POLICE v GABRIELSEN - [2011] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GABRIELSEN
[2011] SASC 39
Judgment of The Honourable Justice David
25 March 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - STALKING - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
Appeal against no case to answer finding by Magistrate – respondent charged with stalking – respondent sent several offensive text messages to victim – Magistrate held it was necessary to show intent to cause apprehension or fear for victim’s personal safety – Magistrate found no case to answer on that basis – whether intention to cause apprehension or fear of embarrassment is sufficient to constitute stalking.
Held: Appeal allowed – there is nothing in the section to justify the Magistrate’s interpretation – intention to cause apprehension or fear of embarrassment is sufficient – a case to answer was made out on that basis.
Criminal Law Consolidation Act 1935 (SA) s 19AA, referred to.

POLICE v GABRIELSEN
[2011] SASC 39
Magistrates Appeal: Criminal

DAVID J: The appellant appeals against a finding by a Magistrate dismissing a charge of unlawful stalking.
The respondent was charged on Information that:
Between the 2^nd day of October, 2007 and the 26^th day of January, 2008 at Waterfall Gully or other places in the said State, stalked another person namely Tony Mittiga.
Section 19AA(2)(b) of the Criminal Law Consolidation Act, 1935.
This is a basic offence.
There was a mistake in the way in which the Information was drafted in that s 19AA(2)(b) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) is the penalty provision for an aggravated offence which is not alleged against the respondent. The appropriate provision of the CLCA should have been s 19AA(2)(a).
Both at trial and on appeal before me the respondent appeared unrepresented. At trial, on completion of the prosecution case, the respondent made a no case to answer submission and the learned Magistrate ruled that there was no case for the respondent to answer and dismissed the charge. The respondent was awarded the sum of $1,000 in costs.
The appellant now asserts that the learned Magistrate erred as a matter of law when dismissing the Information.
Facts
The basis of the prosecution case involved a number of emails and text messages sent by the respondent to Mr Tony Mittiga. It is not necessary to set out the details of those emails and texts, except to say that they were offensive and numerous. The Magistrate, in his reasons, found at [35]:
It would be reasonable to conclude that the content of the materials sent would arouse any or all of anger, resentment, disgust and outrage in a reasonable person in Mittiga’s circumstances. The content combined crude insult with accusations of grave sexual impropriety.
The Magistrate further found that the materials sent by the respondent were likely to give rise to a reasonable apprehension or fear in Mr Mittiga that the respondent (at [46]):
•Would make allegations to his wife thereby causing them annoyance at least,
•Would cause a very embarrassing spectacle ruining his daughter’s wedding day,
•Would spread the allegations amongst the congregation of his church causing him great embarrassment,
•Would paint embarrassing allegations on the walls of his house,
•Would embarrass him in front of his employer.
Mr Mittiga gave evidence that he and his wife were very concerned that the respondent would ruin their daughter’s wedding by making a spectacle at the wedding with the allegations that he had made in his text messages. The respondent’s mother had been invited to the wedding, but the respondent had not.
Upon those findings the Magistrate found that there was no case to answer because important elements of the offence had not been made out even though there was a clear case that the emails and text messages had been sent, that they were offensive and, if acted upon by the respondent, would have the result of causing enormous embarrassment. However, the Magistrate also found the following at [48]-[52]:
Is a fear or apprehension of being confronted with an annoying or embarrassing situation a “serious apprehension or fear” for the purpose of s.19AA? In my view such a construction would not be in keeping with the purpose or object of the section. It would be incongruous, and inappropriate for a criminal offence provision, to give such a wide construction to s.19AA(1)(b)(ii) when the alternative specific intention provided in s.19AA(1)(b)(i) demands an intention to cause serious physical or mental harm. “Serious apprehension or fear” must in my view be construed to mean a serious or grave apprehension or fear for personal safety.
…
In my view it is not open on the evidence to infer that the defendant intended to cause Mittiga a serious apprehension or fear for his personal safety when sending the material I have referred to above.
The defendant’s conduct may well be characterised as deplorable, causing distress and embarrassment to his former friends, but it cannot, in my view, taking the prosecution case at its highest, give rise to a case to answer on a charge of stalking.
(Footnote omitted)
Mr Longson, counsel for the appellant, argues that the Magistrate has applied the incorrect test by importing the requirement that the material was intended to arouse apprehension or fear for personal safety.
Section 19AA of the CLCA provides:
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.
(3)A person who is charged with stalking is (subject to any exclusion in the instrument of charge) to be taken to have been charged in the alternative with offensive behaviour¹ so that if the court is not satisfied that the charge of stalking has been established but is satisfied that the charge of offensive behaviour has been established, the court may convict the person of offensive behaviour.
(4)A person who has been acquitted or convicted on a charge of stalking may not be convicted of another offence arising out of the same set of circumstances and involving a physical element that is common to that charge.
(5)A person who has been acquitted or convicted on a charge of an offence other than stalking may not be convicted of stalking if the charge of stalking arises out of the same set of circumstances and involves a physical element that is common to the charge of that other offence.
(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.
Note—
1See section 7 of the Summary Offences Act 1953.
In my view the Magistrate has clearly erred. On a reading of s 19AA(2)(b)(ii) and s 19AA generally, there is no reason to limit the words “intends to cause serious apprehension or fear” to fear for their personal safety. There is nothing in the section that justifies such an interpretation.
The Magistrate’s view that s 19AA(2)(b)(ii) should be limited to personal safety because of the alternative specific intention provided in s 19AA(2)(b)(i) is, in my opinion, erroneous. To the contrary, the fact that the alternative requisite intention in s 19AA(2)(b)(i) is expressly limited to causing serious physical or mental harm, whereas there is no such specific limitation in s 19AA(2)(b)(ii), suggests that the intention of the legislature is that s 19AA(2)(b)(ii) not be limited in the same way as s 19AA(2)(b)(i). If Parliament had intended s 19AA(2)(b)(ii) to be so limited, it could have used express words, as it did in s 19AA(2)(b)(i).
Furthermore, in construing the two subsections of s 19AA(2)(b), one must consider the reasons for the alternative mental elements of the offence which are provided by those subsections.
The mental element provided by s 19AA(2)(b)(i) is an intention on the part of the defendant to cause a victim actual harm, whether physical or mental. The alternative mental element provided by s 19AA(2)(b)(ii), which is under consideration in this case, is an intention on the part of the defendant to cause a victim to suffer apprehension or fear. There are a number of ways in which a defendant might intend to arouse apprehension or fear in a victim. A defendant might intend to cause a victim to fear for their personal safety, and in such a case there may be some overlap between the two subsections of s 19AA(2)(b). However, in other cases a defendant might intend to cause a victim to suffer apprehension or fear in some other way, such as fear for their reputation or, as in this case, fear that they will be publicly embarrassed.
The Magistrate has clearly found that there were more than two separate occasions when offensive texts or emails were sent and that they would give rise to a reasonable apprehension or fear in Mr Mittiga. The Magistrate also found at [44]:
It is readily open on the evidence to infer an intention on behalf of the defendant to cause Mittiga… fear (at least fear of being embarrassed)…
On the basis of my finding that an intention to cause a serious apprehension or fear of being embarrassed is sufficient to satisfy s 19AA(2)(b)(ii), clearly a case to answer has been made out.
Conclusion
1.I allow the appeal.
2.I set aside the Magistrate’s order finding that there was no case to answer and therefore dismissing the charge.
3.I remit the matter to the Magistrates Court to be retried before a different Magistrate.