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

1. 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

2. 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.

3. 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.

4. 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

5. 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

6. 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

7. I note the appellant is self-represented in this matter, and I have given careful attention to the material before me.

8. 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.

9. 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.

10. 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.

11. 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]”.

12. The magistrate’s decision in this matter depended heavily on findings of credibility at trial. I am loath to interfere with these findings.

13. 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

14. I dismiss the appeal.