Todd Andrew Connelly v Russell Grant Allan

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge ACJ
• Judgment Date: 13 October 2011
• Docket Number: No. SCA 5 of 2009
• Date: 13 October 2011

[2011] ACTSC 170

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge ACJ

No. SCA 5 of 2009

Between:

Todd Andrew Connelly

Appellant

and

Russell Grant Allan

Respondent

Counsel for the appellant: Mr J Sabharwal

Counsel for the respondent: Ms J Lawton

Hanel v Shoemark [2010] ACTSC 67

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151

Grbic v Pitkethly (1992) 38 FCR 95

Sharrett v Gill (1993) 65 A Crim R 44

Parker v Espinoza (1996) 85 A Crim R 336

Johnson v Giumelli (2003) 175 FLR 467

Dennis v Davis (2010) 204 A Crim R 1

Fazio v Castledine (2007) 168 A Crim R 391

Barry v Police (2009) 197 A Crim R 445

R v Green (2001) 78 SASR 463

Fleming v The Queen (1998) 197 CLR 250

Tatam v Svikart [1999] NTCA 146

Domican v The Queen (1992) 173 CLR 555

Dhanhoa v The Queen (2003) 217 CLR 1

Gardiner v The Queen (2006) 162 A Crim R 233

R v Taylor (2008) 2 ACTLR 216

R v D (2008) 2 ACTLR 225

R v Trudgett (2008) 70 NSWLR 696

R v Taylor (No 2) [2008] ACTSC 97

Longfield v Glover (2005) 191 FLR 332

Pearce v The Queen (1998) 194 CLR 610

AB v The Queen (1999) 198 CLR 111

Domestic Violence and Protection Orders Act 2001 (ACT)

Magistrates Court Act 1930 (ACT), Div 3.10.2

Evidence Act 1995 (Cth) 1995 (Cth), s 116

Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110

APPEAL AND NEW TRIAL — in general and right of appeal — appeal from Magistrates Court — appeal allowed in part.

CRIMINAL LAW — evidence — evidentiary matters relating to witnesses and accused persons — identification — voice identification — whether warning required under s 116 of the Evidence Act 1995 (Cth) — warning required.

APPEAL AND NEW TRIAL — in general and right of appeal — appeal from Magistrates Court — whether miscarriage of justice in absence of warning about voice identification evidence — no miscarriage of justice.

CRIMINAL LAW — jurisdiction, practice and procedure — judgment and punishment — whether sentencer erred in rejecting a community service condition to a good behaviour order when sentence of imprisonment suspended — error found and appellant to be re-sentenced.

ORDER

THE COURT ORDERS THAT:

• 1. The appeal against conviction be dismissed.

• 2. The appeal against sentence be upheld.

• 3. Todd Andrew Connelly be re-sentenced.

• 4. The parties be heard on re-sentencing.

1 The appellant, Todd Andrew Connelly, was in a relationship with a woman for about eight years but it ended in mid 2007.

2 As a result of events surrounding the termination of the relationship, Mr Connelly's former partner sought a Domestic Violence Order and one was granted under the Domestic Violence and Protection Orders Act 2001 (ACT), prohibiting Mr Connelly from, inter alia, contacting the applicant, behaving in a harassing manner towards her, or threatening her.

3 The applicant reported to police on 10 March 2008 that Mr Connelly had, over the prior days, breached the Order by making a number of telephone calls to her.

4 Mr Connelly was arrested on 13 March 2008 and, in an interview with police on 14 March 2008, denied making the phone calls alleged by his former partner, the applicant for the Domestic Violence Order.

5 Mr Connelly was subsequently charged with breaching the Order on 6 March 2008 and on 10 March 2008.

6 A hearing was conducted in the Magistrates Court on 21 January 2009 and Mr Connelly was convicted of both charges. Those convictions amounted to a breach of a Good Behaviour Order made in respect of Mr Connelly on 10 December 2007 when he was convicted of a charge of stalking and two concurrent Good Behaviour Orders made on the same day in respect of two charges of contravening a protection order. It also constituted a breach of a Good Behaviour Order made on 20 June 2007 for a charge of assault.

7 He was sentenced to six months imprisonment on each of the charges of breaching the Domestic Violence Order, to be served concurrently, and on the breach of the first Good Behaviour Order sentenced to four months imprisonment, one month imprisonment of which was to be cumulative on the other sentences, all the imprisonment to be served by periodic detention. There seemed to be no sentence in respect of the other breaches of Good Behaviour Orders.

8 On 21 January 2009, Mr Connelly lodged a Notice of Appeal. He prepared that Notice himself. He appealed against conviction and sentence. He was presumably granted bail pending the appeal.

9 The appeal came on for hearing on 15 October 2009. Mr Connelly was then represented. His counsel was granted leave to file an amended Notice of Appeal which was filed on 19 October 2009.

10 The amended Notice of Appeal set out the following grounds of appeal:

The grounds of the appeal against conviction are:

(a) That the learned Magistrate failed to direct and warn herself adequately in relation to the voice identification evidence.

The grounds of rounds [sic] of appeal against sentence are:

(b) That the sentence was manifestly excessive.

(c) That the learned Magistrate failed to have proper regard to the significance of the appellant's alcoholism in structuring an appropriate sentence.

(d) That the learned Magistrate erred in not finding that community service was appropriate in all the circumstances.

Jurisdiction

11 Appeals from the Magistrates Court in criminal matters are regulated by Div 3.10.2 of the Magistrates Court Act 1930 (ACT).

12 So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. This court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

13 The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate's reasons. The court has power to receive further evidence, subject to some restrictions.

14 The appellate court must weigh conflicting evidence and draw its own conclusions from primary facts found by the Learned Magistrate.

15 The appellate court is not restricted to making the decision that should have been made by the Learned Magistrate but must have regard to the circumstances which exist at the time of the appeal and make its own decision on these circumstances.

16 So far as the appeal against sentence is concerned, the sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

17 Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

18 See Hanel v Shoemark [2010] ACTSC 67 and Cooper v Corvisy (No 2) (2010) 5 ACTLR 151.

The evidence

19 The complainant, Frances Hayes, said that she had been in a relationship with the appellant, Todd Andrew Connelly, for about eight years until the relationship ended. They lived together during that time. The relationship ended in about June 2007.

20 After the end of the relationship, Ms Hayes says she sought and was granted a Domestic Violence Order under the Domestic Violence and Protection Orders Act against Mr Connelly, in particular prohibiting him from contacting her or her son, Lochlan, except at court or through a solicitor for a period of 12 months from 16 July 2007. This may have been because of the assault for which Mr Connelly had been dealt with by the Magistrates Court referred to earlier (at [6]).

21 On 6 March 2008, Ms Hayes said she was at the Kambah Tavern. She met some friends there, including Ms Joanne Harrison. Ms Hayes had five or six full strength schooners of beer to drink that night. Ms Harrison had about six or seven schooners of cider.

22 During the evening, Ms Hayes said she noticed that she had missed some calls on her mobile phone. She rang her son but he told her he had not called her. She answered one call and recognised Mr Connelly who said something like ‘We need to talk’. Ms Hayes said ‘There's a-you've got a DVO out’ or ‘You've broken the DVO’. She knew it was Mr Connelly because he has a distinctive voice and, of course, she had been in a relationship with him for eight years. I note that, in the circumstances, the words she heard were consistent with the caller being Mr Connelly, indeed made it likely it was him. No evidence suggested anyone else would make such calls.

23 Ms Harrison said she answered the phone and had a conversation with the caller. She told Ms Hayes that Mr Connelly had threatened her and her son. She told her that he said ‘I know where she lives. I know where she works. I know where her son lives. I know her — where her son works. I'm going to kill them.’ She had known Mr Connelly for about...