Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Lucas [2014] NSWSC 1441 Hearing dates: 17 October 2014 Decision date: 20 October 2014 Before: R A Hulme J Decision: 1. Appeal allowed. 2. Set aside the orders of his Honour Magistrate Miszalski made on 28 March 2014 at Liverpool Local Court dismissing proceedings against the defendant for the offences of intentionally damaging property and intimidation. 3. Remit the matter to the Local Court, differently constituted, to be dealt with according to law. Catchwords: CRIMINAL LAW - appeal by prosecutor against dismissal of charges - intentionally or recklessly damaging property - intimidation - magistrate erred in dismissing property damage charge - property was unable to be used for ordinary function for a period whilst imperfection was eliminated - magistrate did not prevent prosecutor from leading evidence of a pattern of violence - magistrate erred by failing to provide reasons for dismissal of intimidation charge Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Evidence Act 1995 (NSW) Cases Cited: A (a Juvenile) v The Queen [1978] Crim LR 689 Director of Public Prosecutions v Sadler [2013] NSWSC 718 Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 1882 Hammond v R [2013] NSWCCA 93; 85 NSWLR 313 Samuels v Stubbs (1972) 4 SASR 200 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Craig Darren Lucas (Defendant) Representation: Counsel: Ms A Mitchelmore with Mr B Mostafa (Plaintiff) Mr G Meakin (Defendant) Solicitors: Solicitor for Public Prosecutions Greg Meakin File Number(s): 2014/203441 Decision under appeal Date of Decision: 2014-03-28 00:00:00 Before: Miszalski LCM File Number(s): 2013/352319 Judgment 1R A HULME J: Mr Craig Lucas (the defendant) was charged with offences of intentionally or recklessly damaging property (s 195(1)(a) of the Crimes Act 1900 (NSW)) and intimidation (s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). The charges were dismissed by his Honour Magistrate Miszalski at the Liverpool Local Court on 28 March 2014. 2The charges arose from an incident at the home of the complainant on 21 November 2013. It was the prosecution case that the property damage offence was committed by the defendant having deflated a tyre on the complainant's car. The intimidation was said to have occurred as a result of the defendant's general conduct and utterances outside the front and back doors of the house. 3The Director of Public Prosecutions has appealed against the dismissal of the charges pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW). Such an appeal is as of right but must be on a ground that involves a question of law alone. There are six grounds of appeal, which I am satisfied do involve such a question, and they may be summarised as involving the following contentions: The magistrate erred in refusing to permit the prosecutor to lead evidence to establish that there was a "pattern of violence", such evidence being relevant pursuant to s 7(2) of the Crimes (Domestic and Personal Violence) Act. (Grounds (i) to (iii)). The magistrate erred in holding that, where functional interference with the property is the basis of the prosecution case for the purposes of a charge under s 195(1)(a) of the Crimes Act, the prosecution is required to establish that the property has been rendered inoperable by the defendant's conduct. (Ground (iv)). The magistrate erred in failing to make any findings of fact and to provide reasons for the dismissal of proceedings for the alleged offence against s 13(1) of the Crimes (Domestic and Personal Violence) Act. (Grounds (v) and (vi)). 4The orders sought are to the effect that the orders dismissing the proceedings should be set aside and the matter be remitted to the Local Court to be dealt with by a different magistrate according to law. The plaintiff does not seek costs. 5The defendant, through his legal representative, did not seek to make any submissions in opposition to those made on behalf of the plaintiff and has conceded that the appeal should be allowed and the orders made. Nevertheless, it is necessary for me to be satisfied that the concession is appropriate and that the asserted errors are established: Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 1882 at [6] (Hoeben CJ at CL). The proceedings 6The defendant was in a domestic relationship with the complainant that ended in about mid-2010. For a substantial period of time thereafter she took steps to conceal from him where she and their two children were living. However, he found where they were living in May 2013 and he was permitted to have contact and access to the children. He would visit the home from time to time but because of his behaviour she had come to insist that he not come inside the house. 7The prosecution case was that on the evening of 21 November 2013 the defendant turned up at the complainant's home unannounced and uninvited. The complainant ushered her son to come in from the backyard where he was playing; her daughter was already inside the house. She then locked the front and back doors. She described the defendant's behaviour thereafter as involving him yelling and screaming (for example, she said he was "yelling about how he's going to hurt us, how he's going to hurt my family") and pulling on the front door ("it was being pulled at which made me fearful that he was trying to get into the house by pulling the door off"). He also threatened to deflate the tyres of her car which was parked in front of the house and in fact did so in relation to one of the tyres. 8The complainant rang triple 0 and the recording of her conversation with the operator was in evidence. The prosecutor contended that it provided support for her account which rendered her version more acceptable than the defendant's. 9The first two police officers to arrive on the scene gave evidence. They claimed to have seen the defendant crouched down beside the complainant's car in the vicinity of a tyre. Their evidence concerning whether they actually saw him deflating the tyre was not entirely satisfactory but the complainant gave evidence of seeing him do so. One of the officers said that he saw that a tyre had been deflated so that it had "very little air, probably 5 psi". The complainant, however, said that "it was flat enough that I could see it was flat, but not flat enough for me to not be able to drive it to go and put the air in it". Error in dismissal of the property damage charge 10The property damage charge alleged that the defendant: "did intentionally or recklessly damage property, to wit, left rear tyre of motor vehicle [registration number], owned by [complainant]". 11At the conclusion of the prosecution case the defendant's solicitor submitted that no prima facie case had been established. He contended that "a diminution of the air in the tyre ... does not amount to damage". He referred to Hammond v R [2013] NSWCCA 93; 85 NSWLR 313 and submitted that there had not been any "functional interference" with the tyre. At the most, the air in the tyre merely needed to be "topped up". The prosecutor submitted that there had been interference with the functionality. The tyre had been rendered "somewhat inoperable" in that the complainant had been required to rectify the damage by taking the car to a service station to reinflate it. In reply, the defendant's solicitor submitted that having to put air in the tyre was no different to someone having to wipe spittle off a seat in a police station, which was the factual situation in Hammond v R, and so there was no "functional interference". 12The magistrate then said: "HIS HONOUR: I think as I understand that particular decision, it's to do with two aspects. One is functionality and in effect it goes to the extent of rendering something inoperable, even if it's for a short time. Here, of course, it took a long time to get to that particular point but it wasn't flat enough to prevent it from being driven. It didn't render it inoperable. In those sort of circumstances it seems to me that on that argument there would be real problems. As far as the argument concerning the ownership, Mr Meakin, I wouldn't accept that. I think that that's really looked at as a gift to her. She is driving it around. You can't separate the tyres from the vehicle. It's the vehicle itself. I wouldn't accept that. ON THE ASPECT OF WHETHER OR NOT THERE'S A PRIMA FACIE CASE, TO THE EXTENT THAT SHE COULD DRIVE IT TO TOP IT UP, I THINK THAT THERE'S A REAL PROBLEM AS FAR AS THE CASE IS CONCERNED AND THAT WOULD BE DISMISSED THEN." 13Counsel for the plaintiff submitted that the magistrate erred in law in holding that "damage" in s 195 required, in the circumstances of this case, that the car was rendered "inoperable". 14In Hammond v R, Slattery J (with whom Hoeben CJ at CL and Bellew J agreed) provided an extensive historical review of the case law in relation to offences involving damage to property (at [42]-[69]). He concluded (at [41], [69] and [77]: "[M]ere interference with the functionality of an object (without material damage) may constitute s 195(1) 'damage'." "[T]he course of authority in both England and Australia now supports the conclusion that interference with functionality of the property in question alone, even without physical harm to or 'derangement' of the property is sufficient to establish 'damage' within the Crimes Act, s 195." "[T]he element that a 'person ... damages' property in this Crimes Act, s 195(1) charge requires the proof of facts that establish either physical harm to or functional interference with the property the subject of the charge, so as to show that the thing was rendered imperfect or inoperative in the context in which the property exists." 15One of the cases relied upon was Samuels v Stubbs (1972) 4 SASR 200 where it was held (at 203-4) that it was "unnecessary to establish such definite or actual damage as renders the property useless, or prevents it from serving its normal function". 16Another of the cases relied upon was A (a Juvenile) v The Queen [1978] Crim LR 689 which provided an approach that Slattery J considered "useful for the present case". He described it thus (at [50]): "The A (a Juvenile) test requires the court to look at the specific property in question and consider: (i) whether its physical appearance changed as a result of the act, despite reasonable attempts at cleaning, so that it may be described as 'imperfect'; or (ii) whether as a result of the act the property was rendered 'inoperative', or unable to be used for its ordinary functions for a period whilst its imperfections were eliminated. If the property can be described as either 'imperfect' or 'inoperative' in these senses, then the property has been 'damaged' within the meaning of the Crimes Act, s 195 ...". 17The finding of the magistrate in the present case (that the tyre "wasn't flat enough to prevent it from being driven. It didn't render it inoperable") was to the effect that the prosecution failed because it had not established that what the defendant was alleged to have done prevented the car from "serving its normal function". 18However, in my view the evidence was such that the prosecution had established a prima facie case. The evidence was capable of supporting a conclusion that there had been an interference with the functionality of the tyre, and the car itself, by necessitating that the complainant take it to a service station to pump air into the tyre before normal function was restored. Put in terms of A (a Juvenile), it was unable to be used for its ordinary functions for a period whilst its imperfections were eliminated". 19Ground (iv) is upheld. Error in excluding evidence of a pattern of violence in relation to the intimidation charge 20Section 7 of the Crimes (Domestic and Personal Violence) Act provides: "7 Meaning of 'intimidation' (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour." 21The complainant's evidence commenced with her recounting that she had been in a relationship with the defendant for about 19 years and that they had separated in 2010. The prosecutor then attempted to adduce evidence about prior violence in the relationship and the following transpired: "Q. ... Could you describe to the Court the nature of your relationship with Mr Lucas? MEAKIN: I object, if your Honour pleases. HIS HONOUR: Why? MEAKIN: I'm sorry, your Honour? HIS HONOUR: Why? MEAKIN: The nature of the relationship, if my friend is, as I said, asking questions in terms of paras 3, 4 and 5 are objectionable on the basis that they might disclose allegations of uncomplained about offences and other things. HIS HONOUR: What I'm interested in is what happened on this day. MEAKIN: That's exactly right, your Honour. HIS HONOUR: That's where we're at. Paragraph 6. PROSECUTOR: I certainly hear what your Honour says in relation to that. I'm just relying on s 7 of the Crimes (Domestic and Personal Violence) Act - I understand your Honour will be well aware of that section - in relation to any pattern of violence leading up to the events that are alleged to have occurred on 21 November last year, given there's a charge pursuant to s 13 of the Act of course of intimidation on this particular witness. I don't propose to rehash 20 years of-- HIS HONOUR: Not going to happen. If you can just stick to what happened on this day and then you can look at whatever else you might need but the idea of going directly to that particular section, as I've seen other prosecutors do in the past where they try and tender the record of the accused-- PROSECUTOR: Your Honour, I certainly-- HIS HONOUR: Look, there's some fundamentals about this. Something happened on a particular day. Can we find out what happened? PROSECUTOR: Yes, your Honour: I hear what your Honour says in relation to that. If I could just quickly explain, I was just trying to address it in chronological order. I didn't mean to push the point with your Honour. HIS HONOUR: No, no. Come on." 22The magistrate's reference to "paragraph 6" indicates that he had the statement of the complainant in front of him. It was at that paragraph that her account of the incident on 21 November 2013 commenced. The content of the preceding three paragraphs is what the prosecutor must have been intending to adduce to establish a "pattern of violence". They are as follows: "I have known Craig LUCAS for 19 years. We were partners for 16 years and have been separated for three and a half years. Due to his violent rage and threats we separated on very bad terms. He had beat and raped me while we were still together. Police knew there were issues between us after we separated and applied for an AVO on my behalf in 2010. The AVO specified no contact between him and myself and my kids. I only allowed phone contact to let him know his children were ok. I have kept the location of myself and my family from Craig to keep us safe. I have feared for the past few years that Craig may find us and he did in May. Since May Craig has continually shown up uninvited to the house. He has occasionally brought presents such as a new TV and new fridge. He then returns, again unannounced, and demands the items back. This has included demanding toys, jewellery and clothes back from his, and my, fourteen year old daughter. Craig also regularly swears at the kids and has called my daughter Leah "a fat slut"." 23Minds might differ about whether what is contained in those paragraphs was sufficient to establish a "pattern of violence" but that is beside the point; the magistrate did not rule against the prosecutor on the basis of a lack of probative value. It must also be observed that it was clear from the complainant's abortive attempts to refer to previous incidents that there had been a number of them in far more recent times than those summarised in the statement. 24The italicised words in the above extract from the transcript are capable of two interpretations. Counsel for the plaintiff contended that it amounted to the magistrate having "shut ... off entirely" the prosecutor leading evidence to establish a pattern of violence. This was conceded by the defendant. But at the hearing of the appeal I indicated to counsel that it may also be interpreted as the magistrate indicating no more than that the prosecutor should lead evidence of the actual incident itself before leading any other evidence under s 7(2) if it was then considered necessary. 25Upon closer examination of the transcript of the evidence of the complainant I have come to the view that the plaintiff's interpretation should be rejected. I am satisfied that the magistrate was merely indicating that the need for any evidence of a past pattern of violence would only become apparent once the complainant had given evidence of the incident in question. In other words, if the evidence was clear that there had been act(s) amounting to intimidation, there would be no need for other evidence to support an inference that there was. Leading evidence of past incidents might turn out to be a waste of time in a busy court. 26Counsel for the plaintiff submitted: "By permitting the court to have regard to any pattern of violence in the defendant's behaviour, s 7(2) makes it clear that evidence which is capable of establishing such a pattern is relevant. That the legislature has expressly permitted reference to such evidence recognises that conduct which might not on its face appear to amount to intimidation with the meaning of s 7(1) may amount to such where the complainant has been subjected to a pattern of violence in the context of a domestic relationship. Contrary to the contention of the defendant's solicitor at the hearing, there is no precondition on admissibility to the effect that the content of the evidence has been the subject of previous formal complaint(s). That may be relevant to questions of prejudice and/or weight, but does not constitute a threshold bar on admissibility. At the very least, the prosecution should be permitted to adduce such evidence on the voir dire in the event that an objection is made." 27The matter was the not the subject of argument but for present purposes I am prepared to accept the correctness of that submission. Clearly, s 7(2) renders evidence of any pattern of violence in a defendant's behaviour potentially relevant but it will not always be so. The need for such evidence will depend upon whether there is an issue as to "whether a person's conduct amounts to intimidation". Some conduct will clearly amount to intimidation without looking at anything aside from the incident in question. In such a case, there would be no probative value (within the meaning of that term in the Evidence Act 1995 (NSW)) in evidence of conduct of a defendant on past occasions. In other cases, the conduct might be equivocal or open to interpretation as to whether it amounted to intimidation and evidence of past behaviour might be highly probative on the issue. 28In my respectful view the magistrate in this case was adopting a practical and common sense approach of seeing what the evidence was concerning the incident in question. After having led that evidence it was open to the prosecutor to seek to lead evidence of previous incidents but she did not attempt to do so. I accept that this may well have been because she thought the magistrate had ruled against her; but that was her error, not the magistrate's. 29When I raised this issue at the hearing of the appeal, counsel for the plaintiff submitted that subsequent passages in the transcript supported her interpretation of what the magistrate had said in the emphasised passage in the extract above. I have carefully considered the evidence in its entirety. What appears is that on one occasion when the complainant began to speak about a previous incident there was an objection which the magistrate upheld (T27.47 - 28.3). On four subsequent occasions when the complainant did likewise and there was an objection it was the prosecutor who indicated that she did not press it and there was no need for the magistrate to rule (T29.50; T30.30; T33.13; and T34.46). I see this as nothing more than an attempt by the magistrate to first confine the prosecutor to leading evidence about the incident and the prosecutor thereafter complying with that approach. There was nothing in any of these exchanges that conveyed that the magistrate would never regard evidence of defendant's past behaviour as relevant and admissible. 30Finally, I observe that the evidence of the complainant as to what she said about the defendant's conduct on 21 November 2013 was clearly capable of amounting to intimidation without the need for recourse to evidence of past behaviour to ascertain whether it was. This may provide another explanation for the prosecutor not pressing for the admission of such evidence, but I suspect it is more likely that she misconstrued what the magistrate had said. 31My conclusion in relation to grounds (i) to (iii) is that no error by the magistrate has been established. Error in relation to reasons for dismissal of intimidation charge 32Principles relating to the obligation of a magistrate to give reasons were helpfully summarised by Bellew J in Director of Public Prosecutions v Sadler [2013] NSWSC 718: "[77] When a Magistrate determines to dismiss a charge, whether on the ground that there is no prima facie case or because on all of the evidence the Magistrate is not satisfied beyond reasonable doubt of the guilt of the accused person, there is an obligation, which Judges of this Court have emphasised, to give reasons for that decision (see Wililo (supra) at [54]; (see for example Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402 at 408 per Johnson J). [78] Some allowance must, of course, be made for the circumstances in which ex tempore reasons are delivered (see Acuthan v Coates (1986) 6 NSWLR 472 at 485 per Mahoney JA). The Court of Criminal Appeal has consistently said that an overly critical approach should not be taken where ex tempore reasons are given in a busy list, immediately following submissions (see for example Rose v R [2013] NSWCCA 71 at [41] citing Gommesen v R [2012] NSWCCA 226 per Garling J at [37] - [38], McClellan CJ at CL and McCallum J agreeing; see also Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10 per S Campbell J at [33], Hoeben CJ at CL and Davies J agreeing). Whilst such observations have generally been made in the context of appeals following sentencing proceedings in the District Court, I accept that they are no less applicable when considering ex tempore reasons delivered in a busy list in the Local Court. ... [80] Moreover, and even when full weight is given to the observations set out in [78] above, the Magistrate's failure to provide any reasons at all for his decision constitutes error. It has been observed that it is not satisfactory for an appellate court to be left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a Magistrate's reasons for making a particular determination (see Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (supra) at [19] per Johnson J citing R v Pham [2005] NSWCCA 94; R v Thompson (2005) 156 A Crim R 467). ... [81] In respect of the submission made by counsel for the defendant that extensive reasons were not necessary I accept, as a general proposition, that the extent of the duty to give reasons depends upon a number of factors including the nature of the decision, the circumstances in which it is made, and the purpose that the statement of reasons is intended to serve (see Mifsud v Campbell (1990) 21 NSWLR 725). However, at the very least, reasons must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached (see Pettitt v Dunkley [1971] 1NSWLR 376 per Asprey JA at 382, cited in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257). ..." 33At the conclusion of the evidence the prosecutor addressed in some detail (the transcript runs over four pages). 34The solicitor for the defendant addressed more succinctly (just under a page of transcript). He drew attention to what he characterised as a paucity of detail about what it was alleged that the defendant had said that amounted to intimidation. He submitted that there was no evidence of any threats having been made on this occasion, as opposed to previous occasions. He referred to the triple 0 call recording and submitted that where there is a break in the conversation between the complainant and the operator when the complainant is clearly speaking to the defendant one can only hear her side of the conversation. He conceded, however, that some banging and other noise was audible. He made a submission that the complainant had said something to the triple 0 operator and one of the attending police that indicated that she was not being candid. 35The solicitor then referred to the evidence given by the defendant. He referred specifically to one aspect of it which the prosecutor had submitted showed a lack of credibility but which he described as "nit-picking". He concluded his submissions with the general contention that the charge had not been proved beyond reasonable doubt. 36The transcript then records: "HIS HONOUR: I agree with you. THE MATTER IS GOING TO BE DISMISSED." 37This was not a case of inadequate reasons. It is a case of no reasons at all. Nothing was said by the magistrate from which it may be discerned what he thought of the evidence overall and what findings of fact he made, or was disinclined to make. One is left wondering whether the magistrate agreed with all of the submissions for the defendant; some of them; or the last thing that was said? If it was the latter, why did his Honour agree? 38Grounds (v) and (vi) must be upheld. Orders 39I make the following orders: 1. Appeal allowed. 2. Set aside the orders of his Honour Magistrate Miszalski made on 28 March 2014 at Liverpool Local Court dismissing proceedings against the defendant for the offences of intentionally damaging property and intimidation. 3. Remit the matter to the Local Court, differently constituted, to be dealt with according to law. ********** 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: 21 October 2014