Jolley v Truong
[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
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.
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.
Addressing the so-called simple offence, the Court of Criminal Appeal in Hellings v The Queen [2003] WASCA 208 (Murray, Wheeler and McLure JJ) rendered the following observations at [12] - [14]:
[12]As to the statutory alternative of conviction of the simple offence of stalking, it will have been noticed when we referred to the way in which these offences are defined by the Code, s 338E(1) and (2), that the elements of the offences are distinctly different. The concept of a person pursuing another is the common element. The more serious indictable offence adds the element of an intent to intimidate, but conviction of that offence does not depend upon proof that the victim was in fact intimidated. On the other hand, the simple offence of stalking, which could not therefore be charged on indictment and is only available as a latent alternative on an indictment for the indictable offence, does not require proof of an intent to intimidate, but does require the conduct of the offender by way of pursuing the complainant is of a kind that not only could reasonably be expected to intimidate another, but that it does in fact do so.
[13]... The more serious indictable offence of stalking is committed by pursuit with intent to intimidate, even if the victim is sufficiently strong-willed or robust in character that he or she is not intimidated, or whether or not the person is in fact intimidated. To commit the less serious simple offence there must be a pursuit of a kind which does in fact intimidate the victim. However, the intimidatory quality of the pursuit is not an entirely subjective matter dependent only upon whether the particular victim is intimidated in any manner defined by the Code, but the quality of the pursuit must be such that, objectively, an ordinary person in the position of the complainant might reasonably be expected by the jury to be intimidated.
[14]... What we have written is our interpretation of s 338E of the [Code] when read with the interpretation section, s 338D. The essential point for present purposes is to note the difference in the definition of the offences and that the only way in which a jury may convict of the offence defined in s 338E(2) is as an alternative to conviction upon indictment of the offence defined in s 338E(1).
In 2016 the Court of Appeal in Conomy v Maden [2016] WASCA 30 (Buss JA, as his Honour then was, with Mazza JA and Mitchell J, as his Honour then was) discussed the offence against s 338E(2), commencing at [6]. See particularly the court's observations at [11] where the elements of this simple offence were identified as follows:
1.The appellant, during the charge period, either:
a.repeatedly communicated with the complainant; or
b....
whether directly or indirectly and whether in words or otherwise.
2.The manner of that communication in fact caused fear or apprehension in the complainant.
3.The manner of that communication could reasonably be expected to cause fear or apprehension in the complainant.
In 2019, Allanson J in Smartt v Sloane [2019] WASC 35 considered s 338E(2) in a context of repeated calls and the effect they had in intimidating the victim: see particularly [7]. Effectively, that decision was an appeal against sentence.
Most recently in this court, s 338E(2) was canvassed by Tottle J in Tonkin v MacIntosh [2021] WASC 118 published on 21 April 2021. I am grateful to counsel for the respondent, Ms Harman of the State Solicitor's Office (the SSO), for drawing Tottle J's reasons for decision to my attention following the first hearing of the appeal on 17 February 2021 (the February 2021 hearing) and indeed, after the further submissions of the SSO were provided.
I would endorse all of his Honour's observations in Tonkin as to the meaning of the term 'pursue' by an inclusive definition which ought not to be understood as excluding all other meanings not covered by the definition which fall within the ordinary meaning of the word: see [16]. I would, with respect, also adopt his Honour's observations at [18] in reference to the meaning of the word 'apprehension' to the extent that that term is used under s 338D(1) disjunctively with the word 'fear' in order to provide a statutory definition of the term 'intimidate' as used in s 338E. His Honour observed at [18]:
Turning to the meaning of 'apprehension' - the ordinary meaning includes 'uneasiness'. 'Apprehension' conveys a sense of concern which has not reached a state of fear. In the statutory context in which 'apprehension' is used two matters make it clear that it is not intended to have the same meaning as 'fear'. These matters are: the disjunctive 'or' between 'apprehension' and 'fear'; and the fact that if the word 'apprehension' meant 'fear', one or other of the words would have no work to do within the definition. (footnotes omitted)
I also agree with and adopt his Honour's observations at [22] - with a slight qualification and augmentation. His Honour observed:
The objective element embodied by the words 'could reasonably be expected to intimidate' mean an accused's conduct is to be evaluated without considering facts personal to the appellant, which were not known by the complainant, and which would not have been known by the 'ordinary person'. It is sufficient to assess the conduct constituting the [manner of the] pursuit and make an evaluative judgment as to whether the conduct could have reasonably been expected to intimidate the 'ordinary person'.
With respect, I would qualify the last sentence above by adding the extra words 'manner of the' (as underlined and italicised above) in order to align with absolute precision to the terms of s 338E(2) and its objective component.
I would then seek to add one plenary qualifying observation prior to the substantive reasons which follow. I wish to make it absolutely clear that nothing that I say in these reasons carries, or should be implied to carry, any criticism of the female complainant (who I refer to simply as 'E'), or of her mother (who was a witness at the trial). Their evidence was accepted by the learned magistrate and I have approached the appeal upon the basis that similarly, I fully accept their trial evidence without hesitation.
Nor does anything contained in the following reasons in any way seek to diminish or derogate from what was no doubt a sustained level of general distress and irritation endured by E and her family - by reason of all the events I will come to address in these reasons. The determination which I have ultimately reached to set aside and quash the conviction of the appellant essentially turns upon the somewhat elliptical wording of s 338E(2) of the Criminal Code and the rather unique facts underlying the present application for leave to appeal.
The charge, conviction and sentence
On 20 October 2016, Mr Jolley was charged with a simple offence against s 338E(2) of the Criminal Code, concerning his conduct towards the complainant, E, who at the time of the charge was around 20 years of age. The founding prosecution notice described the charge as 'pursues another to intimidate'.
I will turn to the precise charge put against Mr Jolley and the material facts which were relied upon by the prosecutor in more depth in due course. However, for now it is sufficient to note that some relevant background giving rise to the charge included Mr Jolley's conduct towards E at a Kiara IGA store she then worked at, then an incident where Mr Jolley was alleged to have driven erratically on Morley Drive behind the car E was driving and several incidents where Mr Jolley attended E's parents' Kiara house, where E lived at the time.
Following a not guilty plea and a two‑day trial, Mr Jolley came to be convicted of the s 338E(2) simple offence in the Midland Magistrates Court by her Honour, Magistrate Scaddan on 9 August 2018.
At the end of the second day of the trial (the trial having been conducted on two non-consecutive days, 11 June 2018 and 9 August 2018), her Honour delivered her conclusions on the basis of ex tempore reasons, finding, in effect, that it had been proven beyond reasonable doubt that Mr Jolley by his conduct infringed had against s 338E(2) as regards the complainant, E.
The learned magistrate duly proceeded to sentence Mr Jolley (who at the time was a first offender) by imposing a $3,000 fine. In addition, she issued a three‑year restraining order against Mr Jolley in respect of E, pursuant to the Restraining Orders Act 1997 (WA).
Her Honour also refused the verbal application made on Mr Jolley's behalf by his counsel (Mr Justin Smith), for a spent conviction order.
Mr Jolley's proposed grounds of appeal
This is an in-person application for leave to appeal against conviction and sentence - filed personally by Mr Jolley on 6 September 2018 in this court.
By Mr Jolley's in-person appeal notice, he identifies, in extremely brief terms, only two proposed grounds of appeal against his conviction and sentence. Mr Jolley's two grounds of appeal read:
1.Misrepresentation by lawyer[.]
2.Did not follow instructions[.]
I note at this early stage that in respect of each proposed ground sought to be pursued, that leave to appeal is required on the basis of, in effect, a need to show some level of respectable arguability for each ground. See s 91(1) and (2) of the Criminal Appeals Act 2004 (WA) and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [56] per Steytler P, Wheeler and Roberts‑Smith JJA.
Remembering always Mr Jolley is acting in-person without any legal assistance, his two proposed grounds, as so expressed, are wholly inadequate to obtain leave to appeal.
Nevertheless, it is apparent from both proposed grounds, and somewhat unusually for challenges against a conviction, that Mr Jolley primarily seeks to raise grievances over his legal representation at his trial, rather than seeking to identify any alleged errors in the reasons for decision or the orders of the learned magistrate.
Subsequently, as a matter of case management within this court, Mr Jolley was ordered to provide better details (ie, particulars) of his grounds of appeal. Mr Jolley has endeavoured to meet that requirement over time and has done his best, albeit obviously hampered by his lack of any legal assistance and background. Regrettably, this has taken some time.
For various reasons, Mr Jolley's substantive leave to appeal hearing in this court could not be scheduled until 17 February 2021. On that day, Mr Jolley attended before me in person and attempted to advance his appeal grounds. His application for leave to appeal his conviction and sentence was opposed by the respondent at that time.
The law: challenges against trial counsel
Although case management orders were earlier made requiring an exchange of pre‑hearing written submissions by each side, Mr Jolley had not (prior to the February 2021 hearing) provided any written submissions beyond two sets of 'particulars', which I will turn to address shortly.
From the respondent, then opposing Mr Jolley's application, I had received from the SSO, Ms Harman's comprehensive and helpful written submissions, filed 12 January 2021.
The respondent correctly identifies the extraordinary nature of the attempted challenge under Mr Jolley's two proposed grounds directed against the conduct of his trial counsel. The respondent correctly pointed out that the incompetence of defence counsel (as, in effect, was alleged) is not in itself a legitimate ground of appeal. Instead, the correct ground to address such alleged circumstances is that of a contended miscarriage of justice: see Criminal Appeals Act s 30(3)(c). To this end, I note the observations by the High Court in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [2], and then by the Western Australian Court of Appeal in KLM v The State of Western Australia [2009] WASCA 73 at [49]. Those observations in turn came to be cited and applied in a subsequent local decision: see Huggins v The State of Western Australia [2018] WASCA 61 at [375].
The respondent's submissions also identify another leading decision of the West Australian Court of Appeal, concerning alleged miscarriages of justice by reason of a defence counsel's trial conduct of a trial. This is McMahon v The State of Western Australia [2010] WASCA 143 (McMahon). McMahon was subsequently applied by the Court of Appeal in ZHA v The State of Western Australia [2020] WASCA 101 (ZHA). At [53] in ZHA the court in turn cited as an example Jeffery v The State of Western Australia [2018] WASCA 219 at [104] - [105] (Jeffery) [Jeffery being the subject of the case note 'Jeffery v Western Australia [2018] WASCA 219: Sexual Assault Convictions Quashed on the Basis of Untenable Defence Case Theory' (2019) 93 ALJ 918.]
In McMahon, McLure P explained the miscarriage of justice legal position regarding the conduct of defence trial counsel as follows:
[24]The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden … Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence ...
[25]In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome …
[26]In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome …
[27]The test of whether there is a material irregularity is objective … Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views … However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence ... (references omitted)
Evidence on the present appeal
At the hearing before this court on 17 February 2021, somewhat unusually (but no doubt because the focus of Mr Jolley's two attempted grounds of appeal concerned with the acts or omissions of his trial counsel), a number of affidavits were tendered and received on each side.
Mr Jolley submitted two affidavits sworn 4 June 2019 and 30 June 2020 respectively (see exhibits A and B). Both affidavits were written and submitted under Mr Jolley's longhand. They are far from perfect in terms of their as submitted evidentiary content.
Mr Jolley also submitted an affidavit by his mother, Patricia Mary Jolley, sworn 30 June 2020 (see exhibit C).
Given Mr Jolley essentially seeks to challenge the conduct of his trial counsel, the respondent, in seeking to grapple with such allegations and to deal with what is the contended miscarriage of justice, obtained an affidavit from Mr Jolley's then trial lawyer. (Mr Justin Alexander Smith's affidavit sworn on 14 August 2019 - exhibit D.)
There had been some earlier controversy concerning Mr Jolley's contended waiver of legal professional privilege in relation to what advice had passed between Mr Jolley and his trial lawyer. However, all such former controversies in that arena had been resolved by the time of the appeal hearing in this court. Mr Jolley told me verbally at the February 2021 hearing that he had no issues with the respondent relying upon Mr Smith's affidavit (see appeal ts 68). Consequently, no disputed issue over legal professional privilege retention, or a waiver thereof, remained for me to determine.
As such, exhibits A through D were read and tendered as further affidavit evidence on this leave to appeal hearing.
Also tendered without objection at the February 2021 hearing to become appeal exhibits E through H, were the following additional evidentiary materials:
1.Exhibit E, being a Western Australia Police Statement of Material Facts as identified by the date 14/03/2018, seen at the foot of the face page, by reference to a 'Station/Squad' that identifies the 'Armadale Police Station'.
2.Exhibit F, being a further Western Australia Police Service Statement of Material Facts. This statement displays longhand numbering uncontroversially identified as that of Mr Jolley. The document is also headed 'Statement of Material Facts'. But upon its face page the 'Station/Squad' reference is different. It refers to Midland Police Station and identifies an earlier date, 20/10/2016. Inferentially, it appears this document was provided to Mr Jolley and his lawyer (Mr Smith) more proximately to the time of the initial complaint as outlined in the Prosecution Notice which is also dated 20 October 2016.
3.Exhibit G, being longhand pages of 'particulars' that were submitted by Mr Jolley to this court on 7 June 2019 (folio document 14). These particulars will be referred to as 'Mr Jolley's first particulars'.
4.Exhibit H, being what look to be further particulars submitted by Mr Jolley to this court on 3 September 2020, again written out in longhand (folio document 30). These particulars appear to have been filed in an effort to comply with earlier case management orders made by Le Miere J of 23 July 2020: see his Honour's order 1 to the effect of then requiring Mr Jolley to provide more precise details in the respects as identified towards his attempted grounds of appeal. I will refer to these as 'Mr Jolley's further particulars'.
There were also some later augmentations to the materials put before me in this application following the February 2021 hearing, as I will later explain.
What is the miscarriage of justice grievance under Mr Jolley's grounds?
Littered across Mr Jolley's written materials, all obviously prepared without legal assistance, lurk a host of different alleged grievances - and all put against his former trial lawyer, Mr Smith.
At the hearing, I pointed out to Mr Jolley that most of the grievances as marshalled by him in his handwritten 'particulars' concerning the forensic conduct of his defence counsel at the trial -could ultimately go nowhere for him in terms of potentially identifying some significant evidence that might possibly have delivered any causative impact towards suggesting the prospect of a different conviction outcome for him at his trial.
Phone 'bugging' allegation
First, I mention the allegation that Mr Smith, as Mr Jolley's lawyer, failed to submit Mr Jolley's mobile phone for expert forensic analysis, for the purpose of verifying Mr Jolley's communicated concern that his phone was being 'bugged' by the complainant (see Mr Jolley's first and further particulars). Mr Jolley complains his lawyer had verbally led him to believe that he knew a friend or acquaintance with phone technology expertise, who could analyse Mr Jolley's mobile telephone to ascertain if the concern as to 'bugging' might be established (appeal ts 79 - 80). But after Mr Jolley had left his telephone with his lawyer to that end for some period, it was simply returned to him. No expert analysis was ever undertaken.
Accordingly, there was never any evidence to be used at the trial concerning any 'bugging' of Mr Jolley's telephone, let alone any 'bugging' by the complainant, E.
As a matter of law, this grievance against Mr Jolley's trial defence lawyer can go absolutely nowhere, in terms of providing a possible foundation for an argument as to a potential miscarriage of justice. Since Mr Jolley's conviction and sentencing on 9 August 2018, there has been more than ample time for Mr Jolley to himself take some steps to have his old phone analysed (which phone he still retains in his possession and which he physically showed me at the February 2021 hearing). Such subsequent analysis has not been done or even attempted by Mr Jolley. Consequently, this aspect of Mr Jolley's grievances can go nowhere in terms of possibly assisting his ground of appeal concerning a miscarriage of justice. It is apparent to me, however, that Mr Jolley was entirely genuine in his expressed beliefs about his phone being 'bugged'. That, I observe, provides some insights towards Mr Jolley's somewhat unique temperament.
Unled trial evidence of Mr Jolley's mother
Secondly, I refer to proposed evidence from Mr Jolley's mother seen in her affidavit filed 30 June 2020 (exhibit C). Mr Jolley looks to raise a grievance against his trial lawyer for failing to call his mother as a trial witness to adduce such evidence (see Mr Jolley's first and further particulars). The unadduced evidence would appear to be in the realm, at best, of pursuing a theory that Mr Jolley's mother had observed the complainant, E, walk from the IGA supermarket (where she was then employed) into an adjacent pharmacy in circumstances where Mr Jolley's vehicle had been parked proximate to those two establishments and hence, Mr Jolley's car must inevitably have been seen by the complainant.
But so what? The intended exculpatory inference from this unled evidence appears to be that notwithstanding a visible and noticed presence of Mr Jolley's car, the complainant's voluntary leaving of the IGA to walk into the adjacent pharmacy could somehow indicate she then held no level of fear or apprehension (constituting intimidation) vis‑à‑vis Mr Jolley's inferred proximate presence. Somehow, this is all said to bear against the fate of the charge. But once again, such unled evidence would be equivocal at best. It cannot support any plausible miscarriage of justice argument by way of challenging the forensic decision of Mr Jolley's defence counsel to not lead such tenuous evidence and therefore would have been of zero assistance to Mr Jolley's trial defence.
Unled trial evidence of Mr Jolley's sister
Another expressed grievance was as to Mr Jolley's lawyer failing to call his sister as a trial witness (see Mr Jolley's first particulars). This is on the basis that she could have provided more information about the model or colour of a vehicle that was being driven by Mr Jolley at the time of a pre‑2016 encounter with the complainant on Morley Drive. The encounter allegedly involved Mr Jolley driving erratically behind the complainant's vehicle and honking his horn. However, it is also tenuous and equivocal evidence. It also could not assist a plausible endeavour towards showing a miscarriage of justice.
The correct colour of Mr Jolley's car or its correct make and model at the time was not in issue and hence carries minimal evidentiary force. That evidence presumably would be directed to challenging the reliability or credibility of E's account of the incident. But my assessment is that it would also have made zero difference to the conviction outcome. I accept that Mr Jolley was undoubtedly in a car of some colour that was behind the car that E was driving on Morley Drive at the time during a pre‑2016 incident, the facts of which were never very clearly stated or found on my reading of the materials. No road traffic offence presented as having occurred.
Other grounds
Mr Jolley also canvassed an array of other miscellaneous grievances against his trial defence lawyer ‑ including that he allegedly did not answer or not return phone calls timeously or at all. Again, none of that could be seen to bear causatively against the adverse trial outcome for Mr Jolley and therefore, towards his establishing of some arguable miscarriage of justice.
Likewise, a generally articulated grievance by Mr Jolley against his trial lawyer not obtaining CCTV footage from the Kiara IGA supermarket where the complainant had been employed, is another unsustainable grievance towards showing a plausible miscarriage of justice. There is again no suggested causative link that is arguable to a different conviction outcome by reason of such evidence.
Amendment to Prosecution Notice - a diamond in the rough?
However, within what was a litany of layman's grievances all marshalled together against Mr Jolley's trial lawyer, there was a buried aspect I thought might warrant some further investigation. I raised this issue with Mr Jolley and counsel for the respondent, Ms Harman, at the February 2021 hearing.
Specifically, this rather submerged grievance as contended for by Mr Jolley was to the effect that his trial lawyer had misled or insufficiently explained to him the legal ramifications of an amendment to the Prosecution Notice that was made at the start of his trial in the Magistrates Court on 9 September 2018: see Mr Jolley's first particulars. The particular, as written, read 'He's making amendments to the dates without my permission'. As a consequence, Mr Jolley contends he had not fully appreciated the amendment's consequences.
The proposed amendment had been put to the learned magistrate by the prosecution and agreed to by Mr Jolley's lawyer. At the time, Mr Jolley says that his lawyer merely conveyed to him, in effect, that the changes were essentially something very minor, that he should not be concerned about it and that he should just accept it. But as I will come to explain, the amendment to the Prosecution Notice, which was then duly allowed by the learned magistrate, was in fact very significant in its adverse legal ramifications against Mr Jolley's interests at the time.
The forensic significance of the allowed amendment to the Prosecution Notice will become more apparent after the relevant terms of the offence put against Mr Jolley in contravention of s 338E(2) are better appreciated. However, I should first outline the terms of the Prosecution Notice as it had read prior to the allowed amendment at the start of Mr Jolley's trial.
The Prosecution Notice
Original time period of alleged offending
The terms of the Prosecution Notice of 20 October 2016 originally issued against Mr Jolley had only identified and charged him in respect of a one month period of offending, namely '26/07/2016 - 25/08/2016'.
The details of the alleged s 338E(2) offence stated in the Prosecution Notice read in terms: 'pursued another person, namely [E] in a manner that could reasonably be expected to intimidate, and did in fact intimidate that person'. Express reference followed to s 338E(2) of the Criminal Code.
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.
The unopposed amendment
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.
As is evident from the transcript excerpts above, no explanation was provided by the prosecutor to the learned magistrate for the two year temporal augmentation back in time. Further, Mr Smith, acting for Mr Jolley, raised no objection to the proposed augmentation to the period of alleged offending.
My concern as to a potential miscarriage of justice emerged at the February 2021 hearing. The important consequence of the temporal augmentation at the start of Mr Jolley's trial was that a further two years was being added to the range of material facts and the conduct underlying his alleged offending against s 338E(2) - a significant extension.
During the original 2016 one month window of the Prosecution Notice it was relatively clear (from the exchanged statement of material facts - exhibit F), that only three potentially relevant conduct incidents were factually alleged as against Mr Jolley as regards E and his alleged infringement of s 338E(2). These three conduct incidents as originally focussed upon were always accepted factually by Mr Jolley - first, at his police record of interview in October 2016 and later, during in his own evidence at his 2018 trial. In essence, the conduct of Mr Jolley across that 2016 one month window concerned only three in‑person attendances by Mr Jolley at the complainant E's then residence in Kiara (her parents' home).
The augmentation amendment, however, had the effect of potentially adding two years of extra material facts to be grafted upon the original one month period of alleged offending - extra facts that, as I explain, might 'shore up' an otherwise problematic s 338E(2) case against Mr Jolley.
At the time, no attention or discussion appears to have been directed to any time bar limitation period considerations presenting by reason of the amendment, if allowed.
I return to discuss the consequences of the amendment to the Prosecution Notice later in the reasons.
For now, I turn to an analysis of the three 2016 original conduct incidents as originally encompassed by the one month window of alleged offending in the Prosecution Notice as first drawn against Mr Jolley.
Mr Jolley's three (3) conduct incidents in 2016
Before I go to the details of the three incidents, I would, to focus the exercise, reiterate the constituent elements of s 338E(2). The simple offence first requires the alleged offender to have pursued the complainant. Secondly, the alleged pursuit must have intimidated the complainant. Third, the manner of the pursuit must reasonably be expected to intimidate the complainant. So seen, the third element adds an objective assessment component to the ingredients of the offence. It is not enough then that a pursued person be proved as having been intimidated. More is needed by the extra component of 'reasonably be expected'.
First event of 2016
The first event occurred on or around 26 July 2016. On that day Mr Jolley attended the Kiara residence of E. But no‑one at all was at home. Mr Jolley placed a bunch of flowers on the front doorstep of the residence and left. There was no note left with the flowers.
E's mother gave evidence at the trial. There was some trial evidence that the July 2016 date was proximate to her birthday and so, she had speculated at the time that the flowers may have possibly been left for her by someone (see trial 11 June 2018 ts 27). Further, there was no evidence from the complainant herself, E, that she ever believed the flowers were left for her on this occasion. It was only much later in October 2016, during Mr Jolley's police interview, that it was then ascertained by his admission, that Mr Jolley was the person who had left the otherwise unsourced and undirected bunch of flowers on the doorstep of E's parents' Kiara residence.
The relevance of no‑one being at the Kiara residence on this day is that the conduct of Mr Jolley - in merely attending in person and leaving a bunch of flowers on the front doorstep of an unoccupied residence - without any accompanying factor of direction or identification as to who had left the flowers, or as to an intended recipient, at a residence occupied by multiple persons, could hardly have intimidated anyone, let alone E. To suggest otherwise by reference to the 'causing apprehension or fear' (to E) strains impermissibly against meeting even the very expansive definition of the term 'intimidate' used in s 338E(2) and defined in s 338D(1) of the Criminal Code.
The equally expansive and inclusive definition for the term 'pursue' by s 338D(1)(a) includes, 'to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise'. Still, however, a bare act of leaving an anonymously sourced and non‑directed bunch of flowers on a residential doorstep of premises could not, without a lot more, rise to the level of being evaluated as any kind of 'communication' with anyone, even taking account of potential of indirect communications and, as well, recognising that there are the many other genres of human communications other than by words.
Second event of 2016
The second relevant conduct event occurring during the originally designated Prosecution Notice's one month window of alleged offending, occurred on the evening of 9 August 2016.
On this occasion, both E and her mother were at home in the kitchen of the Kiara residence. They were preparing dinner together.
Mr Jolley had attended the Kiara residence in person and rung the front doorbell. E's mother answered the door, not knowing, then, who Mr Jolley was.
Mr Jolley told E's mother he would like to talk to E. E's mother then asked Mr Jolley who he was, to which Mr Jolley answered 'Kevin'. From the kitchen area of the residence, where she could still observe the front door, E had then gestured to her mother, who was still standing at the front door, that the person her mother was speaking to there was Mr Jolley. E's mother then told Mr Jolley that her daughter did not want to speak with him.
At that point, based on accepting E's mother's trial evidence as preferred by the learned magistrate, Mr Jolley said 'I must have got the wrong idea' (trial 11 June 2018 ts 28). E's mother then asked Mr Jolley to leave. He did. That is the extent of the second incident conduct. Mr Jolley did not speak directly to E.
Even accepting, as I do, all findings of fact made by the learned magistrate (the magistrate essentially preferring the evidence of the complainant, E, and her mother over the trial evidence of Mr Jolley where it conflicted), my view is that Mr Jolley's conduct on this occasion was also, in itself, relatively innocuous.
Nevertheless, the second visit was conduct by Mr Jolley that could potentially meet the threshold of being an indirect 'communication' by Mr Jolley to E, by his words (via Mr Jolley speaking to E's mother at the front door).
But there is not enough in such a 'communication' to meet the inclusive definition in s 338D(1)(a) of the word 'pursue' by a 'repeated communication' with E. Eliminating the earlier flower leaving visit of Mr Jolley, which was never any level of a communication to anyone, this in‑person front door communication with E's mother, by itself, does not amount to showing there was 'repeated communications' by Mr Jolley with E.
Third event of 2016
The last relied upon conduct event during the originally designated one month window in 2016, occurred some two weeks after the second visit incident, namely on 25 August 2016.
On this occasion Mr Jolley again attended at the front door of the Kiara residence in‑person and knocked. This time he had brought a box of chocolates with him, intended for E. But again on this occasion E was not at home. Her mother answered the front door. She spoke again with Mr Jolley.
Fully accepting again, the trial evidence as it was provided by E's mother, she now told Mr Jolley (as to her daughter, E) that: 'She's not interested. She's never been interested' (trial 11 June 2018 ts 28).
E's mother now further told Mr Jolley her daughter was only 20 years old - to which Mr Jolley is said to have responded 'I thought she was older than that' (trial 11 June 2018 ts 28). E's mother proceeded to tell Mr Jolley to leave her daughter alone, as he was scaring her. As related by E's mother at the trial, Mr Jolley then apologised to her multiple times and duly left (trial 11 June 2018 ts 29). He did not return again.
Since E was not at home on the third occasion, her evidence at the trial did not mention this third conduct visit event, at all. In her evidence at the trial, E's mother did not say whether or not she had ever informed her daughter of this further visit by Mr Jolley to the Kiara residence. The evidence is silent about that. I would postulate that E's mother may not have wished to possibly upset her daughter by telling her of a further visit. In all events, I cannot conclude that an inference E's mother told her daughter is reasonable, or obvious. The point is simply that the issue was not addressed at all by the trial evidence. Hence, there cannot, beyond the second visit, be any further communications by Mr Jolley to E (either directly or indirectly) from this last occasion as to constitute 'repeated communications' and therefore prove a 'pursuit', under s 338E.
Evaluation of Mr Jolley's 2016 conduct
The first question arising in the light of three aforementioned in‑person 2016 attendances by Mr Jolley at E's parents' Kiara residence, is whether that visitation conduct engaged over, effectively, a one month period in 2016, viewed collectively, can be assessed as sufficient to constitute 'repeated communications' with E (either directly or indirectly) by words or otherwise so as to meet the required s 338E(1) element of 'pursue'. As explained, on my assessment, that looks doubtful.
As seen, it was only on one of the three visits that E was actually at home. For the second and third visit occasions, Mr Jolley's direct verbal communications were only with E's mother, not with E. Mr Jolley's attendances to the front door at the Kiara residence were openly conducted. They were not covert or clandestine conduct in any way.
Further, there can be found on the evidence no 'watching' of the Kiara residence by Mr Jolley, for the purpose of possibly meeting a definition of 'pursue' by s 338D(1)(d).
The three visits were, on the trial evidence, openly conducted and brief, and made to the front door of the Kiara residence - where Mr Jolley knocked. It was not suggested Mr Jolley's verbal communications to E's mother on either occasion were anything other than politely conducted.
Nor is it in dispute that on the second and third visits, Mr Jolley had duly left and departed the front door of the Kiara residence, once he was spoken to by E's mother. On the evidence, he did not hang around, linger, trespass, or generally make a scene or a nuisance of himself at the Kiara residence on the three visit occasions.
Admittedly, to properly evaluate the elements required to prove a s 338E(2) offence, some surrounding background facts as were found by the learned magistrate can properly be weighed to cast some light on these three material fact conduct events of 2016. First, there was always a significant age disparity between Mr Jolley and E. In 2016, Mr Jolley was 48 years of age and E was only 20 years old. And she was female and he was male.
Secondly, E had never previously disclosed to Mr Jolley her residential address. Mr Jolley, who himself lived in Kiara, explained at the trial that through friends of friends, he came to learn of E's residential address in Kiara (trial 9 August 2018 ts 17). The information was not obtained unlawfully. But it did facilitate Mr Jolley's in‑person, uninvited attendances at the Kiara residence over the one month period between 26 July and 25 August 2016.
On my assessment however, even with all this extra background information, there cannot reliably be shown any sufficient degree of 'repeated communication' by Mr Jolley to meet the s 338E(2) ingredient of 'pursue', if based upon only the three original conduct visit incidents occurring in 2016.
Chronology of facts
As previously discussed, the consequence of the unopposed and then allowed amendment to the Prosecution Notice, was that it added an anterior period of, effectively, an extra two years to the alleged period of s 338E(2) offending. This allowed a far greater amount of admissible relevant evidence of Mr Jolley's potential offending conduct against E to be put before the court - for the purpose of meeting the s 338E(2) requirement of showing a 'pursuit' (by repeated communications). This change was far more than allowing in some mere background. It was the admission of wholesale further material facts bearing upon proving a s 338E(2) offence.
Accordingly, I must divert to chronologically assemble below, all the relevantly admissible material facts as proved at Mr Jolley's 2018 trial. This takes into account the three original conduct visit incidents of 2016, as well as the relevant evidence of some historic interactions between Mr Jolley and E (dating back to mid 2014) which could be relevantly taken into account - after the amendment to the Prosecution Notice was allowed.
To this end, I have essentially worked from the findings of the learned magistrate, or from trial evidence given by the complainant E and her mother ‑ whose evidence was preferred over that of Mr Jolley at trial where there was a conflict. The material fact chronology presents as follows:
CHRONOLOGY OF FACTS
Date
Event
Description
2010
E began working at IGA in Kiara.
E would have been 14 years old. Mr Jolley was in his mid‑forties.
2013
E started to realise Mr Jolley was a regular customer at Kiara IGA.
E now aged 17 at this time.
2013
Mr Jolley's first encounter with E.
According to E, Mr Jolley shook her hand and said 'My name is Kevin'. E shook his hand back awkwardly and did not say anything further.
On further occasions in 2013 where E served Mr Jolley at IGA, he engaged in normal customer interaction. However, E claimed that as time went on, the questions became more personal such as 'What do you study?', 'Where are you studying' and 'What time do you finish work'.
On a few occasions, Mr Jolley had also asked E out, to which E would reply 'No'.
Between 2013 and 2014 Unspecified
Mr Jolley leaves post it note on E's work counter.
E had served him normally. Mr Jolley left and then came back into the store that same day. As E was serving another customer, he walked up to her counter, put a piece of paper on it and then turned away and walked off. The post it note was tendered as exhibit 1 at trial. It showed Mr Jolley's name and phone number on it. Mr Jolley came to the Kiara IGA a few more times that week and E served him as normal. She did not talk to him any more than she had to as part of her job.
2014
UnspecifiedMr Jolley speaks with E at work counter.
E served Mr Jolley as normal and gave him his receipt. Mr Jolley walked off and then turned back around towards E, asking her why she had not called him. He then said something along the lines of 'You think you're too good for me.' Mr Jolley scrunched up the receipt he had received and threw it at E.
2014 Unspecified (two or three weeks after E last encountered Mr Jolley)
Mr Jolley entered the staff area at the back of the Kiara IGA store
E was sitting in the restricted staff area. Mr Jolley was at the IGA store at the time and asked a staff member where E was. The staff member told him that E was on a break in the staff room. Mr Jolley proceeded to the back of the store and approached E in this area. He asked to talk to her, to which she said 'No'. Mr Jolley said 'All right' and walked out.
2014
UnspecifiedE serves Mr Jolley as a customer on numerous occasions at the IGA.
E gave evidence she served Mr Jolley numerous times during this period. Whenever she was working with someone else, Mr Jolley would tell customers to go to the other person so E could serve him. He told the other customers he wanted to talk to E and urged them to be served first (by another cash operator).
When E served him, he usually ended up saying something like 'I want to take you out', 'What time does your shift finish? I will meet you afterwards', 'I want to talk to you afterwards. I will wait for you'.
E said Mr Jolley would ask her out on these occasions and then she would serve him a couple more times and he would not say anything and then he would ask her out again. E stated that she informed Mr Jolley that she had a boyfriend and said 'no' each time he asked her out.
2015
E quits IGA job.
E and E's mother both gave evidence that this occurred because E had become fearful of her safety.
Period after E quit IGA job
Driving incident.
E was driving to a new job down Morley Drive (towards Lord Street) when she recognised Mr Jolley's car behind her. Mr Jolley was swerving between lanes and honking his horn a lot. E claims that it looked like he was waving to her through the windscreen. E then turned off down a side street. She did not see Mr Jolley after that.
There was a dispute over whether Mr Jolley was driving a bronze or silver Commodore at this time. E said it was a silver car. Mr Jolley said he was driving a bronze car. I note, however, that the colour of the car is irrelevant to this appeal.
26 July 2016
First time Mr Jolley attends E's home.
Mr Jolley leaves a bunch of flowers at the front door of E's house. His evidence was he did not include a note with the flowers because he had intended to hand the flowers directly to her (appeal ts 16).
No one was at home at the time. When E's mother returned home, she was told by her son a bunch of flowers had been left at the door with no note attached.
Mr Jolley gave evidence that he knew E's address because he was told by two people (named Leanne and Damien) that she lived 'across the road from the shops' and that her Dad drove a yellow Commodore with yellow rims (trial 9 August 2018 ts 17). It appears that Mr Jolley used the information to discern the location of E's residence.
9 August 2016
Second time Mr Jolley attended E's home.
Mr Jolley knocked on the front door of E's residence. E's mother answered the door, not knowing who the person was. Mr Jolley said he would like to talk to E. From the kitchen E gestured to her mother, informing her that the man was Mr Jolley. E's mother told Mr Jolley that E did not want to see him.
Mr Jolley then stated 'I must have got the wrong idea'. E's mother asked him to leave and he did.
26 August 2016
Third time Mr Jolley attended E's home.
Mr Jolley attends again, this time with a box of chocolates, at the front door at E's house. E was not home at this time. Mr Jolley speaks with E's mother. She says to him, in effect, that E is not interested and does not wish to speak with him. She tells him to leave E alone as he was scaring her. E's mother informs Mr Jolley that E was only 20 years old to which Mr Jolley responds 'I thought she was older than that'. Mr Jolley proceeds to apologise to E's mother multiple times and leaves.
E's mother does not say in her evidence at trial that she ever informed E of this last attendance by Mr Jolley at the Kiara residence.
With the benefit of the additional material facts now seen above, extending back to 27 July 2014, the requirement of showing 'repeated communications' with E by Mr Jolley, could then be better established for a purpose of proving the s 338E(2) required element of 'pursue', as regards E by Mr Jolley.
In particular, the prior material facts concerning a car horn honking incident on Morley Drive and a distressed (at the time) resignation by E from her job at the Kiara IGA in 2015 would all greatly assist as material facts to show that at least subjectively (by the distress of E due to her apprehension or fear of Mr Jolley), that E was intimidated by virtue of being 'pursued' over an extended period by Mr Jolley.
Accordingly, upon the amended Prosecution Notice and its then 25 month canvass of alleged offending against s 338E(2), the learned magistrate's eventual conviction conclusion, was more understandable.
In contrast, had the relevant material facts for Mr Jolley's alleged offending to sustain a s 338E(2) charge remained confined to the original one‑month window during mid 2016, then a s 338E(2) conviction outcome, as I will discuss, was far more problematic.
The statutory offence of stalking
Next I need to address further and add to my earlier discussion of Ch XXXIIIB of the Criminal Code and the simple offence under s 338E(2).
The substantive 'stalking' provision under s 338E was enacted in 1998, following a repeal and substitution of an earlier stalking provision in the Criminal Code. Section 338E has been subsequently amended by amendments as introduced in 2004 and 2008.
Section 338E(1) identifies what is a more serious indictable offence of stalking - albeit there is also a summary conviction penalty provided - rendering this a so-called 'either way' offence.
Relevantly towards Mr Jolley and E, there is found in s 338E an alternative offence under subsection (2), expressed in the terms seen below. I also set out s 338E(3) for context.
These parts of s 338E provide:
(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.
(3)It is a defence to a charge under this section to prove that the accused person acted with lawful authority. (my emphasis in bold)
As previously mentioned, there are essentially the three constituent elements of s 338E(2) as a simple offence under the Criminal Code. First is that the alleged offender must have pursued the complainant. Secondly, the complainant must have subjectively been intimidated by the pursuit. And thirdly, the manner of the pursuit must reasonably be expected to intimidate the complainant.
Within s 338E(2), it will now be appreciated that two broad end pivotal words are deliberately used. The words 'pursue' and 'intimidate' are both defined terms, under s 338D. Both carry great potential to amplify the reach of application of this simple offence.
Before exploring further the two as deployed 'sinkhole' terms more closely, it is necessary to return to the preceding s 338D and to its definitions. I set out below, as will be seen, the relevant components of the key definitions, 'intimidate' and 'pursue'.
'Pursue' under s 338D(1)
Towards the key word 'pursue', I have earlier canvassed what is found in subparagraph (a) of the definition, as provided in s 338D(1). But it is apparent from the reasons of the learned magistrate (trial 9 August 2018 ts 48) that another further potentially relevant subparagraph of the definition of 'pursue' was also in play, namely subpar (d). These s 338D(1) provisions say:
(1)In this Chapter -
…
pursue, in relation to a person, includes -
(a)to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;
…
(d)to watch or beset the place where the person lives or works or happens to be, or the approaches to such a place;
…
I refer also to s 338D(2), for a purpose of contextualising the statutory definition of 'pursue'. It reads:
(2)For the purpose of deciding whether an accused person has pursued another person -
(a)the accused is not to be regarded as having communicated with or followed that person on a particular occasion if it is proved by or on behalf of the accused that on that occasion the accused did not intend to communicate with or follow that person;
(b)an act by the accused on a particular occasion is not to be taken into account for the purpose of deciding whether the accused watched or beset a place where that person lived, worked or happened to be, or the approaches to such a place, if it is proved by or on behalf of the accused that on that occasion the accused did not know it was such a place.
Within the s 338D definition of 'pursue', further attention needs to be directed to the quaint word also used therein, namely, 'beset'.
In relation to the concept of 'beset' or a 'besetting' of a place, for the purpose of fulfilling one of the 'pursue' gateways under s 338D(1)(d), I would first refer to an article by Karen Whitney 'Western Australia's New Stalking Legislation: Will It Fill The Gap?' (1999) 28 Western Australian Law Review 293. There the author at pages 306 - 307, under the heading 'Watching or besetting', insightfully observes:
Paragraph (d) includes within the definition of pursue 'to watch or beset the place where the person lives or works or happens to be, or the approaches to such a place'. This is, in effect, the same provision as the former s 338E(1)(c). As with that section, the conduct need only take place on one occasion to constitute stalking. This reflects Parliament's view of the danger arising from this particular type of conduct. However, such an expansive provision increases the possibility that it could capture behaviour not intended to be stalking. The defence provided by the new s 338E(3) (ie, that the accused acted 'with lawful authority') may protect defendants from an overly broad application of this provision.
The new provision still does not define 'beset'. However, this is less critical than under the 1994 provisions because 'beset' is no longer intended to be a catch-all for behaviours not otherwise specified in the offence. (citations omitted)
I must draw greater attention to the word 'beset', because:
(a)its force and application is now relied upon by the respondent residually, in an endeavour to sustain the conviction of Mr Jolley - even if the material facts of his alleged offending are wholly confined to the original one month period in 2016, as mentioned by the Prosecution Notice prior to its amendment; and
(b)the respondent, correctly, points out that unlike what is laid down for s 338D(1) subpar (a) for the inclusive 'pursue' definition, that there is no requirement under subpar (d) of that definition for any repeated watching or besetting of 'the place'. Albeit that 'watch' is not being suggested as being engaged here by Mr Jolley, his three in‑person attendances at E's residence in mid-2016 are now suggested to positively engage with the criteria of 'beset' vis-à-vis the Kiara residence, and so to support the conviction on that basis.
'Intimidate' under s 338D(1)
Next, as regards the defined meaning of 'intimidate', s 338D says:
(1)In this Chapter -
…
intimidate, in relation to a person, includes -
(a)to cause physical or mental harm to the person;
(b)to cause apprehension or fear in the person;
(c)to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;
(d)to compel the person to do an act that the person is lawfully entitled to abstain from doing; (my emphasis in bold)
For the required s 338E(2) element of 'intimidate', only subpars (a) and (b) from that inclusive s 338D(1) definition look presently to be possibly relevant to Mr Jolley's charge.
Towards subpar (a) of the definition, there was no suggestion from the Prosecution Notice or in the trial evidence as it was accepted by the learned magistrate that Mr Jolley had caused any level of 'physical or mental harm' to E. Whilst Mr Jolley's mid-2016 conduct towards E may have caused her some level of irritation, annoyance and some level of distress, such as suffered transient conditions do not, on my assessment, equate to meeting a legal description of the causing of physical or mental harm to E. So subpar (a) of the definition of 'intimidate' can be put to one side.
Consequently, the more relevant focus for possibly meeting the definition of 'intimidate' as used in s 338E(2) vis-à-vis E, is from subpar (b) of the s 338D(1) definition and from there, to its reference to a causing of 'apprehension or fear' to the complainant, E.
The word 'apprehension' is not itself defined under s 338D. Its ordinary meaning as found in the Oxford English Dictionary is:
1.The action of 'feeling' anything emotionally; sensitiveness or sensibility to; sympathetic perception.
2.…
3.Fear as to what may happen; dread.
It is worthy to note what is the intersection seen above, as between the concepts of 'apprehension' and 'fear', arising out of the third meaning above. Of course, as seen, the word 'fear' is expressly used in the s 338D subpar (b) inclusive definition for 'intimidate' as a disjunctive component.
The word 'fear' is also not defined in s 338D. But the Oxford English Dictionary meaning for the word includes:
1.The emotion of pain or uneasiness caused by the sense of impending danger, or by the prospect of some possible evil.
2.Apprehensive feeling towards anything as a source of danger, or towards a person regarded as able to inflict injury or punishment.
Underlying the above ordinary meanings for the word 'fear' is the notion of some sense of, or source of, an impending danger. Obviously, the sentiment as conveyed by the word is overwhelmingly negative, for a person experiencing the condition of fear.
Again of note from the dictionary meanings as exposed, is the intersection of the word 'fear' back to a state of apprehension, by reference to the apprehensive feeling towards anything regarded as a source of danger. Clearly, the ordinary meanings of the words 'apprehension' and 'fear' must intersect, to a degree.
Section 338E(2): the elements
Returning then to s 338E(2), let it be assumed, just for present purposes, that Mr Jolley had 'repeatedly communicated' with E (ie, by Mr Jolley's two visits to the house in August 2016, where he spoke only to E's mother) or that he had 'beset' E's Kiara place of residence (by three (3) attendances in 2016) - for the purposes of affirmatively engaging with the word 'pursue'.
Even so, there is a further required element necessary to prove an offence under s 338E(2) - namely that the complainant be intimidated by the pursuit. This element has dual subjective (ie, 'that does in fact') and objective (ie, 'reasonably be expected') components. Both are required to be proved to show that someone (relevantly here, E) was intimidated by the relevant pursuit conduct for the purposes of s 338E(2).
Subjective component
Let it also be assumed for present purposes that the subjective s 388E(2) element for 'intimidate' can be met here - from the trial evidence of the complainant, E. E was a special witness at the trial. She therefore gave evidence remotely. I refer to the transcript of Mr Jolley's 2018 trial where E had said that she was 'terrified', when Mr Jolley attended her parents' Kiara home (on the one occasion E was at home) (see trial 11 June 2018 ts 11).
However, that evidence aside, E's trial evidence as to her level of subjective intimidation (of her apprehension or fear) was otherwise globally aggregated - to speak across the effects of Mr Jolley's full 25‑month, in effect, period of allegedly offending conduct, as contended. I note, however, that there is no specific evidence that addresses E's level of subjective intimidation (ie, fear or apprehension) having regard only to the three specific conduct incidents of 2016 where Mr Jolley attended E's Kiara residence - especially considering that on two (the first and third) occasions E was not at home.
Objective component
By reference to the additionally required objective element for 'intimidate' (ie, Mr Jolley pursued E in a manner that could reasonably be expected to intimidate) - this, in my assessment, is the vital question to be addressed.
Assuming the first required s 338E(2) element of a 'pursuit' can be established, the objective element for 'intimidate', by reference to the 'manner' of the pursuit, still needs to be met as a required material fact and essential element of this offence.
Can then the objective aspect of s 338E(2), as to proving E's intimidation by reference to Mr Jolley's conduct by (repeated) communications, or by his besetting of the place where E lived, be objectively assessed as his pursuit conduct 'in a manner that could reasonably be expected to intimidate' the complainant, E (noting the residual subjectivity directed to this complainant, whilst applying the objective standard to the manner of the pursuit)?
The objective element of the s 338E(2) simple offence must also be established beyond reasonable doubt. So I ask - is there anything in the manner of the three 2016 attendances to the front of the Kiara residence (where Mr Jolley attended and conducted himself in civil terms and left, when on two of these he was spoken to by E's mother), that will possibly satisfy the standard of being communications, or a besetting of E's residence in a manner that could reasonably be expected to intimidate E?
For this required objective analysis it will, I assess, also be necessary to take account of E's personal circumstances at the time -being her age of 20, their different genders, and a considerable age disparity as between herself and Mr Jolley. The fact that E had not ever disclosed her address to Mr Jolley is also relevant to the objective assessment.
Even so, it has to be said that without adding the extra 24 months or so of earlier material facts dating back to mid‑2014 to give a better focus and insights towards Mr Jolley's three in-person attendances at E's Kiara residence (two of which involved contact with E's mother and none with E personally), the objective element for this offence, to show an intimidation of E (by fear or apprehension) in a manner that an average person in E's position would reasonably suffer either apprehension or fear, presents to me as problematic.
A question to be confronted, with again no disrespect at all being suggested to E, is asking what E's apprehension or fear is about, or of exactly regarding Mr Jolley and his visit conduct. The inclusive definition of 'intimidate' looks to require the 'apprehension or fear' to be of something tangibly negative. So fear or apprehension about the unknown is no answer.
On their face, 'apprehension' or 'fear' look to me to encompass something beyond mere nuisance or irritation. For instance, an expressed fear or apprehension as to being given flowers or chocolates by Mr Jolley, or even of being asked out on a date by him from at the front door - viewed alone and without a lot more material facts - does not look to me to meet, beyond reasonable doubt, the objective element for showing conduct by Mr Jolley that 'intimidates' from its manner so that it can be assessed as conduct reasonably expected to cause fear or apprehension to someone in E's circumstances at the time.
Consequences of the amendment to the Prosecution Notice
Conviction
Had the admissible material facts for Mr Jolley's alleged infringement of s 338E(2) towards E remained as originally framed by the Prosecution Notice, in effect, to just a one month period of conduct by Mr Jolley across late July to 25 August 2016, then Mr Jolley, on my assessment, should have been acquitted.
Only with an addition of more facts and conduct extending back to mid-2014 (which at the trial in August 2018 were in any event, then time barred as I will explain) could the 2016 visitation conduct by Mr Jolley be evaluated as supporting the meeting of the objective s 338E(2) requirement for the standard of reasonably expecting by its manner to intimidate E. Invoking pre-2016 facts only as mere background context only, will not be enough to meet the objective element within s 338E(2).
Appeal
The next question is why the amendment to the Prosecution Notice to add the two years of potential further offending conduct by Mr Jolley was not opposed at the time it was sought? Mr Jolley's position essentially is that the requested amendment was not properly explained to him by his lawyer. As a layman, Mr Jolley says he did not appreciate the full legal implications of what was then happening. The as expressed position is understandable. Reference to a charge being the subject of amendment only 'slightly' by the prosecutor at the time was a misstatement which was capable of giving both Mr Jolley and the learned magistrate the wrong impression.
As seen already from the transcript for the outset of the trial, even the learned magistrate, for a time, had expressed her difficulty in understanding what was then being sought by the prosecutor - by reference to the proposed amendment then sought by the prosecutor (trial 11 June 2018 ts 2 - 3).
It is put, of course, that in due course matters were duly clarified regarding the addition of the extra 24 months and so then, that Mr Jolley is seen then expressly to have verbally agreed to proceed on that basis. But from all the materials now before me, no thought at all by Mr Jolley's trial counsel appears to have been directed to what were the important potential adverse legal ramifications for his client from altering the Prosecution Notice to add two more past years of extra material facts. The change would, from the prosecution's perspective, possibly shore up a very weak case. Further, no query was made to the time limitation aspects of adding in then, all that extra conduct at a trial in August 2018.
The evidence of Mr Jolley's trial lawyer (Mr Smith), when dealing with the multiple grievances put against him under his affidavit of 14 August 2019, had not addressed this issue at all and understandably so given the poor presentation of the issue by Mr Jolley as part of this appeal.
The expressed grievance as to Mr Smith's non‑objection to the temporal amendment to the Prosecution Notice looks only to have emerged late - under Mr Jolley's further particulars filed at 3 September 2020 (exhibit H).
Mr Jolley's further particulars were by way of his response to par 1(c) of Le Miere J's orders of 23 July 2020. That order had required Mr Jolley to provide particulars of his ground of appeal 'in respect of the contention that "he's [Mr Jolley's defence counsel] making amendments to the dates without my permission"'. That led to the following particulars from Mr Jolley in long form seen at page 3:
Moments before entering Court the Police Prosecutor approached me and Mr Smith. Addressing Mr Smith he said ... are we still ok [sic] with those dates[.] Mr Smith said yes, prosecutor walked away. I asked Mr Smith what date he was talking about, Mr Smith [replies] nothing just some dates. Once we were [in] court the dates were changed from (26th July 16 - 25-8-16) to 26 July 14 - 25-8-16 adding two years. I was asked if I understood was happening[.] I said yes thinking that my lawyer had my best interests at heart. The judge at one point stopped the prosecutor saying you are just confusing me, so how was I expected to understand[.] I was not provided with a [prosecution] notice on leaving the police station or Materials Facts[.] I was told it would be in the post. I got three copies of the police brief over time from my lawyer none of which contained a [prosecution] notice. The [prosecution] notice that I provided to the courts for this appeal I obtained from the [DPP] on Adelaide Terrace.
When the issue of the two year extra time amendment issue was raised (by me) during the February 2021 hearing, in a context of a potential miscarriage of justice argument, counsel for the respondent, Ms Harman, sought an opportunity to obtain further evidence from Mr Smith to deal with the precise issue as it had then emerged. The request was reasonable and I agreed. This required an adjournment of the February 2021 hearing.
Time bars
In addition to my evidentiary findings regarding Mr Jolley's infringement of s 338E(2), it is necessary to also consider the time bar issue around the temporal amendment to the Prosecution Notice, not objected to by Mr Jolley's lawyer.
Section 21 of the Criminal Procedure Act 2004 (WA) (amended in 2020 by s 86 of Act No 34 of 2020) provides towards simple offences (as defined):
21.When prosecution can be commenced
…
(2)A prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed, unless another written law provides otherwise or the person consents to it being commenced at a later time.
(3)A prosecution is commenced on the day on which a prosecution notice, signed in accordance with section 23, is lodged with the court in which the prosecution is being commenced, whether or not the notice has been served on the accused.
The Prosecution Notice was originally issued on 20 October 2016 - in respect of a one month period across July and August 2016 (26 July 2016 to 25 August 2016). Twelve months earlier (being the outer limit for when a prosecution could be validly commenced) would encompass events dating back to 20 October 2015. Clearly, the time period as originally framed fell within that limit of 12 months prior to 20 October 2016.
However, the amendment as it came to be allowed at the commencement of the trial, went then to extend the period of alleged offending - back well beyond 20 October 2015. As seen, the allowed amendment had extended the period of alleged offending back to 26 July 2014.
At the appeal hearing in February 2021, there was no evidence provided as to why such an amendment to the Prosecution Notice, carrying potentially significant adverse legal consequences towards conviction, was not at least discussed with Mr Jolley. There was also no evidence as to why the amendment was not opposed by Mr Jolley's lawyer ‑ without at least providing some explanation to Mr Jolley concerning the legal ramifications of what was happening.
Consequently, the February 2021 hearing was, as I mentioned, adjourned for the issue to be addressed by further evidence and by further written submissions on both sides.
Further evidentiary materials following the February 2021 hearing
At the conclusion of the 17 February 2021 hearing, I adjourned that hearing, but then issued further directions, essentially allowing the parties to file further affidavit materials and further written submissions addressing the now better appreciated potential miscarriage of justice issue, by reference to the amendments made to the Prosecution Notice at the commencement of Mr Jolley's 2018 trial.
In the wake of those directions I later received on behalf of the respondent, what were the very fair and helpful written submissions of the SSO (Ms Harman) of 13 April 2021, together with a further affidavit the SSO had subsequently obtained from Mr Jolley's defence counsel, Mr Smith, sworn 17 March 2021.
I also received from Mr Jolley his further page of longhand written submissions filed on 29 April 2021 - but essentially reiterating matters as earlier canvassed by him concerning his defence counsel, Mr Smith, and the same events around the Prosecution Notice amendments.
The further written submissions provided by the respondent (SSO) render a number of concessions, fairly and sensibly made in the wake of the events at the February 2021 hearing.
The respondent's further submissions of April 2021
I mention now the following matters of significance arising from the April 2021 further submissions of the respondent, reading as follows:
3.In light of the matters raised at the hearing on 17 February 2021, the Respondent:
(a)accepts that it is open to the Court to conclude that there was a miscarriage of justice in that the conduct of trial counsel was not objectively capable of explanation;
(b)submits that, despite any such error being found, the appeal against conviction should be dismissed on the basis that no substantial miscarriage of justice has occurred [footnote 1 in the submissions referring to section 14(2) of the Criminal Appeals Act]; and
(c)accepts that, in the event that the Court concludes there was a miscarriage of justice but dismisses the appeal on the basis that the evidence adduced at trial established that the Appellant was nonetheless guilty of stalking in relation to the 2016 conduct alone, it would be appropriate to uphold the sentence appeal on the basis that the Magistrate's sentencing would have proceeded on a false premise. (my emphasis in bold)
In the context of time bar limitations, the respondent also drew my attention to the following under par 8:
An amendment to particulars, without altering the offence charged, may take place after the limitation period has expired. However, an amendment after the limitation period has expired will not be granted if it involves the charging of a separate offence from that originally charged [footnote 7 referring to Starling v Ostrowski [2001] WASCA 74; (2001) 24 WAR 61 at [21] and the authorities referred to therein].
The respondent made a following further concession, under par 9:
The Respondent accepts that the amendment had the effect of bringing in new acts which essentially changed the nature of the offence charged, and which (both at the time the charge was laid and at the time the amendment was made) fell outside the 12 month limitation period for commencing a prosecution [footnote 8 referring to s 21 of the Criminal Procedure Act which I have already mentioned].
At this point it is convenient to divert to see the further affidavit filed and obtained from Mr Jolley's trial counsel, Mr Smith, on behalf of the respondent.
Mr Smith's further affidavit of March 2021
In his further affidavit sworn 14 March 2021, Mr Smith now relates the following:
14.When I met Mr Jolley on the first morning of the trial, we went over his proof of evidence and I discussed with him the cross‑examination questions. I also discussed the issue of the application to amend the dates with him and took instructions.
15.I don't recall the specific words I used, but I said to Mr Jolley words to the effect of "there is a proposal to change the dates of the alleged offending; I don't think the change will have any impact on what your defence will be. The court will grant the amendment unless we can show there is some prejudice to you, and there is a risk that the court might further adjourn the matter if it felt there was some prejudice to you as a result of the amendment."
16.I don't recall the exact words he used, but I think Mr Jolley said words to the effect of "fine, we will go along with what you say."
17.I didn't consider there would be any prejudice to Mr Jolley or the defence.
...
19.I had interpreted the prosecution case as encompassing the facts over the time period over which the application was made.
...
21.It didn't cross my mind that there was an issue with the limitation period for instituting the prosecution for the alleged offence.
In my view, the legal advice received by Mr Jolley from Mr Smith to the effect that 'I don't think the change will have any impact on what your defence will be' and further 'I didn't consider there would be any prejudice to Mr Jolley or the defence', was inadequate. Moreover, it carried with it the adverse causative consequence of allowing what would otherwise be multiple time barred further material facts allowed to be adduced against Mr Jolley - in circumstances where he otherwise would have stood (on the terms of the Prosecution Notice as originally framed) a very strong prospect of being acquitted of the s 338E(2) offence on its then temporal foundation of one month's alleged offending in 2016.
The respondent's submissions upon a potential miscarriage of justice
The respondent's further written submissions of April 2021, on my assessment, encapsulate the position fairly. They say:
10.While the Appellant's trial counsel stated there was no objection to the amendment, the Appellant now contends that his trial counsel did not advise him in relation to the amendment, and agreed to the amendment without his permission.
11.The Appellant's trial counsel states that he discussed the application to amend the dates with the Appellant on the first morning of the trial, and the Appellant agreed to go along with his advice [footnote 10 referring to Mr Smith's supplementary affidavit at pars 14 and 16 as cited above]. The Appellant's counsel did not consider that there would be any prejudice to the Appellant or his defence; counsel did not consider that there was an issue with the limitation period for instituting the prosecution for the alleged offence [footnote 11 referring to Mr Smith's supplementary affidavit at pars 17 and 21, also cited above].
12.The Respondent accepts that trial counsel's failure to consider the effect of the amendment and the limitation period was not objectively capable of explanation [footnote 12 referring to McMahon at [24] - [27]].
The concession as seen under par 12 above, in my view, is correct and is fairly and properly made by the respondent in all the circumstances.
Considering all the material now before me, I thus accept there has been a miscarriage of justice suffered by Mr Jolley on the correct application of that threshold.
The residual basis to sustain the conviction
What still presents for my residual evaluation is the respondent's attempted rehabilitation of the position, by reference to a contention of the respondent, that no substantial miscarriage of justice has occurred.
This contention effectively formed the major thrust of the respondent's further written submissions. The contention is essentially that even limited to the bare 2016 conduct as originally raised by the Prosecution Notice, prior to its amendment at the trial, Mr Jolley should still have been convicted, albeit he ought be resentenced by reference to more limited material facts of 2016, arising under the original Prosecution Notice.
The essence of the respondent's submission made under par 15 is as follows:
In the Respondent's submission that evidence [of the three conduct events during 2016] was capable of establishing that:
(a) the Appellant pursued the complainant by besetting the complainant's house on the three visits;
(b)the Appellant pursued the complainant in a manner that could reasonably be expected to intimidate; and
(c)the complainant felt fear and apprehension as a result of the Appellant's conduct in pursuing her.
I return later to address the respondent's residual submission as to the contended satisfaction of the subjective/objective components of the s 338E(2) offence as articulated under par 15(b) and par 15(c) above.
For now, I will address whether Mr Jolley's three 2016 visits at E's Kiara residence could meet the definition of a 'pursuit', either by constituting a 'besetting' of the place, or by 'repeated communications'.
Repeated communications
At par 17 of the written submissions the respondent says:
The Respondent accepts that the evidence of the 2016 conduct would not qualify as repeated communications for the purposes of paragraph (a) of the [s 338D(1)] definition of 'pursue'.
Augmenting the submission, the respondent says under par 22 and par 23:
The conversation between the Appellant and the complainant's mother on the second visit was an indirect communication by the Appellant with the complainant for the purposes of paragraph (a) of the definition. The complainant was at home and heard the Appellant at the door, and gestured to her mother that it was the Appellant and shook her head, indicating that she did not want to talk to him.
The Respondent accepts that, in the absence of evidence that the complainant was made aware of the first and third visits, those visits likely do not qualify as communications for the purposes of the definition, and the evidence of the 2016 conduct was therefore not sufficient to comprise 'repeated' communication for the purposes of paragraph (a) of the definition of 'pursuit'. (footnotes omitted)
As earlier indicated, that submission by the respondent aligns with my own independent assessment that Mr Jolley's conduct does not satisfy a threshold of being evaluated as 'repeated' communications with E (see [93] above).
'Beset' a place
Accordingly, the respondent's residual reliance is placed on the word 'beset' (the) 'place', recalling the s 338D(1)(d) (inclusive) definition of the verb 'pursue', which says:
(d)To watch or beset the place where the person lives or works or happens to be, or the approaches to such a place ...
The respondent does not seek to rely on the term 'watch'. Its submissions about that provide:
27.The ordinary meaning of 'watch', indicates that it is an action that is more than incidental.
28.There was no evidence before the court that the Appellant observed the complainant's house, or was present and waiting at her house, for any length of time.
Again that concession is both properly and fairly made. Instead, the respondent directs an attempted residual reliance only on a contended fulfilment of the word 'beset'.
The 'beset' submission is advanced in the following terms:
29.The Macquarie Dictionary Online, relevantly defines 'beset' as:
2.to repeatedly cause difficulty or danger to, harass: the problems that beset the community.
30.The Respondent submits that a narrow interpretation of the term 'beset' would be inconsistent with a textual analysis of the stalking provisions as a whole, and undercut the apparent legislative intention to capture all manner of behaviour that could make up a pursuit ... (footnotes omitted)
I do accept, of course, that the statutory provisions were designed to cast a wide net and capture communications regardless of the intention with which they were engaged in, and regardless of whether the communications were immediately experienced by a complainant, or indirectly relayed to them at some latter time.
In that context, the respondent draws my attention to Hansard and to the Parliamentary debate in the Legislative Assembly on 25 June 1998, when the Hon Kevin Prince, speaking to the second reading speech of the Criminal Code Amendment Bill (No 1) 1998 (which inserted the key amendments at that time). Addressing the breadth of the concept of 'communication', Mr Prince said (at page 4777):
Also, the forms of communication have been greatly widened so as not to be confined to written and spoken communications, or to other conventional means of communication. Importantly, what are known as esoteric communications - communications that are recognised by the stalker and the person stalked, but possibly of little significance to others - are also intended to be caught.
By logical extension the respondent, in effect, then submits that because the concept of communication was intended to be and was then cast in broad terms, that similarly the word 'beset' ought likewise be given, in effect, a broad interpretation. This, according to par 31 of the respondent's further submissions, should be '... to include conduct which harasses or repeatedly causes difficulty'.
Summarising the 'beset' position at par 32, the respondent as regards engagement with the word 'beset', says:
The Respondent submits that the evidence at trial established that the Appellant 'beset' the place where the complainant lived, in circumstances where he visited her house, uninvited by any occupant, on three separate occasions over a period of several weeks. That conduct was a persistent disturbance, causing difficulty.
Whilst I do agree the word 'beset' should be given a viable interpretation in context, I cannot, with respect, accept the 'stretch' that is required to render it applicable to encapsulate Mr Jolley's three 2016 attendances at E's Kiara residence for the purposes of thereby satisfying a required s 338E(2) element of showing a 'pursuit' of E.
The potentially wide-reaching effects of s 338E(2) cannot be under estimated. I recognise and fully accept that the protection of the vulnerable and the at risk is a vitally important policy consideration to be respected. Balanced along with that, however, is a need to recognise what is, in a democracy, a priceless gift of personal liberty. It must surely be recognised that not all citizens are universally blessed with perfect communication or receptor skills. There are those who cannot and do not, for whatever reason, pick up well upon human behavioural signals, which others take for granted.
Therefore, what is undoubtedly well‑intentioned legislation needs to be carefully deployed. It ought not be used as a licence to vacuum into the justice system, to stamp as criminals, those who are imperfect receptors or communicators, or the functional but less than optimally communicative members of society who may, in their behaviours, suffer from a range of congenital traits or conditions which present as their daily obstacles to overcome. There must be a judicious balancing of divergent policy considerations in every application of porous laws of this dimension.
One of my difficulties with the respondent's residual 'beset' submission, is that as a matter of proper statutory construction, the word 'beset' needs to be read contextually within its wide definition in s 338D(1)(d). In that context, it is found used in conjunction with the preceding phrase 'to watch' and then, in reference to ensuing 'the place' (where the person lives or works).
The word 'beset' is not itself defined in the Criminal Code.
From the Shorter Oxford English Dictionary the word 'beset' is given a number of meanings, as:
1Set about or surround with (esp. appendages or accessories) ...
2Surround with hostile intent, besiege, assail on all sides...
3Occupy and make impassable (a gate, road, etc) ...
4gen. close round, hem in.
Examples for 'beset' provided in the Shorter Oxford English Dictionary include:
1. DE QUINCY A tiara beset with pearls, 2. POPE The lioness ... beset by Men and Hounds. H. KELLER As I began to teach her, I was beset by difficulties. W.S. CHURCHILL There were no more half rations ... to give to the soldiers, and they were beset on three sides. A. MOOREHEAD They were so beset by flies and dust they wore goggles and veils. C. CHAPLIN A spell of melancholy beset me ...
Bearing in mind the word 'beset' is found used here in a criminal statute, carrying a serious potential sanction against personal liberty, if infringed, a citizen's exposure to a punishment outcome arising out of a use of the word 'beset' ought to be clear and ascertainable - not left as grey or fuzzy.
By my assessment, the correct meaning of 'beset', assessed in its overall context here, requires there to be demonstrated some conduct that is tangibly negative towards a place (ie, E's Kiara residence). The meaning would not extend to catch what were three overt visits to the front door of the place, followed by departure.
For clarity's sake, I render that observation by reference purely to the facts of the 2016 conduct. To be clear, I do not say that a multiplicity of visits proximate to a residence or place of work generally might not, in another factual context, be assessed as meeting the 'beset' requirement. It is always a question of degree. An explicit command not to return would be relevant. Hypothetically, say, if Mr Jolley had paid a fourth visit to the Kiara premises, that extra conduct may well have produced a different result - after Mr Jolley was firmly told by E's mother, in effect, on his third attendance, not to return.
In present circumstances, however, what were the open, brief and relatively innocuous nature of the three attendances to the front door will not, on my assessment, meet the requirement of a besetting of the Kiara place of residence of E at that time.
On that basis, the 'beset' element residually relied upon in order to show a pursuit for the purposes of meeting s 333E(2), is not met.
Did Mr Jolley subjectively and objectively 'intimidate' E?
Returning to the respondent's submission at par 15(b) and 15(c) (see [165] above), whilst I may be prepared to accept that E subjectively felt apprehension from Mr Jolley's second visit to her residence in 2016, that is not enough. I have an abiding difficulty with the respondent's further submission that Mr Jolley's conduct satisfies the objective element of reasonably causing 'fear or apprehension' as to satisfy the s 338D(1)(b) definition of 'intimidate'. Here, the respondent's submissions were, at par 35:
The Respondent submits that the objective test should not be applied in a vacuum, and that it is appropriate to consider the complainant's sex and age in assessing whether the pursuit could reasonably be expected to intimidate a person in her position, and whether the pursuit did in fact intimidate her. (footnotes omitted)
Assuming the subjective component for an intimidation was met by E's evidence at the trial, my difficulty still remains concerning the objective component of this offence, assessed on the 2016 facts alone. In relation to taking the complainant's gender and age (vis-à-vis Mr Jolley) into account, I am well disposed to incorporate into the evaluation as necessary, the personal characteristics of E as the person in the circumstances, for the purposes of applying s 338E(2).
At footnote 21 of the respondent's written submissions, reliance is placed on observations rendered in the context of a defence of provocation, citing Hart v R [2003] WASCA 213; (2003) 27 WAR 441 at [49], in turn citing Stingel v The Queen (1990) 171 CLR 312, 324 - 332 in the High Court of Australia. I accept that position by analogy.
Under par 36 of the written submissions the respondent says:
The broader factual background, including evidence of the prior 2014/2015 conduct and interactions, is relevant to the question of whether the nature of the Appellant's conduct by way of pursuit could reasonably be expected to intimidate and whether the complainant's evidence that she was in fact intimidated was to be accepted [footnote 22 referring to Hellings v The Queen at [34]].
The respondent duly submits:
37.The evidence established that the complainant was in fact intimidated as a result of the Appellant turning up at her house uninvited. Her evidence (which was accepted by the Magistrate) as to how she felt when the Appellant turned up at her house on 9 August 2016 was that she was 'petrified' and 'terrified', that the Appellant was a lot older than her, now knew where she lived, and had somehow found her; she wanted to move house straight away and never be in that area again.
38.Considering the complainant's age, the fact that she had left the IGA in 2015, the evidence of the history and nature of their interactions at the IGA (including that the complainant always said no or that she had a boyfriend when he asked her out), that she had never contacted the Appellant or given him her address, the evidence establishes that the pursuit was of the kind that could reasonably be expected to intimidate the complainant.
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.
Conclusion
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.
For completeness, I make it clear the $3,000 fine levied against Mr Jolley (if paid) should be refunded to him. In addition, the three-year restraining order as issued by the learned magistrate under s 63(1) of the Restraining Orders Act (as amended) (with that order itself otherwise expiring by the effluxion of time at 9 August 2021) will also be quashed and set aside on the making of orders implementing these reasons.
Given that Mr Jolley represented himself throughout the proceedings, there is no occasion to consider any order for his legal costs.
I conclude the reasons by again expressing my gratitude to Ms Harman of the SSO for the fair and invaluable assistance received by the court through two tranches of comprehensive written submissions and by the extremely fair and balanced approach to this relatively difficult in‑person appeal.
Orders
Accordingly, I propose, subject to hearing Mr Jolley and the respondent if they wish to be heard, that the prima facie orders to issue will be:
1.Leave to appeal is granted on both of the appellant's grounds of appeal and his appeal is allowed.
2.The appellant's conviction for infringing s 338E(2) of the Criminal Code (WA) is set aside.
3.The restraining order issued against the appellant under s 63(1) of the Restraining Orders Act 1997 (WA) is set aside.
4.There is no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Associate to the Honourable Justice Martin
22 JUNE 2021
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