Appellant Contests Conviction Regarding Stalking

TONKIN -v- SHAW [2021] WASC 254 (30 July 2021)

The appellant was charged with breach of restraining order as well as stalking.  He appealed his conviction asserting that it was merely coincidence.  The Court, in deciding whether or not to grant the appeal, relied on each of the parties' evidence. 

Facts:

The accused is a tow truck driver and regularly parks his tow truck on Stalker Road near Demnick Street in Gosnells.  The victim has come to the notice that the accused parked his truck in the route she normally takes every day.  The accused approached the victim, who was walking, engaged in a conversation with her.  When she became uncomfortable, she  told the accused she was going a different way and crossed the street and the accused stopped following the victim. Due to the incidents, the victim became anxious about walking to work.  The course of conduct constituting the appellant's pursuit of the complainant comprised four incidents on 23 January 2020, 4 February 2020 and 10 February 2020 as detailed in the propensity evidence. The appellant has been convicted for breaching a violence restraining order (VRO) and stalking.  The appellant asserts that any encounters with the complainant were accidental, that the appellant is in the habit of going on lengthy and frequent walks around Gosnells, and that in any event the appellant could not be conclusively identified as the man observed by the complainant and on the CCTV footage.

Issue:

Whether or not the appeal should be granted.

Applicable law:

Criminal Code (WA), s 338D, s 338E - provides that a person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple offence.

Restraining Orders Act 1997 (WA), s 6, s 12(1), s 13(2), s 61(1A) -provides that when a court is considering whether to make a VRO and what the terms of the order should be, the court must consider the need to protect the applicant from personal violence, and the need to prevent behaviour that could reasonably be expected to cause the applicant to apprehend they will have personal violence committed against them.

Analysis:

What is 'intimidatory' in a particular case will necessarily depend on the surrounding circumstances and the relationship between the parties.  The complainant's evidence at trial was not simply that she saw the appellant going about his business and felt intimidated by his presence.  Rather, her evidence was that she walked over the park and the appellant was standing there watching her.  Despite the appellant's assertion that it was mere coincidence, he was not able to give evidence as to why he was in the park that day, only saying that he was 'on [his] way to do what [he] had to do'.

Conclusion: 

The Court refused the leave to appeal in respect of each ground of appeal. The appeal is dismissed.