Jolley v Truong

Case [2021] WASC 194

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   JOLLEY -v- TRUONG [2021] WASC 194

CORAM:   KENNETH MARTIN J

HEARD:   17 FEBRUARY 2021 AND BY FURTHER WRITTEN SUBMISSIONS OF 13 AND 29 APRIL 2021

DELIVERED          :   22 JUNE 2021

FILE NO/S:   SJA 1112 of 2018

BETWEEN:   KEVIN KEITH JOLLEY

Appellant

AND

DANNY TRUONG

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE D SCADDAN

File Number            :   MI 12431 of 2016


Catchwords:

Criminal law - Criminal Code offence of 'stalking' - Summary conviction pursuant to s 338E(2) for simple offence - Necessary element of 'pursue' a subject by repeated communication or by a besetting of premises - Necessary element of intimidation at objective standard by pursuit in a manner reasonably expected to intimidate the subject - Consideration of meaning of 'beset' - Plea of not guilty and trial before Magistrate - Complaint as to incompetence of defence counsel allowing time barred material facts to augment the period of the offence - Amendment made and not opposed by defence counsel at commencement of trial - No reasonable explanation provided for forensic decision not to oppose expansion of alleged period of offending by two years - Substantial miscarriage of justice - Conviction quashed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Leave to appeal granted on each ground
Appeal allowed
Conviction set aside

Category:    B

Representation:

Counsel:

Appellant : In person
Respondent : Ms J N Harman

Solicitors:

Appellant : In person
Respondent : State Solicitor for Western Australia

Case(s) referred to in decision(s):

Conomy v Maden [2016] WASCA 30

Hart v R [2003] WASCA 213; (2003) 27 WAR 441

Hellings v The Queen [2003] WASCA 208

Huggins v The State of Western Australia [2018] WASCA 61

Jeffery v The State of Western Australia [2018] WASCA 219

KLM v The State of Western Australia [2009] WASCA 73

McMahon v The State of Western Australia [2010] WASCA 143

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Smartt v Sloane [2019] WASC 35

Stingel v The Queen (1990) 171 CLR 312

Tonkin v MacIntosh [2021] WASC 118

KENNETH MARTIN J:

Introduction

  1. This application for leave to appeal concerns a conviction under s 338E(2) of the Criminal Code (WA). It is helpful at the outset to outline the terms of s 338E(2), which read as follows:

    (2)A person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple offence.

    Penalty:Imprisonment for 12 months and a fine of $12,000.

  2. Section 338E and its predecessor provisions deliver what is generically referred to as 'stalker legislation' - first introduced in Western Australia in 1994 and found in Ch XXXIIIB of the Criminal Code. 

  3. Addressing the so-called simple offence,…

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AGLC
Jolley v Truong [2021] WASC 194
Case
[2021] WASC 194
Decision Date

CaseChat Overview and Summary

The case of Jolley v Truong involved an appeal by the defendant, Jolley, against his conviction and sentence under Section 338E(2) of the relevant legislation, which pertains to conduct intended to intimidate another person. Truong, the respondent, was the individual who brought the charges against Jolley. The primary dispute was whether the trial court had correctly applied the legal standards in convicting Jolley based on the evidence presented, particularly regarding the period over which the alleged intimidation occurred. The appeal was heard in the higher court after the initial conviction and sentencing took place in the Magistrates' Court.

The central legal issues before the court were whether the conviction could be sustained based on the amended time period of the alleged offending conduct, and whether the evidence was sufficient to establish beyond reasonable doubt that Jolley's actions were intended to intimidate Truong, specifically on the objective standard required by law. The court had to determine if the trial court properly considered the elements of the offence, particularly the requirement that the intimidation be objectively assessable, and if the amendment to the period of alleged offending was permissible and did not prejudice the defendant.

The court found that the amendment to the period of alleged offending was significant and not merely a minor adjustment as suggested by the prosecution. The court held that the conviction could not be sustained based on the broader factual background but required specific evidence that met the legal threshold for intimidation. The court concluded that the objective standard for intimidation was not met beyond reasonable doubt, particularly because the evidence did not clearly articulate what specific fear or apprehension was reasonably expected to result from Jolley's actions. The court also noted that the temporal expansion of the alleged offending period, from one month in 2016 to 25 months from mid-2014 to August 2016, was substantive and not trivial, which impacted the fairness of the trial.

As a result of these findings, the court allowed Jolley's appeal, quashed his conviction under Section 338E(2), and remitted the matter for further consideration in line with the court's directions. This decision underscores the importance of precise legal standards in criminal convictions and the impact of procedural amendments on the fairness of trials.

Orders

Orders of the court

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Background

Background to the litigation

I accept, in order to sustain the conviction, what is put under par 38 of the respondent's submission, if the material facts proved by the prosecution had included events spanning across the preceding two‑year period prior to August 2016. However, I am unable to accept that the conviction can be sustained on a basis of a use of such facts as mere broader factual background. On my assessment, Mr Jolley's three visits to the Kiara residence during 2016 as originally charged were all relatively innocuous in themselves. This is particularly for circumstances where no member of the household at all was present when flowers were left on the Kiara residence doorstop at Mr Jolley's first visit and then, in circumstances where E was not home on the occasion of Mr Jolley's third visit and when there is no evidence that E's mother ever told E of the third visit. In my view, it cannot then be objectively assessed that E could reasonably be expected to be intimidated (as defined), based only on these very limited circumstances. Such assessments always raise questions of degree and fact, but essentially, it is only the second visit of 9 August 2016 (being the only occasion that E was at home) which arises to be assessed at the objective standard (albeit bearing in mind E's personal circumstances) from a perspective of it being conducted 'in a manner' that would cause a young woman in E's position to suffer intimidation (by fear or apprehension) from that conduct. Evaluated at a standard of proof beyond reasonable doubt for this significant objective element of the s 338E(2) offence, the circumstances do not support an objective evaluation as to a reasonable expectation of fear or apprehension in order to meet the requisite element for an (objective) intimidation. The question must be posed: fear about what, apprehension about what precisely? What is the negative subject matter - reasonably expected to deliver the fear or the apprehension to a person in E's position? This must be articulated - not left unidentified. A disparity in ages is not enough. Annoyance or irritation at being bothered is not enough. A mere fear of the unknown, or an apprehension of the unknown is not enough - in the limited 2016 circumstances to meet the s 338E(2) objective element ingredient of this offence as required, beyond reasonable doubt. The respondent's submissions provided further submissions concerning Mr Jolley's appeal against sentence and as to an appropriate (lesser) penalty in the event a resentencing is required. Likewise, some further helpful written submissions were provided concerning the Restraining Orders Act. But in the end circumstances, it is not necessary to address such matters. This is because, in light of the conclusions I have now reached, I am of the ultimate view that Mr Jolley should be granted leave to appeal by reference to each of his two grounds (as particularised in reference to the miscarriage of justice contention concerning the amendment at the commencement of his trial of the prosecution notice to add a further two years of prior material facts to the alleged period of his offending). With leave being so granted, I would allow Mr Jolley's appeal on both grounds. His s 338E(2) conviction should be quashed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

A one month duration of Mr Jolley's alleged offending contrary to s 338E(2) during 2016 was therefore explicit from the face of the Prosecution Notice, as originally drawn. By that Prosecution Notice Mr Jolley was only being charged in respect of an alleged period of offending of one month's duration during 2016. Nevertheless, at the commencement of Mr Jolley's trial on 11 June 2018, the prosecutor sought to make an amendment to the Prosecution Notice so as to expand the range of the identified period of alleged offending to extend further back in time - in effect, going back then by an extra two years, back to mid 2014. Specifically, the proposed amendment as sought expanded the alleged s 338E(2) offending period to span '26 July 2014 - 25 August 2016' to become a period spanning across some 25 months, not merely across the originally charged one month, in 2016. As is evident from the Magistrates Court trial transcript at the very commencement of the trial, the prosecutor had engaged in an exchange with the learned magistrate at the outset, prior to beginning his opening address (trial 11 June 2018 ts 2):MILFORD, MR: So, your Honour, the only thing that needs to be amended slightly is the prosecution notice. The date is slightly - needs to be changed from 26 July 2016 to [sic] 26 July 2016 to 25.8.16. (my emphasis in italics) The learned magistrate properly then interrogated the prosecutor as to his oral application to amend the period of alleged offending. The following ensued (trial 11 June 2018 ts 2 - 3):HER HONOUR: Yes.MILFORD, MR: Should read 2014 through to 25.8.2016.HER HONOUR: So 26 July '14.MILFORD, MR: Well, it should just say 2014 because the actual time - the day of that is not completely clear and that was in 2014.HER HONOUR: Well, you're not making it any more clear to me. What are you wanting - what's your application to amend?MILFORD, MR: Change the date, your Honour, from 26.07.2016 - - -HER HONOUR: Yes.MILFORD, MR: - - - to 2014.HER HONOUR: Yes.MILFORD, MR: And 25.8.2016 to remain the same.HER HONOUR: Right. So it's a - effectively, a two year period.MILFORD, MR: Correct. Her Honour then raised the proposed amendment that was then being sought, with Mr Jolley's defence counsel as follows (trial 11 June 2018 ts 3):HER HONOUR: Mr Smith.SMITH, MR: No objection, ma'am.HER HONOUR: All right. So I will amend the date to be 26 July -between date 2014 to 25 August 2016. Grant that amendment. Make that amendment. Stand up, Mr Jolley. I'm going to read the charge to you to start the hearing. So between 26 July 2014 and 25 August 2016 at Kiara, it's alleged you pursued another person, namely, [E], in a manner that could reasonably be expected to intimidate and that did, in fact, intimidate that person. Do you understand the charge?ACCUSED: I do, your Honour.HER HONOUR: How do you plead?MILFORD, MR [sic, ACCUSED]: Not guilty.HER HONOUR: Thank you. Take a seat. I will make an order for witnesses out of court. … Albeit referred to by the prosecutor as only being amended 'slightly', the temporal augmentation to the period of alleged offending to embrace an additional two years to go back to 2014, was very far from just 'slightly' amending the Prosecution Notice. It was a significant temporal change.