Sultani v R

The Crown case

1. As at 31 December 2017, the appellant was an inmate in the Silverwater correctional centre. He was on remand for charges of murder (kidnapping charges were added in March 2018). A visit was scheduled for the appellant to meet with a family member. It was for that purpose that Mr Russell went to the appellant's cell and escorted him to another section of the correctional facility where the visit was scheduled to take place. There is no dispute that along the way, words were exchanged between the appellant and Mr Russell and that Mr Russell determined that, in light of what he regarded the appellant had said to him, the visit was unilaterally called off. Thereafter, Mr Russell escorted the appellant back to his cell.
2. The Crown case was principally centred upon the evidence of Mr Russell, of what the appellant said to him. That evidence was, to a perhaps contestable degree, said to be supported by a written incident report that Mr Russell prepared not long after the event. The Crown also relied upon CCTV footage of Mr Russell and the appellant walking to the scheduled destination for the visit and returning.
3. Both parties requested that I view the CCTV footage at the very outset of this appeal and this occurred. The CCTV footage was purely visual: there was no sound recording of what was said between Mr Russell and the appellant.

Competing versions of what was said between Mr Russell and the appellant

Mr Russell's version

1. Mr Russell's evidence at trial [4] was that he was working in a Special Management Unit within the facility. As he was escorting the appellant to the visits area, the appellant asked him what had happened to another inmate, Mirwais Danishyar. Mirwais Danishyar was a co-accused to the appellant. According to Mr Russell, there was an order that the appellant not associate with Mirwais Danishyar. Mr Russell acknowledged that he had had 'issues' with Mirwais Danishyar earlier that day.
2. Mr Russell's evidence was that he said that in response to the appellant's inquiry, he told the appellant that this was none of the appellant's business.
3. Mr Russell said that, in reply, the appellant said to him "I'll be out in a couple of years. We'll see what happens" and also called him a "fucking dog". Mr Russell also recalled the appellant saying to him "You know what I'm in for". Mr Russell said that in response to what the appellant said, he asked the appellant "Are you threatening me, then are you" to which the appellant replied "Not just you".
4. In recounting this conversation, Mr Russell said that he perceived the appellant taking up an aggressive stance and started elevating his voice. After hearing what the appellant had said to him, Mr Russell said he felt scared and that his anxiety was "out of control". After escorting the appellant back he took the necessary steps to cancel the visit and asked the area manager to move him out; that is, to another part of the gaol.
5. An incident report that was tendered (Ex 6) was in the following terms: "At approximately 10:00am on 31 December 2017 I was performing my duties as CO SMU at MRRC SMU when the following incident occurred: Whilst escorting SULTANI through the street way to the visits area, SULTANI questioned me on a management decision in relation to his co accused earlier in the day. I advised SULTANI that it was none of his business as to what had happened, SULTANI immediately became aggressive towards me stating "I will be out in a couple of years we'll see what happens you fucking dog!" I asked SULTANI if he was making threats towards me and his reply was "Not just you!" The inference was that the offender was threatening me and my family because I was executing my lawful duties. I advised SULTANI that this type of behaviour would not be tolerated and due to him threatening me I escorted him back to his cell. Due to his intimidation of myself and threatening behaviour his visit was cancelled for the good order and security of the centre by area manager, Darcy. Due to the serious nature of the threat and the impact on my immediate safety I agreed to move to Darcy 1 to reduce the risk of further confrontation. At no time was the offender given permission to threaten me or my family".
6. Mr Russell signed the report the same day.

The appellant's version

1. The appellant had declined the police offer for him to be interviewed, but he gave evidence in the Local Court. He gave evidence not only of the circumstances giving rise to the alleged offending conduct on 31 December 2017, but also evidence of a subsequent incident involving Mr Russell in November 2018 in which, he alleged, Mr Russell had (to use a neutral term) downplayed the offending episode. This evidence was admitted in the Local Court on the basis that it was relevant not only to Mr Russell's credit, but also to the question of whether he was, in fact, intimidated by what the appellant said.
2. As to the circumstances of the offending, the appellant gave evidence at first instance [5] that, by 31 December 2017, he had been on remand for 14 months. He had seen Mr Russell half a dozen times before that. He had a visit from his mother planned for that day, scheduled for 10am.
3. The appellant said that along the walkway, as he was being escorted by Mr Russell to the visits area, he asked Mr Russell as to what had happened to Mirwais Danishyar. The appellant said that he had heard from Mirwais Danishyar that he, Mr Danishyar, was being taken to another part of the correctional facility. The appellant indicated in evidence that he had heard that something had happened to Mr Danishyar and that this was connected to Mr Russell. He said he just wanted to know what had happened. The appellant said he asked Mr Russell what had happened four or five times.
4. The appellant said that Mr Russell, in response, and after his having been asked by the appellant what had happened a number of times, Mr Russell started to explain (he recalled him saying the words "Oh I had to") before telling the appellant "You know what, I don't have to fuckin' explain myself to you." [6]
5. To this, the appellant said that he responded "You know what, no need to go on a power trip, I just asked you, you know" and that, after shaking his head, he went on to say to Mr Russell "I'll be out of here anyway in a few years" [7] .
6. The appellant recalled that Mr Russell then asked him "What, what did you say?" to which the appellant responded "I said I'll be out of here". He then recalled Mr Russell saying "Oh, are you fuckin afraid of me?" to which the appellant responded "No." [8] It was then, according to the appellant, that Mr Russell declared "You know what, fuck you I'm cancelling your visit". To this, the appellant said "I didn't threaten you. Why are youse cancelling my visit?" [9] The appellant recalled Mr Russell saying "Go back". They then went back to the place and the appellant asked him "What did I do? I didn't threaten you". In response to this, Mr Russell said "Shut the fuck up, keep walking" two or three times. The appellant said that as they were walking back to the cell, more than once he said to Mr Russell, "I didn't threaten you. What did I do?" [10]

The Magistrate's judgment

1. In Charara Mason P approved the proposition that a District Court judge on an appeal against conviction could refer to the Magistrate's reasons. That must be essential, of course, if it is necessary to identify error. Because I have chosen to adopt the approach of forming my own view without the need to identify error, it is not essential. Nevertheless, for the sake of completeness and out of an abundance of caution, it is desirable to set out the Magistrate's reasons in some detail.
2. After summarising the versions of the conversation provided by both Mr Russell and the appellant, the Magistrate expressly gave herself a Murray direction [11] . The Magistrate noted the CCTV footage, before noting that it could have been consistent with both versions [12] . The Magistrate considered, but rejected a submission advanced on the appellant's behalf to the effect that the CCTV footage undermined Mr Russell's credibility [13] and also indicated a reluctance to find that his evidence was not 'spontaneous', and implicitly indicated that not too much could be made of Mr Russell's demeanour when he gave evidence [14] .
3. The Magistrate noted that much of Mr Russell's evidence was not in dispute. The real issue - indeed the only issue - was the words that were used - by the appellant - at the time. Having previously indicated that the CCTV footage (without sound) was consistent with both versions of what was said, the Magistrate than added that the body language of Mr Russell and the complainant was also consistent with both accounts [15] . With the CCTV footage not being a decisive indicator, the Magistrate then proceeded to ask how she should determine whether Mr Russell was reliable [16] ; although not long after, the Magistrate did note that ultimately the question for her to determine was whether she should be satisfied beyond reasonable doubt that Mr Russell's version was correct [17] .
4. Here, the Magistrate referred to three matters which she considered corroborated Mr Russell's account. First, the CCTV footage revealed that Mr Russell took a big step back. This, the Magistrate inferred (as there was no sound recording) was consistent with Mr Russell's version of the words said by the appellant which he said alarmed him. The footage was also inconsistent with Mr Sultani's version; which was that it was Mr Russell who had 'stood over' the appellant [18] .
5. Secondly, Mr Russell immediately reported the 'infringement' [19] .
6. Thirdly, and related to the last point, Mr Russell instantaneously cancelled the appellant's visit to his mother [20] .
7. The Magistrate then went on to consider the veracity of the appellant's version. Her Honour referred to the appellant's reference, in his remark to Mr Russell, "I didn't threaten you", which was significant because if the appellant's account of what was said was true, it could not have been the appellant who threatened Mr Russell, but Mr Russell who had threatened the appellant [21] . Her Honour appeared to reason that if, as she found, the appellant actually used these words, the rational inference was that the appellant was intending to placate Mr Russell, by clarifying or perhaps mitigating the effect of the words which Mr Russell had attributed to the appellant [22] . Or, as the Magistrate said, if all that the appellant had said to Mr Russell was a declaratory statement that he would be out of jail ("this hellhole") in a few years, there was no reason for the appellant to think that this might have been perceived by Mr Russell as a threat.
8. Assessing that matter, the Magistrate returned to the CCTV footage to find that what the appellant was trying to do was to backtrack or recover from the words he used to Mr Russell [23] .
9. The Magistrate made further observations on the appellant's body language as revealed in the CCTV footage. Her Honour found that the appellant did not walk back in an apparently helpless, resigned or despondent way but, rather, he appeared to be arguing the whole way back [24] .
10. Her Honour then made a credit finding, noting the appellant's tendency to exaggerate; although she did not go on to find that his evidence was unreliable [25] . The Magistrate then indicated that she found it curious that if, as the appellant had suggested, he had been intimidated on a number of occasions by corrective services, he would engage in prolonged questioning to one of them about a fellow inmate. The fact that he did so, the Magistrate reasoned, was inconsistent with the image that the appellant was trying to craft of being a 'meek and mild' witness [26] .
11. Finally, her Honour discounted the weight to be accorded to the appellant's evidence as to what officers had said in mid-November 2018. The video footage did not support the complaint: indeed other officers were present and even if there were not in fact within earshot, the appellant had no reason to think that Mr Russell was by himself and therefore that it was an appropriate occasion to discuss the events giving rise to the offending conduct [27] . Her Honour indicated her view that it was inherently implausible that a corrections officer would walk up to someone (let alone the appellant) and say that this was a "bullshit charge" [28] .
12. In these circumstances, the Magistrate ultimately determined that Mr Russell's account of the words that were used should be accepted and that those words constituted the element of intimidation. That being so, the offence was proved.

The Appellant's submissions

1. The appellant says that without needing to identify error in the Magistrate's decision, I should find that there was reasonable doubt whether the appellant said the words which Mr Russell attributed to him in all the circumstances.
2. Counsel for the appellant submitted that reasonable doubt existed in the circumstances since 1. In the written incident of the appellant's report prepared contemporaneously, Mr Russell had omitted to insert words which, in his later evidence, he attributed to the appellant, namely "You know what I am in for..."; 2. It was open to find that when the appellant said the words "I didn't threaten you", this was in response to Mr Russell's question "Are you threatening me..."; 3. The CCTV footage of the incident on the date in question - which was the most cogent evidence (since it was independent) was more corroborative of the appellant's version of what was said than Mr Russell's account: in particular, if Mr Russell stepped back, that did not reflect any fear or anxiety; Mr Russell had exaggerated when he gave evidence that the appellant had appeared physically aggressive at the point when he said the things that were said; Mr Russell's evidence that at the point when the appellant said the words attributed to him he had his arms open was an exaggeration; that at the point when Mr Russell cancelled the trip, the appellant had his head down; that the appellant's approach back to his cell, after being informed of the cancellation of the visit, was consistent with the appellant's grievance that Mr Russell had been unfair to him, whereas Mr Russell's approach back was indicative that he remained in control (and therefore not anxious or fearful); 4. Mr Russell's evidence of his recollections at trial was tainted by the circumstance that he had viewed the CCTV footage; 5. Mr Russell's account of a 'management problem' in the incident report was a euphemism designed to downplay his true attitude or feelings towards treating the co-accused; 6. In the circumstances that occurred, the appellant had got under Mr Russell's skin and that it was because Mr Russell was annoyed that the latter cancelled the trip; not because of any 'threat' that the appellant had expressed; 7. It was unlikely that the appellant would express any threat because he was always in a powerless position, vis a viz, Mr Russell (or other correctional officers) and the appellant had complained about feeling powerless (which circumstance corroborated his feeling of powerlessness); 8. The appellant's evidence that Mr Russell had minimized, if not trivialised, the event on New Year's Eve in 2017 in November 2018 was spontaneous and specific and made in circumstances where he would have expected that it would have been recorded by audio means (and thus was likely to feel free in expressing it); 9. The CCTV footage of the conversation in November 2018 showed that Mr Russell was relaxed, when speaking with the appellant. This was inconsistent with his feeling fearful or anxious back on 31 November 2017. 10. The CCTV footage also cast doubt upon Mr Russell's evidence that all that had happened in the exchange in November 2018 was his administering to the appellant a short and sharp reprimand.
3. More generally, Counsel for the appellant submitted that in circumstances where the Magistrate placed no importance on demeanour, the inhibitions upon this Court in overturning (in effect) credit findings do not arise and, in the circumstances of this case, it would be unfair to make any adverse credit finding could be made against the appellant.
4. On the subject of credibility, Counsel for the appellant submitted that I should find that there was reasonable doubt about Mr Russell's credibility. This is because either (a) there was doubt whether Mr Russell was an honest witness; or (b) there was doubt whether Mr Russell honestly misheard what the appellant had said.

The Crown's submissions in response

1. The Crown submits that, even if the Court was to conduct a de novo review of the evidence, in accordance with Charara, the Court would still essentially defer to views on credibility of witnesses expressed by a Magistrate and recognise the Magistrate's advantage of seeing and hearing the witnesses at first instance.
2. The Crown submits that the learned Magistrate ultimately found that Mr Russell's account was reliable and credible, and supported by the evidence. This was the CCTV footage (although the Crown indicated that this was equivocal in some respects) and his written incident report.
3. On the other hand, the Magistrate found that the appellant exaggerated his evidence at some points and tried to portray himself as being meek and mild when he was not shy and retiring. The Crown acknowledged that the Magistrate had indicated that demeanour was not helpful in assessing credibility and reliability.
4. The Crown pointed to other circumstances which were said to make Mr Russell's evidence of the intimidating comments more likely: 1. The complainant's evidence of his knowledge that the appellant had been on remand for serious charges, involving murder, kidnapping and firearm charges and non-association orders between the appellant and other inmates [29] ; 2. Mr Russell withstood challenge to his evidence in cross-examination; 3. Within 15 minutes, Mr Russell prepared his incident report reporting on the alleged misconduct; 4. Mr Russell's conduct in writing the said report was not the sort of thing that might have been expected if the appellant's version of what was said and done - that it was Mr Russell who was the one who was aggressive - was accepted. 5. Mr Russell's conduct in cancelling the trip was conduct said to be consistent with his receiving a threat of the kind he alleged the appellant made; 6. The CCTV footage depicting that Mr Russell at one point stepped back, was consistent with the conduct of someone who had just received a threat and was inconsistent with the appellant's version, which portrayed Mr Russell as an aggressor; 7. It was wrong for the appellant to say that his verbal reference denying any threat to Mr Russell was only responsive to Mr Russell asking him whether, in fact, the appellant was threatening him. The appellant's initial recollections were that Mr Russell had asked the appellant "Are you fucking afraid of (me)" [30] . 8. The event in November 2018 was irrelevant, unless I was to find that it adversely affected Mr Russell's credibility. I could not do that in circumstances where the Magistrate had accepted Mr Russell's credibility and reliability in relation to his evidence of this incident [31] and there were no other witnesses to corroborate the appellant's version of what Mr Russell had said to him on that occasion. It was noted that no request was made for any of the other officers to give evidence who were, at least about the point where Mr Russell had opened the door in close proximity to the appellant's cell.

Determination

1. Given the unsettled state of appellate authority on the question whether it is necessary to identify error, I propose to follow the course of Culver DCJ and simply form my own independent view - this being the approach most recently sanctioned by the Court of Appeal in Jamal and the approach which is the most generous to the appellant.
2. I have reviewed all of the evidence and the transcript and formed my own view as to whether, if I was standing in the shoes of the learned Magistrate, I would have determined whether the Crown had discharged its burden of proving the appellant's guilty beyond reasonable doubt having regard to all of the evidence.

Caution about making findings based on complainant's evidence

1. This was a case of Mr Russell's word against the appellant's word. I am conscious that the appellant bore no onus of proof, but rather the Crown needed to prove all of the essential elements of the offence beyond reasonable doubt. In particular, the Crown needed to prove that the appellant had said the words that Mr Russell had attributed to him beyond reasonable doubt.
2. That said, I did not understand Counsel for the appellant to dispute that: 1. If the words were used, then they amounted to make out the element of intimidation; and 2. It was not necessary for me to accept every part of Mr Russell's evidence of the offending conduct, or any other matter put to him.
3. As her Honour did, I give myself a Murray direction that the evidence of Mr Russell must be scrutinised with great care [32] .
4. This is also, in my view, an occasion where, as Counsel had submitted to the learned Magistrate, it is also appropriate to give myself a Liberato direction; to the effect that even if I was to prefer the evidence of Mr Russell over the appellant, I should not convict the appellant unless satisfied beyond reasonable doubt of the truth of Mr Russell's evidence; and that even if I do not positively believe the evidence of the appellant, I cannot find an issue against him contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue [33] . Another way of putting the matter would be to say that I should acquit the accused if I believe that the appellant's version might possibly be true [34] . This is, essentially, a manifestation of the principle that the Crown must prove its case beyond reasonable doubt; which, specifically, means that I have to accept the correctness of Mr Russell's account of what the appellant had said to him beyond reasonable doubt. That, of course, does not mean that the Crown needs to prove its case beyond any doubt [35] .

The Magistrate's credibility findings

1. The Magistrate plainly found that Mr Russell was a credible and reliable witness.
2. Her Honour also expressed doubts about the credibility of the appellant.
3. In such circumstances, and I did not dispute Counsel for the appellant to seriously dispute, the principles of Fox v Percy, to which I alluded are engaged, where it is customarily said that a Court will not depart from credibility findings unless there is incontrovertible facts or uncontested testimony to the contrary. The High Court in Fox v Percy, discounted the significance of demeanour. So too, here, did the learned Magistrate.
4. Contrary to the submission advanced on the appellant's behalf, the discounted significance to be ascribed to the demeanour of either Mr Russell or the appellant did not preclude the Magistrate from making credibility findings for or against either witness. Findings of credibility and reliability are made every day in courts and are not simply based upon how a witness presents, but rather upon how his or her evidence relates to contemporary evidence, objectively established facts and the logic of events.
5. This is not to say that the credibility findings - for Mr Russell and against the appellant - made by the Magistrate are conclusive, but nor can they be ignored. Even on the more generous approach of treating this appeal as a review de novo, credibility findings are entitled to weight in circumstances where this Court does not have the same advantage as the Magistrate in seeing and hearing the witnesses.

The appellant's ambiguous contentions regarding Mr Russell's credibility

1. Before me, Counsel for the appellant submitted that I should find that there was reasonable doubt about the Crown making out its case because either Mr Russell was dishonest when he gave evidence or innocently but mistakenly heard what the appellant had said to him.
2. When I asked Counsel for the appellant (who appeared for the appellant before the Magistrate) where within the trial he had put it to Mr Russell that his evidence was dishonest, or had fabricated his evidence about the appellant's threat, Counsel was unable to point me to any reference. Counsel said that he had fairly put the appellant's version of what was said to Mr Russell and that this was sufficient.
3. I disagree. Whether or not, technically, the rule in Browne v Dunn was infringed (in the sense of the appellant's version of what happened being put to Mr Russell), in my opinion, it was incumbent upon Counsel, if he sought to impugn the credibility of Mr Russell on the grounds of dishonesty then this squarely needed to be put to Mr Russell. I infer that it was not.
4. That being so, I am not prepared to overturn the Magistrate's credibility finding in favour of Mr Russell on the basis that he gave evidence dishonestly, or fabricated a complaint against the appellant.
5. On the other hand, it remains open for me to treat with the submission that Mr Russell innocently, but mistakenly, misheard what the appellant had said to him.

The thesis that it was the appellant's annoying behaviour that caused Mr Russell to cancel the visit

1. I do not consider that there is any binary choice that needs to be made, between Mr Russell choosing to cancel the visit because the appellant had annoyed him, or got 'under his skin', or that it was only because the appellant had threatened Mr Russell that the latter had cancelled the scheduled visit.
2. It appears quite likely that Mr Russell had in fact been irritated, if not annoyed, by the appellant's persistent inquiries as to what had happened to his co-accused and, after initially trying to explain what had happened (insofar as his own involvement was concerned) he had had enough and let the appellant know about it.
3. Acceptance of this does not cast, of itself, cast doubt upon the probability of whether or not the appellant threatened Mr Russell. Indeed, being put in his place by Mr Russell may explain why the accused made the threat in the way Mr Russell contended
4. I raised with Counsel for the appellant during the appeal whether I could take into account the circumstances that Mr Russell is a large man (he dwarfed the appellant) and, for a person in his occupation and position, with regular exposure to inmates at a correctional facility, and the likely constant exposure to their derision (or worse), was not likely to be unduly or abnormally sensitive when compared to ordinary members of the community, to things that were said to him. Counsel's response was not altogether clear. I consider that these are contextual circumstances that may be taken into account in evaluating the possibility that the appellant issued the threat attributed to him, and whether or not Mr Russell was so incensed by the appellant's inquiries as to peremptorily cancel the scheduled visit. I do not consider that it is a realistic possibility that the appellant's making of bare inquiries alone - no matter how persistent - explains Mr Russell's cancellation of the visit.

The possibility of Mr Russell's recollections of the incident being tainted

1. Counsel for the appellant referred me to where, during the trial, the learned Magistrate made observations about how witness' recollections may be tainted by other forms of evidence [36] . Counsel noted that the evidence indicated that Mr Russell had seen the CCTV footage a day or so after the incident, or perhaps a week, but at any rate before he gave evidence at the trial. He acknowledged, however, that there was no evidence of his having seen the CCTV footage before Mr Russell compiled his written incident report. The incident report was strongly corroborative of Mr Russell's account.
2. In my view, the critical point in this respect is that the issue for the Crown was to establish the essential element of intimidation is what the appellant said - did he make the threat attributed to him?
3. The CCTV footage did not have any audio element. Viewing it alone, no one could divine what was actually said. In my view, notwithstanding the general wisdom in the Magistrate's observations about the dangers of witnesses being privy to other forms of evidence, before giving evidence, it is difficult to conceive how a purely visual recording of what was apparent could have affected Mr Russell's recollection of what was said to him by the appellant; no matter how fresh the viewing of the footage was to the incident in question. This is particularly so when, by the time he viewed the footage, the gist of Mr Russell's complaint had already been reduced to writing.

The written report of the incident (Ex 6)

1. The substance of Mr Russell's complaint about what was said to him by the appellant was recorded in a contemporaneous note. As I have indicated, two points were made of the note by the appellant's Counsel.
2. The first was a suggested discrepancy between Mr Russell's evidence at trial, that the appellant had said to him 'You know what I am in for…'.
3. The second was an oblique criticism of Mr Russell's 'euphemistic' reference in the document to the dispute that he apparently had with the co-accused.
4. It is true that Mr Russell omitted reference in the contemporaneous written note to what he later said at trial about the appellant and its implied reference to the charges of violent misconduct against him. But as indicated earlier, it is not necessary that I accept, beyond reasonable doubt, all of Mr Russell's recollections of what was said, when he gave his evidence about 9 months after the events in question. Nor is there any relevant inconsistency between the content of what Mr Russell wrote and the omission to refer, in the note, to what he later said. It appears from other parts of his evidence that Mr Russell believed, or appreciated, that the appellant was part of a 'crew', and had been the subject to a non-association order in relation to the co-accused and the nature of the charges. It is possible that when he gave evidence at trial about the appellant referring to what he was 'in for', Mr Russell was giving evidence of what he understood was the implication of what the appellant had said to him.
5. I do not make much of the reference to the 'management' matter as being an inaccurate 'euphemism'. It was an apt shorthand way of describing Mr Russell's apparent dispute with another inmate. This was only an incident report: it was not a witness statement or an affidavit, or statutory declaration. Mr Russell's purpose was to record the threat. It was the threat which was the 'incident'. That exchange he had had with the co-accused earlier in the day and/or what he conveyed about that incident to the appellant was background to the incident.
6. I certainly do not accept the proposition that Mr Russell's reference to a management matter was intended by him to camouflage his true attitude or feeling towards the co-accused, or indeed the accused. I refer above to why I am not prepared to deal with submission impugning the integrity of Mr Russell without this being squarely put to him; particularly in the face of the positive credibility finding made in his favour by the Magistrate.
7. As indicated, it was not put to Mr Russell that the incident report was essentially a fraudulent statement: that Mr Russell was only seeking to justify, in written form, a decision he made, for reasons other than the threat made to him, to cancel the visit. I am not prepared to overturn the credibility finding in favour of Mr Russell on that basis either.
8. In my opinion, the written incident report is a cogent and probative piece of evidence corroborative of Mr Russell's evidence at trial that the appellant threatened that he would do something to him, and his family, in the future when he was released. As I have noted, the appellant did not suggest that the contents of the incident report was, or could have been, 'tainted' by Mr Russell's viewing of the CCTV footage.
9. I note, also, that there were other parts of Mr Russell's written incident report, where he refers to being moved to a different location, which was not challenged. Mr Russell elaborated upon this in his evidence in chief [37] , again without challenge.
10. That being so, the circumstance that Mr Russell did in fact re-locate to another part of the correctional facility is another circumstance corroborating his account.

The appellant's version of what was said

1. I remind myself that not only was it unnecessary for the appellant to give evidence but that simply because I do not accept what he said when giving that evidence does not, by itself, make out the Crown case.
2. In truth, and as was acknowledged by the Magistrate, and the Crown on this appeal, there was a degree of convergence in the accounts of Mr Russell and the appellant. The point of divergence was the issue of whether the appellant made the alleged threat.
3. However, I do not find that the appellant, who gave evidence that he had, in effect, declared that he was "not threatening" Mr Russell only did so in response to Mr Russell directly asking him whether the appellant was threatening him. His evidence in chief [38] was that it was Mr Russell's announcement of his decision to cancel the visit that prompted him to declare that he had not threatened Mr Russell or his own question of the appellant "Are you fuckin' afraid of me?" There was no evidence of a consistent narrative from the appellant in the manner his Counsel suggests.
4. This being so, I agree with the Magistrate that this evidence of the appellant's declaratory statement provides further corroboration of Mr Russell's account. It evinced the appellant's recognition that he did say something threatening and he was only trying to retrieve a bad situation by denying that he had.

The CCTV footage - 31 December 2017

1. I have reviewed the CCTV footage. I do not consider that when Mr Russell stepped back, this was conduct consistent with having just been personally threatened or having had his family threatened. His stepping back occurred only after he had used his arm to point back in the direction of the appellant's cell. The stepping back was not of the kind one would likely see in a person who has received a threat - not like a person who has been jolted by hearing something in some way. It appeared to me that the stepping back was consistent with Mr Russell preparing to turn back and escort the appellant back to his cell.
2. In other words, I do not find that depiction of Mr Russell in the CCTV footage as stepping back to be itself corroborative of his complaint that the appellant had threatened him. That is not to say, however, that the absence of any jolting kind of reaction by Mr Russell disproves the making of the threat or that Mr Russell felt threatened. As anyone with experience in wartime may attest, people may physically react to threats of physical harm in differing ways, depending upon their personality or disposition.
3. I also do not find, as had been submitted below, that the CCTV footage indicates any aggressive conduct of Mr Russell towards the appellant. Nor do I find any manifest sense of helplessness or powerlessness in the appellant in the footage. He appeared to be remonstrating with Mr Russell as they were both walking towards the location for the scheduled visit and remonstrating with him after walking back to his cell.
4. I do not accept that the circumstances that Mr Russell was still prepared to personally escort the appellant back to his cell, without the company of other officers, and/or did not seek someone else to complete that task, or that he appeared 'in command' of the situation generally, are themselves productive of doubt that a threat was made. The threat, if it was made, was not of imminent harm, but harm that would be inflicted in two years' time. Even if the threatened harm was imminent, it was not made in a public place where Mr Russell was in a vulnerable position. It was made in a secured environment where, I infer, Mr Russell had fairly accessible means of reporting any imminent attack (if it was to be made) to other officers. In other words, if the threat was made, there was no obvious means for the appellant to carry it out there and then, prior to being escorted back to his cell.
5. Nor do I accept that the appellant's appearance, on the way back, was consistent with his account of what was said in the sense that he, the appellant, had a justifiable sense of grievance, because of aggressive or overbearing behaviour by Mr Russell. That is a matter for speculation, relying as it does upon the appellant's internalised mental state in the face of adverse credit findings against him. The appellant's approach back to his cell could naturally be viewed as the disappointed reaction of an inmate deprived of a scheduled visit to a family member; whether the inmate thought the cancellation was justified or not.
6. One matter which I do consider can be taken out of the footage, which is adverse to the appellant, is that it provides some support for the Magistrate's view that the appellant was not of the meek and mild disposition that he sought to portray at the trial. To the contrary, the footage shows the appellant, at least, giving as good as he received from Mr Russell; as if they were of equivalent level of authority or position in the correctional centre. Although it is true that persons of meek and mild disposition can sometimes act forcefully, I note that before the Magistrate, no good character evidence of the appellant's meek and milk character or disposition was put and no such evidence was sought to be put before me (with leave).
7. In my view, overall, the CCTV footage is essentially neutral. It seemed to me that the most that could be taken from the footage was that Mr Russell and the appellant were engaged in an animated dispute, that Mr Russell had taken a decision (to cancel the trip) and the appellant responded with further displeasure to his having done so.

CCTV footage - November 2018

1. The appellant's case at trial was that Mr Russell had indicated, in effect, that he was not really intimidated by what had gone on 9 months before. The CCTV footage of Mr Russell's visit to the appellant's cell was also said to disprove Mr Russell's account that the exchange was of only a short duration in which he administered a reprimand.
2. In my view, the first purpose for the exchange was irrelevant. The facts in issue were whether on 31 December 2017 the appellant made the threat and whether he knew or thought that might scare Mr Russell. In other words the intended victim's mental state has little bearing on what is essentially an objective question. To the extent that the complainant's actual state of mind was relevant to the issue of making out the element of intimidation, it was his state of mind on 31 December 2017 which was in issue. The circumstance that 9 months' down the line, Mr Russell may have said something downplaying the significance of the threat upon him was not cogent of what his state of mind was 9 months before. To draw that inference might invite speculation as to the extent to which Mr Russell and the appellant had had other interactions in the intervening period of 9 months. I do not make much of the actual time period of the exchange - whether it was 20 seconds or 2 minutes. This was a small detail when Mr Russell was asked about it in June 2019.
3. There were, moreover, problems with the reliability of this evidence, particularly in the light of the Magistrate's credit findings (against the appellant and in favour of Mr Russell). There was nothing to corroborate the exchange. Mr Russell arrived at the appellant's cell with two other police officers and, although the latter two had departed not long thereafter, it was not apparent from the CCTV footage that the appellant would have known of that circumstance.
4. Finally if, as Counsel for the appellant submitted, Mr Russell had appeared 'relaxed' when he approached the appellant's cell in November 2018, an obvious reason why might have been because he and the appellant were in a secure environment, there had been no other threats other than the threat made 9 months before, which itself was a threat as to what might occur only after the appellant was released two years later. It might also be noted that, at least at the point of the visit to the appellant's cell, he was joined by two other police officers; which, to that point, would at least have reinforced Mr Russell's confidence that nothing untoward was likely to occur when he visited the appellant in November 2018.

Assessment

1. Having had regard to the Magistrate's natural advantages I do not consider that there is evidence which shows that the positive credibility findings made in accepting Mr Russell's evidence have been controverted by other evidence, or shown to be wrong.
2. But ultimately, this was not just Mr Russell's word alone against the appellant's. There was the contemporaneous incident report, which was not suggested at the trial to amount to a fabrication. That report not only relayed the incident, but spoke of the consequences of Mr Russell's relocation; which was itself corroborative of the account of his reaction to a threat. This last aspect was not challenged.
3. I give further weight to the Magistrate's adverse view of the appellant's credit, and her observation that he sought to portray himself as being more meek and mild than the CCTV footage and his general presentation when giving evidence being inconsistent with that. Again, those findings have not been shown to be glaringly improbable.
4. I am also satisfied that on the appellant's own version of events, it was he who was trying to dispel the impression that he had threatened Mr Russell. It was open to the Magistrate to find, and I find, that such evidence was in fact self-serving and that the true position was that he was trying to recover ground after having made the threat.
5. In the circumstances, I do not consider that it is a reasonable possibility that Mr Russell simply cancelled the scheduled visit as an exercise of arbitrary power against a helpless inmate but I am satisfied beyond reasonable doubt that he did so because of the threat made to him.
6. If, as I have been prepared to accept for the purposes of this appeal, it is unnecessary for me to find material error in the Magistrate's approach in making my own assessment as to whether the judgment below was wrong, I am satisfied that the Crown has made out its case that the appellant engaged in intimidating conduct towards Mr Russell.
7. The appeal is dismissed.

Endnotes

1. Charara v R (2006) 164 A Crim R 39 at [19], applying Fox v Percy (2003) 214 CLR 118 at [23]
2. An application for special leave to appeal this decision to the High Court of Australia was refused on 11 March 2016.
3. This decision concerned a severity appeal. Neither Macfarlan JA (in his concurring judgment) nor Leeming JA (who dissented in the outcome) addressed McColl JA's observations
4. 27/9/18, T 20- 22
5. 21/1/19, T 6-10
6. 21/1/19, T 9.47
7. 21/1/19, T 10.11; 19/6/19 T 12.42
8. 21/1/19, T 10.30
9. 21/1/19, T 10.33 - 11.6
10. 21/1/19, T 11.23 - 11.26
11. 19/6/19 T 52.10
12. 19/6/19, T 52.19, 53.49
13. 19/6/19, T52.44
14. 19/6/19, T52.48 - 53.40.
15. 19/6/19, T 53.50 - 54.1
16. 19/6/19, T 54.2
17. 19/6/19, T 54.14
18. 19/6/19 T 54.10 - 54.16
19. 19/6/19, T 54.20
20. 19/6/19, T 54.27
21. 19/6/19 T 54.49
22. 19/6/19, T 55.1 - 55.9
23. 19/6/19, T 55. 11. 55.21
24. 19/6/19, T 55.16 - 55.20
25. 19/6/19, T 55.22 - 56.25
26. 19/6/19, T 56.36 - 56.46
27. 19/6/19, T 57.1 - 57.11
28. 19/6/19, T 57.13 - 57.14
29. 27/9/18, T 18-19
30. 21/1/19, T 10.30
31. 19/6/19, T 57.16
32. R v Murray (1987) 11 NSWLR 12 Lee J at 19(E)
33. Liberato v R (1985) 159 CLR 507 per Brennan J (in dissent) at 515; R v Li (2003) 140 A Crim R 288 per Dunford J (Spigelman CJ and Hidden J agreeing) at [72]
34. R v Niaas [2005] NSWCCA 120 per Hunt AJA (with whom Grove J and Hall J agreed) at [10] & [29]
35. R v Dookheea (2017) 347 ALR 529; [2017] HCA 36 at [28]-[29] & [34]
36. 27/9/18, T 49.25 - 49.50
37. 27/9/18, T 22.31
38. 21/1/19, T 10.44- 11.26

Amendments 12 December 2019 - Grammatical error in paragraph [48]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2019