JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2002
DATE OF JUDGMENT:	9 September 2002
CASE MAY BE CITED AS:	Berlyn v Brouskos
MEDIUM NEUTRAL CITATION:	[2002] VSC 377

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Criminal Law – stalking – course of conduct – whether conduct must be protracted or occur on more than one separate occasion – Crimes Act 1958, s. 21A.

Evidence – inference – inference drawn against accused – reasonable alternative hypothesis consistent with innocence – whether error of law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.L. Lovitt QC	Andropoulos & Tabbaa
For the Defendant	Mr D.A. Trapnell	Victorian Government Solicitor

HIS HONOUR:

This is an appeal pursuant to s. 92 of the Magistrates’ Court Act 1989 from a final order of the Magistrates’ Court at Broadmeadows made on 4 February 2002.

The appeal arises out of events which occurred early in 2001 in respect of which the plaintiff was charged on summons with stalking contrary to s. 21A of the Crimes Act 1958, wilful and obscene exposure contrary to s. 7(1)(c) of the Vagrancy Act 1966, behaving in an indecent manner contrary to s. 17(1)(d) of the Summary Offences Act 1966, using cannabis contrary to s. 75 of the Drugs, Poisons and Controlled Substances Act 1981, and being found in the precincts of a building without lawful excuse contrary to s. 7(1)(i) of the Vagrancy Act 1966.

The Magistrate held that he was satisfied that there was sufficient evidence to prove the stalking charge and the charge of behaving in an indecent manner but insufficient evidence to prove the wilful and indecent exposure charge. In his Worship’s view there was no evidence that the plaintiff knew that he was being observed on the occasion in question. The charge of smoking cannabis was admitted. The other charge was withdrawn. The Magistrate adjourned the charges of stalking, behaving in an indecent manner and using cannabis until 6 February 2003 without conviction upon an undertaking on the part of the plaintiff to be of good behaviour during the period of adjournment. This appeal is brought in respect of the stalking charge, because the plaintiff is concerned about the effect which the Magistrate’s finding of stalking may have upon the plaintiff’s career in future.

The facts

At the time of the offences alleged the plaintiff was a young man of 19 years of age who had been working as a waiter in a city hotel, although with aspirations of returning to university to study, and had been living with other young people in a house in Brunswick for a period of some two months. On the night of 27 April 2001, he was emotionally upset due to a strained relationship with his family, and because he had recently broken up with his girlfriend, and perhaps too because he had recently had wisdom teeth extracted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berlyn v Brouskos

Details

AGLC: Berlyn v Brouskos [2002] VSC 377
Case: [2002] VSC 377
Decision Date: 9 September 2002

CaseChat Overview and Summary

The case of Berlyn v Brouskos before the Victorian Court of Appeal involved an appeal by the respondent, Brouskos, against a conviction for stalking. The respondent was found guilty under section 21A of the Crimes Act 1958, which pertains to stalking and requires the prosecution to prove a course of conduct that causes a person to fear for their safety or the safety of another. The crux of the appeal hinged on the interpretation of what constitutes a "course of conduct" in the context of stalking, specifically whether such conduct must be protracted or occur on more than one separate occasion.

The legal issues that the court had to resolve included the interpretation of "course of conduct" as used in the statute, and whether such conduct necessarily involves a series of separate events or can be considered as a single, continuous event. The court also needed to determine if the evidence provided was sufficient to support the inference that the respondent's conduct amounted to stalking, particularly in light of the requirement that there be no reasonable alternative hypothesis consistent with the respondent's innocence.

The Court of Appeal concluded that a "course of conduct" for the purposes of stalking under section 21A of the Crimes Act 1958 does not necessarily require the conduct to be protracted or to occur on more than one separate occasion. The court held that the conduct could be considered as a single, continuous course if it meets the criteria of causing fear for safety. Furthermore, the court found that the inference drawn against the respondent was not in error, as there was no reasonable alternative hypothesis consistent with the respondent's innocence. The appeal was therefore dismissed.

No additional orders were made beyond the dismissal of the appeal. The court's decision clarified the interpretation of "course of conduct" in the context of stalking under the relevant statute, providing guidance for future cases involving similar charges.

Orders