Fuller v R [2016] NSWDC 31

District Court New South Wales

Medium Neutral Citation: Fuller v R [2016] NSWDC 31 Hearing dates: 21, 23/10/2015; 26/02/2016 Date of orders: 26 February 2016 Decision date: 18 March 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Appeals against findings of guilt dismissed.

Severity appeal Conviction confirmed. Order of the Magistrate confirmed but fine of $600 varied to $50.00.

Conviction confirmed. Order of the Magistrate confirmed – s 9 bond confirmed Catchwords: Criminal – Conviction appeal, offensive conduct within inclosed lands, intimidation. Legislation Cited: Inclosed Lands Protection Act 1901 Crimes (Domestic and Personal Violence) Act 2007 Cases Cited: DPP v Strange [2011] 80 NSWLR 412 R v Charara [2006] NSWCCA 244 Ball v McIntyre (1966) 9 FLR 237 Worcester v Smith (1951) VLR 316 R v Smith (1974) 2 NSWLR 586 Category: Principal judgment Parties: John Fuller – Appellant Director of Public Prosecutions - Respondent Representation: Solicitors: Appellant - self represented Director of Public Prosecutions - Respondent File Number(s): 2014/221038 Publication restriction: Nil

Judgment 1. John Fuller (the appellant) appealed against findings of guilt in respect of two offences allegedly committed by him on 3 March 2014. The two offences were "offensive conduct whilst on inclosed lands", particularly on the property of Greater Lithgow City Council ("the Council") chambers (s 4A Inclosed Lands Protection Act 1901) and a charge of "intimidate intending to cause fear of physical or mental harm committed towards Marie Statham" ("the Mayor") (s 13 Crimes (Domestic and Personal Violence) Act 2007). 2. In respect of the first matter, the particulars in the Court Attendance Notice are that the appellant remained upon the inclosed lands of the Council at 180 Mort Street Lithgow after being requested by Roger Bailey, the General Manager in charge of the said lands, to leave those lands, and while remaining upon the said lands did conduct himself in a manner as would be regarded, in the circumstances, as offensive by a reasonable person. This is alleged to have occurred in the Council chamber in the course of a meeting of the Council in the presence of members of the public. 3. The second charge was related to threatening conduct towards the Mayor. This allegedly occurred in the committee room adjacent to the chamber after the meeting of the Council was adjourned. 4. The prosecution must prove the guilt of the accused of each allegation beyond reasonable doubt. The accused has no onus upon him at all. The burden of proof of guilt, never shifts to a defendant. 5. There was an extensive hearing before the learned Magistrate at Lithgow Local Court on 6 February and 29 May 2015. I have read the transcript of those proceedings and the judgment of the learned Magistrate which I take into account in accordance with the decision of Charara ([2006] NSWCCA 244). I have read the documentary exhibits and listened to the recording of the proceedings within the Council chamber concerned primarily with the offence relating to inclosed lands, but related in time to the matters giving rise to the intimidation charge. 6. At the Local Court there was also oral evidence from Roger Bailey, the General Manager of Lithgow City Council, Andrew Muir, a long-time employee and Councillors including Marie Statham, the Mayor, and Peter Pilbeam, a Councillor present at both the meeting in the chamber and the subsequent confrontation in the committee room giving rise to the charge of intimidation. A number of documentary exhibits were admitted particularly a recording (originally for Council meeting purposes) of part of the appellant's interventions and his ejection from the Council's meeting. The appellant gave evidence. He represented himself. 7. With regard to the relevant findings of the Magistrate concerning matters in respect of which he has an advantage over the reading of the written word, I note that so far as the Councillors and employees were concerned they … "each impressed … as a witness who was not prone to embellish or exaggerate what took place firstly in the chamber and secondly in the committee room. Each gave an account of a very aggressive, hostile, menacing person who was burning with rage at his perception of the council having been astonishingly inactive in their efforts to fix what he considers to be this problem on his property". 8. The Magistrate noted in the hearing of the matter, as with the hearing of the matter in this court, that within the chamber, there was no "issue" that the appellant "audibly yelled in a way that could for any person be described as objectionable … discourteous, impolite, unmannerly". 9. The Magistrate noted in the hearing of the matter at the Local Court that the appellant had been "belligerent" and … "to say that (he) has been discourteous is an understatement". Likewise, "to say he has been aggressive, combative, bellicose or antagonistic is an understatement. He has in the conduct of these proceedings throughout been entirely offensive". The observations of the Magistrate about the conduct of the appellant at the Local Court I have ignored, bearing in mind that generally speaking throughout the conduct of the current proceedings he has generally been courteous. Applications he has made for adjournment and the like have been generally reasonable. Likewise I do not take into account the Magistrate's comments about the way the appellant conducted his case before the Local Court other than as it reflected concessions or "admissions" as to relevant facts. 10. The matter came before me at the Bathurst District Court but was unable to proceed for several reasons which are now of no moment. Rather than leave the matter at Bathurst, bearing in mind I had read the transcript and listened to and read the exhibits in anticipation of dealing with the appeal later in the sittings, the matter was transferred to Sydney. It was further delayed to enable the appellant to seek legal aid from the Legal Aid Commission. 11. When the matter came back before me to proceed the appellant appeared unrepresented, his legal aid appeal rights having been exhausted. I heard submissions from him on the material available to the Local Court on Friday 26 February 2016. I made orders dismissing the appeals and then dealt with a related severity appeal. I indicated I would publish my reasons later, which I now do, because I was part heard in a criminal trial and had sentence matters waiting to be heard that same afternoon. 12. The appellant had sought to lead fresh or additional evidence which application was refused at Bathurst. 13. Although I am not reviewing the learned Magistrates findings, I am required to consider the available evidence and form my own view of the matter, I note his Honour's treatment of the legal issues and find little to disagree with, but note that I am not reviewing the Magistrates treatment of legal issues. 14. With regard to the offence contrary to s 4A "Inclosed Lands Protection Act" I have regard to the decision of DPP v Strange (2011) 80 NSWLR 412. I also have regard to the definition of 'inclosed lands' in s 3 of the Act. Having regard to his Honour's consideration in that judgment of s 3 of the Act in that decision and what is contemplated by the legislation to be considered as "inclosed lands", it is quite clear from his Honour's judgment and the authorities to which his Honour refers ([41]-[75]) that the relevant area where it was alleged the offence was committed was "inclosed lands", it being within the premises of the Council, within the "Council chamber", where the members of the Council conducted public meetings. 15. As to "offensive conduct" there is much authority on this matter (eg. Ball v McIntyre (1966) 9 FLR 237, Worcester v Smith (1951) VLR 316 (at 318), R v Smith (1974) 2 NSWLR 586, Kinney v Police (1971) NZLR 924, Jeffs v Graham (1987) 8 NSWLR 392). I am concerned with offensive conduct to a reasonable person, who is not "thin skinned" or "overly sensitive", that is against "good taste" or "good manners", that is "hurtful", "abusive", "annoying", "displeasing" and/or "insulting". The test for offensive conduct requires satisfaction that the conduct of the defendant was calculated to offend a reasonable person present, it is an objective test. It is not conduct punishable to "scoop up minor troubles" nor prosecute "irregular", "inconvenient" or "exhibitionist" activity. 16. The recording of part of the Council proceedings, which the appellant acknowledged recorded his voice, establishes beyond reasonable doubt, in conjunction with the appellant's own evidence and the evidence of witnesses in the prosecution case, that at relevant times the appellant was physically within the Council Chamber, that because of continual interjections by the appellant the Council members carried a motion, after two warnings to him to behave, to eject him from the Council chamber, that Mr Bailey on the instruction of the Council members directed the appellant on the passing of the motion to leave the chamber (on at least two occasions) and the appellant declined to leave the premises. He talked over the top of people, shouting out, acting in a threatening fashion towards the General Manager when he approached the appellant to ask him to leave, shouting at the members of the Council after he was asked to leave. The recording of the relevant part of the proceedings, in the context of earlier disruptive conduct of the appellant established by the other evidence, that lead to the motion to eject him, shows clearly the agitated state of the appellant and his complete unwillingness to listen to any reason expressed to him, as well as his offensive manner of speaking towards members of the Council and the General Manager. 17. The appellant's evidence in chief at the Local Court was that he raised his voice because his father (who was also present at the meeting was "deaf") and he "forgot that (he was) dealing with normal people". In cross examination he further stated he was not "shouting" or "ranting" but, he "may have raised his normal voice". He expressly denied going into the committee room. 18. I have taken into account the evidence given by the appellant in relation to this allegation and his submissions before me on the hearing of the appeal. His evidence in chief did not expressly deny a number of specific allegations, but sought to address his grievances with the Council. The critical issue for determination in relation to the "Inclosed Lands" offence being whether the conduct of the appellant constituted "offensive conduct". The evidence at the Local Court about the events inside the chamber, supported by the recording which amply demonstrates the truth of the evidence of the relevant witnesses in the prosecution case, establishes that the appellant conducted himself at that time in an angry, hostile, belligerent, aggressive and menacing way. There is no doubt that his conduct within inclosed lands was clearly against "the standard of good taste or good manners", was "hurtful", was "threatening, abusive and insulting". I am mindful, as the authorities make clear, that "reasonable minds may come to different conclusions" as to what a reasonable person may view of particular conduct, noting that the "so called reasonable man is reasonably tolerant and understanding". Here the conduct was "calculated to wound the feelings, arouse anger or resentment or disgust … in the mind of the reasonable person". It was "insulting", "hurtful" and "against good manners". A reasonable person would not be "thin skinned" to be offended by the words and conduct of the appellant. 19. In relation to the charge of 'intimidation' the evidence at the Local Court also established beyond reasonable doubt that after committing the first offence, the appellant having been asked to leave the Council chambers, the Mayor, Council members and members of staff of the Council moved to the adjacent committee room, closing the door behind them. This area was an area not part of the generally accepted area allowing public access without invitation during council meetings. The belligerent, aggressive conduct of the appellant inside the chamber was demonstrated by him again when he metaphorically "burst" into the committee room and directed his aggressive conduct towards the Mayor. Her evidence was that he was "yelling and screaming" demanding to know where she was. She asked him to leave the committee room and eventually at least one of the Councillors told him to get out of the room and moved him outside the room. The Mayor said that was the first time she had been "scared" since she had been a Councillor and that she was "scared stiff". 20. The Mayor said in cross examination, in answer to a question from the appellant: "You were totally out of control, you were a rage". She indicated that he had his arms "up" in a threatening manner in the course of asserting that it was her belief the appellant came through a door that was "closed". 21. Her account of the aggressive conduct of the appellant towards her is supported by the witnesses called in the prosecution case present. The General Manager described the appellant as "bursting" through the door suddenly, "all fired up", approaching the Mayor and "yelling" at the Mayor who was closest to the door. The appellant was "every red in the face, eyes were very wide open". He "lunged", or pushed, "towards a councillor" (someone other than the Mayor) and had to be "pushed" out the door of the room. He was described as being "quite aggressive towards the Mayor and the Councillors there", after he "burst" through the door. 22. The conduct of the appellant in the committee room, was abusive, threatening, angry and a continuation of his endeavours to vent his spleen. It is to be assessed in the context of his presence, uninvited, in a room to which the Mayor and others had moved to get away from him. His conduct was deliberate, directed at the Mayor personally, calculated to cause her apprehension for her personal safety. It constituted harassment of the Mayor in circumstances where he well knew that his participation in "discussions" with Council members had been terminated because of his abusive and insulting conduct which he had steadfastly refused to stop even as he was being ejected from the Council chambers. He intended to 'intimidate' the Mayor as is required by s 13 of the Act. He has offered in evidence and submission no answer to these matters. 23. Having regard to the terms of s 13 Crimes (Domestic and Personal Violence) Act, I am satisfied beyond reasonable doubt on the totality of the evidence that the appellant intentionally acted to cause the Mayor to feel "fear of physical and mental harm", intentionally directing his anger at the Mayor. S 7 of the Act states that intimidation "means" … "conduct amounting to harassment or molestation of or … any conduct that causes a reasonable apprehension of injury to a person, or of violence or damage to any person or property". His conduct was clearly "harassment" of the Mayor, as well as creating a reasonable apprehension of violence to her. These matters are established beyond reasonable doubt. 24. Throughout the conduct of the appeal, as is apparent from the transcript from the conduct of the case in the Local Court, the appellant has demonstrated that he is entirely fixated with what he regards as the failure of the Council to act properly and reasonably in relation to his property at Cullen Bullen, leading he tells me to litigation in the Land and Environment Court. He has made assertions about the Council acting illegally, that members of the Council not wanting to listen to him and that in relation to these matters he had "not done anything wrong". He said that at the Local Court and in submissions to this Court. Even during the playing of the recording of his conduct within the Council chamber at the Bathurst sittings he acted oblivious to what was self-evident and apparent from the recording. He asserts that it was quite acceptable for him to do and say what he wanted in order to make the points that he wanted to make to the Council, it not being in dispute that he was angry towards the Council and its elected representatives and staff and that he was relevantly present in the Council chamber at least. That anger manifested itself in the conduct which has been established beyond reasonable doubt to prove his guilt of each charge. 25. The orders made, and reasons for penalties imposed are separately recorded on 26 February 2016.