Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File No : AL 1174 of 2009, AL 1175 of 2009, AL 1176 of 2009, AL 1177 of 2009

Criminal law - Breach of restraining order - Voice identification - Whether evidence sufficient to prove guilt - Alleged apprehension of bias - Turns on own facts

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Smart v Scott [2007] WASC 295

1 HALL J: The appellant, Andrew Jacob Smart, seeks leave to appeal against his conviction of four counts of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA). Those convictions occurred following a hearing in the Mandurah Magistrates Court on 26 July 2010. The relevant charge numbers were AL 1174 to 1177 of 2009.

2 The appeal notice filed by Mr Smart contains three grounds:

(1) Raylene Blyth claims to know my voice due to previous arguments with husband, but when questioned about why she called my phone when she had a restraining order she stated 'I don't know who it was. I thought it was a disgruntled customer';

(2) No phone records of my phone to her phone, number never dialled, no record of diversion;

(3) Large number of calls from her brothers-in-law and husband to me that included death threats. McIntyre wrongly concluded that these calls were only relevant to discontinued charge which is not true, failed to act on summary as a result.

3 These grounds are somewhat cryptic. However, Mr Smart, who represented himself in these proceedings, made oral submissions explaining them. In order to understand the grounds it is necessary to say something about the proceedings in the Magistrates Court.

4 The prosecution case was that on 3 November 2006 a violence restraining order was made restraining Mr Smart from approaching, making contact or attempting to make contact with Raylene Michelle Blyth. That order was served on Mr Smart on 11 June 2007. The order remained current in March 2009.

5 It was alleged that on four occasions in March 2009 Mr Smart had contacted Ms Blyth in contravention of the violence restraining order. Ms Blyth gave evidence in this regard. She said that at about 9.00 pm on 4 March 2009 she received a message on the message bank of her mobile phone. She said that when she listened to the message she recognised the voice as that of Mr Smart. She said that the message was abusive in tone and that Mr Smart seemed very angry.

6 Ms Blyth said that later on the same evening she received a second message on the message bank of her mobile phone. She said that she again recognised the voice of Mr Smart and he was complaining about her brothers annoying him. She said Mr Smart's tone was angry and threatening. She said she recognised the calling number recorded on her telephone as one that she had come to know as the one used by Mr Smart.

7 Ms Blyth said that two days later, in the early morning of 6 March 2009, she received a telephone call whilst she was asleep in bed. She said that she answered the telephone but then realised that the calling number was that of Mr Smart and hung up promptly. She said she then received another call shortly after which she let go through to the message bank. Ms Blyth made a recording of this and the two voice messages received on 4 March 2009 which she later provided to the police.

8 In cross-examination Ms Blyth said she was able to recognise Mr Smart's voice on the messages because she had, on previous occasions, heard him speak in person. She said this included times when he had attended at her house. Ms Blyth said that she also recognised the calling number on each of the occasions as a number from which Mr Smart had previously used to contact her.

9 Ms Blyth said that she was one of the proprietors of a business. She said that when after hours calls were received on the business phone they would divert to either her or her brother-in-law's mobile telephone. If the call was diverted to her phone and it was unanswered, the call would then divert to her message bank which commenced with a message in which she identified herself by her first name. The recording made by Ms Blyth of the three messages was tendered in evidence.

10 The prosecution also tendered call charge records which showed that telephone calls had been made from the land line identified by Ms Blyth as that which she recognised as being one used by Mr Smart on previous occasions. Records tendered to the court showed that the subscriber of that land line was a business in Dumbleyung. Evidence was given that Mr Smart worked at that business.

11 The records showed that a number of calls had been made from the Dumbleyung telephone to another telephone on 4 and 6 March 2009. Although the transcript of Ms Blyth's evidence as to the number of the business telephone is indistinct, it would appear that that was the number called. The records showed that calls from the Dumbleyung line had been made at 8.59 and 9.01 pm on 4 March 2009 and two calls within a minute of 6.49 am on 6 March 2009.

12 Mr Smart elected not to give evidence in his defence. He did, however, cross-examine a number of the witnesses, in particular Ms Blyth. He put to her that on one occasion she had contacted him from her mother's telephone. She agreed that she had done so but said it had occurred inadvertently. She said that her brother-in-law had received a phone call of a fairly abusive nature which was to the effect that the caller wanted her husband to call back. She said she rang the number believing it to be a disgruntled customer of the business. She said that when Mr Smart answered and identified himself she immediately terminated the call.

13 Mr Smart also put some questions to Ms Blyth to the effect that he, Mr Smart, had attended at her home in Osborne Park in 2006 and accused her husband of making death threats against him in 2004. Ms Blyth appeared to accept that Mr Smart had made such an allegation, although she thought he had referred to a threat having been made in 2002. She said she had not been with her husband in 2002. Accordingly, as far as this evidence went, it was to confirm that there had been some sort of confrontation between Mr Smart and Ms Blyth's husband at Ms Blyth's house sometime around 2006.

14 In summing up his case to the magistrate, Mr Smart submitted that Ms Blyth should not be believed. He said that whilst there was animosity towards him by Ms Blyth's brothers or brothers-in-law or husband (of which there was no evidence), he had no problem with her and no motive for contacting her. The suggestion appeared to be that whilst he may have made telephone calls to the business, it was open to infer that he was endeavouring to contact relatives of Ms Blyth rather than her and that any contact with her was therefore unintentional.

15 In finding the charges proved, the magistrate said as follows:

I have heard evidence from Raylene Blyth that, as a consequence of her contact with the accused, having listened to his voice and so on, she swears one hundred per cent that the voice which she heard on three occasions when messages were left was the voice of the accused. With respect to the fourth matter, there has been no message left but the number from which the call originated indicates that that number is common to all of the four matters.

It is also said the prosecution have to prove each of the elements of the offences to a standard of proof beyond a reasonable doubt. The accused suggests by way of cross-examination and by way of submissions that Raylene Blyth is a person whose evidence should not be accepted. He has pointed to a number of reasons why he believes this to be the case and the accused raised a whole range of issues when cross-examining Blyth, some of which were relevant and some which were totally irrelevant.

The accused referred to issues which have occurred in the past. He referred to a number of people that he asserts were involved in these issues. He put before the investigating police officer a number of names and suggested that they were all relevant to the issues. But at the end of the day, the question that I have to resolve is whether or not I accept the truthfulness and accuracy of the evidence given by Blyth, supported as it is by some independent aspects of the evidence.

In particular I have been able to listen - as has everyone in this court - to a recording of three of the messages which were left on the telephone message bank of Ms Blyth. As I said, she maintains one hundred per cent that it is the voice of the accused. By way of an analogy of identification, the court views that evidence with real care because it has been proved over time that identification evidence is often unreliable and the person giving it comes across quite credibly because they honestly believe the accuracy of their evidence.

There is some evidence which links the accused with the number from which the telephone calls emanated. There is clear references in the messages to matters which involve Blyth. She gave evidence about the accused being at her front door and other reasons why she says that she is able to identify the voice of the accused and at the end of the day I certainly reject any assertion that she suffers from any form of mental incapacity or otherwise.

She gave her evidence in a clear and concise way. She appeared to have a good recollection of the issues. She came across to me as honest and reliable and credible and her evidence is not counted on oath. As I said, there is independent testimony as to the times and so on. So, at the end of the day, the only question seems to be, as the accused pointed out, is whether or not he made the phone calls in a sense knowingly.

On the evidence before me I believe that has been established by the prosecution to a standard of proof beyond a reasonable doubt. Because the evidence has been given that Blyth is associated with the business; that the business telephone call had been (indistinct) and that it went through to a message bank in circumstances where the witness, Blyth, says her message bank says words to the effect 'You have reached Raylene. Please leave a message'.

Now for a person in the accused's circumstances, having been served with a restraining order saying that he is not to contact Raylene Michelle Blyth by any means or attempt to communicate with her by any means, to ring the number of the business that he knows the witness, Blyth, is associated with and then to leave a message after the person identifies herself as Raylene, is clearly a deliberate breach of the order. I find each of the charges proven beyond a reasonable doubt (ts 43 - 44).

16 As to ground 1, Ms Blyth conceded that she had called the appellant's number on one occasion as she thought she was calling a disgruntled customer. It was plain from her evidence that she said she had not deliberately contacted Mr Smart in circumstances where there was a restraining order against him. Furthermore, there was no suggestion that she had failed to recognise Mr Smart's voice. Rather she said that she did recognise it and therefore terminated the call.

17 In any event, the primary issue was whether Ms Blyth's evidence that she could recognise the voice of Mr Smart in respect of the pending charges was reliable. She gave evidence as to how she came to be familiar with Mr Smart's voice and was tested on this in cross-examination.

18 The magistrate clearly appreciated that this was a significant issue. It was open to the magistrate to come to the conclusion that Ms Blyth's evidence was credible and he did so. The magistrate had the advantage of observing Ms Blyth give her evidence and there is no basis for suggesting that he misused that advantage. This ground does not identify any error which can properly be the subject of a ground of appeal.

19 As to ground 2, it is correct that the phone records alone did not establish that Mr Smart had contacted Ms Blyth as alleged. They did not show that her mobile telephone number had been directly dialled or that a diversion to her mobile from the business line had occurred. However, it is plain from the magistrate's reasons that he did not use them in this way. Rather, the magistrate accepted that to a limited extent they supported the evidence of Ms Blyth, which was clearly central to the prosecution case.

20 There was some evidence to connect Mr Smart to the calling number. That evidence came from both Ms Blyth, who said she recognised the number as one previously used by Mr Smart and from police officers who had identified the premises of the subscriber as one where Mr Smart worked. Whilst the records did not in themselves prove that the telephone calls diverted to Ms Blyth's mobile phone, there was other evidence in this regard. Ms Blyth said that such a diversion occurred in respect of after hours calls to the business and she identified Mr Smart as being the person who had left the messages on the phone. This ground also fails to identify any error of fact or law that can properly be the subject of a ground of appeal.

21 As to ground 3, there was very limited evidence as to there being any telephone calls made from Ms Blyth's relatives to Mr Smart. As I have noted he elected not to give evidence and his assertions in closing submissions were not, of course, evidence. In the course of oral submissions on the appeal Mr Smart explained that evidence that Ms Blyth's relatives had been contacting him would provide a credible explanation for why he had made the calls to the business land line and would support his proposition that any contact with Ms Blyth had been inadvertent. The obvious difficulty in this regard was that on three occasions Mr Smart had left messages on Ms Blyth's message bank which contained an introduction identifying her. In the circumstances, any suggestion by Mr Smart that he was trying to contact other people would have had the difficulty of explaining why he had left three messages on a message bank that was clearly that of Ms Blyth. In any event, as I have noted, there was no evidence from Mr Smart that it was only his intention to contact others associated with Ms Blyth rather than her.

22 Mr Smart contended that he had been prevented from adducing evidence of contact with Ms Blyth's relatives. At the commencement of the hearing he complained about the unavailability of an answering machine that he said contained recordings of threats made to him by those relatives. When asked about the relevance of such evidence Mr Smart told the magistrate that it contradicted Ms Blyth's evidence that 'they' had been calling him between January and March trying to find out who he was. However, Ms Blyth did not give evidence to that effect. In those circumstances the claimed basis for the relevance of the evidence did not exist.

23 In any event, the magistrate pointed out that the charges had been pending for over 16 months and had been previously listed for a hearing on two occasions. He also noted that there was no reason why the issue could not be raised in cross-examination, which it was, though only to a limited extent. The suggestion in the ground that the magistrate 'wrongly concluded that (threatening calls made to Mr Smart) ... were only relevant to discontinued charge' is not borne out by the transcript.

24 During the course of the appeal hearing Mr Smart asserted that the charges had been altered. He said that the prosecution notice had originally alleged that he had breached a different violence restraining order by contacting one or other of Ms Blyth's relatives. He asserted that this showed that the prosecution had changed its case in order to avoid the issue of whether the relatives had been harassing him. However, it is clear from the certified prosecution notice that the charges, as originally preferred, identified the violence restraining order by number and that that was the order that related to Ms Blyth and was established as such during the course of the evidence.

25 Mr Smart also contended at the hearing of the appeal that the magistrate should not have heard the case because he had heard previous matters involving him. There was no ground that specifically related to this. I understood this to be a claim that the magistrate was biased. There was no evidence as to what matter or matters the magistrate had previously presided over. However, Mr Smart did submit that the magistrate had been involved in the original grant of this or related violence restraining orders.

26 In any event, the fact that a magistrate has heard other matters relating to a person cannot in itself cause a reasonable person to apprehend that the court is biased and there was nothing in the way the proceedings were conducted that supported any such view. I note that a similar argument was unsuccessfully made by Mr Smart against the same magistrate in Smart v Scott [2007] WASC 295.

27 None of the grounds of appeal raises a reasonably arguable question as to whether there was an error of fact or law in the proceedings before the magistrate. Leave to appeal may only be granted if the court is satisfied that a ground has a reasonable prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. In these circumstances, leave in respect of the grounds is refused and the appeal is dismissed.

28 The appeal notice also indicates that Mr Smart wished to appeal against a further restraining order made by the magistrate in favour of Ms Blyth at the conclusion of the hearing. There is no ground of appeal that specifically relates to this issue. In any event, the appellant made no objection to the magistrate in relation to Ms Blyth's application for a restraining order. In the circumstances, there is no reason to question the correctness of that restraining order.