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DPP v Sutcliffe

DPP v Sutcliffe

Case [2001] VSC 43 1 March 2001

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SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 6562 of 2000

IN THE MATTER OF an Appeal on a Question of Law pursuant to Section 92 Magistrates' Court Act 1989

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Michael Jay Pena)	Appellant
v
BRIAN ANDREW SUTCLIFFE	Respondent

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2001
DATE OF JUDGMENT:	1 March 2001
CASE MAY BE CITED AS:	DPP v Sutcliffe
MEDIUM NEUTRAL CITATION:	[2001] VSC 43

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Stalking – Section 21A of Crimes Act 1958 – Ingredients of offence.

Jurisdiction of Magistrates' Court in Victoria where an ingredient of the offence occurred in Canada.

Question of construction of s.21A – section having extra-territorial effect.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.D. McArdle QC	Solicitor for Public Prosecutions
For the Respondent	Mr A. Forbes-Nicholson	Wilson Potter Nicholson

HIS HONOUR:

This is an appeal pursuant to s.92 of the Magistrates' Court Act 1989 against the dismissal of a charge of stalking by a Magistrate.

Parties

The Director of Public Prosecutions ("the appellant") brings the appeal on behalf of the informant who laid the charge, Senior Constable Michael Pena.

The charge was laid against Brian Andrew Sutcliffe ("the respondent").

The charge and offence of stalking

On 27 August 1999 the informant laid a charge against the respondent and the details of the charge were –

"The defendant at Brighton did between January 1993 and August 1999 stalk one Sara Ballingall."

Prior to 1994 there was no offence of stalking known to Victorian law. It is noted that the charge alleges conduct which occurred prior to the creation of the offence.

In common parlance stalking in respect to a person is pursuing or approaching a person in a stealthy manner. Today it covers a myriad of circumstances in which a person annoys or harasses another person to the point where the victim is concerned for his or her own safety. The conduct may be physical presence or through various means of communication and can take many forms.

In 1994 the Victorian Parliament amended the law to create the offence of stalking. The new offence is found in the Crimes Act 1958 which came into operation on 23 January 1995.

Section 21A provides –

"21A. Stalking
(1)A person must not stalk another person.
Penalty:Level 5 imprisonment (10 years maximum).

(2)A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following –
(a)following the victim or any other person;
(b)telephoning, sending electronic messages to, or otherwise contacting, the victim or any other person;
(c)entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;
(d)interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property);
(e)giving offensive material to the victim or any other person…

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 DPP v Sutcliffe

Details

AGLC: DPP v Sutcliffe [2001] VSC 43
Case: [2001] VSC 43
Decision Date: 1 March 2001

CaseChat Overview and Summary

The case before the court involved a prosecution by the Director of Public Prosecutions against Sutcliffe. The defendant was charged with stalking under section 21A of the Crimes Act 1958. The central issue was whether the Magistrates' Court in Victoria had jurisdiction to try the case, given that some elements of the alleged stalking occurred in Canada. The court was tasked with interpreting section 21A to determine if it had extra-territorial effect.

The court considered the statutory language and legislative intent behind section 21A. It examined whether the provision was intended to apply to conduct that occurred outside Australia. The court held that the language of the section did not explicitly confer extra-territorial jurisdiction. The court concluded that without clear legislative intent, it could not extend the jurisdiction of the Magistrates' Court to cover incidents that took place abroad.

As a result, the court found that it lacked jurisdiction to try the case because some of the alleged stalking activities occurred outside Victoria. The charges against Sutcliffe were subsequently dismissed due to the jurisdictional limitation. The court made no further orders, as the dismissal of the charges resolved the matter before it.

Orders