Allen v Tasmania Police
[2004] TASSC 30
•6 April 2004
[2004] TASSC 30
CITATION: Allen v Tasmania Police [2004] TASSC 30
PARTIES: ALLEN, Owen Michael
v
TASMANIA POLICE
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 89/2003
DELIVERED ON: 6 April 2004
DELIVERED AT: Hobart
HEARING DATES: 17 March 2004
JUDGMENT OF: Underwood J
CATCHWORDS:
Criminal Law – Particular offences – Offences against the person – Other offences against the person – Miscellaneous offences – Other miscellaneous offences – Stalking – What conduct constitutes – Presumed intention to cause apprehension or fear.
Criminal Code (1924) (Tas), s192.
Aust Dig Criminal Law [180]
REPRESENTATION:
Counsel:
Applicant: Self-Represented
Respondent: F C Neasey
Solicitors:
Applicant: Self-Represented
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 30
Number of Paragraphs: 26
Serial No 30/2004
File No LCA 89/2003
OWEN MICHAEL ALLEN v TASMANIA POLICE
REASONS FOR JUDGMENT UNDERWOOD J
6 April 2004
The motion to review
On 16 April 2002, a restraint order was made upon an application made pursuant to the Justices Act 1959 ("the Act"), s106B, that the applicant:
· not stalk the complainant;
· not directly or indirectly threaten, harass, abuse or assault the complainant; and
· not approach the complainant directly or indirectly.
By complaint 2519/03, the applicant was charged with a breach of that restraint order, contrary to the Act, s106I(1). By complaint 2518/03, the applicant was charged with stalking, contrary to the Criminal Code 1924, s192. Stalking is a crime in respect of which a defendant may elect to be tried summarily (the Act, s72(1)(a)).
The same conduct was relied upon by the prosecution to establish both complaints. The applicant was found guilty of both complaints, but the learned magistrate, quite properly, proceeded to conviction on only one, the breach of the Criminal Code, s192. The applicant was sentenced to eight months' imprisonment. He has served that term of imprisonment, but now seeks a review of the conviction.
The background
Upon the hearing in a court of petty sessions in June 2003, the complainant told the learned magistrate that she had cause to complain about the applicant's conduct on numerous occasions since 1997. She said that she worked at a café in Salamanca Place, Hobart. The complainant had no dealings or contact with the applicant other than as a customer in the café. She said that on Valentine's Day, she thought in 1999, he sent her a parcel which contained cards with messages like "God has told me that we were meant to be together". At that time, the applicant had a business in the Gatehouse near Sisco's Restaurant on Salamanca Place and was a frequent customer at the café. The café also did some outside catering. Part of the complainant's work was in outside catering and she was required to walk past the Gatehouse on a daily basis. The complainant would speak to her as she went past. On one occasion, he came out in front of her and said that he could not help his manly urges towards her. The applicant's attendances at the café were such that the complainant asked him not to come in any more. That made no difference. At her request, her employer told him that he was not welcome at the café. The complainant told the learned magistrate that one morning the applicant came in when her employer was not there and said, "Oh I love you, I love you" and had to be removed by a friend of the complainant who happened to be there at the time.
The complainant told the learned magistrate that those were just illustrations of the applicant's behaviour in the years prior to making her application for the restraint order. She added the following illustrations to the account she had given:
· the complainant took a break at set times in the day and the applicant regularly turned up at those times and tried to sit next to her at a table;
· the applicant was often outside the café when the complainant left work and seemed to know which days she was working and which days she was not working;
· the applicant asked people whom he did not know, but to whom the complainant had been speaking, personal questions about her;
· the applicant drove his motor cycle past her as she walked along the street and once stopped, got off, removed his helmet and said, "Oh I must be deluded, I thought we were friends";
· when the applicant was driving taxis, he was often parked outside the café when the complainant locked up at night;
· the applicant drove his taxi past her house and told passengers "That's where my ex-girlfriend lives".
All of this conduct caused the complainant to be frightened and apprehensive of the applicant and ultimately led to the making of the restraint order. The evidence was uncontradicted that over the years the complainant consistently made it clear to the applicant that his presence in her proximity and his advances towards her were completely unwelcome and caused her to feel anxious and afraid.
The relevant acts
The evidence of the complainant upon the hearing of the complaint upon which the impugned conviction was made, spoke of five incidents of alleged stalking. Those incidents were succinctly summarised in the judgment of the learned magistrate at 4 - 6:
"16/10/02
On this day [the complainant] was working in a shop in a gallery on the corner of Wooby's Lane and Salamanca Place. She saw the defendant busking about 20 metres further down Salamanca Place when she went to put money in a parking meter. Her car which was a distinctive red/orange old BMW was parked on the other side of Salamanca Place from the shop under the trees. She noted he was there and looked away. She told the court that having regard to what had gone on before between her and the defendant she was scared, apprehensive and fearful. She went back to the shop and called the police. On the same day she saw the defendant walk past the gallery where she was.
Constable Peters subsequently approached the defendant. At the time the defendant was seated on a stool with his guitar case open in front of him apparently playing the guitar and reading music on a stand in front of him, that is, he was doing what might be expected of a busker. Constable Peters cautioned him. He asked him if he was aware of the restraint order and the defendant said he was. He asked him if he knew that [the complainant] was in the area and the defendant said he didn't. The defendant was asked to move on and did.
11/1/03
[The complainant] told the court that at this time she was staying at Mr Forbes‑Young's house in Lambert Avenue. She stayed there regularly and when she did she usually parked her car outside. She was on this day driving her car down Lambert Avenue when she saw the defendant, as she described him, ambling up the street. He saw her and as she drove past just stared at her and then put his hand on his heart and smirked. She kept driving and when she looked in her rear vision mirror he was looking over his shoulder at her.
12/1/03
On this day [the complainant] was still staying at the Lambert Avenue home. She and Mr Forbes‑Young went for a walk with another friend going down Lambert Avenue and along Sandy Bay Road towards Sandy Bay beach. As they entered Sandy Bay Road she noticed the defendant standing on the water side of the road. She and her friends kept walking but stopped at the corner of Harveys Lane to talk to someone. The defendant stood on the other side of the road and just stood. She said he looked at them now and again but otherwise was staring at the river. She said she felt very uncomfortable and that she could not stand being anywhere near him because of the past.
19/1/03
This was the following Sunday. On this particular day [the complainant] was driving her car in Collville Street, Battery Point heading towards Salamanca Place. She saw the defendant walking along the street. He looked at her and again put his hand on his heart and smirked. On this occasion she said she felt complete frustration because she couldn't believe he was still doing it. It made her upset.
23/1/03
[The complainant] was working in the vicinity of the Arts Centre in Salamanca Place on this day. She said she had been trying to keep her car out of sight but she was running late and had to park on Salamanca Place. She parked right outside the Arts Centre and the defendant was busking right next to her car. She said she bolted down to put money in the meter and he saw her and smirked.
At 12.25 pm on that day Constable Peters again spoke to the defendant after a complaint by [the complainant]. On this occasion the defendant was sitting looking into a doorway which Constable Peters found out was the entrance to where [the complainant] then worked she having moved from another area in Salamanca Place since the October incident.
On this occasion the defendant was sitting on a stool with his guitar, a guitar case and a backpack with him."
In addition to the complainant, evidence was given by her boyfriend, a friend of her boyfriend, Mr Clark, and Constables Peters and Ayres. The applicant chose not to give evidence, but called Mr Craig Rainbird, a solicitor, who gave evidence on his behalf. A videotape recording of an interview of the applicant by police was tendered in evidence, but the applicant said little in it, and after a short while terminated it.
In the court of petty sessions, the applicant, who represented himself, as he did on the motion to review, conducted his defence upon the basis that the fact that he was in the proximity of the complainant on the occasions listed was coincidental. The learned magistrate accepted the evidence she heard, and said, at 10 of her detailed and carefully reasoned reasons for judgment:
"If all contact was accidental and just the result of coincidence it would be unlikely a court could establish any intent. That is in my view qualified by the caveat that if the defendant deliberately placed himself in situations where accidental contact was almost certainly to occur then it could clearly be argued that his conduct was deliberate."
The law
The applicant correctly submitted that he could not be convicted of stalking contrary to the Criminal Code, s192, unless the learned magistrate was properly satisfied to the requisite degree that not only did he do the acts proscribed by s192(1), but also that he did those acts with the intention of causing the complainant apprehension or fear. In this respect, s192(2) provides as follows:
"(2) A person who engages in conduct of a kind referred to in subsection (1) and so causes physical or mental harm, apprehension or fear in another person is taken to have the intention required by subsection (1) if that person knows, or ought to have known, that engaging in that conduct would or would be likely to cause the other person physical or mental harm, apprehension or fear."
Having correctly directed herself with respect to the law, the learned magistrate accordingly found that the events that occurred on the first occasion, 16 October 2002, did not constitute stalking. On that occasion, the applicant was busking outside the door of premises in Salamanca Place in which the complainant was then working. Although the applicant may have seen the complainant's distinctive BMW car parked close by, he told Constable Peters that he did not know where the complainant worked, nor where she lived. Constable Peters told the applicant that the complainant worked in the area and that the applicant was on the verge of breaching his restraint order. He was directed to move on. In those circumstances, the learned magistrate held that she was not satisfied to the requisite degree that the applicant's presence in the vicinity of the complainant on that day was other than coincidental and therefore was not satisfied with respect to the mental element.
The grounds of appeal
Before dealing with the applicant's grounds of appeal, it is necessary to refer to a piece of evidence. On 23 January 2003, the applicant was again busking in the same place as he had been on 16 October 2002. Parked directly in front of the applicant was the complainant's distinctive BMW car. A little later that morning, the applicant was arrested and later, searched. His backpack contained a small notebook. As well as notations for some of the days that are particulars on the complaint, this notebook noted other various dates. The first entry was for Wednesday 20 November and the last was the day the applicant was arrested. Under each date there is a reference to sighting the complainant and/or her boyfriend. The whole of the contents of the notebook are set out in the learned magistrate's reasons for judgment. When called by the applicant, Mr Rainbird said that he had acted for the applicant on prior unrelated matters and had given him advice with respect to "incidents that have occurred in Salamanca Square or Salamanca Market". Mr Rainbird said that in June and October 2002, the applicant told him that he was being stalked by the police and victimised. Mr Rainbird said that he advised the applicant (inter alia) to keep a diary so that it could be shown that any contact was innocent. The obvious purport of this evidence was to negative an inference that might otherwise be drawn that the keeping of the diary of sightings shows that such sightings were not coincidental and that the applicant maintained his earlier interest in the complainant. Unfortunately for the applicant, the evidence did not have the desired effect, for Mr Rainbird's evidence, together with other evidence, demonstrated that he gave the advice to keep the notebook in mid-January 2003, approximately two months after the first entry was made. The learned magistrate correctly pointed out that the entries in the notebook were not evidence of surveillance, but they were certainly corroborative evidence of the applicant having a continued interest in the complainant.
Ground 1
Ground 1 of the motion to review provides:
"1 The Magistrate failed to give weight or sufficient weight to relevant considerations, such as,
(1)The proximity of where the Applicant resided with no knowledge as to where the complainant resided;
(2)the inability of the Applicant to participate in normal living (watching the yacht race) with no knowledge as to where the complainant would be;
(3)the inability to earn a living (by busking) when the Applicant had no knowledge of where the complainant worked."
With respect to the events that occurred on 11 and 12 January 2003, the uncontradicted evidence was that about that period of time the complainant often stayed at her boyfriend's house in Lambert Avenue, Sandy Bay. In her reasons for judgment with respect to these occasions, the learned magistrate found:
"As to the events of the 11th January 2003, there was evidence that as at the 23rd of that month the defendant lived at the Sandy Bay caravan park. There was no evidence as to precisely where that was and in particular how close it was to Lambert Avenue."
In support of ground 1, the applicant submitted that that finding was erroneous and that there was evidence as to how close the caravan park was to the house in which the complainant's boyfriend lived. To support this submission, he referred to the evidence of Mr Clark who said that on 18 January 2003 (not a day on which it is alleged that stalking occurred), he saw the applicant just a few doors down from the boyfriend's house. There followed this question and answer:
"All right. Now if Mr Allen's walking up on the left hand side of the road, would you agree that on the right hand side of the road there is a park and the Sandy Bay football oval? … Yes, I do, yep.
And further to the north west, of course, we have the Sandy Bay Caravan Park? You're familiar with that? … Yes, yep."
It could not be said those two questions and answers provided evidence as to precisely where the Sandy Bay Caravan Park was, nor how close it was to Lambert Avenue. There was no indication of distance given at all. Even had there been evidence of where the Sandy Bay Caravan Park was located and how close it was to Lambert Avenue, it would not avail the applicant because there was no evidence as to where he was living on 11 and 12 January 2003. The closest the evidence came in that respect was his answer in the police interview that his then (23 January 2003) current address was the Sandy Bay Caravan Park.
In support of the second part of the first ground of the motion to review, the applicant relied upon four entries in his notebook. The date of the first entry is a little hard to make out, but the other three entries are all dated January 2003. Three entries record that the applicant was in Sandy Bay and one records that the applicant was in Colville Street, Battery Point. In each entry, there is a reference to seeing the complainant or her boyfriend, or both of them. The applicant submitted that the learned magistrate should have inferred therefrom that he lived in the Sandy Bay area and it is therefore quite likely that the occasions that comprised a particular of the crime charged were coincidental as he was just moving about the area where he lived. There is no substance in that submission. There was no evidence that the entries in the diary were evidence of the truth. Even if the entries in the diary were treated as evidence of the truth, they would be just as consistent with the commission of the crime as with innocence. The first entry provides, in part, "I was walking from beach at Wrestpoint back to c/park". The applicant told me in the course of his submissions that that was evidence that he was then living at the caravan park. It is no such evidence at all and, apart from anything else, "c/park" might mean car park or caravan park.
The applicant submitted that on 16 October 2002, and on 23 January 2003, the evidence of the interview with police showed that he was a busker, that he was simply earning his living as a busker in Salamanca Place and he did not know that the complainant worked near the spot he had chosen to busk. He submitted that the learned magistrate erred in failing to give this evidence sufficient weight when considering the issue of coincidence. This proposition was accepted by the learned magistrate with respect to the events on 16 October 2002 and is reflected in her finding that the applicant committed no crime on that day. The applicant's submission with respect to 23 January 2003 has to be rejected because on the first occasion, the police told the applicant that the complainant worked in the area and that he was on the verge of being in breach of his restraint order and should move on. That was knowledge he had when he returned to the same spot on 23 January 2003.
Ground 2
Ground 2 provides:
"2 In the alternative, the Magistrate gave weight to extraneous matters by interpreting the gesture of a hand over the chest as threatening or likely to cause fear or apprehension."
There is no substance in this ground. Given the past history of the applicant's conduct towards the complainant in the years leading up to the making of the restraint order, there could be no doubt whatsoever that by placing his hand over his heart the applicant intended the complainant to understand that he still felt love and affection towards her. This gesture, coupled with a smirk, was delivered with the applicant's full knowledge that the expression of such feelings towards the complainant in the past had caused her such fear and apprehension that she sought and obtained a restraint order. The applicant must have known that the gesture, accompanied by a smirk, would be likely to cause the complainant fear and apprehension. It appears that the submission put on the motion to review was put to the learned magistrate, for the following passage is taken from her reasons for judgment at 11:
"It was suggested by counsel for the defendant in cross-examination and then in submissions that perhaps this gesture could have been interpreted as one of affection. Given the background between the parties, given the defendant's knowledge that [the complainant] wanted nothing to do with him which can be inferred from her taking out of the [sic] restraint order, given that the defendant had already in October been warned about possible breaches of the restraint order, the defendant had to have known that his actions may have caused apprehension in [the complainant] and were clearly not going to be treated by her as a sign of affection."
No other inference is open on the evidence.
Ground 3
Ground 3 provides:
"3 In the alternative, the Magistrate erred in exercising her discretion in preferring the evidence of the complainant and her boyfriend such that a miscarriage of justice occurred, that is, a finding of guilt on the chain of events leading to complaints 2518/03 and 2519/03 when there was insufficient and inclusive evidence to make out the charges."
This generalised complaint is difficult to understand. In his submissions, the applicant said with respect to the learned magistrate, "she made decisions that ought not to have been made"; "the sum total of her decision is based on what she heard". The applicant then submitted that the learned magistrate misinterpreted the evidence and misunderstood the evidence. Except in one respect, it is perfectly clear that the learned magistrate neither misinterpreted nor misunderstood the evidence.
With respect to the events that occurred shortly before the applicant's arrest on 23 January 2003, the learned magistrate said at 6 of her reasons, that the defendant was "sitting looking into a doorway which Constable Peters found out was the entrance to where [the complainant] then worked". The evidence actually was that the applicant was sitting outside that doorway, but with his back to the wall next to that doorway, not looking in it. The mistake arose out of this passage taken from Constable Peters' evidence: He was asked where the applicant was and replied:
"He was to the ¾ looking at the building, on the right hand side of the doorway, and I believe it may be the Arts Centre there."
Constable Ayres said that the applicant was sitting with his back to the wall and the complainant's car was directly in front of him. It is clear that Constable Peters interrupted his answer to explain to which doorway he was referring by describing it with reference to a person looking at the building. The answer could be easily misconstrued to read that it was the applicant who was looking at the building. No doubt that was how the learned magistrate fell into error. This error was conceded by counsel for the respondent, but of course, it makes no difference to the end result, for the gravamen of the evidence was that the applicant was again outside the place where the complainant worked, being the same place from which the police moved him the previous October.
Ground 4
It is unnecessary to set out ground 4. It was a complaint about the learned magistrate convicting the applicant on both complaints. She did not do this, and the applicant conceded this and the ground was abandoned.
For the foregoing reasons, the motion to review is dismissed.
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