R v Cox

Case [2016] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cox [2016] QCA 251

PARTIES:

R
v
COX, David Merton George
(appellant/applicant)

FILE NO/S:

CA No 83 of 2015
DC No 333 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 31 March 2015; Date of Sentence: 1 April 2015

DELIVERED ON:

7 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2016

JUDGES:

Philippides JA and Mullins and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of unlawful stalking involving a housekeeper at the resort complex at which he lived – where the appellant contended that the verdict was unreasonable and could not be supported having regard to the evidence – where the appellant submitted that there were errors of fact contained within the victim impact statement and evidence provided by the complainant – where the appellant submitted there were “questions of law and errors of law which the jury did not understand” – whether it was open to the jury to convict on the evidence presented – whether the verdict was unreasonable or unsupported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant was convicted of one count of unlawful stalking involving a housekeeper at the resort complex at which he lived – where the appellant was fined $2,000 with a conviction recorded – where a restraining order was imposed upon the appellant for a period of five years with respect to contact with the complainant – whether the sentence was manifestly excessive

Criminal Code (Qld), s 359A, s 359B, s 359B(c), s 359B(d), s 359D(e), s 359E(1), s 359F
Criminal Practice Rules 1999 (Qld), r 62(5)
District Court of Queensland Act 1967 (Qld), s 118(3)

Gibson v Golding [2011] QDC 271, cited
R v Cook[1995] QCA 210, cited
R v Johnston[2008] QCA 291, cited
R v Kyriakou (1994) 75 A Crim R 1; [1994] QCA 361, cited
R v Millar[2013] QCA 28, cited
R v Morris[2010] QCA 315, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. PHILIPPIDES JA: The appellant was convicted by a jury on 31 March 2015, after a four day trial, of one count of unlawful stalking under s 359E(1) of the Criminal Code (Qld) and sentenced on 1 April 2015. The appellant appeals against his conviction and also seeks leave to appeal against sentence.

    Background

  2. The complainant…

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Details
AGLC
R v Cox [2016] QCA 251
Case
[2016] QCA 251
Decision Date

CaseChat Overview and Summary

The appellant in this case, Cox, was convicted of one count of unlawful stalking involving a housekeeper at a resort complex. Cox appealed both the conviction and the sentence, arguing that the verdict was unreasonable and that the sentence was manifestly excessive. The central issue before the court was whether the jury's conviction was supported by the evidence presented and whether the sentence imposed was appropriate. Additionally, Cox argued that there were errors of fact in the evidence provided to the court and that there were questions of law and errors of law which the jury did not understand.

The court examined whether the jury's conviction was reasonable and supported by the evidence. It found that if the jury accepted the complainant's account of events, there was ample evidence to support the conviction. The court noted that questions of fact and the credibility of witnesses are within the province of the jury. Cox's arguments about errors of fact in the evidence, such as the complainant's motivations and the alleged exaggeration of incidents, were considered but ultimately rejected as matters for the jury. The court also dismissed Cox's claims about questions of law and errors of law, finding that the trial judge had adequately directed the jury on these points. The court concluded that the jury's decision to convict Cox was within their purview, and thus the appeal against the conviction was dismissed.

Regarding the sentence, the court assessed whether it was manifestly excessive. Cox was fined $2,000 and received a conviction, along with a five-year restraining order against contact with the complainant. The court found that the sentence was appropriate given the nature and impact of the offence. Therefore, the application for leave to appeal against the sentence was refused.

ORDERS:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If the jury found that the incidents occurred in the way described by the complainant along with her reaction to them, there was more than sufficient evidence to support the charge. The issue, however, was peculiarly a jury question.Ground 2 – there were errors of fact contained within the evidence provided to the court The appellant contended that there were errors of fact contained within the evidence provided to the court. Two matters were raised. Firstly, the appellant referred to the complainant’s victim impact statement in which the complainant asked that the Court have the appellant removed from the resort. The appellant submitted that statement revealed that the true motivation behind the complaint was to have the appellant removed from the resort. Secondly, the appellant submitted that there was insufficient factual evidence for the jury to find the appellant guilty beyond reasonable doubt of unlawful stalking as, in the appellant’s submission, the complainant had lied and exaggerated in her evidence regarding the incidents on 21 and 29 December 2013. As the respondent submitted, it was clear from the summing-up that the appellant’s argument to the jury was that the complainant was exaggerating her evidence, was influenced by the management to make the complaint, and that the management’s attitude to him and warnings about him had clouded her evidence. It is abundantly clear that these issues and the complainant’s true motivation were before the jury for their consideration. They obviously rejected the appellant’s contention that the complainant’s evidence should not be accepted. In any event, as the respondent submitted, even if it could be inferred from the evidence that the complainant did not want the appellant around the complex that did not necessarily render her a dishonest or unreliable witness. It was apparent from her evidence that she feared the appellant and was distressed at the prospect of seeing him. It was a consideration that might be seen as tending to support her credibility rather than detract from it. Such matters were ultimately ones which were in the jury’s province to consider.Ground 3 – there were questions of law and errors of law in the trial which the jury did not understand The appellant also submitted that there were “questions of law and errors of law the jury did not completely understand”. A matter raised in this context was a submission as to s 359D(e) of the Criminal Code (Qld), which concerns particular conduct that is not unlawful stalking. That provision provides that unlawful stalking does not include “reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.” The applicant’s contention is not made out. The trial judge gave detailed directions on the matter. There was conflicting evidence before the jury and it was a matter for the jury to determine what evidence they accepted. A further matter argued by the appellant concerned the directions to the jury and their understanding of whether the actions were intentionally directed toward the complainant or whether they were directed towards both housekeepers. In that regard, the appellant referred to Gibson v Golding, where it was said:[1]“The difficulty with this evidence is in showing that it was intentionally directed at the respondent rather than being intentionally directed just at the security officer. There was evidence that there were two acts of violence committed but they were both committed against the security officer, and much of the evidence of the respondent related to both him and the security officer indiscriminately. There was nothing in the evidence that I could identify which involved any acts of the appellant which were unambiguously directed to the respondent rather than the security officer, or conduct which could have been unambiguously characterised as directed to both of them.”[1][2011] QDC 271 at [32] per McGill SC DCJ.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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