 - Five photographs of the appellant's knife
The Crown called Mr Kevin Folks, who lived at the corner of Illawarra Road and Petersham Road, Marrickville. In the early hours of Sunday 18 January 2016, he heard people arguing outside his apartment on the pavement of Petersham Road. He observed two men yelling at each other. He observed an altercation take place between the two men, which escalated and then he called the police. He then saw the two unidentified men walk away together. He later made a statement to the police and gave a description in his evidence of the two men.
Detective Senior Constable Quinn was one of the officers in charge of the investigation. She spoke to Mr Edwards, who was with the complainant, on the night in question, and also to Mr Folks. Through Detective Quinn, the CCTV footage of the incident was tendered and became Ex 1. She also gave evidence that police standard issue equipment did not include a knife.
The complainant, Joel Donoghue, gave evidence that he had been drinking with a few friends at the premises at Arthur Street, Marrickville, on the night of 17 January 2016. At about 9.30pm, police attended the premises to carry out a bail check on one of the persons he was with. At 11.30pm that night, the police returned on a noise complaint. Both the appellant and Constable Congdon attended, but did not come into the house.
At about 1am, Mr Donoghue left with Mervyn Edwards to walk to Mr Donoghue's home in Illawarra Road. At no time did they fight, and when they were at the corner of Marrickville Road and Illawarra Road, they saw a police car pull up.
Mr Donoghue gave evidence that the appellant got out and said to the men, "This is the third time they've spoken to us tonight", and Mr Donoghue said, "No". He then said, "You didn't speak to me three times. You spoke to a couple of my mates and asked for our ID".
Mr Donoghue gave evidence that the appellant asked for their ID, and to check his hands, and Mervyn Edwards' hands to see whether they had been fighting. The men showed the appellant their hands and the appellant looked at them under torch light.
While the men were waiting for the appellant to check their ID, they sat down up against a shop, on the footpath. When asked what happened after that, Mr Donoghue gave the following evidence: "A: I was just sitting there waiting. He got out and he was still talking and writing stuff in his notebook. Constable Martin was, and then he asked me and Mervyn, do we know about the consorting laws, and I said 'Before you get into that, you can't, because me and Mervyn are family', and he said 'How can you prove that?' I said, 'Ask our parents, blood test, DNA test'. As soon as I said that he said, 'Do you want a blood test?' and pulled out a knife and pointed it at me while I was sitting, I was still sitting at the time."
Mr Donoghue gave evidence that he had raised his voice when speaking to the appellant, and that Mervyn Edwards probably would have as well. At the time of the conversation about consorting, neither Mr Donoghue nor the appellant were raising their voice.
Mr Donoghue gave evidence that the appellant took the knife out of his right pants pocket. He then opened the blade and pointed it at Mr Donoghue. It was about 10cms. He said that the appellant was about 2 metres away from him when the knife was pointed at him. It was pointed towards his body and he got up and started walking away straight away. He told the appellant that he was going to make a complaint at the police station. He gave the following evidence: "Q: At the point where the knife is being pointed at you, how did you feel? A: I was scared. Q: Tell us what you were scared of? A: I was afraid of being stabbed. Q: So you stand up and you walk away? A: I walk away yep."
Mr Donoghue agreed that Constable Congdon had followed him and said, "Just come back, let him finish the checks, get your ID's and you can go to the police station and make a complaint". Mr Donoghue was compliant with that request and returned to where the appellant was, retrieved his ID from him, and then walked to the police station.
Mr Donoghue gave evidence that he had spoken to a Sergeant of Police at the police station, and told him that the appellant had pulled a knife out on them, and pointed it towards them.
In cross-examination, Mr Donoghue gave evidence that he had been drinking rum and coke since 8.30pm the previous night. He had consumed 10 or 11 until he left at approximately 1am. Mr Donoghue would not agree that he was drunk, and said that he wasn't intoxicated to where "I couldn't know what I was doing".
Mr Donoghue denied being in an altercation with Mr Edwards on Illawarra Road. He also denied having any resentment against police.
In relation to the CCTV footage, Mr Donoghue agreed that the appellant's arm was not extended out to the fullest, but was bent when he was holding the knife.
The appellant's case was put to Mr Donoghue in the following way: "Q: Now you've made the allegation that I presented the knife to you, and you said, 'Do you want a blood test?; I put it to you that that is not true? A: Well, on my behalf I believe that's true. Q: You also stated that you said - and you were going to the police station 'because you just pulled a fucking knife"; is that correct? A: Yes, I did to Officer Congdon. Q: Do you recall in that conversation between myself where you threatened to want to punch on? A: No, I can't recall that. Q: Do you recall calling us 'fucking copper dogs'? A: No, I can't recall that. Q: You can't recall any of that? A: I can't recall acting in an aggressive manner at all, as you can see in the footage, I'm on the floor."
The appellant then asked: "Q: Is it possible I was looking at both yourself? A: You was probably looking at both of us, yeah. Q; Is it possible that during the course of the conversation I produced a knife as a visual aid in context with the conversation you were having with me about consorting laws? A: What's that supposed to mean? … Q: Now Mr Donoghue, you had a conversation with me in regards to wanting me to take you to hospital for a blood test; do you agree with that? A: I didn't say hospital. I said, 'we could have a blood test, or a DNA test'. I didn't say we could go to the hospital and have one. Q; Now, as a result of that conversation, I put it to you that I had the knife out, had it in my hand and I said to you, 'You can use my knife if you like'; do you agree with that? A: No."
There was no re-examination.
Constable Congdon gave evidence of the two occasions on which he and the appellant visited the premises in Arthur Street, Marrickville, on 17 January 2016. The first occasion was at 9.10pm, when they went to the property for the purposes of a bail compliance check on Timothy Dallas, who was present at the premises. Also present on that occasion was a man wanted by the police, a Mr Gavin Close, who left by the rear of the premises, jumping the back fence, and entering railway property, as the house backed onto the railway line.
On the second occasion at 11.52pm, the two police officers attended as a result of a complaint that people were fighting inside the same premises. On this occasion, the appellant saw another person who was wanted for breach of bail conditions, and issued a Court Attendance Notice to that person. On both occasions the police officers had seen Mr Mervyn Edwards at the premises, and on the second occasion, they spoke to him outside the house. Whilst they were doing so, Mr Donoghue arrived at the premises. He asked the police if everything was okay. He was described by Constable Congdon as being "friendly, polite and calm".
Constable Congdon gave evidence that at about 1.30am he and the appellant were patrolling in a police car and heard a report on the police radio of a possible assault on Illawarra Road. A description was given of two men fighting, one in a blue shirt, and one with a white shirt. Whilst they were driving to the location, the appellant said to Constable Congdon, that "it sounded like the people we were dealing with earlier at Arthur Street".
They saw the two men on Illawarra Road, and stopped their police car. They identified them as Mr Donoghue and Mr Edwards. Constable Congdon gave the following evidence: "Q: What happened next? A: So we were driving down Marrickville Road, turned left, parked Illawarra Road, Darin's jumped out of the passenger side, he's asked them to stop, which they have. I've come around from the driver's side and Darin's speaking to them about why they've been stopped, which is we had a report of fighting in the street. So to make those enquiries, he's used his flashlight and he shone on their hands to check and see if there's any marks. From where I was, I could see their hands, I couldn't see any marks on their hands to indicate that they'd been physically fighting. A short time later, Darin asked them to sit down and he's got their identification. So he's ran checks on them. Q: Did he run the checks from the car, can you recall, from his police radio? A: I can't remember exactly if it was done on the computer, or if it was done over the radio. Q: After he's done those checks, what happened next? A: He's walked over to Joel, who's sitting down, and he's speaking to him about consorting. Q: Could you hear what was being said? A: The early conversation I couldn't hear exactly what was being said, because I was standing back. Once the topic of consorting came up, their voices are raised, so I could hear the things they were talking about. Q: What is it that you heard? A: So Darin said words to the effect of, 'It's up to you to prove in court, if you're family', because Joel's saying words to the effect of, 'You can't give us a consorting warning because we're family, we're related by blood'. Q: What did you see next? A: I think Joel said words to the effect of, 'Did you want to do a blood test?, like we're family', then Darin took out like a folding style knife from his right hand side pants pocket and said to the effect of, 'We can do a blood test now if you like', or something similar. Q: When he was saying, do you want to do the blood test, where was he pointing the knife? A: He was just holding it out in front of him. Q: In which direction? A: So he's speaking to Joel, he's looking at Joel, who's sitting down, so he's just holding the knife at waist height. Q: At his waist height? A: At Darin's waist height. Q: Yes. During that - and what happened next? A: Everything quickly escalated. So Joel starts yelling, Merv starts yelling. Joel's yelling out words to the effect of 'You smash us for the stupidest things. You smash us for the smallest things. Who do you think you are? Who do you think you are to pull a knife on me?' Q: When Joel said this, was he sitting down or standing up? A: He stood up. So they've stood up, and they've started yelling. Q: What did Constable Martin do, where was the knife at this stage? A: He's put it away."
Constable Congdon gave evidence that he then attempted to de-escalate the situation. He spoke to Mr Edwards, trying to calm him down, and said that he would go with him to report the matter to a Sergeant. He told Mr Edwards that he would say what he saw.
When he returned to the police car with the appellant, Constable Congdon gave evidence that the first thing he said to the appellant was "I didn't see anything". He gave the following evidence: "Q: Why did you say that? A: Because I was in shock. I didn't want to have seen what I saw. It really upset me. Sorry, I get upset now, I'm sorry. … I spose I was a little naïve. I didn't think - we're police. I feel we shouldn't even need professional standards. I didn't think these things happened."
Constable Congdon was asked what he meant by saying the words to the appellant, "I didn't see anything". He answered: "A: I was expressing my shock, my disbelief. I felt like it was more - I was watching the situation unfold, not so much that I was there. If that makes sense. Q: What did he say in response? A: Darin was really good about the whole thing after it happened. He was really upset, you know, in saying, it shouldn't have got that far, this shouldn't have happened, you know, don't worry mate, just call it as it is, call a spade a spade."
Constable Congdon gave evidence that they then went on to attend another job, but whilst there, were asked to return to Marrickville Police Station.
Constable Congdon was cross-examined by the appellant.
In cross-examination, it was put to Constable Congdon that it was possible he did not have a clear recollection of what happened after the knife was produced. He answered: "A: From that point, things felt like they were moving very quickly."
Despite being stunned, Constable Congdon said he was still able to function as a police officer. Prior to the knife being produced, he described Mr Edwards as being very argumentative and belligerent. He described Mr Donoghue as "alright". He was asked whether Mr Donoghue was belligerent in any way after the knife was produced, and said: "A: Yes. So after that, I remember bits of it; so he said things to the effect of 'You guys smash us for the smallest things, who do you think you are to pull a knife on me', things like that. …
Constable Congdon denied saying to the appellant after the incident, "If you want me to say there was no knife, I'll say it". When asked why he did not make any notes in his notebook, he answered: "A: I think it's fair to say I wasn't - as I said earlier, I wasn't acting as a police officer after that point. I wasn't - this is not a typical situation."
In re-examination, Constable Congdon confirmed that he had a conversation with Mr Donoghue to calm him down, by saying to the appellant; "I didn't see anything."
Constable Congdon gave evidence that he was expressing his disbelief at the situation.
Senior Constable Green gave evidence that he was at Marrickville Police Station at 1.50am when Mr Donoghue arrived, with Mr Edwards, and they wanted to make a complaint in relation to the appellant, who had pulled a knife on him on Illawarra Road. Acting Sergeant Preston then interviewed Mr Donoghue.
Constable Patterson was also on duty with Senior Constable Green. Of the two men, one was quite aggressive and yelling, whilst the other was trying to calmly speak to Senior Constable Green and herself. That person was Mr Donoghue. Mr Donoghue then spoke to Acting Sergeant Preston when he returned to the police station.
In cross-examination, Constable Patterson agreed with the appellant that she completed the rest of the nightshift with the appellant at the police station. She agreed that at no time did he seem agitated, or angry.
Acting Sergeant Preston gave evidence that he attended the premises in Arthur Street, Marrickville, at approximately 11.45pm on 17 January 2016. Both Mr Edwards and Mr Donoghue were present, and the appellant prepared a field Court Attendance Notice in respect of another man's breach of bail. At that time, he observed the appellant to push Mr Edwards away from him when Mr Edwards was arguing with the appellant.
Acting Sergeant Preston was called to the police station at about 2am to handle a complaint about the appellant. He gave the following evidence about his conversation with the appellant: "Q: What was it that he said? A: He said it was - there were two people that he spoke to earlier, Mervyn Edwards and Joel Donoghue, we stopped them, spoke to them about consorting offence or consorting law issue, and that they said they weren't consorting because they were blood related or family related, and that he said how am I going to prove that, and he said he pulled out a pocket knife and demonstrated taking blood from his own arm. Q; Did you ask him anything after he initially told you that? A: Yeah, I think I asked him whether he pointed the knife at them, or - and he said he hadn't pointed the knife at them."
Acting Sergeant Preston gave evidence of his interview with Mr Donoghue during which, Mr Donoghue said he was feeling scared. He gave this evidence: "Q: Scared; did he say why? A: He said he was scared to walk home in case Constable Martin will come get us."
Acting Sergeant Preston formed the opinion that Mr Donoghue was intoxicated and did not take a statement from him. He made a decision then to have the appellant taken off the road and remain in the station for the remainder of the shift.
Acting Sergeant Preston gave evidence that the appellant told him that it was a silly thing to do, and the whole situation got blown out of proportion.
Leading Senior Constable Kazzi also gave evidence that he was working on the night of 17 January 2016. He confirmed that Mr Donoghue complained to Acting Sergeant Preston that the appellant held a knife 50-70 cms away from his face.

The evidence of the appellant

The appellant gave evidence that, in responding to the radio call, at the intersection of Marrickville Road and Illawarra Road, he saw two males who matched the description given over the radio. He gave the following evidence as to what occurred; "A: So I got out of the vehicle. I can't remember what the words I used just 'Were you guys fighting?', or something, or 'What was going on down the road?'. Then I asked them to show me their knuckles to see if they had any injuries as a result, which is a common thing we do because knuckles and hands are the first to show any signs of fighting. They didn't have any injuries on them. So I checked their knuckles, couldn't see anything. Then I asked if they had any identification on them. So they supplied I think it was a photo card and P plate driver's licence. P1. So I started to do some computer checks. CNI. I think that the MDT, which is the mobile data terminal in the vehicle was too slow at the time, so I think I put it over the radio. I think Mr Edwards and Mr Donoghue took it upon themselves to sit down on the side of the road - sorry - on the footpath, leaning against the window. Waiting for us to complete these checks. So the radio came back with 'radio secure', which is a common terminology used for there's history on the gentlemen. So the CCTV camera shows us listening to - cocking our heads, listening to the radio regarding their backgrounds. So once that came through I started recording their details in my notebook. I had my notebook out in my hands and started writing down their details. And then Mr Donoghue started talking about consorting and I believe that was in relation to my prior conversation with Mr McDonald earlier in the night. Q: Do you recall what he said? A: I think it was words to the effect of 'You can't do us for consorting', or 'We're related', or something like that. Q: Yes? A: So I'm trying to record his details and having a conversation with him and Mr Edwards at the same time. And Mr Donoghue went along the lines to say, 'Take us to the hospital, you can test my blood', so I told them that's not what we do. We are not an ambulance. He later stated 'Yeah well take me to the station you can do it there' and I informed him again that we can't take blood at the station. Q: Yes? A: The conversation continued. At some stage I think I said to him 'That would be for the courts to sort out if there was a consorting charge'. Then I said to - Mr Donoghue kept talking about 'Take a blood sample if you want', so I took my knife out of my pocket in my right hand and I said to him, 'You can use my knife if you want', or words to that effect. I opened up the blade in my hand, right hand, I didn't point it at him at any stage or stand over him or show any aggressive moves towards him, anything like that, for him to cause any - show any fear or any such thing. The CCTV clearly shows that I didn't point the knife at him, I hold it to him as he so … stated on the stand and in his statement. I didn't make any motion towards him or any aggressive moves or anything like that. The knife was out for a couple of seconds and then I put it back in my pocket and he stood up. I believe Mr Edwards yelled - stated that, 'He's pulled a knife on you bro', or something to that effect. Mr Donoghue has walked away towards the corner of the - off to the side of the front of the police car. Still on the footpath. I believe he's then walked towards the corner of Marrickville and Illawarra Road. That's when … gone and talked to him, trying to calm him down and he's very abusive and angry and I'm standing there talking to Mr Edwards, still recording some details. Finished writing in my notebook then I gave Mr Edwards his ID back and Mr Donoghue came - walked back towards - past me and I believe I can't remember if I gave him his details or I gave them both back to Mr Edwards, then they said they're going to make a complaint to the police station and Mr … and I got back in the vehicle and attended another job."
The appellant agreed with the evidence of Acting Sergeant Preston as to the conversation he had with him, as set out above.
The appellant went on to say that, in his evidence that … : "So regardless of the fact that I'd spoken to Mr Edwards earlier on in the night, held no bearing on the third time that I spoke to him. I merely used the knife as a - like as a visual aid sort of thing to say that, you know, you can use my knife to take blood. At no time did I threaten him with the knife or hold it to him or anything like that. It was a stupid thing to do and I fully admitted that from day one, and there was no malice or intent to cause fear or psychological harm."
The appellant was then asked by the learned Magistrate, whether he wanted to comment about the evidence of some of the witnesses that he made a motion with the knife by holding out his arm and using it in a cutting motion across his arm. His answer was: "A: At the time when I spoke to Sergeant Preston that's what I believe I did and the action. I held the knife to my hand, however, on viewing the CCTV, that's not what actually took place. That's how I recall the incident prior to reviewing the CCTV footage. Q: Is there anything else? A: Sorry your honour. Just in regards to the incident. I've been completely open and honest about this. I've never denied I took the knife out and I've tried to explain that, you know, it was - I made full admissions that it was a stupid thing to do. If I had a second chance I obviously wouldn't do it. I completely admit it was a stupid thing to do but the intent was to - not to cause fear or psychological harm as the prosecution is trying to say, but just there to illustrate a point about taking blood. And I explained that to my supervisor on the night.'
The appellant gave as a reason for having a knife, was that he used it as a rescue tool in motor vehicle accidents and when attending suicides.
In cross-examination, the appellant said that he had never used his knife as a visual aid before. Nor had he offered it to a suspect. He was asked: "Q: And you understand of course that offering a knife to a suspect is a very dangerous thing to be doing? A; I totally agree it was a stupid thing for me to say and do and I'm very remorseful as I'm in a very difficult position because of my stupidity at the time and if I had a second chance of course I would never do it again."
The appellant gave evidence that earlier in his shift Mr Edwards had been hindering him in his investigations, but that he was not an aggravation. He denied raising with Mr Donoghue the issue of consorting, but he did have a conversation with Mr Donoghue about that.
The appellant agreed that on the CCTV evidence, both Mr Donoghue and he were gesticulating with their hands prior to him taking the knife out. He denied though having an argument or a heated discussion. He would not agree that he was in a position of authority over the two men at the time of the conversation.
The appellant disagreed with the proposition that he pointed the blade of the knife at Mr Donoghue. He said, "It was held next to my body", but he agreed that he was facing Mr Donoghue. He gave the following evidence: "Q: While you were pointing it in his direction you said to him, 'I'll use this to take your blood", or words to that effect? A: I think the actual words were, 'You can use my knife, you can take some blood if you want'. Q: Were you prepared to give him that knife? A: No, no. Q: Well why did you hold it out to him and point it to him? A: Well I didn't hold it out, I didn't point it to him. Q: Well I think the CCTV footage shows that it was pointed in his direction, what would you have done if he said to you, 'Oh yes okay, give me the knife'? A: I don't know that's, I can't comment on something that may happen later on. Q: You never offered him the knife did you? A: No I disagree. Q: To offer him the knife would be a, not just a stupid thing to do, an incredibly dangerous thing to do? A: I agree, it's a stupid thing to do. I've never, I've always said that. Q: I'm putting it to you that it is beyond stupid, it is incredibly dangerous? A: Yes I would never have given someone the knife but it was a conversation and I've stupidly took out my knife and said, 'You can use my knife'. Q: Okay so what would you have done if he said, 'Yes, I'll take it', and he'd reached up and taken it? A: Well I'm not going to give it to him, would I? Q: You never offered him the knife because to do so would have very dangerous? A: I disagree with that."
In respect of that evidence, the appellant was asked as follows: "Q: You've just given, on your version, you were offering him the knife in order for him to take his own blood? A: It was just in the context of a conversation, I would never have given it to me, but like I said, it was a stupid thing to do, unfortunately I'm only human and I do make mistakes, it's a stain on reputation as a police officer and you know an embarrassment to my colleagues and in particular, Constable Congdon. Q: So when you pulled out the knife, in the context of conversation about you taking blood, you knew it was very likely that Mr Donoghue would be afraid, didn't you? A: No I do not, no of course not. If I'd known that, I would never have done it to begin with."
It was put to the appellant that he was in fact holding the knife out for a period of 18 seconds, which he denied, saying that having viewed the CCTV footage he believed it was seven to eight seconds. He again denied that he did not point the knife at Mr Donoghue.
The appellant also agreed that in his second conversation with Acting Sergeant Preston at the Marrickville Police Station, he told Sergeant Preston that he had used a knife to demonstrate the taking of blood from his own arm, and that he had made motions with his arms to demonstrate what he'd been doing. That conversation had taken place within an hour of the event taking place. He was then asked: "Q: Okay, well I suggest to you that that was a lie told by you to Sergeant Preston? A: No, that's completely untrue. Q: And you told him that lie because you didn't want to get into trouble? A: I was already in trouble, why would I lie? I've been complete open and honest, that was my recollection of the events at that stage and I said to Mr Preston, 'It was a stupid thing to do'. Q: You told him that lie because you did not want him to know that you had tried to cause fear to Mr Donoghue? A: I totally disagree with that comment."
In re-examination, the appellant said as follows; "Just to simply state that I have no intention, it was, I took the knife out, stupidly as I admit, in regards to a conversation, use it as a visual aid, and I had no intention to - there was no mens rea to intimidate or to cause any mental or physical fear to Mr Donoghue or Mr Edwards, and at no stage have tried to hide the fact that I took the knife out, I've been completely open and honest in regards to it."

The appellant's submissions on conviction appeal

Learned Counsel for the appellant provided a comprehensive written outline of the submissions on which the appellant relied. The single ground of appeal relied on by the appellant on the conviction was that the Learned Magistrate erred in finding, and being satisfied beyond a reasonable doubt, that the Crown had proven both the basic and specific intent (i.e. mens rea) elements of the charge, namely, that at the time the appellant engaged in the conduct with the knife: 1. He intended to stalk or intimidate another person or was reckless as to doing so (the basic intent); and 2. He intended to cause the other person (i.e. Mr Donoghue) to fear physical or mental harm, in the sense that he knew his conduct was likely to cause fear in the other person (the specific intent).
The Learned Magistrate had recorded that she made those findings only on circumstantial evidence, whereas there was evidence directly to the contrary from the appellant.
The appellant's submission was as follows: "To make out the 'specific intent' of this offence it is not enough for the Prosecution merely to prove the accused didn't care whether or not his conduct was likely to cause fear in the other person - that is, that he was reckless about that - what it must prove is a high degree of awareness (and, by corollary, a higher form of moral culpability), that is, that the accused had actual knowledge that his conduct was likely to cause fear in the other person. The mens rea is subjective - what was in the mind of the appellant at the relevant time, not what a reasonable person would have had in mind in the same circumstances. On all of the evidence before Magistrate Viney, particularly the evidence of the appellant himself, she could not have safely or satisfactorily found beyond a reasonable doubt that the appellant had such knowledge."
The appellant submitted that there is no presumption at law that a person intends the natural and probable consequences of his or her actions, relying on Parker v R (1963) 111 CLR 610.
The appellant also relied on the following passage from R v Baden-Clay (2016) HCA 35 at [46] - [48]: "[46] … In Barca v The Queen, Gibbs, Stephen and Mason JJ said: 'When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.' [47] For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. [48] Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, 'parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.'"
It was submitted that there was no evidence before the Learned Magistrate that the appellant: 1. Meant to stalk or intimidate Mr Donoghue. 2. Meant to cause Mr Donoghue to fear physical or mental harm. 3. Knew his conduct was likely to cause fear in Mr Donoghue, or 4. Perceive or knew that even a probable consequence or result of his conduct would be Mr Donoghue fearing physical or mental harm.
It was submitted by the appellant that the best evidence of his state of mind at the time of the incident is contained in what he said to Sergeant Preston at Marrickville Police Station not long after the incident as follows: "We went there, it was the same blokes, Mervyn and Joel Edwards from earlier. I stopped them. They were being idiots, and the whole things was blown out of proportion. We spoke about consorting and they said they were family, and to prove it, we could take blood. I pulled out my knife and demonstrated the taking of blood. It was stupid, I know. I was just trying to make a point. I shouldn't have done it."
The appellant submitted that on all of the evidence, the Learned Magistrate's conclusion that the appellant could only have done what he did with the intention of causing Mr Donoghue fear of physical or mental harm, was unsafe and unsatisfactory, and it would be dangerous for his conviction to stand. Further, he submitted that the court could have concluded from the totality of evidence before it that a hypothesis consistent with his innocence was open and further, that his guilt was not the only rational inference that could be drawn from all of the circumstances.
In his oral submissions, Learned Counsel for the appellant submitted that it was not enough to prove the requisite mens rea beyond reasonable doubt for the prosecution to show that the appellant's action was reckless. Rather, the prosecution must prove, beyond reasonable doubt, a high degree of actual knowledge for this offence. On all of the evidence before the court, it could not be found beyond reasonable doubt that the appellant had such knowledge. As the High Court found in Baden-Clay, supra, in a circumstantial case, the Crown would have proved the appellant had the requisite knowledge and that that was the only rational inference to be drawn from all of the circumstances. The appellant had admitted what he did was stupid, however, that was not sufficient evidence to satisfy that he had the requisite knowledge.

The Crown submissions

The Crown submitted that the following were the elements of the offence pursuant to s 13(1) of the CDPV Act: 1. The defendant did intimidate the victim. 2. The defendant did so intending to cause the victim to fear physical or mental harm. 3. Whether or not the victim actually feared such harm.
The Crown also submitted that proof of intent is required pursuant to s 13(3).
The Crown submitted that the appellant drew a knife and pointed it at the complainant, Mr Donoghue, for about 18 seconds. The appellant was standing and victim was seated and co-operative. The appellant was in full uniform and in the company of another officer, Constable Congdon.
The Crown submitted that the only relevant intention to be proved was whether the appellant knew that his action of pulling out the knife and pointing it blade end first at Donoghue, was likely to cause Donoghue to fear physical or mental harm. The prosecution is not required to prove that the person alleged to have been intimidated (Donoghue) actually did fear physical or mental harm.
The Crown submitted that the evidence regarding earlier call-outs to police to attend at premises at Marrickville where Donoghue and other persons accompanying him were located, was lead for its relevance as to the appellant's motive.
The evidence included the evidence of the police witnesses and Mr Donoghue, as well as the CCTV evidence which clearly shows the incident. That showed that the knife was pointed at the complainant for almost 20 seconds, during which the entire time the complainant remained seated and co-operative. Immediately following the incident, Mr Donoghue attended the police station to make a complaint about the appellant.
The appellant, upon his return to the police station, had spoken to A/Sgt Preston and spontaneously discussed the matter, and despite express warnings by Preston, that it may become a criminal investigation, the appellant stated that he had taken out the knife, but only to demonstrate the process of taking blood. The Crown also relied on the admissions made by the appellant shortly after the incident, as recounted in the evidence of Constable Congdon.
The Crown made the following submissions in respect of the appellant's evidence at trial: 1. He denied that he pointed the knife at the victim. 2. He only had the knife out for "a couple of seconds". 3. His immediate post-incident comments to Acting Sergeant Preston were that he had pulled out the knife and demonstrated taking blood from his own arm. 4. His statement to Acting Sergeant Preston was incorrect, but not deliberately so - he realised he was mistaken after viewing the CCTV footage. 5. He first described offering the knife to the victim and then later said in evidence that he used the knife as a visual aid. 6. He denied having any intent to cause fear and denied that the earlier incidents or conversation had angered or irritated him in any way. 7. Notwithstanding that he was in police uniform, and because of his training both in the police and in the army, he knew it was dangerous to introduce a knife into such a situation. Yet he claimed he did offer the knife to the victim, or at least make it available to him in circumstances where he never actually pointed the knife at him. The CCTV footage refuted each of the above assertions relied on by the appellant.
The Crown submitted that it can be inferred that the appellant did intend to cause fear, both because of the CCTV, and the direction of the blade, and on the basis of the context evidence as to what occurred earlier in the night. The appellant's own version lacked internal consistency. His first assertion that he was demonstrating taking blood was clearly false. He changed his account after viewing the CCTV footage, but adamantly repeated that he never pointed the blade towards Mr Donoghue. In fact, the blade was facing directly at Mr Donoghue for the entire period. Further, the CCTV evidence was corroborated by that of Constable Congdon, who affirmed that the appellant held the knife out at waist level and who frankly attested to his level of shock at the incident.
The Crown submitted that the charge was made out beyond reasonable doubt and that the appellant's evidence, as analysed above, would be rejected as implausible and lacking any credit. The charge was proved beyond reasonable doubt based on the entirety of the evidence, and not merely on the rejection of the appellant's account.
In oral submissions, the Crown emphasised that the appellant's intention was proved beyond reasonable doubt by an inference to be drawn from all of the circumstances. The CCTV footage was the best evidence of what occurred, and it proved that the appellant had pointed the blade of the knife at Mr Donoghue for a period of 18 seconds. Mr Donoghue's account was also corroborated by Constable Congdon, who stated that he would support Mr Donoghue in his complaint.
The Crown emphasised that the appellant's account had changed from what he had first told Acting Sergeant Preston, to the evidence he gave after viewing the CCTV footage. There were inherent contradictions in the appellant's evidence which would lead it to being rejected. A positive finding of the requisite intention was available based on the evidence of Mr Donoghue and Constable Congdon. The basic intent of the appellant was clear. He had pulled a knife out of his right trouser pocket. It was not a question of involuntarily or accidentally producing the knife. The Crown submitted on the objective test required, that would cause a reasonable apprehension of injury to any person facing the blade of that knife. Particularly as it had been drawn by a person in authority, namely, a policeman. The Crown also relied on the evidence of Constable Congdon that he was shocked. He said he was "not acting as a police officer any more", after the incident.

Determination

Section 13 of the CDPV Act is set out in [1] above.
Section 7 of the CDPV Act is also relevant. It provides as follows: "7 Meaning of 'intimidation' (1) For the purposes of this Act, 'intimidation' of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour."
I accept the Crown's submission that the elements of the offence pursuant to s 13(1) are as follows: 1. The defendant intimidated the victim. 2. The defendant did so intending to cause the victim to fear physical or mental harm, and 3. A person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
In accordance with the definition contained in s 7 of the Act, intimidation means an approach made to a person by any means that causes the person to fear for his or her safety.
Whether the defendant intimidated the victim is to be determined in accordance with an objective test, given all of the circumstances. The Court must have regard to the whole of the evidence here, including the fact that the appellant was a uniformed police officer who had stopped the victim and Mr Edwards, required them to provide identification and restrained them whilst he was making enquiries about them, which are all relevant circumstances to take into account. The CCTV evidence establishes that whilst the two men were seated against the shop front, on the footpath, the appellant then approached them and was taking notes in his police notebook. He then drew the knife from his right-hand side pants pocket, and pointed the blade towards Mr Donoghue, whilst taking two to three steps on the footpath towards him. The appellant pointed the knife towards Mr Donoghue for up to 18 seconds. On those facts, the first element of the offence, namely, that the defendant intimidated Mr Donoghue, was established beyond reasonable doubt.
The real question to be determined here was whether the appellant had the requisite intention, namely, that he intended to cause Mr Donoghue to fear physical or mental harm. That question is to be determined in the light of s 13(3), which provides that the requisite intention is proved if the appellant knew that the conduct was likely to cause fear in Mr Donoghue.
Section 133 of the Criminal Procedure Act 1986 requires me to set out the principles of law applied by me in the findings of fact on which I have relied. It also requires that if a warning is to be given to a jury in any case, the judge is to take such warning into account. I therefore give myself the following direction about intention: "Intention may be inferred or deduced from the circumstances in which the conduct of the appellant occurred before, at the time of, and after he did the specific act. Whatever a person says about his intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time. In some cases, a person's acts may themselves provide the most convincing evidence of his intention. Where a specific result is the obvious and inevitable consequence of a person's act, and where he deliberately does that act, you may readily conclude that he did that act with the intention of achieving the specific result."
The Learned Magistrate accepted a submission from the Crown that it was relying on a circumstantial case to prove the intention of the appellant. The appellant quite rightly, set out the relevant test, recently confirmed by the High Court of Australia in R v Baden-Clay, supra. In my view, the Learned Magistrate erred to the extent that her finding was based upon a circumstantial case. Here, there was direct evidence of what occurred, evidence from Mr Donoghue, Constable Congdon and the CCTV footage, which, although without sound, clearly showed the incident.
The relevant intention here is that required by s 13(3), namely, proof beyond reasonable doubt that the appellant intended to cause physical or mental harm "if he … knows that the conduct is likely to cause fear in the other person". The prosecution is not required to prove that the person alleged to have been intimidated actually feared physical or mental harm.
In McIlwraith v DPP (NSW) [2017] NSWCCA 13, the Court of Criminal Appeal held that s 13(1) of the CDPV Act constitutes an offence of specific intent. The case concerned whether intoxication should be taken into account in determining whether specific intent is established beyond reasonable doubt. That clearly does not apply here, however, Basten JA (with whom Johnson and Button JJ agreed) said: "30 There is no doubt that section 13(1), (read in isolation), would constitute an offence of specific intent, being an intention to cause the other person to fear physical or mental harm. However, subs (1) cannot be read in isolation from subs (3). Thus, it is sufficient to satisfy the specific intent identified in subs (1) if the accused 'knows' that his or her conduct is 'likely to cause fear in the other person'. The judge accepted that knowledge of a likely result is a lesser determination than an intent to cause a specific result. … 31 Ordinary linguistic usage recognises a distinction between intention and knowledge. The same is true when the language is used in the context of the criminal law. Knowledge that a particular consequence is likely, is distinct from an intention to cause that consequence. The language of subs (3) reflects the general or notion of reckless indifference, which is understood to be different from intention. … 32 There is, however, an alternative reading. The offence created by s 13(1) is clearly an offence of specific intent; s 13(3) expands the scope of that offence in a manner analogous to that by which the mental element in murder can be satisfied by reckless indifference to human life. Even where the prosecution relies upon s 13(3), what has to be proved is a specific state of mind of the accused; that exercise is the same as that required to prove intent. … Accordingly, a purposive construction would support the conclusion that s 13(1) remains an offence of specific intent, despite the fact intent can be proved by proof of particular knowledge."
His Honour then referred to a number of authorities relating to crimes of specific intent, including the High Court's decision in He Kaw Teh v R (1985) 157 CLR 535, and went on to say at [38] as follows: "Adopting the reasoning in Stones and Grant, the particular form of the mental element identified in s 13(3), although not in truth a form of intention, is a relevant state of mind having a specific or particular focus and is thus distinguishable from the general intention required in relation to the conduct constituting an offence (which is not subject to considerations based on intoxication) because subs (3) uses language associated with reckless indifference, and is closely analogous to the particular state of mind necessary for specific intent."
See also [41] where Basten JA went on to say that s 13(3); "is expansive and not exhaustive; in other words, the offence can be established by proving an intention to cause a person to fear physical or mental harm, without reference to subs (3)."
Applying his Honour's reasoning to the appeal, to establish the offence, the Crown must establish beyond reasonable doubt that the appellant had the specific intention required by s 13(1), or the more expansive intention required by ss (3), namely, an intention to cause fear of physical or mental harm if he knew that the conduct was likely to cause fear in the other person.
New South Wales Police have a number of appointments with which they are issued to carry out their duties. A knife with an opening blade, such as the appellant was carrying on this occasion, is not one of those appointments. The use of such a weapon in carrying out police duties when making enquiries of citizens who were otherwise acting lawfully, sets the context for the determination of the issue of whether the appellant held the requisite intention in this matter. It is relevant that the victim and his colleague had been spoken to on two previous occasions on this night. The victim was compliant and seated on the footpath, and the appellant had taken his identification and was making a background check on him. Following that, the appellant was making notes in his official police notebook whilst standing on the footpath. After drawing the knife from his pants pocket, he was seen clearly to advance towards the victim, holding the knife at waist level, with his elbow bent. The knife was clearly directed towards the victim for a period of some 18 seconds. The victim, who had been calm and cooperating whilst seated up until that time, reacted by getting to his feet and moving away from the scene. All of that is corroborated by Constable Congdon's careful evidence.
Having regard to all of the evidence, the Magistrate was correct in finding that the requisite intention had been made out, and the offence, pursuant to s 13(1) of the CDPV Act had been established beyond reasonable doubt.
It was clearly open to the Learned Magistrate to reject the appellant's evidence. He had given an exculpatory version of events to Acting Sergeant Preston at the police station, which was entirely inconsistent with the CCTV evidence, of which at that time he was unaware. Once becoming aware of it, he changed his evidence. However, his evidence remained internally inconsistent, given his repeated denials that he pointed the knife at Mr Donoghue, and his version that he used the knife only as a "visual aid", and his denial that, as a police officer, he was in a position of authority over the complainant. By pointing the knife in the way he did, at the same time referring to the complainant having a blood test, demonstrates amply an intention to cause physical or mental harm, and at the very least, constituted conduct that was likely to cause fear in the complainant.
Notwithstanding that the Learned Magistrate accepted the submission that this was a circumstantial case, and thereby fell into error, she otherwise came to the correct decision. Having regard to all of the evidence, each of the elements of the offence are proven beyond reasonable doubt. For those reasons, the conviction appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2017

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