PHILLIPS v Police - [2016] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PHILLIPS v POLICE
[2016] SASC 135
Judgment of The Honourable Chief Justice Kourakis
19 August 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - STALKING - GENERALLY
Appeal against conviction.
The appellant was convicted of the offence of stalking, contrary to s 19AA of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The appellant sent private Facebook messages to the victim, and then subsequently made public posts about the victim on Facebook. The Magistrate was satisfied that two of the posts were such that could reasonably be expected to arouse a reasonable apprehension or fear for his reputation, or a reasonable apprehension or fear that he might be embarrassed in front of his partner, family and friends, colleagues and associates, or his employer.
The appellant appeals on two grounds. Firstly, that the Magistrate erred in finding the definition of apprehension or fear, for the purposes of the offence of stalking, to include apprehension or fear of embarrassment and apprehension or fear of escalation. Secondly, that the effect of the finding of the definition is to expand the offence of stalking to conduct not envisaged by Parliament.
Held, dismissing the appeal:
1. The words ‘apprehension or fear’ in the definition of stalking in s 19AA(1) of the CLCA is not limited to an apprehension or fear of physical harm.
2. The definition of stalking in s 19AA(1) extends to an apprehension or fear of any adverse consequence which is accompanied by anxiety or emotional distress which interferes with a person’s social, family or working life. An evaluative judgment by the tribunal of fact is required to assess whether this will be classified as ‘serious’.
Criminal Law Consolidation Act 1935 (SA) ss 19, 19AA; Domestic Violence Act 1994 (SA) s 4, referred to.
Sleeman v Police (1998) 199 LSJS 420, distinguished.

WORDS AND PHRASES CONSIDERED/DEFINED
"apprehension or fear"

PHILLIPS v POLICE
[2016] SASC 135
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal against a conviction recorded in the Magistrates Court. The appellant was convicted of the offence of stalking MH between December 2013 and February 2014 contrary to s 19AA(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The primary issue on the appeal is whether the words ‘apprehension or fear’ in the definition of stalking in s 19AA(1) of the CLCA are limited to an apprehension or fear of physical harm. I hold that they are not. They include an apprehension or fear of any adverse consequence which is accompanied by anxiety or emotional distress which interferes with a person’s social, family or working life. My reasons follow.
The evidence
The appellant and MH were acquainted through their involvement in the training of young cyclists. During that time, in 2006-2007, MH heard rumours that the appellant had acted inappropriately toward a young women, A, whom he was training. MH passed on that information and, as a result, the appellant was suspended from the training of cyclists. In 2008 MH received a similar complaint from another young woman, B. He advised her to speak to her parents and the police.
MH became a police officer in 2009. MH testified that in late 2013 he received a series of private Facebook messages from the appellant. The appellant’s messages alleged that MH had unlawful sexual relationships with B and another young female cyclist, C. The appellant threatened to inform the police about MH’s relationship with the young women and warned that MH would probably be imprisoned for his conduct. MH testified that he was angry, confused and ‘perhaps’ scared by those communications. He sent private Facebook messages to the appellant asking him to stop. Only after MH made a reference in one of those messages to the cost of defamation proceedings did the appellant stop sending him private Facebook messages. MH then blocked the appellant as a Facebook friend.
In January 2014 MH was shown a screenshot of a public Facebook post made by the appellant. MH retrieved the appellant’s phone number from police records and attempted, unsuccessfully, to speak to him. MH later personally checked the appellant’s Facebook pages and saw posts which, on their face, related to him.
Relevantly to this appeal the Magistrate found that the following posts were made by the appellant:
Post P4B
THE BITCH WHO STABBED ME, is back in JAIL, locked up yesterday afternoon, clever little bitch is she!!! Oh well [MH] shes locked up again so its back to [B] or that other young thing youve been training with, you know, the one who rides in your top which is sizes too big for her….OH, why here, you blocked me fag. TRUTH HURTS mutha fuka!! COPS dont lie….Youll get to the big house yet you prick!!!-[emo] feeling excited.
Post P4F
[MH] the corrupt cop, is finally being investigated for accessing my police files when not authorised to do so, three times to get my phone numbers and call and harass and threaten me. About time, this corrupt bastard should not be a cop, broken a guys arm while he was in his police custody too, the dirty bastard. He was the one fucking the bitch who stabbed me when she was 15/16, HE WAS HER COACH, they pinned it all on me the sons of bitches, KARMA IS A BITCH ISNT IT [MH], time for the big house mutha fucker, time to be butt fucked [MH], you would luv it hey, its your favourite I’m told!!!! Oh you blocked me mate after threatening me with private messages!!!! Here it is big boy, you fucking hero. LIKE IT NOW, I might pass on the rest of the info I have, you cant get her to come and stab me again, she is in prison, gonna make [B] do it, the other one you fucked when she was 16….. SUFFA BITCH!!!
The Magistrate found that the posts were published through Facebook to a wide range of people and that the appellant intended the contents of the posts to be communicated to MH. The appellant admitted that intention in his testimony and the Magistrate’s findings are not challenged.
The Magistrate also found that the appellant knew and intended that the contents of the posts would be brought to MH’s attention. That finding is supported by the very grammatical structure of the posts which are vocative in form and address MH directly. That finding is not contested.
The appellant does challenge the Magistrate’s findings that the communications could reasonably be expected to arouse apprehension or fear in MH and that the appellant intended to cause MH serious apprehension or fear. The appellant submits that the interpretation of ‘serious apprehension or fear’ of the Magistrate expands the scope of the offence of stalking to cover conduct outside of the conduct envisaged by the legislature.
The Magistrate’s findings
As to the objective nature of the postings, the Magistrate found:
I am satisfied beyond reasonable doubt that the content of P4B gave rise to a reasonable apprehension or fear in [MH] that this post was not the last time content might be posted on the defendant’s Facebook page that was in the nature of allegations which had earlier been made directly to him in private messages or as [MH] himself put it a reasonable apprehension or fear as to “how this was going to escalate”.
Within the contents of P4F is an accusation of unlawful violence in the course of his duties as a police officer; unlawful sexual conduct with two underage girls; that he was criminally responsible for one of those girls having stabbed the defendant and that he was capable of, at the very least, encouraging the other to act in the same way.
Accusations such as these separately or taken together are of such a nature that they are calculated to wound the feelings or arouse anger, resentment, disgust or outrage in the mind of a reasonable person.
Such accusations, taken separately or taken together, have the capacity to cause a reasonable person to become apprehensive or fearful for their reputation, apprehensive or fearful that they might be embarrassed in front of their partner family and friends apprehensive or fearful that they might be embarrassed in front of their colleagues and associates, apprehensive or fearful that they might be embarrassed in front of their employer.
…
I am satisfied beyond reasonable doubt that the contents of P4F did arouse in [MH] an apprehension or fear for his reputation, an apprehension or fear that they might be embarrassed in front of his partner, family and friends, an apprehension or fear that he might be embarrassed in front of his colleagues and associates, apprehension or fear that he might be embarrassed in front of his employer.
On the appellant’s intention, the Magistrate found:
I am satisfied beyond reasonable doubt that by these communications the defendant intended to cause [MH] serious apprehension or fear. I am satisfied beyond reasonable doubt that the defendant intended that [MH] suffer serious apprehension or fear for his reputation whether that be among his friends, his associates in the sport of cycling, his work colleagues or his employer at that time SAPOL.
His own evidence as to his intention in posting P4B and P4F is not credible.
I reject his evidence that he made these posts because he “hope[d] that the police would pick up on these and do something about him”. I reject his evidence that as a result of this post he “wanted to have [MH] investigated for his actions and what he had done in the past and called up”.
It is hard to imagine how such phrases as in P4F “KARMA IS A BITCH ISNT IT [MH], time for the big house mutha fucker, time to be butt fucked [MH], you would love it hey, its your favourite I’m told!!!! Oh you blocked me mate after threatening me with private messages!!!! Here it is big boy, you fucking hero. LIKE IT NOW” and “SUFFA BITCH!!!” would assist the police to pick up on these things and begin an investigation into [MH] for alleged crimes.
That I reject his evidence as to his intention when posting the content of P4B and P4F does not relieve the prosecution of the burden of proving that the defendant’s intention was to cause [MH] serious apprehension or fear as the prosecution carry this burden throughout.
However on the basis of all of the evidence the only rational inference to be drawn, to the exclusion of any other reasonable inference consistent with innocence, is that in posting the content of P4B and P4F the intention of the defendant was to cause [MH] serious apprehension or fear for his reputation.
For whatever reason the defendant has convinced himself that [MH] “is a snake and he gets away with it every time” and that he is a “scourge from this earth you know the snake that hides.” and “now the police force want to cover it up for him.”
It is clear that the defendant sees [MH] as the root cause of a number of difficulties that have arisen for him and harbours a resentment towards him. He resents [MH] for having, in his belief, escaped justice in relation to unlawful sexual activity, for, in his belief, being involved in his having been stabbed and injured severely.
(emphasis omitted)
The burden of the appellant’s challenge to the above findings is that the Magistrate erred in concluding that an apprehension or fear within the terms of s 19AA(1) of the CLCA includes apprehension or fear of loss of reputation, and embarrassment.
Construction of s 19AA of the CLCA
19AA—Unlawful stalking
(1)     A person stalks another if—
(a)     on at least two separate occasions, the person—
(i)follows the other person; or
(ii)loiters outside the place of residence of the other person or some other place frequented by the other person; or
(iii)enters or interferes with property in the possession of the other person; or
(iv)gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or
(iva)publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or
(ivb)communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or
(v)keeps the other person under surveillance; or
(vi)acts in any other way that could reasonably be expected to arouse the other person's apprehension or fear; and
(b)     the person—
(i)intends to cause serious physical or mental harm to the other person or a third person; or
(ii)intends to cause serious apprehension or fear.
(2)A person who stalks another is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 3 years;
(b)     for an aggravated offence—imprisonment for 5 years.
…
(6)For the purposes of this section, the circumstances of a dealing with material may be taken into account in determining whether the material was offensive material but, if material was inherently offensive material, the circumstances of a dealing with the material cannot be taken to have deprived it of that character.
I observe first that s 19AA of the CLCA is found in Part 3 of the CLCA which deals with offences against the person. Save for Divisions 4 and 5, the Divisions of Part 3 deal with offences against the person which cause death or harm. Division 4, s 19, of the CLCA deals with unlawful threats and Division 5, s 19AA, of the CLCA deals with stalking. Neither of those offences has, as an element, the causation of death or physical or mental injury. However, s 19(1) of the CLCA does limit the threats it proscribes to threats to kill or endanger life with an accompanying intention to arouse a corresponding fear of those dangers and the threats proscribed by s 19(2) of the CLCA are similarly limited to threats to cause harm with a corresponding intention to arouse a fear of that danger.
In contrast s 19AA(1)(a)(ivb) proscribes the making of a communication that could reasonably be expected to arouse ‘apprehension or fear’, with a corresponding intention to cause ‘serious apprehension or fear’ but without specifying that the apprehension or fear must be of death or physical harm. A considered choice appears to have been made not to limit the subject matter of the fear or apprehension in s 19AA(1) of the CLCA in the same way as s 19 of the CLCA.
The Macquarie definition of apprehension is ‘anticipation of adversity; dread or fear of coming evil’. The Macquarie definition of fear is ‘a painful feeling of impending danger, evil, trouble, etc; the feeling or condition of being afraid’. The failure to expressly limit the subject matter of the apprehension or fear is consistent with the mischief to which s 19AA of the CLCA is addressed. The nature of the fear and dread which can be caused by stalking, and by internet based stalking in particular, may vary greatly.
Secondly, I observe that s 19AA(1)(b) of the CLCA provides that there must be a concurrent intention to cause serious physical or mental harm or to cause serious apprehension or fear. The section does not stipulate that an offender must intend to bring about the physical or mental harm in a particular way. Nor does the section expressly require that the apprehension or fear, which an offender intends to cause, must be of physical harm or death.
Thirdly, it is of some importance that the actus reus of the offence includes the sending of offensive material. Much material which is offensive will not arouse a fear of physical harm, but nonetheless may be very distressing, and arouse an apprehension or fear of further ongoing distress.
Finally, I draw attention to what at first sight appears to be the superfluous provision, as alternative limbs of the mental element, an intention to cause mental harm and an intention to cause a serious apprehension or fear. If the former is intended, the offender will almost certainly have also intended the latter. However, on reflection, there is no supererogation here. The ‘serious apprehension or fear’ limb is included as a less serious form of mental harm. The use of the adjectival qualifier ‘serious’ provides an important limiting factor on the mental element alternative prescribed by s 19AA(1)(b)(ii) of the CLCA. It is an apprehension or fear, of what it matters not, but which is similar in effect, even though falling short of, mental harm. The legislature has fixed an intention to cause either mental harm or serious fear or apprehension to delineate between otherwise innocent, or at least less serious criminal conduct, and an offence against s 19AA of the CLCA.
That textual construction of s 19AA of the CLCA is supported by secondary legislative material. In the Second Reading Speech on the introduction of the Bill to insert s 19AA, the Honourable the Attorney-General Trevor Griffin explained that it was the effect on the victim which would make otherwise ‘innocent behaviour criminal’:[1]
If one takes the view that harassment and intimidation can take a variety of forms, one begins with the idea that the offence should cover as great a variety of behaviours as possible … the gap in the criminal law that the offence is designed to fill as consisting of a course of behaviour which is, in isolation, quite normal and innocent behaviour ... the thing that makes this innocent behaviour ‘criminal’ … is the effect that it is designed to have. … some might see the essence of the criminality in the effect that it actually has, but if that was the legislative criterion, that would be to discriminate against the strong-minded and capable victim.
[1] South Australia, Parliamentary Debates, Legislative Council, 16 February 1994, 59.
Section 19AA was amended in 2001 to ensure that cyberstalking, including posting information about a victim on the internet, was covered by the offence of unlawful stalking. The Honourable the Attorney-General Trevor Griffin said:[2]
Like other stalking behaviour, much of this may be behaviour which under different circumstances would be considered ‘normal’. What makes this behaviour stalking is the intention of the perpetrator either to cause physical or mental harm to the victim, or to cause the victim to feel serious apprehension or fear.
[2] South Australia, Parliamentary Debates, Legislative Council, 26 July 2001, 2085.
Serious apprehension or fear is one which is accompanied by anxiety, distress, depression or other emotional and psychological upset. The extent to which those conditions must be intended to interfere with a person’s social, family or working life to be classified as serious necessarily requires an evaluative judgment by the tribunal of fact. It will be influenced by community standards as to what is part of modern social exchanges and what is unacceptably harmful and destructive of another’s right to participate safely in them.
The framing of s 19AA of the CLCA, without limiting the fear or apprehension by reference to subject matter and the extension from mental harm to serious fear or apprehension, provides it with the necessary flexibility to deal which is increasingly concerning the public.
In the article Regulating Cyberbullying: A South Australian Perspective, Ms Colette Langos described cyberbullying as follows: [3]
[3] Langos, C “Regulating Cyberbullying: A South Australian Perspective” (2014) 16 FLJ 73, 74.
Cyberbullying – A Snapshot of the Phenomenon
... To date, a universal definition has not been agreed upon. However, the general consensus among scholars is that cyberbullying can be defined as intentional and aggressive online conduct intended to harm another who cannot easily defend him or herself. The elements of aggression, intention, power imbalance and repetition are widely accepted as being crucial criteria of a cyberbullying definition. … In a cyberbullying context, harm includes emotional harm which involves a broad range of negative emotions including annoyance, humiliation, short-term grief, fear, and anxiety, as well as more severe forms of harm in the form of protracted psychological injury and serious long-term psychological harm.
Cyberbullying can be direct or indirect. Direct cyberbullying occurs where the cyberbully directs the electronic communications to the victim only (as opposed to communications which are posted to publically accessible areas of cyberspace). … Indirect cyberbullying occurs in instances where the electronic communication is not sent directly to the victim. Instead, the cyberbully posts the communication to a publically accessible area of cyberspace. Public forums such as social media sites, publically accessible blogs and websites, and video sharing websites are obvious examples of platforms which fall within the public online domain. … The communication has the potential to spread exponentially given that any of the recipients could forward, save and repost the material at a later stage. …
There are an immensely broad range of behaviours the phenomenon encompasses. The various manifestations can be categorised into eight main forms:
Harassment which involves repeatedly sending offensive messages to a target.
Cyberstalking which involves intense harassment and denigration that includes threats or creates significant fear in the victim. Harassment becomes cyberstalking when a victim fears for their personal safety.
Denigration may involve making a derogatory comment about the target. There are several manifestations of this conduct. It can occur using words or can involve the dissemination of a derogatory, sexual or non-sexual image.
Happy slapping involves the filming of a physical assault on a victim and the subsequent distribution of the film to humiliate the victim publically.
Exclusion involves a victim not being allowed to enter online ‘areas’ such as particular chat room discussion group by being purposely excluded by members of those online domains.
Outing and trickery are tactics applied together. It involves a situation where a perpetrator manipulates the victim into disclosing information that the perpetrator then publicises in order to humiliate the victim.
Impersonation or Masquerading involves the perpetrator pretending to be the victim and sending an offensive message that appears to come from the victim.
Indirect threat is a form of cyberbullying which relates to cyberstalking in that it refers to an online communication of impending physical harm. Unlike cyberstalking, this form relates to a single threat of physical harm made indirectly in the public online domain.
(citations omitted)

Ms Langos went on to document the emotional and psychological consequences, including suicide, of cyberbullying:[4]
… A 2009 study conducted by the Australian Communications and Media Authority reported an average of 11 percent of young people aged between 8 and 17 years had experienced cyberbullying at some point in time. The study also revealed that cyberbullying increased with age. By the age of 16 to 17 years, nearly one in five youths (19 percent) reported having experienced cyberbullying. Although most cyberbullying research conducted to date has examined cyberbullying between youths, recent studies examining cyberbullying between adults indicate that it transcends the ‘youth only’ context.
… However, early findings demonstrate that cyberbullying is associated with a range of negative implications such as high levels of anxiety, suicidal ideation, depression, and psychosomatic problems, as well as behavioural problems, such as aggressive behaviours and excessive consumption of alcohol. These consequences are similar to those reflected in traditional bullying research. Recent studies have shown that victims of cyberbullying experience more severe mental health implications than victims of traditional bullying. It has been hypothesised that factors including anonymity; the seemingly limitless technological reach in cyberspace; potential global audience; and potential permanency of online material (all factors unique to cyberbullying) intensify the harm experienced by victims.
The wave of cyberbullying related suicides in Australia continues to intensify community concern in regard to this potentially devastating form of online behaviour.
(citations omitted)
[4] Ibid 77.
There is no textual basis for reading into s 19AA of the CLCA words limiting the fear and apprehension to which it refers to fear or apprehension of physical harm. The mischief to which the provision is directed, namely the wide-ranging psychological consequences described by Ms Langos, also militates against reading down those words.
The control mechanism constraining the scope of s 19AA(1)(a)(ivb) within reasonably certain limits is in the severity of the fear or apprehension, which the communication could be reasonably expected to arouse, and which the offender must intend to cause.
Justice Bleby in Sleeman v Police[5] construed s 4(2)(c)(iii) of the Domestic Violence Act 1994 (SA) in a way which limited the apprehension or fear element to an apprehension or fear of physical harm. However, the context of that Act was very different. So much appears from the following passage:[6]
In this context, apprehension is the mental process of grasping or perceiving something; fear is a state of fearing something. In neither case is it immediately obvious from the Act what it is that the family member is to apprehend or fear. In the context of the Act it can hardly be apprehension or fear of an unwanted reconciliation or gift, or even apprehension or fear of embarrassment, annoyance or many other possible emotions, pleasant or unpleasant. The title of the Act and ordinary notions of domestic violence suggest that the object of the Act is to prevent possible personal injury or damage to property in the domestic setting. That is accommodated by paragraphs (a) and (b) of s4(2). In order to construe the Act as a whole, it seems to me that the apprehension or fear that must be aroused for the purpose of paragraph (c) of the same subsection can only be apprehension or fear of personal injury to, or damage to property of, a member of the defendant’s family.
[5] Sleeman v Police (1998) 199 LSJS 420 at 426-427.
[6] Ibid 428.
Section 19AA of the CLCA on the other hand extends well beyond domestic violence to the communication of offensive material in hardcopy and electronic form. The decision in Sleeman v Police must be distinguished.
Conclusion
In the circumstances of this case the communications were reasonably capable of causing an apprehension that false accusations against MH would continue to be made and pursued with the purpose of having him charged and imprisoned. Having regard to MH’s position as a police officer, the making of those communications was likely to cause MH serious apprehension and fear of those adverse consequences. The communications, graphically describing as they do the possible consequences of imprisonment, are reasonably capable of causing a very distressing and debilitating fear and apprehension which may be properly described as ‘serious’.
The appellant’s intention to cause serious fear and apprehension can be inferred from the very posting of the communications which are, as I have found, reasonably capable of having that effect. However, of even more weight was the appellant’s testimonial admission to that effect. In cross-examination there was the following exchange:
Q     So would you agree or not agree, did you write that –
A     I wrote it, yes I wrote it, that was it.
Q     - with the intention of it being directed directly at [MH].
ANo probably to the police and so they’d do something about [MH] himself. So that [MH] would probably get a piece of rope and hang himself and get rid of the scourge from this earth, you know, the snake that hides.
In that passage the appellant admitted that he intended to cause a fear and apprehension so serious that MH would take his own life.
Even though not expressed in precisely the same way, the essence of the Magistrate’s reasons is to the same effect. Even though the Magistrate did not make express findings on the degree of fear and apprehension the posts could be reasonably expected to cause, or which was intended by the appellant, the evidence clearly proves those elements of the offence beyond reasonable doubt.
I dismiss the appeal.