Appellant Appeals Conviction for Stalking Charge
SIMPSON -v- HERRINTON [2022] WASC 50 (21 February 2022)
The appellant was charged and convicted of stalking contrary to s 338E(2) of the Criminal Code. The appellant filed an appeal against conviction. The Court, in ruling on the appeal, assessed whether the magistrate applied an incorrect test in determining whether conduct could reasonably be expected to intimidate.
Facts:
The appellant was charged with two counts of stalking contrary to s 338E(2) of the Criminal Code. He pleaded not guilty to the charges and the matter proceeded to trial. He was found not guilty of the first charge and guilty of the second charge. The appellant seeks leave to appeal against his conviction of the second charge. The appellant was sentenced on 25 June 2021 to a 12‑month Community Based Order.
The conviction occurred on 1 April 2021 and the last date for commencing an appeal against the conviction was 23 July 2021. The appeal notice was not filed until 4 August 2021 and thus an extension of time is required. The solicitor for the appellant has filed an affidavit explaining that the delay was due to some initial uncertainty as to whether an appeal should be brought and pressure of work. The first ground of appeal, in essence, alleges that the learned Magistrate erred by applying the wrong test to determine whether the appellant's conduct was such that it could reasonably be expected to intimidate.
The second ground alleges that the learned Magistrate erred by taking into account five incidents when only two of those incidents could have occurred within the time period specified in the charge. The third ground alleges that the learned Magistrate erred by taking into account evidence relating to the first charge when considering the second charge.
The charges were that between 24 July 2019 and 5 August 2019, at Harvey, the appellant pursued another person, namely KP, in a manner that could reasonably have been expected to intimidate that person; that between 2 August 2019 and 6 August 2019, at Harvey, the appellant pursued another person, namely GL, in a manner that could reasonably have been expected to intimidate that person.
In the police interview the appellant said that he was surprised to hear that he was being questioned about his interactions with KP. He said the timing of KP's shifts at the service station coincided with the times he walked around. The appellant elected not to give or adduce any evidence at the trial. The Magistrate said that at the time of drafting the legislation, the legislature intended that the section would 'capture behaviour that amounted to what could be considered a course of conduct, a series of acts or a repetition of behaviour'.
The appellant submits that the learned Magistrate assessed whether the conduct could reasonably be expected to intimidate by reference to the personal characteristics of the appellant. This is said to be an error because the correct test is an objective one, that is, whether an ordinary person in the position of the complainant might be expected to be intimidated. The appellant also submits that, in the absence of evidence of GL's personal characteristics it is not open to infer that the objective test was met. It is submitted that the Magistrate incorrectly assessed the nature of the appellants' conduct as regards GL by comparing it to that as regards KP.
The appellant relies on the fact that in two passages in her reasons the Magistrate refers to the objective test by reference to an ordinary person having the same personal characteristics as the appellant. In them, the Magistrate considers whether an ordinary person of the same age, background and intellectual function as the appellant would consider the conduct to be intimidating. The appellant submits that Magistrate was wrong to conclude that the five incidents referred to by GL occurred between the period specified in the charge, namely 2 to 6 August 2019. The appellant says that GL gave evidence that the incidents occurred over a two to three‑week period and that she only worked on Mondays or Thursdays, but not both in any one week. If the flower incident occurred on 6 August 2019, which was a Tuesday, the only Monday or Thursday that occurred in the charge period was Monday 5 August 2019.
The appellant submits that the Magistrate incorrectly used the evidence in respect of KP in determining whether the charge relating to GL was proved. The appellant says that, in effect, what the Magistrate did was compare the experiences of KP and GL in deciding whether the conduct was intimidating. It is submitted that there was no application by the prosecution for the evidence on the two counts to be cross‑admissible and the appellant was denied procedural fairness by not being given an opportunity to object to such use.
Issue:
I. Whether or not the magistrate applied an incorrect test in determining whether conduct could reasonably be expected to intimidate.
II. Whether or not the magistrate erred by taking into account five incidents when only two could have occurred within the time period specified in the charge.
III. Whether or not the magistrate erred by taking into account evidence relating to another charge.
Applicable law:
Criminal Code s 338E - provides that a person who pursues another person with intent to intimidate that person or a third person, is guilty of a crime and is liable -
(a) where the offence is committed in circumstances of aggravation, to imprisonment for 8 years; and
(b) in any other case, to imprisonment for 3 years.
(2) 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.
Criminal Code s 338D - defines the word 'pursue' as including:
(a) to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;
(b) to repeatedly follow the person;
(c) to repeatedly cause the person to receive unsolicited items;
(d) to watch or beset the place where the person lives or works or happens to be, or the approaches to such a place;
(e) whether or not repeatedly, to do any of the foregoing in breach of a restraining order or bail condition.
Criminal Procedure Act s 178(3) - provides that where a court document, such as a prosecution notice, is defective in substance or form, the court, on an application by a party or on its own initiative, must order that the document be corrected if the defect is not material to the merits of the case and may order that the document be corrected in any other case.
Tonkin v Macintosh [2021] WASC 118 - provides that the ordinary meaning of 'pursue' includes 'engaging in a course of conduct to achieve some aim - including relevant to establish or maintain some personal or social connection'.
Conomy v Maden [2016] WASCA 30 - provides that the intimidatory quality of the pursuit is not an entirely subjective matter dependent only upon whether the particular victim is intimidated in any manner defined by the Code, but the quality of the pursuit must be such that, objectively, an ordinary person in the position of the complainant might reasonably be expected by the jury to be intimidated.
Jolley v Truong [2021] WASC 194 - provides that it is sufficient to assess the conduct constituting the pursuit and make an evaluative judgment as to whether that conduct could have reasonably been expected to intimidate the 'ordinary person'.
Orreal v The Queen [2021] HCA 44 - provides that an appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt.
Cowie v Wood [2021] WASC 341 - provides that an amendment to correct a defect in a prosecution notice is not material to the merits of the case if the proposed amendment does not have a bearing on the evidence, the particulars of the charge or the identity of the offender or does not affect the evidence to be led by the prosecution or that may be led by the defence.
Cotter v The State of Western Australia [2011] WASCA 202 - provides that in assessing whether particulars are adequate, the relevant question is whether the accused person has been able to identify the act, omission and circumstances whish the prosecution alleges amount to the offence charged.
The Queen v Dossi (1918) 13 Cr App R 158 - provides that general principle may be overridden by considerations of fairness in a particular case, if the trial has been conducted on the basis that the offence occurred on a particular date and the accused has prepared his defence on that basis.
Starling v Ostrowski [2001] WASCA 74 - provides that any amendment would not have altered the nature of the offence charged, that is, it would not have constituted a new and different charge to that contained in the prosecution notice.
Analysis:
The Magistrate was conscious that it was necessary to prove both that the particular complainant was intimidated and that the conduct in question was objectively reasonably expected to have this affect. It was not necessary to incorporate into the objective test any personal characteristics of the appellant. However, the Magistrate did not substitute a subjective test as to the appellants' actual belief. There is no suggestion that a person with such characteristics would be more sensitive than other ordinary persons. Proof that an ordinary person of the same age, background and intellectual function as the appellant would consider the conduct to be intimidating would necessarily mean that ordinary persons generally would be reasonably expected to find the conduct intimidating.
The appellant's process of reasoning suggesting that the charge period could only have included one incident other than the delivery of the flowers. However, this is not a matter that was raised at the trial. Nor was there any objection to the evidence of the earlier calling‑out incidents on the basis that they fell outside the charge period. The prosecution's case was always that charge 2 encompassed all of the incidents. The appellant's case at trial was run on the basis that the offence did encompass all of those events. The only date that was known with certainty was the receipt of the flowers and the note on 6 August 2019.
Had the argument that the appellant now raises as to the timing of the incidents been raised at the trial there can be no doubt that an amendment to the charge would have been allowed. There is no suggestion in the reasons that the Magistrate treated the evidence relating to KP as admissible in respect of charge 2, either as propensity evidence or in some other way. Indeed, she specifically noted that the two matters were different. Her Honours conclusions on charge 2 were based on her assessment of the evidence of GL, and, in particular, whether it was reasonable to expect that GL would be intimidated and whether she was in fact intimidated by the conduct of the appellant.
Conclusion:
The Court granted the extension of time. Leave to appeal on grounds 1 and 2 is granted. Leave to appeal on ground 3 is refused. The appeal is dismissed.
