McEwan v Rohan [2012] ACTSC 181

(a) Her Honour erred in finding the offence proved on the basis of the evidence before the Court. The evidence of the complainant could not support a finding that a threat to kill was made against her in circumstances where a reasonable person would have believed the threat would be carried out.

(b) The sentence imposed was manifestly excessive in all of the object (sic) and subjective circumstances of the appellant.

3. At the hearing of the appeal, the appellant sought leave to add a further ground, being that the verdict was unsafe and unsatisfactory. The respondent did not oppose the amendment.

4. The appellant's primary position is that he could not be convicted of the offence on the evidence before the Magistrate. The appellant was not granted bail pending the his appeal until at the hearing of that appeal on 19 October this year. Counsel for the appellant stated that he was not in a position to argue the sentence appeal at that time, and the hearing proceeded on the appeal against conviction only. I understand that if the appellant is unsuccessful on his appeal against conviction he may then seek to argue the sentence appeal.

5. In Connelly v Allan [2011] ACTSC 170 Refshauge J at [12]-[13] described the nature of an appeal to this court from a conviction imposed in the Magistrates Court:

So far the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that it is clearly wrong. This court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate's reasons'...

6. The principal witness for the prosecution was Melanie Ingram (the complainant). She testified that as at December 2011 she had known the appellant for about 18 months. At about dusk on 25 December 2011 she and her 5 months old daughter were at the appellant's house. The appellant was the father of this child. She was initially seated in the kitchen talking to the appellant who was drinking beer and making Christmas dinner. She was not consuming alcohol.

7. After several hours of talking to the appellant and watching him cook, the complainant decided to take her daughter and leave. She placed her daughter in the car safety capsule in her car, and then realised she had forgotten her car keys. She re-entered the appellant's house. She gave this evidence about what then occurred:

Okay. You've walked back into the house. What happened after you went back into the house to get your keys?---When I went back to the house, James had said to me, "What are you doing" And I said that it was time to go home, Brianna was tired, I'd been there for several hours by then. He told me to sit and I wasn't going anywhere. And I said I had to leave, Brianna's in the car, it's time to go. He walked around the kitchen table and grabbed me by the shirt, threw me up against the wall and told me I wasn't going anywhere. (Transcript pp 5-6, lines 40-45; 1-2)

8. She testified that the appellant grabbed a kitchen knife with a black handle and a long, serrated silver blade. She gave the following evidence of what then occurred:

Okay. Now, what did he do with the knife?---Put it to my neck, put it to my stomach and threatened to gut me like a fish, were his words.

Okay. Now, when he said to you, "I will gut you like a fish", how did you feel?---Frightened, of course. I started crying, shaking, I was frightened. I didn't know if I was going to make it out of there.

Okay. What did you think he was going to do?---The thought did cross my mind, yes.

No, what did you think he was going to do?---(No audible reply)

What did you think---?---Did I think he was going to do?

Yes?---Well, of course I thought he was going to use it. I didn't know, I had already been punched in the face. I was trying to watch the knife, trying to get out of the door, different sorts of emotions, as you can imagine.

And what do you think he was going to do with the knife?---Well, use it.

And what do you mean by, "Use it"?---Either stab me or slice me or something. (Transcript pp 11-12, lines 40-45; 1-16)

9. Ms Ingram testified that she managed to escape from the appellant and ran outside, where she met the police.

And at no time did Mr - at no time did James have a knife in his hand during that altercation?---Yes, he did hold a knife to my throat, to my stomach as I was on the other side of the bench, where the picture clearly shows the knife sitting.

Yes, so you say that he held the knife to your skin on your throat?---To my throat and to my stomach, he had the knife.

So the knife was touching your neck, is that right?---Touching my neck, yes.

And was there a lot of pressure against your neck from the knife?---No, it was just to my neck at that point, in between punching me in the face.

I just want to get clear, did the knife touch your throat?---Yes, the knife touched my throat, but didn't cut.

All right. Would you say that it was pressing quite hard against your throat?---How hard, I'm not quite sure to tell you the truth.

Did the knife touch your stomach, where you saying?---Yes, it did touch my stomach.

And did it cause---?---It was pressed in reasonably firmly, but not - not hard enough to actually draw blood.

What I'm going to put to you again is that at no time did James threaten you with a knife?---He did threaten me with a knife. (Transcript p 24, lines 13-40)

11. It was put to Ms Ingram in cross-examination that she had wanted to get back together with the appellant, and became angry when he refused. She denied this suggestion. She also denied a suggestion that the appellant had not made a threat to "gut her like a fish". It is clear from the transcript that Ms Ingram was not shaken in cross-examination. The one matter that could possibly affect her credibility was a concession that part of her statement to police, where she told them that she had never been in a sexual relationship with the appellant and that they had always just been friendly, was incorrect. She explained this error by reference to her being frightened and disoriented at the time. The learned Magistrate was entitled to accept the complainant's evidence despite this discrepancy.

12. The next prosecution witness was Ms Ann McCutcheon. As at 25 December 2011 she was apparently a neighbour of the appellant. At about 11:00pm on 25 December 2011 she was in bed reading. At around midnight she heard a noise, and went outside to investigate. She described it as a very loud noise, like yelling. Another neighbour came out and spoke to her. They tried to work out where the yelling was coming from. Ms McCutcheon then went back into her house and called police. She testified that she called the police because the noise got louder and there was swearing and threats being made, which she could hear very clearly. She heard a male say: "Shut the fuck up or I'll kill you". She then heard a female say "Don't hit me, don't hit me. I'll call the police". And then the male said "Don't you fucking dare".

13. Ms McCutcheon said that she was afraid that the male was going to kill the female. After she rang police she went back outside and continued to listen. She thought the yelling became louder. She then called the police again and asked them to hurry. Police subsequently attended.

14. In cross examination Ms McCutcheon stated that she could not hear any music playing at the time, she could only hear yelling. She stated that after she had called police, the yelling had settled down for a while before escalating again. It was not put to Ms McCutcheon in cross examination that her evidence about what she heard the male say was incorrect.

15. The next prosecution witness was Ms Evelyn Kilday. As at December 2011 Ms Kilday also apparently resided close to the residence of the appellant. Ms Kilday testified that at about 9:45pm on 25 December 2011 she went to bed. At about midnight she was startled awake by some loud shouting. Her husband also woke at the same time. She described the voice that she heard as a male voice. Ms Kilday stated that she opened her window and yelled out to whoever was making the noise to keep it down. She then spoke with another neighbour trying to work out where the noise was coming from. She then closed the window and called the police.

16. There was no significant cross examination of Ms Kilday.

17. The prosecution then called Constable Simon Rohan. On 25 December 2011 he started duties at 9:00pm. He was conducting patrol duties with Constable Simon Hackett that night. At about 12:30am on 26 December he received a radio transmission requiring him to go to Dunlop. He went to Lapsley Street, where he met Ms Ann McCutcheon. The original complaint had been in relation to a noise complaint. After some confusion about where the noise was coming from, police went to 7 Lapsley Street. They there had a conversation with the defendant. As Constable Rohan's partner commenced speaking to the appellant, Constable Rohan saw a female who was holding a towel to her face. She walked past the police and into the front yard. Constable Rohan followed her. She identified herself as the complainant, Melanie Ingram. Constable Rohan observed that the complainant had a cut to her lip, which was quite swollen. She also had some swelling around the side of her face, around her eye, and to the cheek. She complained of having been hit, so Constable Rohan requested that she attend the police station to provide a statement. She drove her car from that location to the Belconnen Police Station and spoke to another police officer there.

18. After she left, Constable Rohan spoke to the appellant. He arrested the appellant for assaulting the complainant. He then entered the premises and took some photographs, including a photograph of the kitchen which showed a knife on the kitchen table.

19. Constable Rohan described the appellant as being heavily intoxicated.

20. Constable Rohan described the complainant on the early morning of 26 December 2009 as shaking, and very hard to talk to. Her hands were trembling, and there was a tremble in her voice, particularly when the appellant walked into the front yard while she was speaking to police. She didn't make eye contact with Constable Rohan or the appellant at that time, and actually moved away.

21. The final prosecution witness was Constable Sean Mays. He commenced a shift on 25 December 2011 at 9:00pm. He was working with Constable Sam Norman. He received a call from police communications at about 12:35pm stating that there had been a complaint of noise, with swearing and loud noise coming from an address is Lapsley Street Dunlop. Subsequently they attended Lapsley Street. He there observed Constable Rohan speaking to the complainant in the front driveway of premises. He also observed the appellant standing in the front yard having a conversation with Constable Hackett. Constable Mays entered the house and went to the kitchen/dining room area where he observed a kitchen table and upon that table numerous bottles and cans of alcohol and a large black kitchen knife. He described the knife as a non-serrated knife with a black handle and a silver blade approximately 25 centimetres long. He subsequently returned to Belconnen Police Station and took a statement from the complainant. He described her as extremely upset, very teary, very shaky in her voice and tone and quite distressed. She also had a number of swellings on her cheek, which were quite red, and also a cut on the side of her mouth. She was given a tea towel with some ice in it for the swelling. She was distressed the whole time that she spoke to police. Constable Mays was not cross examined.

22. The appellant then gave evidence. The appellant testified that on Christmas Day 2011 he was making dinner for his children at about 12 midday. At that time he had three children living with him. He stated that the complainant telephoned him at about 10am that morning and asked whether she could come over, and offered to buy alcohol. He agreed because he wanted to see his daughter, meaning the child that he and the complainant shared, who was residing with the complainant. He testified that she arrived at about 1pm. He said that she told him that she wanted to be in a relationship with him because they had a daughter together. He said that he was not interested. He testified that she then left, but returned about one hour later. By then it was about 3:30 or 4pm.

23. The appellant testified that he commenced consuming alcohol at about midday. When the complainant returned she kept telling him that she wanted to be in a relationship with him. He stated he was sitting down, and she kept swearing at him because he wouldn't agree to be in a relationship with her. He said that she was calling him a "poxy dog" and accusing him of not caring about his daughter. He stated that these comments upset him. He said that he let it go for a while, but after a while he lost his temper and grabbed her. He pushed her up against the wall and punched her once to the mouth. He said when he saw she was bleeding it made him feel bad, so he let her go and he walked outside to have a cigarette. He said that she followed him out to have a cigarette.

24. The appellant testified that he had been using a knife to make salads in the kitchen. He was shown a photograph of the kitchen area, presumably taken by Constable Mays, and agreed that the knife which was depicted on the kitchen bench was the knife that he had been using to make the salads. He denied ever having made any threat to kill the complainant, or to "gut her like a fish". He also denied having said "Shut the fuck up or I'll kill you". He denied at any time having taken hold of the knife and raising it towards the complainant, or holding a knife to her throat or stomach.

25. In cross examination the appellant agreed that he had been drinking steadily throughout the day from 12 noon. He also agreed that the photographs of the kitchen taken by Constable Mays showed no salad preparation material other than the knife on the table. He stated that he had cleaned up after making the salads, and the leftovers were in the fridge. However he had left the knife on the kitchen table. He agreed that he had finished preparing the salads hours earlier, and gave no reason why he had left the knife on the kitchen table. Later in cross examination the appellant suggested that he had not cleaned up the knife and put it away because "he had other things to do" like watching the children.

26. The Magistrate referred to the decision in R v Leece (1995) 125 ACTR 1; 78 A Crim R 531 and Luu v Cook [2008] ACTSC 54 before setting out the elements of the offence under s 30 of the Crimes Act 1900 (ACT):

1. the accused must be proved to have made a threat to kill;
2. the accused must intend the complainant to fear that the threat would be carried out;

1. the threat had to be made without lawful excuse; and

1. the threat had to be made in circumstances in which a reasonable person would fear that the threat would be carried out.

The appellant makes no complaint about the Magistrate's analysis of the elements of the charge.

27. The Magistrate found as a question of fact that the appellant had made a threat to kill the complainant. Her Honour stated that she did so "primarily as a result of the evidence of Ms McCutcheon", clearly a reference to Ms McCutcheon's evidence that she heard a male voice say "Shut the fuck up or I'll kill you". In making this finding the Magistrate clearly inferred that the person who spoke those words was the appellant, which was an inevitable inference in the circumstances.

28. The Magistrate formed the view that the appellant was not a reliable witness based upon his level of intoxication at the time of the events. Her Honour expressed herself to be satisfied beyond a reasonable doubt that the appellant held a knife to the complainant's neck and stomach as she alleged. Her Honour drew an inference from those actions that the appellant intended the complainant to fear that he would kill her. The Magistrate further found that there was no lawful excuse for the appellant making the threat, and "in all the circumstances that a reasonable person would have feared that the threat would be carried out". Her Honour found the offence proved.

29. Referring to the evidence of the complainant set out in paragraphs 7 to 9 above, the appellant submitted that the complainant had not testified that she feared that she would be killed. Indeed, the appellant submitted that she gave evidence of a lesser fear, a fear that he may "stab me or slice me or something".

30. The appellant submitted that previous cases such as Barbaro v Quilty [1999] ACTSC 119 and Luu v Cook recognised that the "reasonable person" referred to in s 30 (b) (ii) is a reasonable person in the position of the person to whom the threat is made, and who is assumed to know the facts of the prior dealings or relationship between the accused and the person to whom the threat is made. The appellant then advanced the following argument:

1. If the reasonable bystander is assumed to know the history of the relationship and prior dealings between the accused and the person to whom the threat is made; and
2. If the person to whom the threat is made does not in fact believe that they will be killed, where this belief is necessarily based on the history of their relationship and prior dealings between them, and

1. If the belief is not shown to be irrational or based upon a mistake;

1. The reasonable bystander, clothed with this "knowledge", cannot believe that the threat will be carried out.

31. The reference by the appellant in the first ground of appeal to the "belief" of a reasonable person, repeated in his submissions on appeal, is curious. It is convenient at this point to set out the terms of s 30:

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.

32. The section makes no reference to the belief of a reasonable person, or the belief of the recipient of the threat. The word belief, or any of its derivatives, does not appear in the section at all. It appears that the proposition that the belief of the reasonable person, or of the recipient of the threat, is relevant to establishing an offence under s 30 has arisen by virtue of some of the earlier cases which considered the section.

33. In the earliest reported case considering s 30 there is no reference to belief at all. In Doyle v Ranse (1991) 103 FLR 419 Higgins J (as his Honour then was) referred to the need for the reasonable person to fear that the threat would be carried out. This formula follows the words of the section. Whilst his Honour referred to the fact that the complainant had not testified that she feared that the threat would be carried out, he did not suggest that proof of that fact was a prerequisite to a conviction under s 30.

34. In R v Leece (1995) 125 ACTR 1; 78 A Crim R 531, Higgins J granted a stay of proceedings with respect to a charge under s 30. The case is concerned primarily with what constitutes a "threat to kill", but in the course of discussion of this question, and how it applies in s 30, his Honour makes no reference to the belief of the reasonable person, or the belief of the complainant as to whether the accused would carry out his threat.

35. The first reference to the belief of either the reasonable person or the complainant being relevant to a charge under s 30 is, I believe, found in the decision of Higgins J in Barbaro v Quilty [1999] ACTSC 119, where in considering the elements of an offence under s 30 his Honour said at [60] - [64]:

I considered the elements necessary to find an offence under s 30 of the Crimes Act in Doyle v Ranse (1991) 103 FLR 419

The first point to make is that s 30 carries a maximum sentence of ten years imprisonment. The legislature has ranked it more seriously than an actual assault occasioning actual bodily harm (s 23) or intentional wounding (s 21). It ranks with aiding suicide (s 17) and recklessly inflicting grievous bodily harm (s 20).

The threat must be one of inflicting physical harm so as to cause death. That is, that the person threatened will be murdered (though not necessarily by the defendant personally nor then and there).

Doyle v Ranse (supra) illustrates that the person threatened must be expressly put in fear not merely that the alleged offender might offer violence, but that the alleged offender would attempt to kill (personally or otherwise) the person threatened. It is not enough that the person threatened says that he or she took the threat "seriously", assuming that is to be equated with a belief that it would be carried out. There is also an objective element. It is whether a reasonable person in the position of the person threatened would fear that the threat would be carried out.

Further, the circumstances must be such as to satisfy the tribunal of fact that the person threatened was intended to believe that the threat would be carried out. In Doyle v Ranse neither of those elements was made out.

36. In applying the subjective test found in s 30 (that is, s 30(a)) to the evidence in the case, his Honour expressed considerable doubt whether the complainant "seriously believed" that the appellant would have attempted to have her murdered. In applying the objective test found in the section Higgins J said at [72] - [73]:

It should be borne in mind that, whilst it is not an element of the offence that the offender intended to carry out his or her threat, it is an element that the person threatened actually believed that to have been the offender's intention. That must also be the belief of the objective reasonable bystander.

One advantage the objective bystander would have had over Ms Jones in coming to that conclusion would be an absence of any belief that the appellant possessed a gun. There were no reasonable grounds established for a reasonable bystander to have made such an assumption. Nor would that bystander have any grounds to believe that Ms Jones entertained such a belief.

37. Subsequently, in Luu v Cook [2008] ACTSC 54, Penfold J considered the decision of Higgins J in Barbaro and noted that among the propositions which emerged from it were:

1. that with respect to a charge under s 30 alleging intention rather than recklessness, the person threatened must be intended to believe that the threat will be carried out; and
2. 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 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 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]).

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.

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.

39. With respect, I fully endorse these statements. However, I would go further and say that the section does not require any person, whether actual or hypothetical, to form a belief as to whether the threat will be carried out.

40. The objective element of the offence, as set out in s 30 (b) (ii) requires the prosecution to prove that the threat was made "in circumstances in which a reasonable person would fear that the threat would be carried out". What this requires is proof of what a reasonable person in the position of the recipient of the threat would fear, not what they believed. Similarly, the subjective element of the offence requires the prosecution to prove that the accused intended to put the recipient of the threat in fear that it would be carried out.

41. The Macquarie Dictionary, 5th edition, defines the words "fear", "belief" and "believe" as follows:

fear noun 1. A painful feeling of impending danger, evil, trouble, etc; the feeling or condition of being afraid. 2. A specific instance of such a feeling. 3. Anxiety; solicitude. 4. Reverential awe, especially towards God. 5. A cause for fear - verb (t) 6. To regard with fear; be afraid of. 7. To have reverential awe of. 8. Archaic to be afraid (used reflexively). 9. Archaic to frighten - verb (i) 10. To have fear; be afraid.

belief noun 1. That which is believed; an accepted opinion. 2. Conviction of the truth or reality of a thing, based upon grounds insufficient to afford positive knowledge; statements unworthy of belief. 3. Confidence; faith; trust; children's belief in their parents. 4. A religious tenet or tenets; the Christian belief.

believe verb (t) (believed, believing) 1. To have belief in: to believe a person 2. To think: I believe she has left the city. 3. To credit; accept as true; to believe a story.

42. The word fear, where it appears in s 30, is a verb, in my opinion carrying the meaning "be afraid of". On the other hand the word "belief" would usually connote a conviction held as to the truth of a thing.

43. A belief that a threat will be carried out involves a higher degree of certitude than a fear that it will be carried out. Belief implies a conviction on the part of the believer that a certain proposition is true. An individual or a hypothetical reasonable person may be afraid that a threat will be carried out in circumstances where they may not have formed, or be able to form, a belief that it will be carried out. Indeed, the uncertainty that comes with an inability to form a belief that a threat will not be carried out will often be part of the basis for holding a fear that it will.

44. This does not mean that the belief of a recipient of a threat that the maker of the threat will not carry out the threat is irrelevant. Where such a belief is based upon knowledge of the person making the threat, the recipient's belief may be evidence that the person making the threat did not intend the recipient to fear that the threat would be carried out, and may also be evidence relevant to determining whether a reasonable person would fear that the threat would be carried out. The basis of the belief of the recipient may be proved by direct evidence, or it may be inferred from direct evidence. But the belief of the recipient that the threat will not be carried out is only one piece of evidence, and the tribunal of fact may give it such weight as seems appropriate. Where there is other evidence suggesting that the intention of the person making the threat was to make the recipient fear that it would be carried out, then the belief of the recipient may not be given great weight. Similarly, the evidence may be such as to establish that a reasonable person would fear that the threat would be carried out even if the recipient did not so believe. In neither case is the belief of the recipient that the threat would not be carried out necessarily conclusive.

45. This understanding of the requirements of the section means that the first ground of appeal, as framed by the appellant, cannot succeed as it alleges that the evidence could not support a finding of fact that was not a necessary finding for the offence to be proven. However, I will not simply dismiss the appellant's appeal on this technical ground. I will consider the first ground of appeal on the basis that the appellant intended to plead that the evidence could not support a finding that a reasonable person would fear that the threat would be carried out.

46. Central to the appellant's submission is the proposition that the complainant did not say, in terms, "I thought he was going to kill me". This is true enough, but it is not the end of the matter. The questions directed to the complainant by the prosecutor on the issue of her belief at the time the threats were made were all questions asking what she thought the appellant was going to do with the knife. In answering such a question some witnesses may respond by reference to their belief as to not only the actions of the accused but also their belief as to the consequence of the accused's actions on them: e.g. "I thought he was going to kill me". But framing the questions in the way they were was apt to elicit a response confined to the complainant's belief as to what physical acts the appellant was going to perform with the knife. That is how I read the complainant's evidence. She believed the appellant would use the knife on her. She was never asked whether she believed that the appellant would carry out his threats.

47. In my opinion, the complainant's evidence, when properly understood, is not to the effect that she did not believe that the accused would not carry out his threat. Her evidence simply does not address that issue or, to the extent that it does, supports the prosecution case.

48. The second ground of appeal against conviction, that the verdict was unsafe and unsatisfactory, is inextricably wound up with the issue raised in the first ground, being whether the evidence could support the finding of guilt. The test to be applied to determine whether a verdict is unsafe and unsatisfactory was restated by the Court of Appeal in Forsti v The Queen [2012] ACTCA 4 at [6] - [7]:

The majority judgment in M v The Queen (1994) 181 CLR 497 (Mason CJ, Deane, Dawson and Toohey JJ) expressed the test as follows:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Citations omitted)

The caveat found in the second half of the above passage was subject to further consideration by the majority in M:

In most cases a doubt experienced by an appellate in court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (41). (Citations omitted).

49. The appellant's submission with respect to the allegation that the verdict was unsafe and unsatisfactory is that there was no evidence that she feared death, and that the evidence was not sufficient to establish beyond reasonable doubt that the appellant intended the complainant to fear that he would kill her. I am satisfied that there is no merit in these propositions.

50. In her evidence as set out in paragraph 8 above, the complainant was asked how she felt when the appellant said to her "I will gut you like a fish". After saying that she felt frightened, she said: "I didn't know if I was going to make it out of there". That is a clear indication that she feared she would be killed.

51. In any event, even if the complainant's evidence is considered to be silent on the question of her belief as to whether the appellant would kill her, the evidence that the appellant intended her to fear that he would carry out his threats is overwhelming.

52. Before the appellant made the threats he had punched the complainant to the face, demonstrating a willingness to engage in physical violence directed towards her. At the time he made the threats he was not only holding a knife, he was pressing the knife up against her throat and her stomach, with the knife in contact with her skin. His threat "to gut you like a fish" is clearly a threat to kill. What he threatened to do is a process inconsistent with the continuance of life. I am left in no doubt that the threat was a threat to kill the complainant, and that he intended the complainant to fear that he would kill her. In addition, the evidence of Ms McCutcheon is that the appellant made a clear threat to kill the complainant.

53. I am similarly left in no doubt that a reasonable person in the position of the complainant, and in the circumstances that existed at the time the threats were made, would fear that the appellant would carry out his threat to kill. On the whole of the evidence it was open to the Magistrate to find the offence proved.

54. There is no merit in either of the ground of appeal against conviction. The appeal against conviction is dismissed.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the appellant: Aboriginal Legal Service (NSW/ACT) Limited

Solicitor for the respondent: Director of Public Prosecutions