Knight v Naylor [2026] ACTSC 35

1. The appellant, Joseph Knight, was tried in the Magistrates Court before Magistrate Temby on 10 July 2025, and was found guilty on the same day of the following charge: (a) Aggravated intentional threat to inflict grievous bodily harm, contrary to s 31 of the Crimes Act 1900 (ACT) (Crimes Act) (CC 2025/1076).

2. At the same hearing, the appellant was found not guilty of: (a) a back-up charge of aggravated common assault in relation to the same incident; and (b) a separate charge of possessing an offensive weapon with intent.

3. A notice of appeal against the verdict of guilty in respect of the offence of aggravated intentional threat to inflict grievous bodily harm was filed on 21 July 2025. The grounds of appeal are: (a) the verdict contains an error of law and fact; and (b) the verdict cannot be supported having regard to the evidence.

4. The core incident which is the subject of the charge occurred at around midday on 28 November 2024. On that day, the appellant visited the house of his ex-partner, the complainant in this matter, and their two daughters. The appellant and the complainant argued. Following the argument, the appellant approached the complainant in her kitchen and pulled a large hunting knife from his backpack. The appellant then placed the knife back inside his backpack, before coming closer to the complainant and saying words to the effect of “I’m going to take pleasure in ending you” and “next time I come to see you I’m coming to use that on you”.

5. At trial, the appellant did not deny that he had argued with the complainant or that he had showed her the knife. Instead, his case was that he did not say the words alleged to have been said to the complainant that are identified above.

Jurisdiction on appeal

6. The Supreme Court has jurisdiction to hear and determine appeals from convictions for offences dealt with by the Magistrates Court under ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act).

7. Section 214 sets out the matters to which the appellate court must have regard in such an appeal: 214 Appeals in cases other than civil cases (1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies). (2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact. (3) In an appeal to which this section applies, the Supreme Court must— (a) if it considers it necessary or expedient to do so in the interests of justice— (i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and (ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and (iii) receive the evidence, if tendered, of any witness; and (b) receive evidence with the consent of the parties to the appeal. (4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

8. After hearing an appeal, the court may confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from, or give the judgment or make the order that, in all the circumstances the court considers appropriate: see s 218 of the Magistrates Court Act.

9. The nature of this appeal is by way of rehearing, and requires the appellant to demonstrate legal, factual or discretionary error on the part of the Magistrate. The relevant principles were summarised in Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [13]. In summary, the court must conduct a “real review” of the evidence and the decision of the Magistrate, paying due deference to the advantages enjoyed by the trier of fact at first instance, who had the advantage in hearing and seeing witnesses give evidence. The evidence at trial

10. At trial before the Magistrate, the prosecution called evidence from the complainant and Leading Senior Constable Tristan Naylor, the police informant in this matter. The appellant also elected to give evidence at trial.

11. The following exhibits and marked-for-identification (MFI) documents were tendered at trial: (a) Exhibit 1: one photograph taken by the complainant of the knife inside a Harley- Davidson backpack and two photographs of the complainant’s phone showing a text message exchange between the complainant and the appellant. (b) Exhibit 2: body-worn camera footage of Senior Constable Naylor recording the appellant’s arrest. (c) MFI 1: a prosecution aide memoire for the charged offences. (d) MFI 2: a defence aide memoire transcript of the complainant’s Family Violence Evidence-in-Chief (FVEIC) interview with police. (e) MFI 3: a recording of the complainant’s FVEIC interview.

The complainant Evidence from FVEIC interview

12. The complainant spoke to police on the day of the incident, 28 November 2024, and gave her FVEIC interview. The recording of her interview was played at trial, but was not put before me except as recorded in the transcript comprising MFI 2, and in a follow-up excerpt of transcript prepared by the respondent on appeal. This accords with the principle (recently described in The King v ZT [2025] HCA 9; 281 CLR 137 at [15]-[20]) that the court on appeal should not view the recorded testimony of a witness, absent a “real forensic purpose” for viewing that footage.

13. The complainant had previously been in a relationship with the appellant, and they had two children together. They separated a few months before the incident, and the appellant had not lived with the complainant “full time” for about six months. The complainant alleged that the appellant had hurt her in the past, prior to the incident.

14. The complainant’s evidence was that, around midday on 28 November 2024, the appellant visited the complainant and their daughters at the complainant’s house. The appellant was sitting in the dining room with the daughters, and the complainant was in the kitchen. The appellant’s backpack was on the kitchen bench. The complainant thought the appellant was under the influence of drugs at the time, because he was “agitated” and had heavy eyelids, “like he hasn’t slept for days”. The complainant and the appellant had a series of disagreements, first about what food to have for lunch, and then over what activity the daughters would be doing on the weekend.

15. The complainant said that at some point, when one of the children was in the kitchen and the other was still at the dining table, the appellant got up, went to the kitchen, and took his backpack off the kitchen bench. The appellant said to the complainant, “have a look at this”, and then opened his backpack and pulled out a “huge knife”. The complainant described the knife as looking like “a big hunting knife”, and noted that it was black and contained in a sheath.

16. Relevantly, the complainant described her interaction with the appellant, after he had showed her the knife, to police as follows: And … and then, sorry, it’s all kind of scrambled from here but I, I know he approached me, bent over and whispered in my ear that he was going to take great … joy or pleasure or relief in ending me. And then just, I guess he did that … I would say that the girls didn’t hear because of the way he did that.

17. Later in her FVEIC interview, the complainant was again asked to describe how the appellant had approached her after showing her the knife. The complainant described the following: He walked up close to me, put his head down close to my ear and, and said very quietly that he is going to take great joy in ending me.

18. The complainant said the threat made her feel “terrified” that the appellant would use the knife on her.

19. The appellant placed the knife back into the backpack and zipped up the bag. He then went to the toilet, leaving the backpack on the lounge. The complainant unzipped the backpack, picked up the knife by its handle and took a picture of it, before placing it back into the backpack.

20. The complainant said that at some point, the appellant also told her that “the next time he comes to see me he’s coming to use that on me”. The complainant was unable to specifically recall whether the appellant had said this to her before or after going to the toilet, but thought it was likely that this occurred before he went. The complainant said she responded by telling the appellant she was not going to let him back into the house and he was never to come over again. The appellant responded by saying he would sit outside and wait for the complainant if that was the case. The complainant said that she believed the appellant when he said he was going to come back and use the knife on her, but did not feel at that moment that he was going to immediately do so.

21. The complainant said the appellant then said goodbye to the children and drove off. Sometime later, around 1:15pm, the appellant began calling the complainant “continuously” and demanding she answer the phone. When the complainant answered the phone, the appellant said he was turning around and “coming back now”. The complainant hung up and, after calling the Domestic Violence Crisis Service for advice, went to the police station.

Evidence from trial

22. At trial, the complainant described the appellant’s demeanour immediately before he showed her the knife as angry and aggressive, and that he was talking “with a clenched jaw”. The complainant said she was worried at the time of the incident that the appellant would become “physically aggressive”, and that she was “continually trying to move away from him … without being too far away from the girls”. The complainant and the appellant were “within a metre or so” of each other at the time he showed her the knife.

23. The complainant was shown photographs taken of her phone displaying a text message exchange between herself and the appellant, comprising part of Exhibit 1. Relevantly, the text messages show multiple missed calls from the appellant, followed by two texts from the appellant: [Complainant] I’m very sorry for my behaviour this afternoon I’m really not coping well with everything. I know it’s no excuse. I am seeking help and working on it

24. The appellant attempted to call several more times. The complainant then texted the appellant, stating “I don’t want to talk to you.” The appellant responded, texting “I know. I’m very very sorry”. In oral submissions before me, counsel for the respondent noted that the time stamp for the series of apologies sent by text message commenced while the complainant was at the police station, recording her FVEIC interview with police.

25. In cross-examination, the complainant clarified that the appellant had not made reference to the knife before showing it to her in the kitchen, but had pointed to the knife immediately prior to pulling it out of the backpack and showing it to her. The complainant acknowledged that the incident was a stressful situation, but disagreed with the proposition put to her that she had misheard the appellant saying, “[p]lease don’t keep my girls away from me”. She disagreed that she was unsure what the appellant had said to her, and said she had “understood the message” of the appellant’s threat, if not the exact words.

26. In cross-examination, it was also put to the complainant that she had told police about an incident from January 2024 in which the appellant had allegedly implied he would hurt the complainant’s father. The appellant disagreed that this incident was in the back of her mind during the incident on 28 November 2024.

Senior Constable Naylor

27. Senior Constable Naylor conducted the FVEIC interview with the complainant on the afternoon of 28 November 2024. He described the complainant’s presentation at the police station as “very emotional, she was shaking, she was trembling”. He said she broke down in tears “a couple of times”.

28. Later that day at around 5pm, Senior Constable Naylor and an accompanying officer attended the appellant’s apartment, gave the appellant a caution and then placed him under arrest. Senior Constable Naylor then spoke to the appellant about the incident, as recorded on body-worn camera.

29. At some point after placing the appellant under arrest, Senior Constable Naylor asked the appellant whether there was a knife in his backpack. The appellant is recorded responding “no, it’s not in the backpack anymore”, explaining that he “disposed” of it, and saying, “I’ve gotta be careful what I say here but I didn’t want it anymore, I didn’t want it on my person”.

30. Senior Constable Naylor said he recalled that the appellant had implied he had got rid of the knife and had attended EveryMan counselling about it, because he “was feeling bad about what had happened”. In cross-examination, Senior Constable Naylor said he was not of the opinion that the appellant was drug-affected on the day of his arrest.

The appellant

31. In examination-in-chief, the appellant said that the night before the incident, he had received the knife as a gift at a friend’s going away party. The appellant denied making threats to the complainant or making any of the statements alleged by the complainant.

32. On the day of the incident, the appellant went to the complainant’s house around lunchtime. He said that he put his backpack on the stove in the kitchen and then greeted his daughters, before discussing with the complainant what to have for lunch. The appellant said that after agreeing on what to have for lunch, he went to his bag to get money to pay for lunch. At the same time, he took the knife out of the bag and showed the complainant, saying, “[l]ook, I got this off a friend … [h]ave a look. It’s excellent”. The appellant says he then put the knife back in the bag so the children would not see it. He then sat down with the children in the dining area while the complainant went to get food.

33. The complainant then arrived back with lunch. After lunch, the complainant and the appellant had a conversation about what activity the daughters would be doing the next day, in which the appellant acceded to the complainant’s plans for the day. The appellant described his own demeanour during this conversation as being his “normal self” and denied acting aggressively. The appellant described the conversation as involving a disagreement, but not an argument. By the appellant’s account, the conversation ended there, and he then went to the toilet before leaving the house. He said that he recalled saying to the complainant “[p]lease don’t keep the girls from me” shortly before he left.

34. The appellant stated that he had forgotten to talk to the complainant about his insurance paperwork while he was at the house, and that he began trying to call her for this reason. The appellant said that when the complainant eventually answered the phone, she said “I never want to talk to you again”. The appellant said he did not know why she was saying this. He then sent a text message to her to say sorry for how he spoke to her at the house in relation to the activity the daughters would be doing. The appellant disagreed with the proposition that he sent the apology in relation to showing the knife to the complainant or threatening her with it. The appellant agreed he had showed the complainant the knife, but denied that it was in the context of having an argument with her.

35. The appellant said that he disposed of the knife in a rubbish bin following his counselling session with EveryMan, because at the session he was asked about weapons and knives. He denied disposing of the knife because he had “panicked”, and stated that he put it in the bin as he had no use for the knife and it was a gift.

Ground (a): Findings in relation to elements of offence

36. Section 31 of the Crimes Act sets out the offence of threat to inflict grievous bodily harm, as follows: 31 Threat to inflict grievous bodily harm If— (a) a person makes a threat to another person to inflict grievous bodily harm on that other person or any third person— (i) intending that other person to fear that the threat would be carried out; or (ii) being reckless whether or not that other person would fear that the threat would be carried out; and (b) the threat is made— (i) without lawful excuse; and (ii) in circumstances in which a reasonable person would fear that the threat would be carried out; the first mentioned person is guilty of an offence punishable, on conviction, by imprisonment for— (c) in the case of an aggravated offence against this section—7 years; or (d) in any other case—5 years. Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section. (Emphasis added.)

37. The appellant challenges the Magistrate’s factual finding that the following elements of threat to inflict grievous bodily harm were proved beyond reasonable doubt: (a) that the appellant made a threat to inflict grievous bodily harm on the complainant; and (b) that the threat was made in circumstances in which a reasonable person would fear that the threat would be carried out.

38. The appellant’s complaints in relation to each element are dealt with in turn below.

Was there a threat to inflict grievous bodily harm? Appellant’s submissions

39. Counsel for the appellant’s primary contention in relation to this element is that the complainant was uncertain as to the exact words used by the appellant when making the threat, such that it was not open to the Magistrate to find that the element had been proved beyond reasonable doubt. He says it is significant that the complainant recalled the appellant saying “words to the effect of” in relation to the content of the threat, that the appellant said “I guess he did that” shortly after describing the threat, and that the threat was conveyed in a low voice whispered into the complainant’s ear. In those circumstances, counsel for the appellant submits that this Court should have a reasonable doubt as to whether the appellant actually said the words “ending you” to the complainant.

40. The appellant contends that, in the context of a charged offence of threat to inflict grievous bodily harm, it was incumbent upon the prosecution to demonstrate that the appellant made a threat to inflict grievous bodily harm to the complainant, not merely actual bodily harm. He says that the precise words said to have been used by the appellant were therefore of significance. Counsel for the appellant contends that even if it were established beyond reasonable doubt that the appellant referred to “ending” the complainant, the intent of the phrase “ending you” is ambiguous and unclear, and could have referred to an outcome not involving grievous bodily harm. He argues that there is no reference to actual or serious bodily harm in “ending you”.

41. In support of his submissions, counsel for the appellant refers to three judgments of this Court involving successful challenges against charges of making a threat to kill, which he says are analogous to the present circumstances. The decision in R v Leece (1995) 125 ACTR 1 (Leece), concerned a threat in which the accused in that case said, “Come here, I’m going to end this now” and later, “Come here, I’m going to fix you once and for all” while holding an object resembling a gun. Higgins J found that the conduct of the accused did not objectively convey an intent to kill and was equally likely to convey to the reasonable bystander an intention to cause serious bodily harm short of death.

42. In Barbaro v Quilty [1999] ACTSC 119 (Barbaro), a conviction for an offence of intentional threat to kill was successfully overturned on appeal on the basis that the threat occurred in the context of a lengthy history of mutual verbal abuse, such that no reasonable bystander would fear that the threat would be carried out. The relevance of the findings in that decision to whether the appellant in this case made a threat to inflict grievous bodily harm, is not immediately clear. However, Barbaro is relevant later on to the element of whether a reasonable person would fear that the threat would be carried out.

43. In Luu v Cook [2008] ACTSC 54 (Luu), Penfold J overturned a Magistrates Court conviction for an offence of intentional threat to kill, in circumstances where the accused had been arguing with his partner and had said “Don’t dare me” and “I will do it” before later threatening her with a knife. Her Honour found that the threat conveyed a threat to injure the complainant but did not reach the level of a threat to kill. Counsel for the appellant in the present case extracted the following passage from Luu at [15(e)] (citing Leece): [T]here must be an utterance or communication conveying, objectively, to the hypothetical reasonable person … that the publisher proposes to kill the person threatened … what is important is not the actual intention of the accused but what was conveyed by his posture, conduct and words … (Citations omitted.) Respondent’s submissions

44. Counsel for the respondent submits that the complainant’s evidence as to the threat made by the appellant was clear. She says that the complainant’s evidence during the FVEIC interview was consistent in stating that the appellant had threatened to “end her”. There was no obligation on the prosecutor at trial to prove which particular word out of “joy”, “pleasure” or “relief” was used by the appellant, as the form of expression used to describe the appellant’s feelings about “ending” the complainant was not the salient aspect of the threat.

45. Counsel for the respondent contends that the complainant was clear that she “understood the message” conveyed by the appellant, that he would be happy when he “ended her”, and that an inability to recall the precise words used did not undermine the reliability of the complainant’s account in relation to the “gist” of the statement. Counsel notes that the complainant, under cross-examination at trial, had maintained that she was certain that she did not mishear the appellant, and that she had told police the appellant had said “words to the effect of” what was stated.

46. The complainant gave evidence that there was a further conversation after the appellant made the threat, likely before he went to the bathroom, in which he made specific reference to using the knife and said that the next time he came to see her, he would be “coming to use that on me”. Counsel for the respondent says that it is clear the phrase “ending you” referred to using the knife to cause death, and that such an injury with a knife would also amount to causing grievous bodily harm.

47. Relevant to this ground, the respondent submits that counsel for the appellant has taken some of the complainant’s evidence out of context. Counsel notes that during the FVEIC interview, the complainant had said “I guess he did that” as related to stating her belief that the appellant whispered the threat to her so that the children would not hear, and not as an expression of uncertainty about the effect of what was said. In this regard, counsel for the respondent refers to the advantage enjoyed by the Magistrate in being able to see and hear the FVEIC interview recording.

48. Counsel submits that the decisions in Leece and Barbaro do not assist the appellant’s submissions, particularly where the question of whether the appellant’s words constituted a threat to kill requires a unique assessment of all the circumstances. In particular, she notes that Higgins J’s decision in Leece demonstrates that it is possible for a threat to “end” a person to be objectively construed as a threat to inflict serious bodily injury. She also points to the fact that the decision was subsequently overturned on appeal to the Federal Court of Australia in R v Leece (1996) 65 FCR 544 (Leece (FCA)), on the basis that it was not open to his Honour to find the words used were not capable of conveying a threat to kill. Relevantly, the majority of the Federal Court stated at 555-556: The question whether the words used by the accused in the context in which they were used, including the demeanour of the accused, the manner in which the words were spoken and other surrounding circumstances, cannot be determined from an examination of the printed word in a transcript or statement of evidence. Consideration

49. In rejecting the appellant’s submission at first instance that the complainant had not been able to accurately recall whether the appellant had said he would end her, the Magistrate observed: It is common for people to remember the gist of what someone has said and not the precise words used, more so even when they are faced with a situation of the kind alleged. [The complainant] did not express any uncertainty as to the defendant saying that he would end her, but merely as to which of the descriptions of emotion that he had expressed that he would feel in doing so, anyway.

50. After dealing with a number of other submissions made by the appellant’s trial counsel, the Magistrate reached the following conclusion about the complainant’s evidence: I agree with the submissions made by the prosecution that the complainant was a reliable witness. I agree that her evidence was clear and included an appropriate amount of detail. I agree that her demeanour was consistent with something serious having happened when she spoke to police, given the level of emotion. I agree that she was, in court, a measured witness, and tried to give accurate evidence. That included acknowledging when she didn’t recall something, just as she did when speaking to police.

51. Later, the Magistrate concluded that the element had been proved beyond reasonable doubt: In terms of element 1, the defendant clearly made a threat to the complainant to harm her. The question was whether that threat was to inflict grievous bodily harm. The threat was to use the knife next time that he saw the complainant, specifically, that he was going to take great joy or pleasure or relief in ending her. Clearly that is a reference to ending her life. … The definition of grievous bodily harm is, really serious bodily harm which may not be – not in the sense of ‘cannot be’ – may not be life-threatening or permanent. The phrase means not just serious bodily injury, but really serious bodily injury. In my view, the use of a knife to end someone’s life necessarily involves really serious bodily injury. I note that in the case of R v McHenry [2020] ACTSC 254, the defendant there pleaded guilty to a threat to inflict grievous bodily harm, a plea which was accepted by the court on sentencing. In that case, the threat that had been made was … while holding a knife to the victim’s neck, the defendant threatened to gut her like a pig. That, in my view, is similar to the case that I’m faced with here, where there is a threat with a knife to end the complainant’s life.

52. I am not satisfied that the appellant has established any error on the part of the Magistrate in finding that a threat to inflict grievous bodily harm was made out. As the Magistrate found, on the basis of his acceptance of the evidence of the complainant and his rejection of the evidence of the appellant, a threat to “end” the complainant was made and a threat to inflict grievous bodily harm was thereby established. As his Honour found, the appellant’s use of words expressing an intention to “end” the complainant could only reasonably be interpreted as evincing an intention to end her life. The appellant’s displaying of the knife and reference to it in contemporaneous circumstances was an indication of intent to use the knife for that purpose. The Magistrate was well placed to determine, adopting the wording in Leece (FCA), “whether the words used by the accused in the context in which they were used, including the demeanour of the accused, the manner in which the words were spoken and other surrounding circumstances”, conveyed an intention to inflict grievous bodily harm.

53. As for the particular words used by the appellant at the time to describe his feelings on giving effect to his intent to inflict such harm, I do not accept that the determination of the particular words used to describe his feelings was an intrinsic element of this component of the offence. What was critical for the prosecution to establish beyond reasonable doubt was whether the threat to inflict grievous bodily harm was made and what was intended by the threat, not how the appellant felt about giving effect to it.

54. This part of the first ground is not made out.

55. Finally, I note that the substance of the argument in respect of the second ground of the appeal is also a complaint about whether it was open to the Magistrate to find the appellant made a threat to inflict grievous bodily harm; specifically, the Magistrate’s reference to the decision of Burns J in R v McHenry [2020] ACTSC 254 (McHenry). I will return to consider the detail of that ground later at [67].

Would a reasonable person fear that the threat would be carried out? Appellant’s submissions

56. Counsel for the appellant submits that it was not open to the Magistrate to find that an “objective bystander” would fear that the threat made by the appellant would be carried out, and that the Magistrate did not apply the objective bystander test. He points to the following propositions as indicative that an objective bystander (as opposed to the complainant) would not have feared the threat would be carried out: (a) The complainant was stressed. (b) There was a gap between when the appellant showed the knife and when the threat was made. (c) The complainant did not think the appellant would use the knife on her in the moment and believed he was going to come back and use it on her. (d) Shortly after he left the house, the appellant sent text messages to the complainant apologising for his behaviour.

57. Counsel for the appellant argues that the Magistrate did not consider the appellant’s text messages in his consideration of this element. He further contends that the fact of the appellant having hurt the complainant in the past was not of itself evidence capable of supporting the conclusion that the appellant would inflict grievous bodily harm, because the appellant had never previously used a knife to hurt the complainant, nor had he previously inflicted grievous bodily harm upon her. He says that the assessment of whether a reasonable person would fear the threat would be carried out must be made from the perspective at the time the threat was made, but having regard to the entirety of the conduct. As for the text messages and calls, the Magistrate should have recorded in his reasoning process if he found the phone calls and messages from the appellant after leaving the house, were irrelevant to the consideration of this element.

58. The appellant contends that the Magistrate failed to mention an “objective bystander” in his reasoning process, and that the reasonable person his Honour referred to was in fact the complainant.

Respondent’s submissions

59. Counsel for the respondent submits that the appellant’s complainant is not made out and says that the Magistrate’s reasons demonstrate the reasonable person test was applied correctly. Counsel notes the complainant gave evidence she was terrified that the appellant would use the knife on her, and that the threat was one of future conduct.

60. Relevantly, in Luu at [15], Penfold J stated (citing Leece and Barbaro, and in the context of the offence of making a threat to kill) that there was no requirement that the threat be of an action “there and then” or that an accused have an “immediate capacity” to carry out the threat. In accordance with the principles stated in Luu, the reasonable bystander is assumed to know the facts of any prior relationship between the accused and the victim, but not matters wrongly assumed or believed by the victim. The fear of the victim is not dispositive of this element but may be a relevant consideration.

61. Counsel for the respondent submits that, taking into account the circumstances, including the appellant’s anger and aggression, his possession of the knife, the repetition of the threat before going to the bathroom, and the fact that he had previously hurt or threatened to hurt the complainant, a reasonable person would clearly fear the threat would be carried out. There was no error in the Magistrate referring to the complainant’s subjective evidence of fear, as the complainant’s fear was a relevant consideration, although not dispositive, to the circumstances that would be known to a reasonable bystander.

62. Counsel submits that the apology in the appellant’s text messages sent after the event is irrelevant in circumstances where the offence had already been completed at the time the text messages were sent.

Consideration

63. The Magistrate’s reasons for finding this element proved beyond reasonable doubt were: In terms of element 5, the defendant submitted that in circumstances where the complainant had a doubt as to whether he would carry out the threat, then there must be doubt as to whether a reasonable person would fear that the threat would be carried out. The complainant’s evidence was that she in fact feared that it would be carried out, so I’m not sure where that submission goes. The reasonable person would be aware of the circumstances, including that the defendant had hurt [the complainant] in the past. They would appreciate the seriousness of the threat from the circumstances, which included a number of statements being made in relation to that threat, not just a single statement, but the ominous statement that he would use the knife on her the next time that he saw her. A reasonable person would, in my view, definitely have feared that a threat would be carried out, and in circumstances where the parties were in an intimate relationship, the offence clearly involved family violence.

64. In Leece at 8, Higgins J quoted with approval the following passage from a decision of the Supreme Court of Canada in R v McCraw [1991] 3 SCR 72; 66 CCC (3d) 517 at 82: … the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat. The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?

65. The thrust of the appellant’s argument on this point is that the decisions in Leece, Luu and Barbaro impose an obligation on the trier of fact to apply the “reasonable person” test with reference to the perspective of the “objective bystander”. In the decisions relied upon, those terms appear to be used interchangeably. The plain words used by the Magistrate demonstrate an assessment from the perspective of the reasonable bystander knowing the material facts. As Penfold J stated in Luu at [15(j)], relying upon the principles enunciated in Barbaro: [T]here must be a threat that an objective and reasonable bystander, knowing the history of the prior dealings between the accused and the person threatened, would believe is intended to be carried out (Barbaro, supra at [70]-[72])

66. This part of the first ground is not made out. Ground (b): Magistrate’s reference to McHenry

67. This ground relates to the Magistrate’s finding that the appellant made a threat to inflict grievous bodily harm. In relation to this ground, the appellant cavils with the Magistrate’s reliance on the judgment in McHenry to find this element was made out beyond reasonable doubt.

68. The transcript extract of the Magistrate’s reference to McHenry is set out previously at [51] of this judgment. The judgment in McHenry concerned the sentencing of an offender who had pleaded guilty to one charge of threatening to inflict grievous bodily harm and one charge of possessing a knife in a public place. The offending comprised repeatedly making threatening phone calls and sending text messages to the complainant over the course of a day, followed later that day by the offender attending the complainant’s home, holding a knife to her neck and saying he would “gut her like a pig”. Burns J found the offence of threatening to inflict grievous bodily harm was revealed by the facts of the matter.

Appellant’s submissions

69. Counsel for the appellant submits the facts in McHenry differ sufficiently from the circumstances in the present case, such that the Magistrate was wrong to rely on the judgment in support of his findings in relation to whether the appellant made a threat to inflict grievous bodily harm. Counsel submits that the significance of proving each and every element of an offence required in the present case is distinguishable from the plea of guilty which the offender gave in McHenry. The intent conveyed by the words “end you” or “ending you” are ambiguous and unclear, compared to the threat to “gut you like a pig” used in McHenry, which counsel says would clearly entail serious bodily injury.

70. In circumstances where there was a period of time between the appellant showing the knife and making the threat, counsel submits there is a doubt arising as to whether there is a sufficient nexus between the showing of the knife and the words used.

71. Counsel for the appellant’s submissions otherwise repeat the submissions made in respect of the first ground on whether it was open to find that a threat to inflict grievous bodily harm was made.

Respondent’s submissions

72. Counsel for the respondent submits that there was no error in the Magistrate’s reliance on McHenry, having regard to his Honour’s detailed reasons, by reference to the evidence, for finding that a threat to inflict grievous bodily harm was made. The Magistrate was fortified in his conclusion by the decision in McHenry, while remaining conscious of the fact that McHenry was a sentencing decision following a plea of guilty. Counsel highlights that his Honour had described McHenry as “similar” to the present case, on the limited basis that both cases involved a threat to inflict grievous bodily harm in circumstances where the words used could also be construed as a threat to kill. She also notes that the appellant’s legal representative at trial had failed to assist with reference to any other authority.

73. In relation to the gap between the appellant showing the knife and making the threat, the respondent argues that the Magistrate did not rely on McHenry for the purposes of establishing a nexus between the two events. It was not necessary for the prosecution to prove the appellant showed the complainant the knife at the same time as making the threat, where the evidence was that the threat was that the appellant would return to the house and use the knife on the complainant, and particularly having regard to the principles set out in Luu.

Consideration

74. The words used by the Magistrate make clear that he was under no misapprehension that the case of McHenry involved a plea of guilty to a threat to inflict grievous bodily harm and was a sentencing decision, unlike the situation in this case. However, the decision was used by the Magistrate as nothing more than fortification for his conclusion that a threat of the kind found to have been made by the appellant in this case involves a threat to inflict grievous bodily harm.

75. I am not satisfied that the use of the McHenry decision for that very limited purpose bespeaks error on the part of the Magistrate. As a consequence, this ground is not made out.

Orders

76. For the reasons set out above, the appeal is dismissed.

I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: