Conomy v Maden
[2015] WASC 179
•29 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CONOMY -v- MADEN [2015] WASC 179
CORAM: MARTINO J
HEARD: 12 MAY 2015
DELIVERED : 29 MAY 2015
FILE NO/S: SJA 1065 of 2014
BETWEEN: JERROD JAMES CONOMY
Appellant
AND
CHRISTOPHER MADEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M WHEELER
File No :MH 3334 of 2013
Catchwords:
Criminal law - Appeal against conviction and sentence - Stalking
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 40
Criminal Code (WA), s 338D, s 378E
Evidence Act 1906 (WA), s 83
Restraining Orders Act 1997 (WA), s 63C
Result:
Leave to amend grounds of appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D E Leigh
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Cases referred to in judgment:
CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172
De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006)31 WAR 291
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
MARTINO J: By a prosecution notice lodged in the Magistrates Court on 15 August 2013, the appellant, Mr Conomy, was charged that in the period 23 December 2012 to 12 August 2013 he pursued the complainant in a manner that could reasonably have been expected to intimidate and that did, in fact, intimidate her, contrary to s 338E(2) of the Criminal Code 1913 (WA) (Code).
The prosecution went to trial on 23, 24 and 25 June and 4 and 5 August 2014. The presiding Magistrate reserved his decision which he delivered on 7 August 2014. His Honour found Mr Conomy guilty of the charge and fined Mr Conomy $3,000.
This appeal
On 2 September 2014, Mr Conomy filed an appeal notice applying for leave to appeal against both conviction and sentence with 12 grounds of appeal which he described as draft grounds of appeal, 'due to only receiving the transcript on the 29th of August'.
On 27 October 2014, Mr Conomy filed a document which he described as his 'updated grounds of appeal. Revision 2'.
This document had 18 grounds of appeal numbered 1 to 12 and 14 to 19. There was no ground 13. Grounds 5, 7, 10 and 16 were described as compound grounds and contained more than one ground of appeal. Mr Conomy filed further amended grounds of appeal on 21 January 2015 and 2 February 2015.
On 3 February 2015, Corboy J presided over a directions hearing. His Honour made the following orders:
1.Respondent is to file and serve submissions on the Appellant's applications for leave to amend the grounds of appeal and leave to appeal and in the appeal on or before 26 February 2015.
2.Appellant is to file and serve written submissions on or before Thursday 19 March 2015.
3.Within 7 days, the Appellant is to provide a letter to the Respondent and to the Court, attaching copies of any document which the Appellant says should have been admitted in the trial, with an explanation of why each of the documents was relevant and should have been admitted in the trial.
4.The matter is listed for hearing of the application for leave to appeal, the application for leave to amend the appeal notice and the appeal, at 10.00 am on Friday 27 March 2015.
On 6 February 2015, Mr Conomy filed a 10‑page document headed 'Appellant's Submissions for the inclusion of additional evidence'. By this document, the appellant sought that the Supreme Court perform a criminal and civil background check to locate records of matters in which the complainant had been a party, that evidence of a phone call from the complainant, an email message from the complainant's Twitter account, a letter that Mr Conomy had sent to the complainant's father and a screen shot of Mr Conomy's computer evidence, a police running sheet and prior written documents and statements made by the complainant to police be included as additional evidence in the appeal.
On 20 March 2015, Corboy J presided over a second directions hearing. He listed the appeal for a further directions hearing on 27 March 2015 and directed:
The appellant file, if desired, any written submissions (1) in reply to the respondent's submissions as to why he should not be permitted to present any further evidence in the appeal, and (2) in response to the respondent's supplementary submissions, by 10.00 am Thursday 26 March 2015.
On 23 March 2015, Mr Conomy filed a document he described as his 'amended grounds of appeal. Revision 5'. This document contains grounds of appeal 1, 2, 5, 9, 12, 16, 18 and 19 of which grounds 1, 2, 5 and 9 are described as composite grounds and contain more than one ground of appeal.
On 27 March 2015, Corboy J presided over a third directions hearing and made the following directions:
1.The appellant is to file and serve written submissions on or before 17 April 2015.
2. The respondent is to file and serve further written submissions on or before 1 May 2015.
3. The application for leave to appeal and appeal are listed for hearing on 12 May 2015 at l0.00 am.
At that directions hearing, Corboy J informed Mr Conomy that he would cause inquiries to be made about the records held by the Magistrates Court on other matters involving the complainant.
On 17 April 2015, Mr Conomy filed his 'outline of submissions'. The document is 87 pages long.
On 22 April 2015, a Registrar of the Supreme Court wrote to the Magistrates Court requesting that the Magistrates Court forward to the Supreme Court any files in relation to proceedings commenced by the complainant, other than the application against Mr Conomy.
The Magistrates Court sent documents to the Supreme Court in response to that request. Corboy J made these documents available for inspection by Mr Conomy and the respondent to this appeal.
On 7 May 2015, the solicitor for the respondent and Mr Conomy each wrote by email to Corboy J's Associate, stating that they had inspected the documents and they held no relevance to this appeal.
Although Corboy J's directions made on 27 March 2015 do not refer to leave to amend the appeal notice, which was referred to in his Honour's directions made on 3 February 2015, at no time prior to the hearing of the appeal had Mr Conomy been given leave to amend his grounds of appeal and so the application to amend the grounds of appeal, along with the application for leave to adduce additional evidence, were both before me on the hearing of the application for leave to appeal and the hearing of the appeal on 12 May 2015.
The trial
The complainant was the first witness called at the trial. She identified numerous electronic communications to her from Mr Conomy which were tendered into evidence. In her evidence-in-chief, the complainant gave evidence that, on 12 February 2013, she went to the police station in Mandurah and applied for a Violence Restraining Order (VRO) on the same day. The application was heard the next day and was granted and was served that night as far as she was aware.[1] The complainant's evidence‑in‑chief was completed in the afternoon of 23 June 2014.
[1] ts 70, 71, 75 (23 June 2014).
Mr Conomy commenced cross‑examination of her that afternoon. He continued that cross‑examination on 24 June 2014. In the course of his cross‑examination of the complainant, Mr Conomy sought to tender the transcript of the hearing of the application for the VRO but excluding the last page of the transcript which contained the order. The learned Magistrate refused to allow Mr Conomy to tender part only of the transcript and the whole of the transcript was tendered by Mr Conomy and accepted as Exhibit 86.[2] After a period of cross‑examination of the complainant on 24 June 2014, Mr Conomy requested an adjournment to enable him to 'properly prepare the case'.[3]
[2] ts 167 - 169 (24 June 2014).
[3] ts 203 (24 June 2014).
The learned Magistrate granted Mr Conomy's application. At 11.58 am, the trial was adjourned to 25 June 2014.
On 25 June 2014, Mr Conomy informed the learned Magistrate that his mother had been 'admitted into emergency hospital at Rockingham ICU'[4] and that he needed to check the exhibits that had been tendered to ascertain whether he needed to add documents.[5] The learned Magistrate adjourned the trial to 4 August 2014.
[4] ts 210 (25 June 2014).
[5] ts 217 (25 June 2014).
On 4 August 2014, the complainant's legal practitioner applied to set aside a witness summons that the Court had issued to her on the application of Mr Conomy.[6] His Honour set aside the witness summons.[7]
[6] ts 2 (4 August 2014).
[7] ts 5 - 6 (4 August 2014).
Mr Conomy then applied for a stay of the prosecution pending two appeals.[8] His Honour dismissed the application.[9] Mr Conomy expressed his disappointment at that decision by throwing papers around the court and swearing at the learned Magistrate, for which he promptly apologised.[10]
[8] ts 5 - 6 (4 August 2014).
[9] ts 11 (4 August 2014).
[10] ts 11 (4 August 2014).
The complainant was then recalled and the cross‑examination continued.
The prosecution then called the complainant's father. He gave evidence of a letter he received from Mr Conomy, Exhibit 104, and of an occasion when Mr Conomy came to his home wishing to see the complainant, who did not wish to see him. Mr Conomy cross‑examined the complainant's father.[11] He did not put to the witness that he had not sent Exhibit 104 or that the document that had been tendered was different from the letter that Mr Conomy had written.
[11] ts 55 - 58 (4 August 2014).
The prosecution called Senior Constable Andrew Whittall who produced and played the visually recorded interview of the accused. The next prosecution witness was the complainant's brother, who gave evidence of two occasions on which he asked Mr Conomy to stop contacting the complainant, the first request was by telephone and the second in person at Mr Conomy's place of work.
After the prosecution has closed its case, Mr Conomy gave evidence in his defence. During the visually recorded interview by police officers, Mr Conomy admitted that he had been served with the VRO obtained by the complainant by Mr Conomy collecting the VRO from the police station sometime in February.[12] Mr Conomy did not resile from that admission in his evidence before the learned Magistrate.
[12] Exhibit 105A at 16:11.
Mr Conomy then called Geraldine Tomekova as a witness. Ms Tomekova gave evidence that she was one of the organiser of 'the Meetup event'[13] and that Mr Conomy had purchased a ticket to the event after Ms Tomekova had told him that the complainant had pulled out of the event.[14]
[13] ts 129 (5 August 2014).
[14] ts 135 (5 August 2014).
The decision
The learned Magistrate gave detailed reasons for decision on 7 August 2014.[15] His Honour correctly set out the burden and standard of proof and the elements of the charge. His Honour referred to the interim VRO obtained by the complainant and said that the fact that the VRO was obtained was not evidence that stalking had occurred. His Honour also said that the existence of the interim VRO does have relevance to the facts of the case by reason of the provisions of s 338D(1)(e) of the Code. His Honour referred to emails sent by Mr Conomy to the complainant prior to the period referred to in the prosecution notice noting that this was not within the period charged but, in his view, had set the scene as to what was coming. His Honour then referred to emails, text messages and correspondence sent by Mr Conomy to the complainant within the period the subject of the charge. His Honour accepted the complainant's evidence,[16] although there had been a few minor inaccuracies in her evidence on the application for a VRO.[17] He accepted that Mr Conomy did send the emails and text messages tendered into evidence and found that a number of those were in contravention of the VRO.
[15] ts 157 - 175 (7 August 2014).
[16] ts 175 (7 August 2014).
[17] ts 171 (7 August 2014).
His Honour found that Mr Conomy did pursue the complainant, holding the case to be 'one of the clearest cases of pursuing a person imaginable'.[18] His Honour accepted the complainant's evidence and found that she was intimidated.[19] His Honour also found that the pursuit of the complainant by Mr Conomy could reasonably be expected to intimidate the complainant.[20] His Honour found Mr Conomy guilty of the charge. His Honour imposed a fine of $3,000 for the offence.[21]
[18] ts 169 (7 August 2014).
[19] ts 175 (7 August 2014).
[20] ts 175 (7 August 2014).
[21] ts 180 (7 August 2014).
In the course of the hearing of the appeal on 12 May 2015, Mr Conomy handed up compact discs containing copies of the audio recording of the trial before the Magistrate which he had obtained from the Magistrates Court.
One of the pieces of evidence tendered by the prosecution was the visually recorded interview of Mr Conomy by police officers. That interview was on two discs which were tendered in evidence as Exhibits 105A and 105B.
In the course of the hearing of the appeal before me, Mr Conomy submitted that the learned Magistrate had placed no reliance upon that visually recorded interview. He based that submission on the following passage from his Honour's reasons for decision delivered on 7 August 2014.
(indistinct) briefed of the accused's evidence because, in a nutshell - and, of course, I have also had the lengthy detailed, carefully crafted record of interview- I don't want that. The accused maintained at no stage did the complainant ask him to stop contacting her or express any concern about his contacting her the way he did. He also said she gave him mixed messages, and I would agree that for a period, principally before Christmas 2012, she did. He specifically denied sending or receiving the text message contained in exhibit 102.[22]
[22] ts 170 (7 August 2014).
I informed Mr Conomy that I did not read that passage the way he did. Counsel for the State submitted to me that the passage did not show that the Magistrate had decided to place no reliance upon the visual record of interview and that the words 'I don't want that' were not part of his reasons for decision but were an aside in response to a distraction. I arranged for the part of the audio recording of the hearing on 7 August 2014 to be played in open court. It was clear that the submission of counsel for the State was correct and that the passage does not show that the learned Magistrate decided to place no reliance upon the visually recorded interview. Mr Conomy informed me that, having heard the recording, he accepted that the learned Magistrate was not saying that he placed no reliance upon the visually recorded interview.
The requirement for leave to appeal
Mr Conomy requires leave for each of his grounds of appeal.[23] Leave to appeal on a ground cannot be granted unless the Supreme Court is satisfied that the ground has a reasonable prospect of succeeding.[24] Unless the Supreme Court gives leave to appeal on at least one ground of appeal, the appeal is to be taken to have been dismissed.[25]
[23] Criminal Appeals Act 2004 (WA) s 9(1).
[24] Criminal Appeals Act 2004 (WA) s 9(2).
[25] Criminal Appeals Act 2004 (WA) s 9(3).
Appeals based on error of fact
When considering an appellate ground based on errors of fact, the appeal court must consider the evidence before the trial court and the reasons given by that court. The appeal court must recognise the limitations on its ability to review the evidence, including the disadvantage it has when compared to the trial court caused by it not being able to see the witnesses giving their evidence. Nevertheless, if after making proper allowance for the advantages of the trial court to assess the evidence, the appeal court concludes that an error has been made by the trial court, it has an obligation to correct that error.[26]
[26] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
The amendment of grounds of appeal and admission of further evidence
For the purposes of dealing with an appeal the Supreme Court has power to order the production of any record or thing, whether or not an exhibit, that is, or may be, relevant to the appeal[27] to admit any other evidence[28] and to amend or add a ground of appeal.[29]
[27] Criminal Appeals Act 2004 (WA) s 40(1)(a).
[28] Criminal Appeals Act 2004 (WA) s 40(1)(e).
[29] Criminal Appeals Act 2004 (WA) s 40(1)(k).
There is nothing in the legislation to confine these powers and so they are confined only by the subject matter of the legislation and the requirement that they be exercised judicially and consistent within judicial process.[30]
[30] De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006)31 WAR 291 [150] (Pullin JA), citing CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172.
Often the Court will not permit a party to amend a ground of appeal unless satisfied that the ground has some merit. In this case, the parties made submissions addressed to the fifth version of the grounds of appeal, not to the first version. In my view, the appropriate course is to permit the amendment and addition of the grounds of appeal and to consider their merit when considering whether to grant leave to appeal.
The first area of additional evidence that Mr Conomy seeks relates to the Supreme Court making enquiry about other matters in which the complainant was a party. As I have already noted, the Supreme Court did make enquiry of the Magistrates Court by the letter of a Registrar dated 22 April 2015. Both parties agree that the documents produced have no relevance to this appeal.
The next piece of evidence that Mr Conomy seeks to adduce is evidence of a phone call from the complainant to him. The evidence that he wishes to adduce is Annexure A3 to his submissions for inclusion of additional evidence. They are two photographs of his phone showing that, on 26 August 2013, there was incoming call to that phone from the complainant. Mr Conomy gave evidence of having received this call.[31] When cross-examining the complainant, Mr Conomy showed to her the photograph from his phone showing that she called him on 26 August 2013. She denied having telephoned Mr Conomy.[32] The learned Magistrate was, therefore, aware of the existence of a photograph of Mr Conomy's phone showing that the complainant had called him. The call was said to have been made on 26 August 2013, outside of the period in which the offence was alleged to have been committed. The Magistrate had evidence of the complainant that she did not call Mr Conomy on that date and evidence from Mr Conomy that she did. The reception of photographs of his phone into evidence on the hearing of the prosecution or on the hearing of this appeal would take the issue no further. There is no reason to permit the additional evidence to be adduced and the application is dismissed.
[31] ts 105 - 106 (5 August 2014).
[32] ts 26 (4 August 2014).
The next item of evidence that Mr Conomy seeks to adduce is evidence of an email message which Mr Conomy contends is from the complainant's Twitter account. The email is Annexure A4 to his submissions for the inclusion of additional evidence dated 6 February 2015. It is in a foreign language. The complainant denied knowledge of the email.[33] The issue was canvassed before the learned Magistrate. He was aware of the existence of an email in a foreign language and that the complainant denied sending the email. The reception of a copy of the email into evidence would take the matter no further. There is no reason to permit the additional evidence to be adduced. The application is dismissed.
[33] ts 17 (4 August 2014).
The fourth item of evidence that Mr Conomy wishes to adduce is a letter that he says he sent to the complainant's father and a screenshot of his computer he contends proves that it is the genuine version. As I have already noted, the complainant's father gave evidence that he received by post a letter from Mr Conomy. Mr Conomy did not suggest in cross-examination of the complainant's father that the letter was not sent or that the letter tendered in evidence was not accurate. There is no reason why he should now be permitted to do so. In any event, the accuracy or otherwise of Exhibit 104 has no bearing in this appeal. The application to adduce the evidence is dismissed.
The next piece of evidence that Mr Conomy seeks to adduce is a police running sheet. Mr Conomy submits that it is relevant because it shows that a Mandurah detective did not regard Mr Conomy's conduct as intimidating and that this is relevant to the issue of the Magistrate's bias. Mr Conomy wished to tender the police running sheet at trial. The learned Magistrate informed Mr Conomy that an opinion by police officers was not relevant or admissible.[34] The learned Magistrate was correct and his decision does not suggest or indicate bias. Whatever the opinion of a detective or detectives may have been as to whether or not Mr Conomy was being intimidating, that opinion was irrelevant to any issue before the Magistrate and is irrelevant to this appeal. The application to adduce the evidence is dismissed.
[34] ts 96 (5 August 2014).
The final area of the evidence that Mr Conomy seeks to adduce is evidence of prior written documents and statements made by the complainant to police which he contends contradict her evidence. When cross-examining the complainant, Mr Conomy cross-examined her as to her communications to police and her statements.[35] He did not tender the statements in evidence. In his submissions for inclusion of additional evidence, he says that this was through oversight because he became distracted. In his closing submissions to the Magistrate, Mr Conomy referred to the complainant's statements to police which he said were inconsistent with her evidence and he quoted from them.[36] Mr Conomy, therefore, was not in any way disadvantaged by failing to tender the statements. He was able to make the point that the statements reflected upon the complainant's credibility. The learned Magistrate did not accept that submission. Nothing would have been added to his case by tendering the statements in the evidence and nothing would be added to this appeal. The application to adduce the additional evidence is dismissed.
[35] ts 39 - 43 (4 August 2014).
[36] ts 153 (5 August 2014).
The grounds of appeal
By his ground of appeal 1A, Mr Conomy contends that the learned Magistrate erred in fact and law by relying upon emails and text messages when they were not verified in accordance with s 83 of the Evidence Act 1906 (WA). Section 83 of the Evidence Act 1906 (WA) was repealed by the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA) on 25 November 2014, prior to the commencement of the hearing of the prosecution before the learned Magistrate and, therefore, had no application to the prosecution. It has no bearing on this appeal. In any event, s 83 was permissive and not mandatory. Further, it is clear from s 82 that it applied only to civil proceedings. The complainant gave evidence that she received the communications that were tendered into evidence. His Honour accepted the complainant as a truthful witness. I have found nothing that leads me to conclude that his Honour's finding that the complainant was a truthful witness was an error. To the contrary, it is my clear conclusion from the whole of the evidence, including the evidence that she gave on 23 and 24 June 2014 and 4 August 2014, that she was a truthful witness.
His Honour was entitled to accept her evidence that the communications were received by her. Having regard to the whole of the complainant's evidence, the evidence of what Mr Conomy said in his interview by police officers and his evidence of his communications with the complainant at trial his Honour was entitled to conclude that Mr Conomy did send the communications. This ground of appeal has no reasonable prospect of succeeding.
By ground 1B, Mr Conomy contends that the learned Magistrate 'erred in law by treating communication before and after the alleged VRO as one continuous period of communication when, in fact, there was a period of approximately six months separating the communication before and after the alleged VRO'. The learned Magistrate made no such error. He correctly summarised the evidence. He referred to Mr Conomy's email of 12 February 2013,[37] to the VRO being obtained on 13 February 2013, to communications to the complainant from Mr Conomy in Exhibits 77 to 85.[38] These communications were sent in August 2013, as his Honour noted. His Honour referred to the period in which Mr Conomy did not contact the complainant as a period of abstinence.[39] The learned Magistrate was correct and accurate in his assessment of the evidence. This ground has no reasonable prospect of succeeding.
[37] ts 164 (7 August 2014).
[38] ts 165 (7 August 2014).
[39] ts 175 (7 August 2014).
By ground 1C, Mr Conomy contends that the learned Magistrate erred in law by relying upon Exhibit 72 as being a letter from Mr Conomy to the complainant when that letter was unsigned, undated and unverified. In his video record of interview, Mr Conomy said, at 16.25, that he sent such a letter. It was then read to him at 16.26. The learned Magistrate was entitled to conclude that Mr Conomy had sent the letter. This ground has no reasonable prospect of succeeding.
By ground 2A, Mr Conomy contends that the learned Magistrate erred in law by allowing the email evidence from the Meetup website to the complainant to be accepted into evidence 'despite an objection by the accused on the grounds that no‑one from the Meetup company was appearing to authenticate the evidence.' It was not necessary for the prosecution to adduce evidence from someone from the Meetup company. The learned Magistrate was entitled to conclude from all the evidence that Mr Conomy had sent the emails. This ground has no reasonable prospect of succeeding.
By ground 2B, Mr Conomy contends that the learned Magistrate 'erred in fact and law by declaring that the alleged messages received by the complainant through the Meetup website (Exhibits 77 ‑ 85) were sent directly by the accused when, in fact, they were sent by the Meetup website and, therefore, are classed as indirect communication'. This does not constitute an error of fact nor of law. The learned Magistrate was correct to conclude that Mr Conomy sent messages to the complainant through the Meetup website. The ground has no reasonable prospect of succeeding.
In ground 5A, Mr Conomy contends that the Magistrate erred in law by requiring Mr Conomy to tender the whole of the transcript of the hearing on 13 February 2013 at which the complainant obtained an interim VRO. Mr Conomy contends that the learned Magistrate 'ended up using the evidence to find that an interim VRO was made as well as the conditions which led to the Magistrate finding that the alleged Meetup contact was a breach of the order'. The transcript was not the only evidence of the VRO. The complainant gave evidence‑in‑chief that she had obtained that VRO.[40] Mr Conomy admitted in his visually recorded interview that the VRO had been served on him. This ground has no reasonable prospect of succeeding.
[40] ts 70, 71, 75 (23 June 2014).
By ground 5B, Mr Conomy contends that the learned Magistrate erred by having regards to the interim VRO when it had been obtained on an ex parte basis. The learned Magistrate correctly noted that the interim VRO was obtained on an ex parte basis without the evidence being tested and so was not evidence that stalking had occurred. However, the existence of the VRO was relevant by reason of the definition of pursue in s 338D of the Criminal Code.[41] The learned Magistrate was entirely correct. This ground of appeal has no reasonable prospect of succeeding.
[41] ts 158 (7 August 2014).
In ground 5C, Mr Conomy contends that the learned Magistrate erred in law 'by allowing the alleged making of a restraining order to form part of his reasons'. Mr Conomy relies upon s 63C(2) of the Restraining Orders Act 1997 (WA) which provides that:
The making or varying of a restraining order does not, except as provided by this Act, affect the civil or criminal liability of a person bound by the order in respect of the same conduct as that out of which the application for the order arose.
The fact that an interim VRO had been granted did not affect Mr Conomy's liability for the conduct of pursuing the complainant out of which the application for the order arose. There was no error by the learned Magistrate. This ground has no reasonable prospect of succeeding.
In ground 5D, Mr Conomy contends that the learned Magistrate erred in fact and law by finding that there was a restraining order in force and that it had been served on Mr Conomy. This ground of appeal is baseless.
As I have already noted, there was evidence before the learned Magistrate that an interim restraining order had been obtained and Mr Conomy admitted that it had been served upon him. The ground has no reasonable prospect of succeeding.
By ground 9A, Mr Conomy contends that the learned Magistrate erred in his reasons for decision at page 171 of the transcript of 7 August 2014 in that he mistakenly found that Mr Conomy visited the complainant's house and left presents for her and her daughter after Mr Conomy and the complainant had broken up and that this 'serious errors of fact obviously corrupted his Honour's perception of the situation in his objective analysis in the second element of the offence and led him to believe in the witness to be a reliable one in the subjective analysis'. Mr Conomy has misconstrued the passage at page 171 of the transcript of 7 August 2014 to which he refers. In that passage, the learned Magistrate accepted that the complainant was not initially upset with gifts provided by Mr Conomy and he accepted that there were some minor inaccuracies in her evidence when she applied for a VRO. This ground has no reasonable prospect of succeeding.
Ground 9B consists of 16 assertions of error by the learned Magistrate.
The first 13 assertions are mere allegations of error without any intelligible basis for each allegation. The assertions made in par 9B(14) is that the learned Magistrate erred in refusing to admit the police running sheet into evidence because it showed that a police officer did not find Mr Conomy's conduct intimidating. As I have said earlier in these reasons, when considering Mr Conomy's application to admit the police running sheet into evidence on this appeal, the learned Magistrate's decision not to allow the running sheet into evidence was correct. The opinion of a police officer as to whether Mr Conomy's conduct was intimidating or not was irrelevant to the prosecution.
The last two allegations are that the learned Magistrate did not allow Mr Conomy properly to cross‑examine the complainant. The learned Magistrate was very patient with and tolerant of Mr Conomy. He allowed Mr Conomy to cross‑examine the complainant at length. Mr Conomy's complaints are entirely unjustified. The ground has no reasonable prospect of success.
By ground 12, Mr Conomy contends that he did not receive a fair trial for nine reasons. The first reason refers to the learned Magistrate's refusal to grant Mr Conomy's application for a stay. He contends 'it was important for the appellant's case that the VRO application was dealt with prior to show the vexatious and frivolous nature of it'. The learned Magistrate was correct to refuse the application for a stay. He allowed Mr Conomy to cross-examine the complainant as to the restraining order application. Mr Conomy was not deprived of an opportunity to present the defence case.
Many of the other reasons repeat allegations made in earlier grounds. None of them have any merit. The learned Magistrate went to great lengths to ensure that Mr Conomy received a fair trial. The ground has no reasonable prospect of success.
Ground 16 challenges the learned Magistrate's finding that the complainant was a reliable witness. As I have noted earlier in these reasons, I am satisfied that the learned Magistrate's conclusion that the complainant was a truthful witness was correct. The ground has no reasonable prospect of success.
In ground 18, Mr Conomy contends that the learned Magistrate erred by finding that Mr Conomy had admitted pursuing the complainant. Mr Conomy did admit pursuing the complainant.[42] In any event, the learned Magistrate's finding that Mr Conomy pursued the complainant was made without reference to the admission.[43] The finding was correct. The ground has no reasonable prospect of success.
[42] ts 140 (5 August 2014).
[43] ts 169 (7 August 2014).
By ground 19, Mr Conomy complains that the fine was excessive. The maximum penalty for the offence of which Mr Conomy was convicted is imprisonment for 12 months and a fine of $12,000. Mr Conomy asserts that the emails he sent were harmless. He is wrong. The learned Magistrate was correct to find that Mr Conomy's conduct could reasonably be expected to intimidate and that the complainant was intimidated. Mr Conomy had no prior record of offending. However, the number of communications to the complainant and Mr Conomy's lack of insight and remorse demonstrated a strong need for personal deterrence. The sentence was appropriate. The ground has no reasonable prospect of success.
None of Mr Conomy's grounds of appeal has a reasonable prospect of success. His application for leave to appeal is dismissed in respect of each ground. His appeal is dismissed.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CONOMY -v- MADEN [2015] WASC 179 (S)
CORAM: MARTINO J
HEARD: ON THE PAPERS
DELIVERED : 2 JUNE 2015
FILE NO/S: SJA 1065 of 2014
BETWEEN: JERROD JAMES CONOMY
Appellant
AND
CHRISTOPHER MADEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M WHEELER
File No :MH 3334 of 2013
Catchwords:
Criminal law - Appeal against conviction and sentence - Stalking - Spent conviction order
Legislation:
Sentencing Act 1995 (WA), s 45
Result:
Spent conviction order not made
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D E Leigh
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Cases referred to in judgment:
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
R v Tognini (2000) 22 WAR 291
MARTINO J: On Friday 29 May 2015, I delivered my decision dismissing Mr Conomy's appeal against conviction and sentence: Conomy v Maden [2015] WASC 179. Mr Conomy attended the hearing at which I published my reasons. He made submissions as to the costs sought by the respondent, but did not seek to make any further submissions.
At 12.22 pm that day, Mr Conomy sent an email to my Associate in which he said:
I forgot to raise something important today regarding a spent conviction application. I was only made aware of spent conviction applications after my conviction for the stalking charge hence the reason I did not apply at the time of sentencing. Given that the breach of VRO charge was heard at a later date I then successfully applied for a spent conviction. Given that the two charges were both a result of the same matter I had hoped to have that spent conviction also apply to the stalking charge. My submissions supporting the application would be as per my submissions in sentencing for the breach trial.
My career as an Instrument and Controls Engineer/Designer has already been affected and will continue to be affected by having this on my record.
I apologise for not raising this today but I was literally stunned by the decision.
Could you possibly put this application before Justice Martino.
The breach trial to which Mr Conomy referred was his conviction for breaching a restraining order. Mr Conomy had been granted a spent conviction order in that prosecution by the Magistrate who sentenced him on that matter. Mr Conomy appealed against his conviction and sentence on that matter. I dismissed his appeal: Conomy v Maden [2015] WASC 178.
On WA Day, Monday 1 June 2015, at 2.06 pm, Mr Conomy sent an email to my Associate in which he said:
I just wanted to follow up the email below sent last week. Is there any update on this request. It's a very crucial matter for me because i've been reluctant to apply for many jobs to avoid the possibility of a background check being done and revealing a very off-putting record given what the publics understanding of stalking is. It will pretty much turn off any employer who has several people to choose from and I don't feel that would be just at all. The primary court Magistrate had absolutely no doubt that I had no intention of intimidating [the complainant] and he also found no flaws in my mental health. It was one bad chapter of my life and I feel that by only having a spent conviction for the breach of VRO offence would defeat the purpose of the spent conviction since I'm currently left with the stalking conviction which literally took place days before the breach charge. I was not found of any wrong doing prior to [the complainant's] VRO application.
Once again I apologise for forgetting to raise this at the Judgement hearing.
For the following reasons I refuse to make a spent conviction order. As I am not re‑sentencing Mr Conomy, he is not required under s 14 of the Sentencing Act 1995 (WA) to be present for the delivery of my decision.
First, although Mr Conomy appealed against the sentence that the learned Magistrate imposed, he did not include in his appeal that the learned Magistrate should have made a spent conviction order.
Secondly, Mr Conomy did not raise the failure of the Magistrate to make a spent conviction order in his 87‑page outline of submissions. Nor did he submit in the hearing of the appeal that the Magistrate should have made a spent conviction or that I should do so.
Thirdly, I do not consider that a spent conviction order should be granted. Section 45(1) of the Sentencing Act provides:
45. Spent conviction order, making and effect of
(1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless ‑
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to ‑
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
In Brewer v Bayens,[44] Burchett AUJ (Wallwork and Wheeler JJ agreeing) said:
[44] Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510.
11It is clear from the terms of s 45, and the cases show that the courts have not overlooked this, that a spent conviction order made at the time of the sentencing of an offender can only be made where the Court is satisfied on three questions. First, it must consider that the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied.
…
14The courts have emphasised that a spent conviction order under s 39 of the Sentencing Act should only be made in a very special case. In the leading authority, R v Tognini (2000) 22 WAR 291, Murray J (with whom Malcolm CJ and Wallwork J agreed) said (at 296 - 297):
"Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable."
Bearing in mind the special nature of the jurisdiction to grant this relief, and the clear case the Full Court has said must be shown, it is to be expected that generally those who contend they come within the conditions laid down in s 45 will demonstrate that fact by convincing evidence. The first condition, for which there is no substitute, is "that the offender is unlikely to commit such an offence again". Proof that the applicant for an order has this merit is itself the one essential statutory substitute for the evidence of the reality of reform sustained over time on which, by s 11 of the Spent Convictions Act, that Act relies in cases other than those falling within s 45 of the Sentencing Act.
One of the requirements for making a spent conviction order is that the court must consider that the offender will not commit such an offence again. I do not consider that Mr Conomy is unlikely to commit an offence of stalking again. Although Mr Conomy has said, in his email dated 1 June 2015, that the offending occurred in one bad chapter of his life the offending occurred over a lengthy period. Although Mr Conomy did cease his contact of the complainant after a restraining order was obtained, he commenced to contact her again in August 2013. In this appeal Mr Conomy has not demonstrated any insight into the seriousness of his offending or of the importance of people being able to live their lives without being pursued in a manner that is intimidating. There is nothing in the way that Mr Conomy has conducted this appeal that gives me any confidence that he would not commit the offence of stalking again.
Further, a spent conviction can only be made in a very special case. The power should be exercised sparingly. While Mr Conomy feels he will have difficulty in obtaining employment by reason of the conviction, it appears from his email of 1 June 2015 that he has not yet applied for many jobs. In my view, if a prospective employer were to consider that Mr Conomy's conviction were to be relevant to his employment, then the prospective employer should not be denied that information.
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