Porter v The Commissioner of Police
[2012] QDC 115
•24 May 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Porter v The Commissioner of Police [2012] QDC 115
PARTIES:
Troy Darren Porter
(Appellant)V
Commissioner of Police
(Respondent)FILE NO/S:
40/12
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court Brisbane
DELIVERED ON:
24 May 2012
DELIVERED AT:
Brisbane
HEARING DATE:
11 April 2012
JUDGE:
Judge Shanahan DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
COUNSEL:
Mr Porter appeared on his own behalf
Mrs C Kelly appeared for the respondent
SOLICITORS:
Director of Public Prosecutions for the respondent
On 13 August 2009 the appellant pleaded guilty to three counts of indecent treatment of a child under 12 years, two offences of breaching bail conditions and an unrelated minor drug offence. I sentenced him in relation to each indecent dealing offence to two years imprisonment, suspended after serving 248 days, with an operational period of three years. Lesser concurrent terms were imposed in relation to the other offences. I declared 248 days as time already served. Pursuant to s 43F of the Penalties and Sentences Act 1992, I made a non-contact order which contained conditions that the appellant was prohibited from contacting the complainant, from going within 200 metres of her residence and from going within 200 metres of her school. The order was to be in force for two years.
On 9 December 2011, after a four day summary trial, the appellant was convicted of breaching the non-contact order. The learned Magistrate remitted the sentence of the breach of that order to the District Court. The learned Magistrate also committed the appellant to the District Court to be dealt with for the breach of the partly suspended sentence which was imposed on 13 August 2009.
The appellant has appealed against his conviction.
Grounds of appeal
The grounds of appeal as stated in the notice of appeal are:
“Error in: - the Judge’s Judgment
- Law
Unreasonable verdict
Negligent representation of acting legals (Notified to the Queensland Legal Commission)
Fresh evidence.”
The grounds of appeal were supplemented by two extensive outlines of argument prepared by the appellant together with attachments containing the “fresh evidence” on which he wishes to rely. The appellant represented himself at the appeal hearing.
New evidence
This is an appeal pursuant to s 222 of the Justices Act 1886. Section 223(1) provides that such an appeal is by way of rehearing on the evidence given in the proceeding before the Magistrate. An appeal judge must bear in mind the advantage the learned Magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence and to draw his or her own conclusions.[1] Pursuant to s 223(2), the District Court may give leave “to adduce fresh, additional or substituted evidence (new evidence)” if the court is satisfied there are special grounds for giving leave.
[1]Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2008] QCA 231 at [17]; Stevenson v Yasso [2006] 2 Qd R 150 at [36].
The appellant has sought to call “new evidence” on the appeal. Such evidence is contained in attachments to two affidavits filed by the appellant. On the appeal hearing, the appellant argued that the new evidence should be received because of the incompetence of his legal representatives in not calling that evidence on the summary trial. He also argued that certain of the statements were not obtained by him until after the summary trial. His submissions indicated that he had been advised by his then legal representatives not to call the evidence from the witnesses from whom he had statements at the trial. He acceded to that, but with misgivings. There is no material from the legal representatives before me.
The respondent opposes the granting of leave in relation to the “new evidence” on a number of bases. All the information contained in the statements was available to the appellant’s representatives at the time of the trial. Many of the statements are dated prior to the trial and the others refer to incidents prior to the trial and could have been obtained with due diligence. Much of the material in the statement is irrelevant or opinion evidence which was inadmissible. The appellant’s legal representatives appear to have made forensic decisions about the evidence and, unless this is shown to have caused a miscarriage of justice, then the appellant should not be able to now resile from it. The trial took place over four days, 11 and 12 August 2011 and 19 and 20 October 2011. If the appellant wished to push for the evidence to be called, he had ample opportunity to so instruct his lawyers.
I have reviewed the proposed new evidence. Much of it is evidence about the conduct of the police investigators and opinion evidence about whether or not it was likely that the appellant committed the offence. That is irrelevant and inadmissible. All of the evidence either was obtained or could have been obtained prior to the trial. Much of it was of little assistance with respect to the facts in issue and related to the appellant’s contact with people in Brisbane to explain his visits from his residence in Buderim. Little of that related to the date of the offence. It is easy to understand a legitimate forensic decision being made not to call that evidence. It is explicable in terms of much of it being irrelevant and inadmissible. I can see no miscarriage of justice occasioned by the failure to call it.
The one aspect of the “new evidence” which did cause me some concern was in a report from Dr Kay Duncan, the appellant’s general practitioner, dated 19 May 2011. It diagnosed that the appellant suffered from anxiety and depression and noted that, when stressed, the appellant had a facial expression where “he raises the right eyebrow and lowers the left eyebrow”. The doctor opines that this might have been the expression used by the appellant at the time he came into contact with the complainant and which she confused as a wink. It is not in issue at the trial that the appellant “crossed paths” with the complainant. It was in issue whether the appellant winked at the complainant. The appellant asserted on the trial that the meeting was accidental.
Whether this proposed evidence by the doctor as to an observed expression on the face of the appellant during times of stress is medical evidence which the doctor would be entitled to give is a moot point. It seems to be founded on a scenario involving the appellant becoming anxious as a result of a chance encounter with the complainant. That was not the prosecution case. The prosecution case was this was a deliberate encounter engineered by the appellant. In that regard, it seems to me that this evidence, if it was admissible, carries little weight. I note also that the statement is dated prior to the trial and the legal representatives decided not to adduce it. I am not persuaded that this evidence would have carried any weight in relation to the facts in issue.
The appellant has not shown that there are any special grounds for giving leave to call the new evidence he seeks to rely on. Leave is refused.
The charge
The appellant was charged that on 18 November 2010 at Albany Creek he unlawfully contravened a non-contact order made in the District Court on 13 August 2009.
That charge was laid pursuant to s 43F of the Penalties and Sentences Act 1992. The offence carries a maximum penalty of 40 penalty units or one year’s imprisonment.
Section 43A of the Penalties and Sentences Act 1992 empowers a court to make a non-contact order. Section 43B empowers a court to make such an order if the offender is convicted of a personal offence. A personal offence means an indictable offence committed against the person of someone. The indecent dealing offences were such offences.
The non-contact order made on 13 August 2009 was that the appellant was prohibited from contacting the complainant, that he was prohibited from going to within 200 metres of the complainant’s address and that he was prohibited from going within 200 metres of a particular state school (the complainant’s).
“Contact” is defined in s 43C to include “intentionally initiate contact with the victim … in any way” or “intentionally loiter near, watch, approach the victim”.
The offence of contravening the order is contained in s 43F and reads: “An offender must not unlawfully contravene a non-contact order.”
Section 43 E(1) provides, as relevant here, that a proper officer of the court that makes a non-contact order, must immediately reduce the order to writing in the approved form and give a copy to the offender. Section 43B(2) provides that a failure to comply with subsection (1) does not invalidate the order.
At trial and on appeal, the appellant asserted that he was not given a copy of the order. No other witness on trial was questioned about this issue. He was, of course, present in court when the sentence was pronounced. The two breaches of bail conditions to which the appellant also pleaded guilty and for which sentences also were imposed, involved contact with the complainant at her new school, the same school specified in the non-contact order. I said in my sentencing remarks:
“It seems to me here particularly considering your contact with the child whilst on bail that you are an unacceptable risk of further contact with her and her family, and in those circumstances I am persuaded that there is an unacceptable risk that any contact would be of an harassing or of such a nature as to cause detriment. It seems to me in those circumstances that a non-contact order of the two years sought is appropriate.”
The Attorney-General appealed against the sentence I imposed. In dismissing that appeal[2] the Court of Appeal noted the non-contact order made with respect to the complainant.[3] On this appeal, the appellant indicated that he had read the appeal judgment.
[2]R v Porter; ex parte Attorney-General of Queensland [2009] QCA 353, 17 November 2009.
[3]At [4].
In my view, it is clear that the appellant knew of the terms of the non-contact order with the complainant, particularly in circumstances where he had already been dealt with for breaching conditions of his bail which had the same effect. In any event, s 43E(2) provides that any failure to give the appellant a copy of the order, if that did occur, does not invalidate the order or provide an answer to any alleged breach of the order.
The trial
The complainant gave evidence[4] that she attended swimming lessons at the Albany Creek Leisure Centre on the morning of 18 November 2010 with her Grade 5 class and teachers. The class lasted until approximately 10am when the children changed back into their uniforms. The complainant came out of the change room and waited nearby. The complainant’s evidence was that she saw a man who looked like the appellant walk near her and wink at her. She immediately told one of her teachers (Ms Anderson). As the group left the Centre, the complainant held Ms Anderson’s hand tightly and appeared anxious.[5] That afternoon, she informed her mother and later gave a recorded statement to police. In each of her accounts she complained about the appellant winking at her. In cross-examination she was adamant it was a wink.[6] She agreed the appellant had walked across in front of her and that the incident only took a short time.[7] She was not sure whether the appellant appeared shocked.[8]
[4]Pursuant to s 93A of the Evidence Act 1977 and under cross-examination in the courtroom.
[5]T2-19.
[6]T2-12.
[7]T2-15.
[8]T2-15.
Ms J Alterio, a Client Service Officer with the Queensland Police Service, gave evidence that at 10.35am on that day she received a phone call from a person identifying himself as the appellant. He informed her that he had seen the complainant and “he had just got changed and he was walking to get a milkshake when he walked past the complainant”.[9]
[9]T1-21.
Senior constable J Ingram gave evidence that she was the appellant’s Reporting Officer under the Child Protection (Offender Reporting) Act 2004. The appellant spoke to her on 22 November 2010 and she recorded that conversation.[10] The appellant’s account to her was that he had purchased a milkshake and he was walking down to check whether he had left any money on a seat and the complainant walked right in front of him.[11]
[10]Exhibit 4.
[11]T1-24 to 28.
Senior constable P Blackmore gave evidence as the investigating officer. She carried out various investigations including conducting the complainant through a recorded walk through of the incident at the scene, having various photographs taken and maps developed, and also having a digital forensic recording of the Albany Creek Leisure Centre made.[12] She investigated whether CCTV recording was operating on the day and discovered it was not.[13] There were no other witnesses to the appellant’s crossing of paths with the complainant. A register obtained from the canteen indicated no milkshakes were sold that day.[14] She produced a map which showed there were 29 public pools between where the appellant lived at Buderim and the Albany Creek Leisure Centre.[15] Her evidence was that the distance between the appellant’s residence and the Albany Creek Leisure Centre was 90 kms.[16]
[12]Exhibits 7-9; 41.
[13]T1-36.
[14]Exhibit 11.
[15]Exhibit 17.
[16]T2-28.
Her evidence was that a search warrant was executed on the appellant’s residence on 1 February 2011. That search was recorded.[17] Various computer equipment and the appellant’s mobile phone were seized. The appellant declined to be interviewed.
[17]Exhibit 13.
Forensic examination of the mobile phone revealed various phone calls and text messages sent on 17 and 18 November 2010. A text message sent by the appellant on 17 November said, “Heading to Brisbane tomorrow”. Various other text messages and phone calls were investigated. At some stage the appellant’s lawyers disclosed at a mention of the matter, that the appellant had a legitimate reason to travel to Brisbane to meet two persons for lunch on 18 November 2010. Those two persons were spoken to by police but declined to talk to police.[18] Some of the text messages supported that the appellant was trying to make lunch arrangements for 18 November 2010 in Brisbane. In his own evidence the appellant stated that he had not heard back from one of his friends and she was not home when he called there on 18 November.[19] He attended the second friend’s business premises and later had lunch with her and her husband.[20]
[18]T3-3 and 4.
[19]T3-36.
[20]T3-36.
Forensic examination of the appellant’s computer showed that the appellant’s computer had accessed the website of the complainant’s school on a number of occasions. As noted above, this was the same school visited by the appellant in breach of his bail conditions and which was named in the non-contact order. The evidence was that on 5 October 2010, the appellant’s computer accessed six school newsletters; on 7 October the computer accessed newsletters including one dated 7 October 2010; on 17 October the computer accessed the newsletter dated 14 October 2010.[21] There was also evidence that the appellant’s computer accessed the school website on 28 October 2010 and the newsletter of 28 October 2010 was viewed.[22] On 25 January 2010 the school website was again accessed and the school tuckshop information was viewed. Prior to that date, there had been no access to school tuckshop data.[23]
[21]T2-41 to 45.
[22]T2-46.
[23]T2-47.
An examination of the school newsletters revealed that the newsletters of 16 September, 7 October and 14 October contained information as to swimming classes, the venue of the Albany Creek Leisure Centre, the class years involved in the swimming classes and the dates and exact times for the Year 5 class.[24]
[24]T2-40 to 41.
The computer examination also revealed access to the Translink website for information about travel by public transport between Buderim and Bald Hills. Such access occurred on 8 and 19 October 2010.[25] The prosecution relied on this evidence because the appellant did not have access to a car at those times and only revealed his access to a car when he reported to Senior Constable Ingram on 22 November 2010. In his evidence the appellant stated that he had driven on the day in question from Buderim by car.
[25]T2-45 to 46.
There was no issue with the fact that it was the appellant who accessed the websites at the dates and times identified.[26]
[26]T2-54.
The appellant’s contention (as disclosed at a mention of the matter and again in his evidence) was that he accessed the school’s website in an endeavour to get contact details of a person he had met and wished to again make contact with. He believed that person would be a volunteer at the school tuckshop. That person was eventually identified as Alicia Stinchcombe.[27] Although her name appeared in the newsletters, it was only reported as “Alicia S”. That was referred to in the newsletter of 5 October 2010.[28] As noted above, the computer analysis only indicated access to canteen information on 25 January 2011.[29]
[27]T2-63.
[28]T2-65.
[29]T2-47; 2-66.
Ms Alicia Stinchcombe gave evidence that she had met the appellant through the complainant’s parents when he was a teacher of the complainant. She did volunteer work at the school of the complainant and in the tuckshop. The appellant had visited her house on occasions and she had last had contact with him in May 2008. He was not a friend and she had been informed by the complainant’s mother in 2008 of the charges brought against him. She wanted no further contact with him.[30]
[30]T3-9 to 10.
The appellant gave evidence. On 18 November 2010 he intended to meet two friends in Brisbane for lunch. He had not intended to go swimming. When he arrived in Brisbane he realised he was early and decided to go for a swim to relieve muscle soreness.[31] He went to the Albany Creek Leisure Centre as he had regularly attended there between 2000 – 2005. He arrived about 8.45am. He swam for a while and then went and purchased a protein drink from the canteen. Walking back, he crossed paths with the complainant. He got a shock. He walked away and then was leaving the pool when he again crossed paths with the complainant.[32] They were two metres apart. He didn’t wink at her. He left immediately and rang the police reporting officer to report the matter. The contact was accidental and not planned by him. It was “an unfortunate coincidence for both parties”.[33]
[31]T3-27.
[32]T3-28 to 33.
[33]T3-37.
His evidence was that as a result of a previous sighting of the complainant he suffered a panic attack and would not place himself in that situation again. He described an incident in the previous year when he was driving on South Pine Road:
“And the family’s car came up beside my car. The mother – I note – I knew it was their car because I had my sunglasses on and the girl was waving to get my attention.”
He had a panic attack and had to pull over to the side of the road.[34]
[34]T3-35.
After the incident at the pool he travelled to one friend’s house at Upper Kedron[35] but she wasn’t there so he went and had lunch with the second friend at Ashgrove.[36]
[35]T3-26.
[36]T3-36.
He had accessed the school’s website to track down a woman he only knew as Alicia. He didn’t know her surname. He accessed a number of newsletters to look at tuckshop lists as he wanted to contact her. He was not aware of the information concerning the swimming classes.[37]
[37]T3-36 to 37.
No other defence witnesses were called.
The Magistrate’s decision
The learned Magistrate, after submissions were made to her about the mens rea of the offence, determined the offence created by s 43F of the Penalties and Sentences Act 1992 was one of strict liability. She found that the only intention that needed to be proved was an intention to do the acts which constituted a breach of the order.[38]
[38]Decision p 3.
On all the evidence, she was satisfied beyond reasonable doubt that the contact between the appellant and the complainant was intentional on the appellant’s part. She rejected his evidence that he was not aware of the conditions of the non-contact order as he had been in court when it was made. She noted the evidence concerning the access to the school’s website and the appellant’s evidence as to his reason for that. She noted that the appellant accessed the website on 5 October 2010 when the newsletter indicated “Alicia S” was volunteering in the tuckshop. The appellant gave no evidence as to how he was going to locate the person Alicia, but he continued to access the website. She noted that those newsletters gave the appellant the information about the complainant’s presence at the particular swimming class. She rejected his explanation as to the access to the website as fanciful. The appellant knew the address of the person Alicia because he had visited there. He continued to access the website after the name “Alicia S” appeared. He had had no contact with that person since May of 2008. She was also friends with the complainant’s parents and his contact with her had been before he had pleaded guilty to the indecent dealing charges.
She also rejected the appellant’s evidence as to why he attended the Leisure Centre. There was no explanation as to why he was so early for a luncheon arrangement. There was no evidence to support his contentions. Both of his friends had refused to talk to the police. She noted inconsistencies in the accounts he had given the police of where his friends lived and his reason for going swimming.
She noted the inconsistencies in his three accounts about how the contact with the complainant occurred. In particular she was concerned that only in his evidence did he disclose that there were two contacts with the complainant at the pool. She found that the second encounter was a recent invention by the appellant to explain differences in his first two versions. There was also an inconsistency as to the type of drink purchased.
She rejected the evidence of the appellant and accepted the evidence of the complainant that the appellant had winked at her. She rejected the appellant’s evidence that he was in shock and found that the appellant deliberately winked at the complainant. She found that the appellant intentionally approached the complainant by walking past her and winking at her. She was satisfied beyond reasonable doubt of the guilt of the appellant.
She stated that if she was wrong in her finding that the offence was one of strict liability, she was of the view that no authorisation, justification or excuse by law had been successfully raised. She noted that the contact had to be intentional pursuant to the definitions in the Penalties and Sentences Act. She noted that accident would not apply if it was intentional contact. She found that mistake of fact as raised only in the prosecution’s submissions did not arise on the evidence.
She concluded that in view of her findings of totally rejecting the appellant’s evidence, he had raised no recognisable defence and found him guilty of the charge.
An offence of strict liability?
In my view, the learned Magistrate was in error in concluding the offence was one of strict liability. The use of the word “unlawfully” in the definition of the offence in s 43F of the Act, imports the operation of Chapter 5 of the Criminal Code. Section 36 of the Criminal Code applies the provisions of Chapter 5 to all persons charged with a criminal offence against the statute law of Queensland. The respondent does not contend that this is an offence of strict liability.
The definition of “contact” in s 43C of the Act includes the use of the term “intentionally”. Any alleged contact which founds the offence of unlawfully contravening a non-contact order must therefore be intentional, but that does not necessarily exclude the operation of accident under s 23 of the Criminal Code. In order to convict, any available defence or excuse pursuant to the provisions of Chapter 5 of the Criminal Code must be excluded beyond a reasonable doubt. Here, the only applicable defence raised was accident. This would be overcome by proof of an intentional contact so constituting an unlawful contravention of the non-contact order.
In my view, the learned Magistrate’s error in this regard does not mean that the appeal must succeed. The learned Magistrate ultimately found guilt proved in that no available defences were made out. I take by this that she meant that any defences raised were excluded beyond reasonable doubt.
Consideration
The first ground of appeal that should be considered is that there were errors in the learned Magistrate’s judgment.
I have already addressed the error of law made by the Magistrate. Two errors of fact in the learned Magistrate’s decision are referred to by the appellant as impacting on her decision making the verdict unreasonable. Those errors are that the appellant pleaded guilty to three breaches of bail conditions when, in fact, it was only two,[39] and that she referred to evidence that the school website was stored as a favourite on his internet explorer,[40] when the evidence indicated that it was another school (where the appellant had previously taught) which was so stored.
[39]Decision p2.
[40]Decision p5.
These were errors, but in my view, played no role in the learned Magistrate’s assessment of the matter. It was uncontested that the appellant had accessed the complainant’s school’s website on a number of different occasions.
One of the errors referred to by the appellant was the learned Magistrate’s findings as to his “knowledge of the non-contact order”. I have referred to this issue above. The learned Magistrate was clearly entitled to determine, as she did, that the appellant was aware of the terms of the order, particularly in relation to non-contact with the complainant. There was no error by the learned Magistrate.
The appellant argues that the learned Magistrate misunderstood the evidence about the timing of his access to the Translink website in that the learned Magistrate thought that that access was at the same time as his access to the school website. I can find nothing in the learned Magistrate’s reasons to that effect. The import of the evidence was that it revealed access to information about public transport between Buderim and Bald Hills (where the complainant’s school was situated) around the times the appellant was also accessing the school website. The appellant also clouds the issue in his written outline by suggesting that the learned Magistrate’s assessment of the issue was confused by the investigating police “claiming I’d previously tried to make contact with the complainant at her school”. The appellant had, in fact, made contact with the complainant at the same school as admitted by his pleas of guilty to the two bail condition offences. There was no misunderstanding of this evidence by the learned Magistrate.
The appellant argues that the learned Magistrate misinterpreted some facts as to his evidence concerning his attendance at Brisbane and the Albany Creek Leisure Centre on 18 November 2010. This seems to relate to his argument that he would not have sought out the complainant because of a previous incident where the complainant waved at him and he had a panic attack. Presumably from this it could be inferred that the complainant had suffered no ill effects or that the original incidents had not occurred. The only evidence of this contact comes from the appellant. I reject it. I am of the view that the learned Magistrate did not misinterpret the facts in rejecting the appellant’s evidence. She was clearly entitled to do so and had the benefit of observing the appellant give his evidence.
The appellant argues that the learned Magistrate’s reliance on inconsistencies in his accounts of his actual contact with the complainant was unfair and that he was called on to remember detail about an event that occurred a year previously. Many of the inconsistencies, particularly as to the type of drink bought, seem to me to carry little weight particularly in light of the weight of the other evidence. However, the appellant’s evidence about two incidents of contact was a substantial change. The learned Magistrate found that that was an attempt by the appellant to explain inconsistencies in his previous accounts and was a recent invention. That finding was open to her. There was no error.
The appellant also argued that there was incompetence in his representation which impacted upon the learned Magistrate’s findings. I have addressed above the clearly forensic decisions made about calling other evidence. Much of that evidence was irrelevant and inadmissible. There was no incompetence in those decisions. The appellant also complained that the complainant was not properly cross-examined as to exactly where “the crossing of paths” had occurred. In my view, the complainant, considering her age, was closely cross-examined as to the circumstances of the meeting. It was the meeting itself that was important, not exactly where it occurred. I can see no incompetence in the appellant’s legal representation which impacted on the trial.
The appellant also makes allegations of bias and unfairness in the police investigation. This could only impact on the appellant if somehow it resulted in a miscarriage of justice. The appellant was convicted on the evidence produced on the trial. There was also some complaint by the appellant that the police prosecutor sought the removal of his solicitor over some sort of conflict of interest. Whatever the basis, the application was withdrawn and had no bearing on the trial. I am of the view that no unfairness to the appellant occurred in the trial. There is nothing relevant in his complaint.
Although the learned Magistrate made an error of law and some minor errors of fact, I am of the view that they do not mean that the conviction was not a result that was open. The learned Magistrate clearly addressed the alternative legal basis in relation to the charge and her finding of guilt was clearly open to her on that basis. Any errors made by the learned Magistrate are not sufficient to cause the overturn of the conviction.
I have already dealt with two other arguments raised by the appellant in his grounds of appeal: negligent representation and fresh evidence. It remains to consider his final ground that the verdict was unreasonable. This entails a consideration of all the evidence to determine if the conviction was against the weight of the evidence. The test is whether on the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond a reasonable doubt that the appellant was guilty.[41]
[41]MFA v R (2002) 213 CLR 606.
Upon a consideration of the evidence led at the trial, I am of the view that it was clearly open to the learned Magistrate to convict the appellant. A combination of three factors in my view, made the case against the appellant overwhelming. Firstly, it was uncontested that contact between the appellant and the complainant did occur on the morning of 18 November 2010 at her school swimming lesson. That contact (as defined by the Act) also consisted of the appellant winking at the complainant. The complainant was consistent and adamant about that aspect. It was open to the learned Magistrate to accept her evidence and reject the appellant’s account that no winking occurred. That finding tends to suggest the contact was not a surprise to the appellant. Secondly, the appellant had travelled many kilometres to visit that particular pool at a time inconsistent with his evidence that he was travelling to Brisbane to have lunch with friends. Thirdly, the evidence of his repeated access to the school’s website at times prior to 18 November 2010 and the information available in that access to pinpoint the time, date and place where the complainant’s Grade 5 class would attend a swimming lesson is telling. The appellant’s account of his reasons for that access, particularly considering its repetition, was rightly rejected by the learned Magistrate. It was spurious in the circumstances when one considers his prior relationship with Ms Stinchombe, who was a friend of the complainant’s family.
The combination of those factors make any likelihood that the contact was not intentional or accidental non-existent. It proved that the contact was intentional on the appellant’s part and that the breach of the non-contact order was unlawful. It also excluded beyond reasonable doubt any applicable excuse of accident.
The verdict was not unreasonable.
There are no sustainable grounds of appeal. The appeal is dismissed.
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