Aldo Pellegrino(Appellant) v Sarah Harman )

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 13 December 2016
• Docket Number: File Number: SCA 93 of 2015
• Court: Supreme Court of ACT
• Date: 13 December 2016

[2016] ACTSC 366

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number: SCA 93 of 2015

Aldo Pellegrino

(Appellant)

and

Sarah Harman

Respondent)

Representation:

Counsel

Mr J Lawton (Appellant)

Ms R Christensen (Respondent)

Cases Cited:

Barlow v Wiseman [2014] ACTSC 166

Connelly v Allan [2011] ACTSC 170 ; 212 A Crim R 320

Crowther v Sala [2007] QCA 133 ; [2008] 1 Qd R 127

DF v The Queen [2011] ACTCA 11

Director of Public Prosecutions v Kuo [1999] NSWSC 1201 ; 49 NSWLR 226

Director of Public Prosecutions v Maan [2010] ACTCA 27

Director of Public Prosecutions v Walker [2011] ACTCA 1 ; 176 ACTR 1

Douglass v The Queen [2012] HCA 34 ; 290 ALR 699

Gillard v The Queen [2013] ACTCA 17 ; 275 FLR 416

Gillard v The Queen [2014] HCA 16 ; 308 ALR 190

J L Holland v C J Cocks (Unreported, Supreme Court of NSW, Hidden J, 23 May 1997)

Murray v The Queen [2002] HCA 26 ; 211 CLR 193

Parkinson v Alexander [2016] ACTFC 1 ; 11 ACTLR 190

Preston v Carnall [2015] ACTSC 325 ; 300 FLR 302

R v AH (1997) 42 NSWLR 702

R v DM [2010] ACTSC 137

R v Maan [2009] ACTSC 160

R v McDonald [2013] ACTSC 122 ; 233 A Crim R 185

R v O'Rafferty [2016] ACTSC 141

R v Rae (1998) 45 NSWLR 546

Sims v Drewson [2008] ACTSC 91 ; 188 A Crim R 445

Tully v The Queen [2006] HCA 56 ; 230 CLR 234

W(D) [1991] SCR 742

Legislation Cited:

Crimes Act 1900 (ACT), ss 60, 60(1)

Crimes Act 1914 (Cth), s 85ZE

Criminal Code Act 1995 (Cth), ss 474.17, 474.17(1)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 37, 43A, 43A(4), 43A(5), 43A(6), 71, 72, Pt 3

Magistrates Court Act 1930 (ACT), ss 207, 208(1)(b), 208(1)(e)

Criminal Code 2002 (ACT), s 16

Texts Cited:

Macquarie Dictionary (Macquarie Publishing, 2 ^nd ed, 1995)

APPEAL — CRIMINAL LAW — Appeal against conviction entered in the Magistrates Court — findings of guilt unreasonable having regard to all of the evidence — the learned Magistrate made findings of fact not available on the evidence — using a carriage service to menace — committing an act of indecency — elements of the offence — application of the wrong test of culpability — credibility of witness — appeal upheld in part — re-trial

Decision:

• 1. The appeal be upheld in part.

• 2. The convictions entered on 29 September 2015 for the following charges be confirmed:

  • (i) using a carriage service on 4 June 2014 in a way that reasonable people would in all the circumstances regard as being menacing (CC2014/10356); and

  • (ii) between 31 January 2014 and 1 March 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3604);

• 3. The convictions entered on 29 September 2015 for the following charges be set aside:

  • (i) between 30 April 2013 and 1 June 2013, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3601);

  • (ii) between 31 May 2013 and 1 July 2013, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3602);

  • (iii) between 31 January 2014 and 1 March 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3603);

  • (iv) between 21 January 2014 and 4 June 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3605);

  • (v) between 30 November 2013 and 13 June 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3606); and

  • (vi) between 1 January 2014 and 31 January 2014, committing an act of indecency on the complainant without her consent and being reckless as to whether she consented (CC2015/3607).

• 4. The proceedings in respect of the charges set out in order 3 be remitted to the ACT Magistrates Court for re-trial before a different Magistrate.

Refshauge J

1 The appellant, Aldo Renado Pellegrino, and the complainant met as a result of them communicating on the social media website, Facebook, and entered into a relationship from about the end of May 2013. At the time, Mr Pellegrino was 39 years old and the complainant was 25 years old.

2 The relationship developed later, in about July or August 2013, into an intimate sexual relationship, but they only had sexual intercourse for the first time in about December 2013. The complainant, however, considered that the relationship was problematic because she regarded Mr Pellegrino's attitude to her to be verbally abusive and he engaged in acts to which she did not consent.

3 The relationship ended on 4 June 2014 after a disagreement between them. The complainant alleged that, in that conversation, Mr Pellegrino made a serious threat of harm to her. There were subsequent conversations and text messages between them and these continued until about 14 June 2014, and these included further comments that the complainant also said were threats to her.

4 Subsequently, the complainant spoke to police about the phone call and text messages. Mr Pellegrino was summonsed for the offence of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, an offence prohibited by s 474.17(1) of the Criminal Code Act 1995 (Cth). I shall refer to this offence as using a carriage service to menace.

5 Mr Pellegrino appeared in Court on 17 December 2014 and the proceedings were adjourned from time-to-time. When he appeared on 7 April 2015, he was charged with seven further offences, each of them being that, between certain specified dates, he committed an act of indecency on the complainant without her consent and being reckless as to whether she consented. These offences were contrary to s 60(1) of the Crimes Act 1900 (ACT). I shall refer to each of these offences as committing an act of indecency.

6 Mr Pellegrino pleaded not guilty to each count and the trial of them in the Magistrates Court commenced on 19 August 2015. On 29 September 2015, Mr Pellegrino was convicted of all charges and the proceedings were adjourned for sentence.

7 On 26 October 2015, Mr Pellegrino filed a Notice of Appeal against the convictions. This is permissible under the Magistrates Court Act 1930 (ACT): Parkinson v Alexander [2016] ACTFC 1; 11 ACTLR 190.

Jurisdiction

8 Appeals against conviction entered in the Magistrates Court are made under ss 207 and 208(1)(b) and (e) of the Magistrates Court Act.

9 The appeal is by way of re-hearing. I described the requirements for such an appeal in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at 303–4; [4]–[5], as follows:

[4] An appeal under this provision is a rehearing on the evidence before the Magistrate with any other evidence that this Court permits to be adduced: Lukatela v Birch (2008) 164 ACTR 24 at 28–9; [17]–[24].

[5] I summarised the position in Peverill v Crampton [2010] ACTSC 79 at [24] where I said:

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:

• 1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.

• 2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.

• 3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.

• 4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.

• 5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.

• 6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.

• 7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

Notice of Appeal

10 As noted above (at [7]), a Notice of Appeal was filed in this Court on 26 October 2015. It specified the following grounds of appeal:

• (a) The findings of guilt are unreasonable having regard to all of the evidence.

• (b) The learned Magistrate made findings of fact not available on the evidence.

The allegations

11 The offence of using a carriage service to menace (CC2014/ 10356) was said to arise from Mr Pellegrino saying in the telephone call and in the writing of text messages on 4 June 2014, when the relationship was terminated, as follows:

• (a) Saying, in a telephone call: ‘If anything happens I will break your neck and every cunt's neck that is with you’;

• (b) Writing in a text message: ‘Another alternation [sic] what if I come around with a sledge hammer and finish it properly?’;

• (c) Writing in a text message: ‘I'm on the way mother fucker’.

12 The offences of committing an act of indecency may be briefly described as follows:

1. (CC2015 /3601) : Two acts of Mr Pellegrino lifting up the complainant's dress and exposing her underwear,...