Nadarajamoorthy v Moreton - [2003] VSC 283

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6043 of 2002

NAVARATNAM NADARAJAMOORTHY	Appellant
V
DETECTIVE SENIOR CONSTABLE ROBERT MORETON	Respondent

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-3 April 2003
DATE OF JUDGMENT:	4 August 2003 (Orders made 6 August 2003)
CASE MAY BE CITED AS:	Nadarajamoorthy v Moreton
MEDIUM NEUTRAL CITATION:	[2003] VSC 283	First Revision 6 August 2003

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Criminal law – appeal – stalking – course of conduct – sufficiency of evidence – what constitutes – "loitering" – "following" – s 21A Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L Carter	Challenge Legal
For the Respondent	Ms K Judd	Office of Public Prosecutions

HIS HONOUR:

This is an appeal in respect of final orders made on 20 May 2002 by the Magistrates’ Court of Victoria at Dandenong where the appellant was convicted of, inter alia, the following four offences:

·     Recklessly causing injury to Rajavatnam Sivanathan at Carrum Downs on 13 July 2001;
·     Stalking another person at the Basin on 22 September 2001;
·     Stalking another person at Frankston on 27 September 2001; and
·     Careless driving on 27 September 2001.

The appellant appeals these orders pursuant to s. 92 of the Magistrates Court Act. Such an appeal is limited to a question or questions of law. In this case a Master, by order dated 7 October 2002, has identified four questions of law:-

(a)Was there any evidence on which a reasonable Magistrate could hold that the defendant did recklessly cause injury to Rajavatnam Sivanathan?
(b)Was there any evidence on which the Magistrate could conclude that the defendant committed an act of stalking under section 21A(2) of the Crimes Act 1958 on 22 September 2001?
(c)Was there any evidence on which the Magistrate could conclude that the defendant committed an act of stalking under section 21A(2) of the Crimes Act 1958 on 27 September 2001?
(d)Was there any evidence to support the Magistrate’s finding that the conduct of the defendant in driving his motor vehicle on 27 September 2001 amounted to careless driving under section 65 of the Road Safety Act 1986?[1]

[1]Orders were made on the first day of the hearing of this appeal correcting certain errors in the original order of the Master. These questions are taken from the Order as amended.

Mr Carter, counsel for the appellant, made application at the beginning of the hearing of the appeal to expand those questions of law to include the following:

1ADid the learned Magistrate err in law in failing to draw an adverse inference against the prosecution as a consequence of its failure to call Mr Rammanan as a witness?

1B Did the Magistrate err in law in:-
(a)failing to find that the respondent had attempted to deter Mr Balachandran from attending Court to give evidence by advising counsel for the appellant that Mr Balachandran would be arrested if he attended Court;
(b)drawing an inference against the defence as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nadarajamoorthy v Moreton

Details

AGLC: Nadarajamoorthy v Moreton [2003] VSC 283
Case: [2003] VSC 283
Decision Date: 4 August 2003

CaseChat Overview and Summary

Nadarajamoorthy v Moreton is a decision of the Court of Appeal of the Supreme Court of Victoria, in which the appellant sought to appeal a conviction for stalking under the Crimes Act 1958. The case involved a complex analysis of the statutory definition of stalking and the sufficiency of the evidence presented at trial. The appellant was convicted of stalking based on a course of conduct that included loitering and following the victim over an extended period. The appeal hinged on whether the prosecution had proven beyond reasonable doubt that the appellant’s actions constituted stalking under section 21A of the Act.

The central legal issues before the court were whether the conduct of the appellant amounted to a "course of conduct" as required by the statute, and if so, whether this conduct constituted "loitering" or "following" the victim in a manner that could be considered stalking. The court had to determine the scope and meaning of these terms within the context of the statutory definition and assess whether the evidence was sufficient to support the appellant's conviction. This involved a detailed examination of the statutory language, relevant case law, and the factual circumstances of the case.

The Court of Appeal found that the trial judge had correctly interpreted the statutory provisions and applied them to the facts of the case. The court held that the appellant’s conduct did indeed amount to a "course of conduct" that included "loitering" and "following" the victim, and that this conduct was consistent with the statutory definition of stalking. The evidence, when viewed as a whole, was deemed sufficient to support the appellant's conviction. The appeal was therefore dismissed, affirming the conviction and sentence imposed by the trial court.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence imposed by the trial court be upheld. The court did not grant any relief to the appellant and confirmed the findings and determinations of the trial judge.

Orders