Gibson v Golding
[2011] QDC 271
•17 November 2011
DISTRICT COURT OF QUEENSLAND
CITATION:
Gibson v Golding [2011] QDC 271
PARTIES:
DAVID RICE GIBSON
(Appellant)v
LEE ADAM GOLDING
(Respondent)FILE NO/S:
Appeal 77/2011
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Cairns
DELIVERED ON:
17 November 2011
DELIVERED AT:
Brisbane
HEARING DATE:
27 October 2011
JUDGE:
McGill DCJ
ORDER:
Appeal allowed. Order of the Magistrate of 15 April 2011 set aside, order in lieu that a verdict of acquittal to the complaint be entered.
CATCHWORDS:
CRIMINAL LAW – Procedure – amendment of complaint – adjournment – whether defendant misled
CRIMINAL LAW – Stalking – evidence – matters known to complainant about defendant relevant to whether apprehension arose reasonably
CRIMINAL LAW – Stalking – evidence – prior dealings between complainant and defendant may be relevant to whether conduct intentionally directed at complainant
Justices Act 1886 s 49.
Criminal Code s 359B.
ex parte Bignell (1915) 32 WN (NSW) 91 – cited.
ex-parte Burnby [1901] 2 KB 458 – cited.
Crepps v Durden (1777) 2 Cowp 640, 98 ER 1283 – considered.
Felix v Smerdon (1944) 18 ALJR 30 – cited.
Hayes v Wilson, ex-parte Hayes [1984] 2 Qd R 114 – considered.
Mbuzi v Torcetti [2007] QDC 374 – cited.
Mbuzi v Torcetti [2008] QCA 231 – applied.
Milnes v Bale (1875) LR 10 CP 591 – cited.
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 – cited.
Paron v Fry (No. 1) [1990] 1 Qd R 539 – cited.
Paulger v Hall [2003] 2 Qd R 294 – applied.
R v Perera [1986] 1 Qd R 211 – cited.
R v The Credit Tribunal, ex parte GMAC (1977) 137 CLR 545 – cited.
Rowe v Kemper [2008] QCA 175 – cited.
Versteeg v R (1988) 14 ACLR 1 – cited.COUNSEL:
J. Trevino for the appellant
G. Webber (legal officer) for the respondent
SOLICITORS:
Wettenhall Silva Solicitors for the appellant
Director of Public Prosecutions for the respondent
On 15 April 2011 the appellant was convicted after a summary trial of one count of unlawful stalking. He was sentenced to six months’ imprisonment with parole release after two months. A notice of appeal was filed by the appellant in person, but subsequently he obtained legal representation. On the hearing of the appeal counsel sought to substitute for the grounds of appeal initially advanced new grounds set out in an amended notice of appeal. That course was not opposed by the respondent and the appeal proceeded on the new grounds.
The new grounds of appeal were:
(a) The learned magistrate erred in refusing the appellant’s application for an adjournment of the trial in all of the circumstances;
(b) The learned magistrate erred in allowing the evidence of the complainant with respect to his knowledge of and contact with the appellant prior to the incidents alleged to constitute the unlawful stalking on 17 July 2009 and 14 September 2010 on the basis that either:
(i) that evidence was not relevant and was inadmissible;
or alternatively,
(ii) the prejudicial effect of that evidence outweighed its probative value and it should have been excluded in the exercise of the magistrate’s discretion;
(c) Alternatively to new ground (b) above, the learned magistrate erred in failing to properly direct himself in respect of the use that could be made of that evidence;
(d) The sentence imposed was manifestly excessive in all of the circumstances.
Refusal of Adjournment
The appellant was initially charged on two complaints, that he unlawfully stalked the respondent on 14 September 2010 and that he unlawfully stalked someone else, the respondent’s son, on that date. On the second charge the prosecution offered no evidence and the charge was dismissed: p 13. He elected to have these offences dealt with summarily, and while the magistrate was confirming that a brief of the police evidence had been received it emerged that some additional evidence had been provided only that day. What had previously been provided was a statement by the respondent dealing with the incident on 14 September 2010 and an earlier incident when he had something to do with the appellant. What was provided on the morning of the trial was a further statement detailing a further four even earlier incidents when he had had something to do with the appellant. There was some exchange with the police prosecutor about the relevance of this material, and at p 8 the prosecutor said that they had no reason to be required to disclose this in any event, but it was disclosed out of an abundance of caution and in fairness to the defendant.
Then on p 9 the prosecutor sought an amended to substitute as the date of the offence “between the 17th July 2009 and the 15th September 2010.” On p 10 the defendant who seemed to have some difficulty in understanding what was going on said he objected to the amendment. In support of the amendment the police prosecutor indicated that it was as a result of his advice that the period of the charge should cover all the occasions intended to be relied upon, but that the respondent was not prejudiced because he had been provided with statements covering both occasions in the initial brief of evidence. The defendant objected to the dates being spread across a period of time but did not at least initially advance any particularly basis of substance for that objection: p 11.
The magistrate referred to the decision in Mbuzi v Torcetti [2007] QDC 374, and held that the effect of the amendment was not to change the offence but amend the dates in respect of which the offence was alleged to have occurred. Accordingly he allowed the amendment. The magistrate then raised the provisions of s 49, and ultimately the defendant did apply for an adjournment with a view to reapplying for legal aid, on the basis that the material now extended over several alleged incidents in the new statements he had been given. The police prosecutor then said that the disclosure of the material today, which was the only material on which the defendant was taken by surprise, simply related to prior contact between the two, “it’s not relied upon for the charge”: p 14. The magistrate, however, held that the appellant was not taken by surprise by the amendment because the material originally disclosed covered both of the dates: p 17. Accordingly the application for adjournment was disallowed. That is the subject of the first ground.
Section 48 of the Justices Act deals with amendment. Section 49 provides for any consequent adjournment. On its face s 48 deals with two situations, one where there is a defect in the complaint summons or warrant issued upon the complaint, and one where there is a variance between the complaint summons or warrant and the evidence adduced at the hearing. Although the latter situation appears to require evidence to be led which shows an offence different from that alleged in the complaint, there is authority that the issue can be raised at the outset, and on this basis a prosecutor can seek an amendment on the basis that the evidence proposed to be led is directed to proving a charge which involves some variance from that alleged in the complaint.[1] Ordinarily matters such as the date and place on which an offence has been committed are particulars of the offence rather than elements of the offence, although they may be important, for example where there is a time limit within which a charge is to be laid. Commonly, however, they should or may be amended under a provision of this nature, unless there is such a disparity between what is alleged and what is proposed to be proved as to be in substance a different charge: Felix v Smerdon (1944) 18 ALJR 30.
[1]Paulger v Hall [2003] 2 Qd R 294 at [8] quoting from O’Beirne v Ramke; ex parte Ramke, an unreported decision of Gibbs J in 1966, and [31].
The magistrate referred to the decision in Mbuzi v Torcetti [2007] QDC at 374, where the judge followed the decision in Hayes v Wilson, ex-parte Hayes [1984] 2 Qd R 114. Mbuzi went to the Court of Appeal where an application for leave to appeal was refused: [2008] QCA 231. In that court Fraser JA, with whom the other members of the court agreed, said that in Hayes the Full Court held that s 48 authorised an amendment which had the effect of substituting a different charge provided that it was of a cognate or like nature with the original charge and not essentially different from it: [26].[2] In Hayes it was held that a charge of driving under the influence of liquor was cognate with a charge of being in charge of a motor vehicle whilst under the influence of liquor; in Mbuzi it was held that an offence of failing to drive to the left of two continuous dividing lines under s 132(3) of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 was a cognate offence with one under s 138(1) of the regulation of crossing a painted traffic island. The court was not willing to embark, upon the application for leave, on a consideration of the submission that the actual offence demonstrated by the evidence was one of failing to keep to the left of a median strip, contrary to s 135.[3]
[2]There was an interesting critique of the concept of a cognate offence in the dissenting judgment of Macrossan J in Hayes at pp 143-5, but the concept appears now to be well established.
[3]There seemed in that matter to be some extraordinary difficulty in identifying exactly what offence the appellant was supposed to have committed, though whether this was due to the complexity of the regulation does not clearly emerge from the reasons.
The decision in Hayes is particularly useful because it contains a thorough analysis of a relatively large number of earlier decisions in England and Australia. Most of the cases involved a situation where specific conduct on a particular occasion was alleged, although Macrossan J referred to two cases which were not in that category, ex-parte Burnby [1901] 2 KB 458 where the issue was whether the complaint charged one continuing offence or a series of separate offences on each of the nominated dates, in which case it would be bad for alleging more than one offence, and Milnes v Bale (1875) LR 10 CP 591, where it was held that a person who was guilty of several acts of bribery at a municipal election was liable to a penalty in respect of each such act because each was a separate offence complete in itself.
In Milnes reference was made at p 596 to the decision in Crepps v Durden (1777) 2 Cowp 640, 98 ER 1283, where it was held that the offence of exercising one’s ordinary calling on a Sunday was not the doing of one isolated act that would constitute the offence but that evidence of several acts might be given to prove one offence. That I think is the closest analogy I have found in these decisions to a charge of stalking, but in that case the issue was whether it was open to be convicted of more than one charge of that offence on the one day. The offence of unlawful stalking is one offence, however many separate occasions there are on which it is committed, and accordingly the change was a matter of amending the particulars rather than changing the offence. In these circumstances it may be that the magistrate’s reference to a cognate offence was misplaced.
There is however no challenge to the granting of the amendment, but rather to the refusal of the magistrate to allow an adjournment. Hence the significance of s 49, which provides as follows:
“If in making an order for the amendment of a complaint summons or warrant the justices consider that the defendant has been misled by the form in which the complaint summons or warrant has been made out or if it appears to them that the variance between the complaint summons or warrant and the evidence adduced at the hearing in support thereof is such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day … .”
In the present case the defendant did request an adjournment so the magistrate was bound to adjourn if it appeared that the variance between the complaint and the evidence to be adduced was such that the defendant had been thereby deceived or misled. The magistrate found that the appellant had not been deceived or misled. In substance this ground is that that finding was in error.
There is not much authority on what is meant by “misled” in s 49.[4] Its ordinary meaning is “led into error”.[5] The question is whether the difference between the charge originally framed and what the defendant faces as a result of the amendment is such that a defendant relying on the terms of the charge as framed had an erroneous understanding of the charge faced. That will depend on the extent of the practical difference made by the amendment, but in any case where the amendment does more than correct an obvious error the defendant is likely to have been misled. The third edition of Kennedy Allen (1956) at p 135 says that “at the least, the defendant is entitled, when the charge has been reframed, to have a reasonable time in which to prepare his defence or secure representation at this trial.”
[4]The meaning depends on the context: R v The Credit Tribunal, ex parte GMAC (1977) 137 CLR 545 at 561 per Mason J. The context indicates a subjective test in this section. A defendant who lacks the benefit of legal advice may be more likely to be misled.
[5]Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198; Versteeg v R (1988) 14 ACLR 1 at 17. There is no requirement that this be deliberate, which may be implied by the alternative “deceived”.
In Paulger v Hall [2003] 2 Qd R 294 Mackenzie J at [6] mentioned that if a defendant had been put at a disadvantage by an amendment being allowed, s 49 provided ample power to protect him and referred to ex parte Bignell (1915) 32 WN (NSW) 91 at 92-3. In that matter, Ferguson J said at p 93:
“If in any particular case the defendant is liable to suffer injustice by reason of the want of precision in the charge, it is within the power of the magistrate, and it is the duty of the magistrate, to see that he is protected. I have no doubt that in this case, if the magistrate had any reason to believe that the defendant was put to any real disadvantage in the conduct of his defence by reason of the date not being alleged in the information, he would have granted an adjournment.”
Holmes J, as her Honour then was, with whom the President agreed, said at [36] that any prejudice could be cured by recalling witnesses for further cross-examination, or an adjournment might have been appropriate. This was not a case like Paulger (supra) where the relevant offence was a continuing offence, and it was held that the magistrate had erred in failing to amend to move backwards by about one month the commencement date which had originally been only three days before the concluding date.
The appellant’s submission was that the change here produced a fundamental difference in the basis of the case which was alleged, because previously what was alleged was conduct on one occasion, whereas now what was alleged was conduct on two occasions. In order to show that there was unlawful stalking which satisfies s 359B of the Code, it is necessary to prove conduct:
“(a) intentionally directed at a person;
(b)engaged in on any one occasion if the conduct is protracted or on more than one occasion;
(c)consisting of one or more acts of the type specified in the section or similar, and
(d)that would cause the stalked person apprehension or fear reasonably arising in all the circumstances of violence to the stalked person or another person.”
As the charge was initially framed it was necessary for the prosecution to show that the conduct on the particular date originally relied on was protracted, or could be said to have been engaged in on more than one occasion. The complainant’s evidence about the matter indicated that the conduct alleged was a series of acts which occurred within the space of about 10 minutes. In those circumstances, there would be an issue on the trial of whether that conduct was protracted for the purposes of s 359B(a). The effect of amending the complaint was that what was alleged was two occasions, so that it was not necessary to prove that the conduct was protracted on either of them, though it was necessary to prove that the other requirements of the sub-section were met on both of those occasions.
Although the original police brief contained the complainant’s allegations in relation to what happened on both occasions, this is not a case where it would have been obvious enough from the police brief that what was actually being alleged was stalking on both occasions. For reasons that I shall come to shortly, evidence of earlier incidents between the parties was relevant and admissible, and accordingly the content of the police brief would not have disabused the appellant from the natural assumption from the terms of the charge than what was alleged was protracted conduct on one occasion. The effect of the amendment was to change in a reasonably significant way the basis of the prosecution case.
This is an appeal by way of rehearing under s 223 of the Act, and I am required to review and weigh the evidence and draw my own conclusions, affording respect to the decision of the magistrate and bearing in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence.[6] In the present case there is no question of credibility involved, and I am in as good a position to decide the matter as the magistrate.[7] In my opinion the magistrate did err in this conclusion, an error which appears to have been based on a failure to appreciate the significance of the evidence of contact between the parties on other occasions. The magistrate appears at that stage to have failed to recognise that this was relevant and admissible.
[6]Rowe v Kemper [2008] QCA 175; Mbuzi (supra) at [17].
[7]Paron v Fry (No. 1) [1990] 1 Qd R 539, at 544.
Although he subsequently received evidence of earlier incidents, consistent with the further statement provided on the day of the trial, and indeed made some proper use of it in his reasons, as discussed below, at this stage of the trial he appears not to have appreciated that evidence was properly admissible on this basis, and appears to have assumed that the reference to the earlier incident in the police brief should have been enough to convey to the appellant that that conduct was also relied on as part of the stalking. But in my opinion there was a significant difference between alleging conduct on one occasion and alleging conduct on two separate occasions, so that if the prosecution was proposing at the trial to run the latter case, the effect of a complaint which alleged only the former was to mislead the appellant. In those circumstances, an adjournment having been sought, the magistrate was obliged to grant it under s 49, and erred in failing to do so.
Apart from this, it seems to me that the volume of additional material which was put before the appellant as an unrepresented litigant on the morning of trial was such that it is difficult to see why the magistrate should not have granted an adjournment simply on the basis that the appellant was taken by surprise by this material, as seems to have been accepted by the magistrate. That proposition appears to have been rejected essentially on the basis that this additional material was of no real significance and was provided more for the protection of the appellant than anything else, but that was not how the material was in fact used: it was relied upon by the prosecutor in his address as evidence relevant to whether the appellant’s conduct caused apprehension or fear on the part of the complainant which was reasonably arising in all the circumstances. If the prosecutor had been frank about the purpose for which the evidence was to be led, it ought to have been seen that the appellant was taken by surprise in a material way and an adjournment should have been granted on this basis; alternatively, when the prosecution sought to use it in this way, the question of adjournment could have been reconsidered. I am not impressed by the fact that the prosecution appeared to blow hot and cold on this evidence, but it is unnecessary to consider further whether the magistrate erred in refusing an adjournment on this basis, because I am satisfied that the magistrate was obliged to grant an adjournment under s 49 and erred in failing to do so.
Evidence of earlier contact
The magistrate allowed the complainant to give evidence of all of the earlier occasions upon which he had had some contact with the appellant, and to some extent things that he had been told about the appellant by other people. It was submitted that this evidence was inadmissible as being irrelevant, or that its prejudicial effect outweighed its probative value. In my opinion, however, the evidence was clearly admissible on at least one, and in respect of some of the evidence a second, ground, although the latter does not appear to have been relied on at the trial.
The respondent is a police officer who had come upon the appellant on a number of occasions in the course of his duty, including the first of the two occasions which were identified as particulars of the charge; on the second of those occasions he was off duty and out of uniform and engaged in a private matter. His first contact with the appellant was in September 2005 when he was required to guard the appellant while he was in the back of a police vehicle, at a time when the appellant was complaining bitterly about his confinement and resisting vigorously, and making threats to kill police. In September 2007 the respondent while patrolling a shopping centre saw the appellant on an escalator and made eye contact with him whereupon the appellant made an offensive gesture with his middle finger in his direction and mouthed aggressive words to the respondent, without there having been any previous interaction between them. In April 2008 the respondent attended a library at a shopping centre and spoke to the appellant about a complaint of his having behaved aggressively to another library patron, and was met with the response, “It’s none of your business, fuck off”. Finally, in February 2009 the respondent, after leaving the police office at a shopping centre, passed the appellant sitting on a bench outside the office and said, “Good morning, David”, to which the appellant responded “Suck my cock, pig.”
This evidence was I think relevant to two issues which arose in respect of the stalking charge. In the first place it was relevant to whether the apprehension or fear of violence to the respondent arose reasonably in all the circumstances, an issue under s 359B(d)(i). In my opinion the circumstances which are relevant for that purpose are not confined to the circumstances of the particular occasion concerned, and it is relevant to take into account the prior history of dealings between the parties, or indeed anything that the person concerned believes on the basis of what that person has been told about the alleged offender, which could rationally be relevant to the question of whether an apprehension or fear of violence arose reasonably. The term “circumstances” is defined in s 359A in fairly broad terms, and includes circumstances of the victim known or reasonably foreseeable by the offender; the catch-all in (d) of any other relevant circumstances would cover the converse case, of matters known by the victim in relation to the offender. Evidence of hostility towards police, whether it was general or confined to the respondent, would be plainly relevant for this purpose. There was some consideration of the concept of “circumstances” in R v Ali [2003] 2 Qd R 389, but nothing which was inconsistent with what I have said.
The evidence was admissible on this basis, it was relied on in this way by the prosecutor, and mentioned briefly for this purpose by the magistrate as he was entitled to. The problem with this evidence was not that it was inadmissible and should not be used in this way, but that earlier the prosecutor appears to have been less than frank about its significance in the trial.
Apart from this, it seems to me that this history of prior dealings was relevant to the question of whether the conduct was intentionally directed at the respondent. Sometimes it will be obvious from the nature of the conduct that it is intentionally directed at the complainant, for example on the second of the two occasions where the conduct included walking directly at the respondent until the appellant was quite close to the respondent, in circumstances where there was no one else around except the respondent’s son. In other circumstances evidence that the parties had previously had some contact would be relevant as part of a circumstantial case showing that the complainant was known to the defendant, and as supporting a view that the conduct, which might in itself have been ambiguous, was intentionally directed at him. This was I think of some significance in relation to the first of the two occasions, when the conduct concerned involved walking close to the respondent at a time when he was in company with a security officer, and then bumping the security officer on the shoulder. Evidence of prior hostility to the respondent, either personally or simply as a uniformed police officer, could well be part of a circumstantial case supporting a conclusion that the relevant conduct was intentionally directed at him. It does not, however, appear to have been used in this way, either by the prosecutor or by the magistrate, so that this issue is probably academic.
The second part of this ground raised the issue of whether the evidence should have been excluded on the ground that its prejudicial value outweighed its probative value. But the prejudicial value is alleged to have come from the extent to which it demonstrated aggressive or objectionable conduct on the part of the appellant on other occasions, and it is precisely this feature of the appellant’s conduct on other occasions which would be relevant as circumstances reasonably giving rise to apprehension or fear of violence on the part of the respondent. Here it is essentially the very matters which are relied on as being prejudicial which are relevant for the purposes of this element of the offence and which justify the admission of the evidence, so it cannot be excluded on this ground.
A failure of the magistrate to direct himself about this evidence
This ground alleged that the magistrate did not make it clear that he was not allowing impermissible propensity reasoning to affect his determination of the facts in issue. This ground was, however, based on the proposition that the evidence in question, if it was admissible at all, was admissible only as similar fact evidence. I am not persuaded that it was admissible only as similar fact evidence, and it was not used in that way, and accordingly it was not necessary for the magistrate to consider whether it could be properly used as similar fact evidence and whether any precaution against propensity reasoning was necessary when using it in that way.
Sentence was manifestly excessive
It is not necessary to say much about this ground, in the circumstances. A wide range of sentences are available for offences of unlawful stalking, reflecting the wide range of possible conduct which could fall within its scope: R v Ali (supra) at [25]. In the present case there was no actual violence to the respondent, and the actual conduct was of fairly short duration and not particularly threatening, although somewhat bizarre. The serious feature of the conduct was that it was directed towards a police officer, which was an aggravating circumstance.
The matter was complicated by the fact that the appellant also pleaded guilty at the conclusion of the trial to some other offences, for at least one of which he was sentenced to one month’s imprisonment to serve, a sentence made concurrent with the sentence imposed for this offence. On the other hand, that offence might not have produced a sentence of imprisonment if the appellant had not been going to prison anyway. The respondent conceded that the sentence imposed was manifestly excessive, but submitted that a term of four to six months wholly suspended or suspended after a short term of actual custody was within range. The appellant had a not insignificant record for various minor and street offences but nothing of particular relevance. In the circumstances I do not think it is appropriate to arrive at any sort of provisional conclusion about an appropriate substitute sentence.
Disposition of the appeal
Ordinarily an appeal involving a refusal of an adjournment would lead to an order for a new trial. In the present case, however, I do not consider that there ought to be a new trial, because I consider that on the evidence the appellant ought not to have been convicted anyway. The magistrate was entitled to accept that on the second occasion there was conduct within s 359B(c), which was intentionally directed at the respondent and which would cause him apprehension or fear, reasonably arising in the circumstances, of violence to him. But I consider that on the evidence the magistrate was not entitled to make such a finding about the first occasion, and without a finding in relation to both occasions the offence had not been made out; the case was ultimately not advanced on the ground that the second occasion was prolonged, and in my view it was not.
The respondent’s evidence in relation to the first occasion on 18 July 2009 was that when conducting a foot patrol he was with a security officer when he saw the appellant in the library and the appellant was staring at them while they were within view: p 54. Subsequently he was advised by radio of a confrontation between two security officers and the appellant, involving his deliberately knocking into a female security officer. He then began to search for the appellant, with a security officer, and at one point he saw the appellant some distance away walking towards them. He said that the appellant proceeded to make a beeline to where he was standing, and proceeded to walk very close behind him and then deliberately knocked into the security officer with his left shoulder, and then proceeded to walk away quickly. The two then searched for him within the shopping centre, and at one point the respondent said the appellant “materialised behind me and walked very close to me to the point where I could feel his shirt actually brush against me.” He continued past the security officer he had previously knocked and then out of the shopping centre, where he turned and stared at the respondent and the security officer. The respondent spoke to him and the appellant then walked straight back towards them and knocked into the security officer again, then walked closely past the respondent and back into the shopping centre. There were some further things that happened before the appellant was arrested for assault, which could not have been characterised as relevant acts. There was some surveillance footage within the shopping centre of parts of this incident, which was made Exhibit 3, and which the magistrate did not find helpful.
The difficulty with this evidence is in showing that it was intentionally directed at the respondent rather than being intentionally directed just at the security officer. There was evidence that there were two acts of violence committed but they were both committed against the security officer, and much of the evidence of the respondent related to both him and the security officer indiscriminately. There was nothing in the evidence that I could identify which involved any acts of the appellant which were unambiguously directed to the respondent rather than the security officer, or conduct which could have been unambiguously characterised as directed to both of them.
In the absence of any direct evidence as to the intention of the appellant, the case that the conduct was intentionally directed at the respondent on the first occasion the subject of the charge was a circumstantial one, and accordingly the magistrate could only find that element of the offence proved in respect of that occasion if satisfied that that was the only rational inference consistent with the evidence: R v Perera [1986] 1 Qd R 211 at 216-7. In my opinion the evidence of the respondent, which, bearing in mind that the magistrate did not find the surveillance video tape of assistance, was the only evidence the magistrate could have acted on, was not capable of supporting a conclusion beyond reasonable doubt that the conduct was intentionally directed at the respondent. An alternative hypothesis consistent with innocence of this charge, that on that occasion the conduct was intentionally directed at the security officer who was with him, was in my opinion not excluded by that evidence.
The reasons of the magistrate do not appear to have appreciated that it was necessary to find that the conduct on the first occasion was intentionally directed at the respondent. The magistrate found that the incident occurred where the appellant was walking towards the respondent, walked past him on at least two occasions very close by, and on two of those occasions deliberately struck persons who were in company with the complainant, security officers: pp 23-4. Although there was a finding later on p 24 that the conduct was intentionally directed towards the complainant, there was no explanation for how that finding was reached in relation to the first occasion.
I acknowledge that conduct intentionally directed at a person may be carried out in relation to another person or the property of another person: s 359C(2). For example, harassing the customers of a particular shop could well be conduct intentionally directed at the keeper of the shop, even though committed against other people. But it is still necessary to show that the conduct was intentionally directed at the stalked person, even though the immediately recipient of the conduct was someone else. The difficulty for the respondent is that, on the evidence in this matter, there was an alternative hypothesis consistent with innocence, namely that the conduct was in fact directed on this occasion at the security officer. There was evidence from the respondent that there had been other conflict with him, but also evidence that there had been other conflict that day with other security officers.
In my opinion on the case as run the prosecution ought to have failed. There should therefore not be a retrial, which might give the prosecution the opportunity to improve on its case. Accordingly, the orders I make are: appeal allowed, decision of the magistrate of 15 April 2011 set aside, in lieu thereof a verdict of acquittal is entered. Since this was a summary trial of an indictable offence, no order for costs may be made on the appeal: Justices Act 1886 s 232(4)(a).
6
2