R v Abbott - [2006] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 255 of 2004

THE QUEEN
	v.
JOHN MURRAY ABBOTT

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JUDGES:	BUCHANAN, VINCENT and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 April 2006
DATE OF JUDGMENT:	4 May 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 100

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Criminal law – Stalking – Political demonstrations outside residence of victim – Jury not to be instructed to return a verdict of not guilty if the jury considers that law creating the offence unjust – Accused’s conduct capable of constituting offence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. The Crown relied on its written submissions	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	No Appearance The Applicant relied on his written submissions

BUCHANAN, J.A.:

The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing two counts of stalking, contrary to s.21A of the Crimes Act 1958. (“the Act”). He was unrepresented at the trial.

Section 21A provides, so far as is presently relevant:

“(1) A person must not stalk another person.
(2)A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following –
(a)following the victim or any other person;
(b)telephoning, sending electronic messages to, or otherwise contacting, the victim or any other person;
(c)entering or loitering outside or near the victim’s or any other person’s place of residence or of business or any other place frequented by the victim or any other person;
…
(e)giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;
(f)keeping the victim or any other person under surveillance;
(g)acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person –
with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person and the course of conduct engaged in actually did have that result.

(3)For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if that offender knows, or in all these particular circumstances that offender ought to have understood, that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.”

At the conclusion of the trial the jury found the applicant guilty on one count of stalking and acquitted him on the other count. After a plea the applicant was sentenced to be imprisoned for a term…

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 R v Abbott

Details

AGLC: R v Abbott [2006] VSCA 100
Case: [2006] VSCA 100
Decision Date: 4 May 2006

CaseChat Overview and Summary

In the case of R v Abbott, the respondent, Abbott, was charged with stalking the victim, a member of the Australian Parliament, on numerous occasions outside the victim's residence. The matter was heard in the Supreme Court of Victoria. Abbott argued that the law creating the offence of stalking was unjust and should not be enforced, and that the jury should be instructed to return a verdict of not guilty if they considered the law to be unjust. The prosecution argued that the jury should only be instructed to return a verdict of not guilty if the evidence did not establish the elements of the offence beyond reasonable doubt.

The court had to determine whether the jury should be instructed to return a verdict of not guilty if they considered the law creating the offence of stalking to be unjust, and whether the evidence established the elements of the offence beyond reasonable doubt. The court held that the jury should not be instructed to return a verdict of not guilty if they considered the law creating the offence of stalking to be unjust, as this would usurp the role of the legislature in determining the validity of a law. The court held that the jury should only be instructed to return a verdict of not guilty if the evidence did not establish the elements of the offence beyond reasonable doubt. The court found that the evidence did establish the elements of the offence beyond reasonable doubt, and therefore the jury should return a verdict of guilty.

The court found Abbott guilty of stalking the victim on numerous occasions outside the victim's residence. The court held that the evidence established that Abbott's conduct was capable of constituting the offence of stalking, and that the jury should not be instructed to return a verdict of not guilty if they considered the law creating the offence of stalking to be unjust. The court did not provide any further orders in the decision.

Orders