Luu v Cook [2008] ACTSC 54

2. The incident from which the threat to kill charge arose took place on Monday 29 January 2007. Following an earlier dispute on Saturday 27 January, the appellant and his then partner, Ms Nguyen, were arguing. Ms Nguyen alleged that Mr Luu said to her "Don't dare me" and "I will do it", later threatening her with a knife. The learned Magistrate found that these words were capable of constituting a threat to kill.

3. On 16 July 2007, the learned Magistrate found the charge proven and sentenced the appellant to imprisonment for 3 months, the sentence to be wholly suspended subject to an 18-month good behaviour order. The appellant appealed against "all of the order".

4. The grounds of appeal were identified as follows:

(a) The sentencing Magistrate erred in finding the offence proved on the basis of the evidence of the complainant. The evidence of the complainant could not support a finding that a threat to kill was made against her.

(b) The sentencing Magistrate's decision was against the weight of the evidence and his Honour should have been left with a reasonable doubt.

(c) The sentence imposed was manifestly excessive in all the circumstances.

5. The first two grounds relate to the appeal against conviction, and the last to the appeal against sentence.

6. In argument, counsel submitted that the learned Magistrate was also in error in failing to give reasons for his decision to find the offence proven. She did not make any submissions about the sentence imposed.

7. Counsel for the appellant did not seek to adduce any further evidence in support of the appeal.

8. The principles governing the determination of this appeal are found in s 218 of the Magistrates Court Act 1930 (ACT), and in relevant case law.

9. In relation to the appeal against conviction, subs 218(1) empowers this court, on appeal, to "confirm, reverse or vary the conviction ... appealed from".

10. An appeal court should, of course, be cautious about overturning a conviction on grounds related to the credibility of witnesses, because this may discount the advantage that the finder of fact (whether a jury, magistrate or judge) has over the appeal court. In this case, however, the appellant has not challenged any of the findings of fact made by the learned Magistrate; the appeal is based entirely on whether there was evidence before the learned Magistrate that could in law support a conviction for the offence as charged.

11. S 30 of the Crimes Act 1900 is in the following terms:

30 Threat to kill

If--

(a) a person makes a threat to another person to kill 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 firstmentioned person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

12. The first matter to note is that in the ACT, the s 30 offence of threatening to kill is quite separate from the offence of threatening to inflict grievous bodily harm (s 31 of the Crimes Act).

13. The questions of what kind of threatening behaviour is caught by s 30, and what are the requirements to establish an offence under that section, have been the subject of some judicial consideration in the ACT.

14. In R v Leece (1995) 125 ACTR 1 (`Leece'), and R v Barbaro [1999] ACTSC 119 (`Barbaro'), Higgins J (as he then was) set out various propositions about the requirements for establishing a threat to kill. These were expressed only in relation to cases where the recipient of the threat was also the intended victim of the threatened killing (which was the case in both Leece and Barbaro, and is also the case in this appeal). It is likely that most or all of those propositions would also apply, with necessary modifications, to s 30 as it applies to threats to kill a third party, but for the purposes of this appeal there is no need to canvass that matter further. I note that Leece was the subject of appeal to a Full Federal Court ((1996) 86A Crim R 494), but the appeal did not relevantly concern Higgins J's approach to the elements of the offence.

15. The propositions found in Leece and Barbaro are as follows:

(a) there must be a declaration of an intention to end the life of the person threatened (Leece, 125 ACTR 1 at 5);

(b) an utterance might amount to a threat to kill by reason of previous circumstances even if it is not literally expressed as such a threat (Leece, supra at 5);

(c) there must be a threat that the person will be killed, not just injured (for instance, a threat to shoot a person would not by itself satisfy the requirement) (Leece, supra at 6);

(d) a conditional threat to kill may be a sufficient threat to kill if the person threatened is entitled not to meet the condition (Leece, supra at 6);

(e) there must be an utterance or communication conveying, objectively, to the hypothetical reasonable person ... that the publisher proposes to kill the person threatened (Leece, supra at 6); what is important is not the actual intention of the accused but what was conveyed by his posture, conduct and words (Leece, supra at 7);

(f) a history of threats may be able to supply the meaning of an intention to kill if this is not clear from the conduct charged (Leece, supra at 7);

(g) the threat that the person threatened will be murdered need not be a threat of murder by the accused personally, nor of murder "there and then" or murder that the accused has an immediate capacity to carry out (Barbaro, supra at [62] and [77]);

(h) (in the case of a charge specifying intention rather than recklessness) the person threatened must be intended to believe that the threat will be carried out (Barbaro, supra at [64]);

(i) the fact that the person threatened took the threat seriously, or believed that it would be carried out, is not, however, sufficient (Barbaro, supra at [63]);

(j) there 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]);

(k) it is not necessary for the person uttering the threat to intend that it be carried out (Barbaro, supra at [37] and [72]);

(l) the question is whether a reasonable person in the position of the person threatened would fear that the threat would be carried out (Barbaro, supra at [63]).

16. Barbaro includes several references to the objective or reasonable bystander, but does not clearly answer the question of what such a bystander can be assumed to know in forming a view whether the threat is likely to be carried out. Higgins J refers to the objective reasonable bystander "knowing of the relationship between the protagonists" (Barbaro supra at [71]), and "knowing the material facts" (Barbaro supra at [75]), but also points out that the objective reasonable bystander, in contrast to the person threatened in Barbaro, would have had the advantage of "an absence of any belief that the [accused] possessed a gun" (Barbaro, supra at [73]).

17. Higgins J found in that case that the belief of the person threatened that the appellant had a gun was unjustified. This suggests that the objective reasonable bystander is only assumed to have reasonable beliefs as to the facts, rather than to have the same beliefs, however mistaken, as the person threatened. The significance of the comment that such a bystander would not have had any grounds to believe that the person threatened believed in the existence of the gun (Barbaro, supra at [73]) is obscure; I interpret it as a reference to a basis on which the bystander in that case might have acquired a reasonable belief about the existence of the gun, rather than as expressing a further requirement for the bystander's beliefs.

18. Barbaro also contains the proposition that the person threatened must believe that the accused intended that the threat to kill would be carried out (Barbaro, supra at [63], [65] and [72]). However, this requirement (that the person threatened must believe that the accused intended that the threat would be carried out) does not seem to be either explicit or implicit in any of the specific elements of the offence. Neither the requirement that the victim be intended to fear that the threat be carried out (subpar 30(a)(i)), nor the requirement that a reasonable person would fear that the threat would be carried out (subpar 30(b)(ii)), in its terms requires that the victim in fact held such a fear.

19. I have used the various propositions set out in Leece and Barbaro about the operation of s 30 that are listed in paragraph 15 above to annotate the words of s 30 to establish the requirements for a conviction. As foreshadowed above, I have concerned myself only with the case where the recipient of the threat is also the person threatened.

S 30 as explained in Leece and Barbaro

20. First, the accused must make a threat to another person to kill that other person (the `victim') (par 30(a)):

* The threat must be a threat to kill, not a threat to do some kind of bodily harm.

* The words used need not expressly refer to killing if that meaning can be given to the words by evidence of past events, utterances or communications.

* The threat may be conveyed by the posture, conduct and words of the accused, irrespective of his actual intention.

* The threat need not indicate that the accused has an immediate capacity to carry out the threat, or that the accused would be the one to carry out the killing.

* The threat need not indicate that the killing is to take place "there and then".

* A conditional threat may be sufficient if the victim is entitled not to comply with the condition.

21. Secondly, the accused must intend the victim to fear, or be reckless whether or not the victim would fear, that the threat would be carried out (subpars 30(a)(i) and (ii)):

* There is no need for the accused to actually intend to carry out the threat.

22. Thirdly, the threat must be made without lawful excuse ( subpar 30(b)(i)).

23. Finally, the threat must be made in circumstances in which a reasonable person would fear that it would be carried out (subpar 30(b)(ii)).

* The reasonable bystander is assumed to know the facts of, among other things, any prior relationship between the accused and the victim, but not to "know" matters wrongly assumed or believed by the victim.

* The fear of the victim that the threat would be carried out is not sufficient to satisfy this element of the offence.

24. For the purposes of this appeal, it is next necessary to examine the elements of the offence, as set out above, by reference to the evidence given before the learned Magistrate.

25. The giving of evidence in this case was complicated by the victim's limited English and by the fact that the evidence had to be translated into Cantonese for the benefit of the accused. These circumstances mean that the narrative emerging from the transcript is not particularly straightforward, but they also raise questions about the nature and clarity of communications generally between the accused and the victim. However, such questions, and particularly their significance for a case that might hinge on the interpretation of the accused's words by the victim or by a bystander, were not canvassed in the Magistrates Court or in this court, so I have proceeded on the basis that communication issues arising from possible language difficulties are to be ignored.

26. At some time before 5.00 pm on Monday 29 January 2007, the victim and the appellant (referred to in the transcript as the defendant) had a talk, or argument, as described in the victim's evidence-in-chief:

Okay, you're talking to the defendant?---Yes. Thing don't work out.

I'm sorry?---When I'm talking to him, we - our circumstance and about breaking up.

Okay. Continue?---Thing just got out of hand. He get angry. He say that whether - if he say that - if he - if I dare him, he would do it so that mean he would kill me and---

Can you remember his exact words?---He say, "Don't dare me".

Did he say any other words?---He just say "Don't dare me", he "Would do it".

Do you know what he meant by that?---Yes, because on Saturday night, it's been happened before.

Right. If you can just tell me what you thought?

HIS HONOUR: No, it's not what you thought. He would do "it"? What did he say "it" was?

MS JONES; Did he say what "it" was when he say do "it"?---No, but it's happened two night before that, however he did held a knife against me to try to stab me, so I just got the feeling that what he saying, that is happened on Saturday night.

27. The assertions that the appellant said words to the effect of "don't dare me" and "he would do it" are repeated later in the victim's evidence, as is the assertion that the victim believed the appellant to be threatening to kill her.

28. Shortly after the talk or argument, the victim began to pack the appellant's belongings. The appellant, according to the victim, got angry and went to the kitchen; the victim gave evidence that she believed he had gone to get a knife. She then left the house by the front door.

Why did you run to the front door?---Because I knew what he is - running after me with the knife. I knew he will do that.

Did you see him get a knife from the kitchen at any stage?---No, but I heard.

...

What happened after you got out the front door? Can you tell us what happened?---I run out, I call for help and when I turned back, he's just about two step away from me.

Was he holding anything?---He's holding a knife.

...

When you first saw him with the knife, he was about two steps behind you?---Yes.

How far away were you from the house when you saw him?---Just the next door. I'm running to the next door front.

What was Mr Luu doing?---He's running after me. Because when I look back, he's just behind me so I can't run any further.

What did you do when you saw the knife?---I stopped. I have to apologise again. To say sorry again.

29. The victim then described how the appellant held her by her right shoulder, facing her, and moved the knife up and down "a few times" quite close to her face at about nose-height, while she tried to push him away. The victim then apologised to the appellant, which appeared to calm him down, and they both went back into the house.

30. It is also necessary to refer briefly to the events of Saturday 27 January, two days before the incident described above. On the Saturday there was also an argument about the proposed separation and in particular the appellant's access to the victim's youngest child. During that argument the appellant produced a knife.

When he brought this knife out from behind his back, what did he do? What did he say?---He say that don't push him to the end. I don't know what he means.

Like he said what, sorry?---Don't push him to the end.

Can you think about his words that he said?---The best I can - the best all I can describe that he - that mean don't push him to the end.

31. The victim described the appellant's actions at this point. He had one hand on her shoulder, and with the other hand held a knife in the air, with the blade pointing down. He moved the knife up and down about 6 or 7 centimetres away from her neck.

What did you think he might do?---He wanted to kill me, yes.

Why do you think he wanted to kill you?---Because of his - the way he is toward me. He just say that sometime I push him to the end and he got nothing but.

...

When he's moving the knife in this way and you said it came quite near your neck - - ----Yes.

- - - how long did that go on for?---Oh, about a minute, yes, because I have to apologise to him. I have to say sorry to him to calm him down.

Is that what you did?---Yes, I did.

Did that calm him down?---Yes.

What did he do with the knife?---He got back to the kitchen, put it back.

32. In cross-examination about the events of the Monday (the day of the alleged offence), the victim denied that the appellant had said he would harm her. The learned Magistrate said that he had recorded the evidence as "when I stopped, he touched me and had a knife up in the air. He never said he would harm me." In re-examination the victim confirmed this.

When you agreed that he never said that, what period of time were you talking about? Just when you were out in the street or were you talking about the entire day?---Oh, he didn't say anything about oh, not try to harm me or anything in the entire day. He didn't say it. Not at all.

33. After that, counsel for the prosecution indicated that the prosecution would have to consider "that we can't satisfy all the elements of a threat to kill charge". This was queried by the learned Magistrate. Counsel for the prosecution then called further witnesses, and again told his Honour that "there is no prima facie case in relation to the threat to kill charge". She invited the learned Magistrate to dismiss the charge, but noted that, in effect, it was too late to offer no evidence on the charge. There followed lengthy discussions between his Honour and both counsel about Leece and Barbaro, in which concessions offered by counsel for the prosecution were rejected by his Honour. After the luncheon adjournment, the learned Magistrate advised counsel for the prosecution that if she did not wish him to proceed, her remedy was to withdraw the information, but instead she withdrew her earlier submissions. Further exchanges between his Honour and the two counsel followed, including about the elements of the alternative assault charge, until his Honour announced that he had found a prima facie case, and proceeded almost immediately to find the offence proved.

34. The first question on which the evidence needs to be assessed is whether the appellant, by his posture, conduct, and words, and having regard to past events and utterances if necessary, but irrespective of his real intentions, made a threat to the victim that she would be killed (not just injured), not necessarily by the appellant and not necessarily there and then. If there was a conditional threat, the further question arises whether the victim was entitled not to comply with the condition.

35. Some of the victim's evidence, as set out above, was that the appellant used words, and engaged in conduct, that she believed constituted a threat to kill her. There is certainly evidence that the appellant's words and conduct constituted a threat to do something. However, the following points emerge from the transcript extracts set out above.

(a) At some points in her evidence, the victim denied that the appellant ever said he would harm her.

(b) The appellant did not use words specifying an intention to kill; in fact the threat to do "it", by itself, is hard even to interpret as a threat to do injury.

(c) The appellant's conduct in moving the knife around near the victim's face can be accepted as conveying a threat to do injury, and thereby also to give that meaning to the appellant's threat that he "would do it"--but there is nothing in that conduct that could turn that threat into a threat to kill.

(d) The events of the preceding Saturday, which took a similar course to the Monday incident that was the subject of the charge, are not useful in filling in the missing element (namely that the threat was to kill) from the appellant's words and conduct on Monday. The appellant's words on Saturday as reported by the victim ("don't push him to the end") do not necessarily convey a threat rather than a plea or a demand. Any implicit threat could cover self-harm as easily as harm to anyone else. For those reasons, the words are less apt even than the words used on Monday to be interpreted as a threat to kill. The appellant's behaviour on the Saturday (moving the knife up and down near the victim's face, then calming down and putting the knife away when she apologised) would seem to have made it less rather than more likely, to both the victim and an objective reasonable bystander, that the appellant's conduct was intended to convey a threat to kill rather than an attempt to extract an apology or other resolution of the conflict.

(e) Even if the threat is interpreted as conditional on failure to apologise, and it is assumed that the victim was entitled not to apologise, this does not turn the threat into a threat to kill.

36. Accordingly, I find that the evidence before the learned Magistrate was not sufficient to make out the first element of the threat to kill charge, namely that the threat made was in fact a threat to kill, and that his Honour therefore erred in finding a prima facie case on that charge. There is thus no need for me to consider whether that evidence supports the other elements of the charge as described above.

37. In those circumstances, there is also no need to reach any conclusions on the other grounds of appeal, namely:

(a) that the learned Magistrate's decision was against the weight of evidence and that his Honour should have been left with a reasonable doubt; and

(b) that the learned Magistrate erred in failing to give reasons for his decision.

38. There is also no need to decide the appeal against sentence.

39. Having found that the evidence before the learned Magistrate was not sufficient to make out one of the elements of the threat to kill charge, I propose to set aside the appellant's conviction for that offence (CC2007/1325) and substitute a finding of not guilty.

40. In the Magistrates Court, an alternative charge of common assault under s 26A of the Crimes Act 1900 (ACT) (CC2007/6892) was also offered in respect of the events of Monday 29 January 2007. At the appeal hearing, counsel for the appellant advised that the common assault charge was not contested and that she would not wish to put any further arguments to me about, or take issue with, a finding that the appellant was guilty of common assault.

41. On the basis of a review of the evidence that was before the learned Magistrate, I am satisfied beyond reasonable doubt that the appellant's actions on 29 January 2007 were intended to, and did, raise in the mind of Ms Nguyen the fear of unlawful physical contact in the form of an attack with the knife. The appellant's actions that I rely on include, in particular, chasing the victim, while in possession of a knife and in the context of an ongoing dispute between the appellant and the victim, and holding the victim by her right shoulder, facing her, and moving a knife up and down several times quite close to her face while she tried to push him away. Accordingly I find Mr Luu guilty of common assault.

42. I shall hear counsel as to the appropriate sentence for that offence.

(b) the appellant's conviction for making a threat to kill the complainant on 29 January 2007 (CC2007/1325), and the sentence imposed, are set aside.

44. The court finds proven the charge that the appellant did on 29 January 2007 assault Jenny Nguyen (CC2007/6892).

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: ACT Director of Public Prosecutions