BOLLMEYER v Police - [2010] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BOLLMEYER v POLICE
[2010] SASC 200
Judgment of The Honourable Justice David
30 June 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
Appeal against conviction - appellant charged with one count of stalking, contrary to s 19AA(2) of the Criminal Law Consolidation Act 1935 (SA) - trial held in Adelaide Magistrates Court - magistrate found appellant guilty as charged - appeal on basis that appellant is innocent - whether magistrate erred in finding the appellant guilty.
Held: appeal dismissed - no error demonstrated on part of magistrate.
Criminal Law Consolidation Act 1935 (SA) s 19AA(2), referred to.

BOLLMEYER v POLICE
[2010] SASC 200
DAVID J.
Introduction

This is an appeal against conviction. The appellant was originally charged on complaint in the Adelaide Magistrates Court on 29 October 2008 with one count of stalking, contrary to s 19AA(2) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The charge was relaid on information on 29 September 2009. The trial commenced on 2 October 2009 and was completed on 2 December 2009. The magistrate convicted the appellant on 22 December 2009 and published reasons.
Evidence at trial
The prosecution case was that the appellant communicated with the complainant, via phone calls, SMS messages and three attendances at the complainant’s house, culminating in him being arrested by police near the house on 9 June 2008. The prosecution alleged that contact was made in such a way as to arouse fear and apprehension in the complainant.
The prosecution called evidence from the complainant and his estranged wife. The prosecution also called evidence from the two arresting police officers, and tendered telephone records from Telstra and Optus.
The appellant gave evidence at trial, essentially denying the charge, and denying the making of any telephone calls or SMS messages to the complainant.
The magistrate’s decision
On 22 December 2009, the magistrate convicted the appellant and sentenced him to eight months imprisonment, which was suspended upon him entering into a bond in the sum of $500 to be of good behaviour for a period of two years.
Grounds of appeal
The appellant filed a notice of appeal on 20 March 2010 and lists one ground of appeal, namely, “I am blatantly innocent and can now prove it all.”
Discussion
I note the appellant is self-represented in this matter, and I have given careful attention to the material before me.
I have examined carefully the evidence given at the trial. The case rested heavily on the evidence of the complainant and his wife. They gave evidence of three occasions when the appellant attended their house, and of occasions when he called or sent SMS messages to the complainant.
At the trial, telephone records were tendered as evidence which indicated that during the period 1 October 2006 to 31 December 2006, the appellant had contacted the complainant by calling him on the telephone on 13 occasions and by sending SMS messages on 59 occasions. These records corroborated the evidence of the complainant and his wife, which was in direct conflict with that of the appellant.
The magistrate was satisfied that the complainant and his wife were telling the truth, and that the appellant was not; no doubt assisted by the corroborating evidence of the telephone records, and the fact that on one occasion the appellant was found in a street near the complainant’s house soon after the police were alerted of his attendance.
The magistrate was satisfied beyond reasonable doubt that the appellant’s actions amounted to stalking as defined in s 19AA of the Act, and that he “certainly aroused serious apprehension and fear in both [the complainant and his wife]”.
The magistrate’s decision in this matter depended heavily on findings of credibility at trial. I am loath to interfere with these findings.
The appellant produced evidence to me relating to the treatment he has endured in relation to this matter; however this provides no basis for suggesting that any error has been made by the magistrate.
Conclusion
I dismiss the appeal.

Details

AGLC: BOLLMEYER v Police [2010] SASC 200
Case: [2010] SASC 200
Decision Date: 30 June 2010

CaseChat Overview and Summary

The appellant, Bollmeyer, appeals against his conviction for stalking, a charge brought under s 19AA(2) of the Criminal Law Consolidation Act 1935 (SA). The conviction was handed down by a magistrate in the Adelaide Magistrates Court, who found the appellant guilty based on evidence that he had made numerous phone calls and sent SMS messages to the complainant, culminating in three physical visits to the complainant’s home, causing the complainant and his wife to feel fear and apprehension. The magistrate sentenced the appellant to eight months imprisonment, suspended on the condition of good behaviour and a bond of $500 for two years.

The primary legal issue before the court was whether the magistrate erred in finding the appellant guilty. The appellant argued that he was innocent and could now prove it, but the court had to determine if there was any basis in the evidence or law to suggest that the magistrate had made an error. The evidence included testimonies from the complainant and his wife, telephone records from Telstra and Optus, and evidence from the police officers who arrested the appellant. The appellant’s defence was essentially a denial of the charges, which was in direct conflict with the testimonies of the complainant and his wife, as well as the telephone records.

The court found that the magistrate had correctly assessed the credibility of the witnesses and the evidence presented. The testimonies of the complainant and his wife were corroborated by the telephone records, and the magistrate was satisfied that the appellant’s actions amounted to stalking as defined in the Act. The court concluded that the appellant’s argument of being blatantly innocent did not provide any basis for suggesting an error by the magistrate. Therefore, the appeal was dismissed, affirming the magistrate’s decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This is an appeal against conviction. The appellant was originally charged on complaint in the Adelaide Magistrates Court on 29 October 2008 with one count of stalking, contrary to s 19AA(2) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The charge was relaid on information on 29 September 2009. The trial commenced on 2 October 2009 and was completed on 2 December 2009. The magistrate convicted the appellant on 22 December 2009 and published reasons.Evidence at trial The prosecution case was that the appellant communicated with the complainant, via phone calls, SMS messages and three attendances at the complainant’s house, culminating in him being arrested by police near the house on 9 June 2008. The prosecution alleged that contact was made in such a way as to arouse fear and apprehension in the complainant. The prosecution called evidence from the complainant and his estranged wife. The prosecution also called evidence from the two arresting police officers, and tendered telephone records from Telstra and Optus. The appellant gave evidence at trial, essentially denying the charge, and denying the making of any telephone calls or SMS messages to the complainant.The magistrate’s decision On 22 December 2009, the magistrate convicted the appellant and sentenced him to eight months imprisonment, which was suspended upon him entering into a bond in the sum of $500 to be of good behaviour for a period of two years.Grounds of appeal The appellant filed a notice of appeal on 20 March 2010 and lists one ground of appeal, namely, “I am blatantly innocent and can now prove it all.”Discussion I note the appellant is self-represented in this matter, and I have given careful attention to the material before me. I have examined carefully the evidence given at the trial. The case rested heavily on the evidence of the complainant and his wife. They gave evidence of three occasions when the appellant attended their house, and of occasions when he called or sent SMS messages to the complainant. At the trial, telephone records were tendered as evidence which indicated that during the period 1 October 2006 to 31 December 2006, the appellant had contacted the complainant by calling him on the telephone on 13 occasions and by sending SMS messages on 59 occasions. These records corroborated the evidence of the complainant and his wife, which was in direct conflict with that of the appellant. The magistrate was satisfied that the complainant and his wife were telling the truth, and that the appellant was not; no doubt assisted by the corroborating evidence of the telephone records, and the fact that on one occasion the appellant was found in a street near the complainant’s house soon after the police were alerted of his attendance. The magistrate was satisfied beyond reasonable doubt that the appellant’s actions amounted to stalking as defined in s 19AA of the Act, and that he “certainly aroused serious apprehension and fear in both [the complainant and his wife]”.

Decision

Reasons for decision

DAVID J

The appellant produced evidence to me relating to the treatment he has endured in relation to this matter; however this provides no basis for suggesting that any error has been made by the magistrate.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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