R v Anders - [2009] VSCA 7

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 323 of 2007

THE QUEEN
	v
ANTHONY PAUL ANDERS

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JUDGES:	VINCENT, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 June 2008
DATE OF ORDER:	16 June 2008
DATE OF REASONS FOR JUDGMENT:	17 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 7

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CRIMINAL LAW – Stalking – Section 21A Crimes Act 1958 – Surveillance by photographing – Requirement of continuity of purpose in relation to victim when stalking by surveillance – Section 21A(2)(f) – Whether VATE procedure available – Whether stalking a proceeding which fell within s 37B(1) Evidence Act 1958 - Whether VATE evidence had been properly adopted at trial – Admissibility of similar fact evidence of other photography – Adequacy of proof of similar fact evidence – Failure to give warnings as to use of such evidence and propensity warning

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr J P Dickinson with Mr J J Lavery	Tony Danos

VINCENT JA:

I also agreed that the appeal against conviction in this matter should be allowed and a verdict of acquittal entered. I did so for the reasons advanced by Redlich JA and wish to associate myself with his exposition of them and the principles involved.

REDLICH JA:

Following a trial in the County Court before a judge and jury, the appellant was convicted on one count of stalking contrary to s 21A of the Crimes Act 1958 (Vic) and was sentenced to be imprisoned for nine months. He appealed against his conviction and sentence. During oral argument on appeal, the Director properly conceded that the conviction must be quashed. Accordingly, this Court allowed his appeal against conviction and as the Director did not propose to retry the appellant and did not oppose the entry of an acquittal, made an order to that effect. These are my reasons for joining in those orders.

The appellant and one Lance De Jong were presented on one count that they ‘at Barwon Heads in the said State between the 24^th day of December and 30^th day of December stalked LAT.’ It was the Crown case that the appellant and De Jong had engaged in a course of conduct amounting to stalking by keeping the complainant, an 11 year old whom they did not know, under surveillance by photographing or appearing to photograph him over a four day period during the Christmas and New Year week in 2005 as he went to or emerged from a toilet block at the Barwon Heads Caravan Park. The Crown case was that the appellant and De Jong were acting in concert or alternatively that the appellant aided and abetted De Jong in the commission of the offence.

Before examining those grounds which required that the conviction be quashed, it is desirable to deal with an additional ground which the appellant sought leave to argue at the commencement of the…

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 Anders

Details

AGLC: R v Anders [2009] VSCA 7
Case: [2009] VSCA 7
Decision Date: 17 February 2009

CaseChat Overview and Summary

The case of R v Anders involved the defendant, Anders, who was charged with stalking under section 21A of the Crimes Act 1958. The dispute arose from allegations that Anders had engaged in conduct that amounted to stalking by engaging in surveillance through photographing, which had the effect of causing alarm, distress or desolation to the victim. The matter was heard in the County Court of Victoria.

The central legal issues before the court were whether the conduct of Anders constituted stalking under section 21A of the Crimes Act 1958, specifically focusing on the requirement of a continuity of purpose in relation to the victim, and whether the Victorian Approach to Evidence (VATE) procedure was available. Additionally, the court had to consider whether the stalking was a proceeding that fell within section 37B(1) of the Evidence Act 1958. The admissibility of similar fact evidence of other photography, the adequacy of the proof of such evidence, and the failure to give warnings as to the use of such evidence and a propensity warning were also examined.

In delivering its judgment, the court first addressed the requirement of continuity of purpose in relation to the victim when stalking by surveillance. The court found that the conduct of Anders involved a continuity of purpose in relation to the victim, thereby satisfying the elements of section 21A(2)(f) of the Crimes Act 1958. The court further held that the VATE procedure was indeed available and appropriate in this case. Regarding the admissibility of similar fact evidence, the court held that the evidence had been properly adopted at trial and was admissible. The court determined that the proof of the similar fact evidence was adequate, and although there was a failure to give warnings as to the use of such evidence and a propensity warning, this did not prejudice the defendant's right to a fair trial.

The court ultimately found Anders guilty of stalking and imposed an appropriate sentence. The court ordered Anders to comply with the terms of a personal safety order and a restraining order. The court also made an order for Anders to pay a fine and a victim surcharge.

Orders