R v Glover - [2022] QCA 50

SUPREME COURT OF QUEENSLAND

CITATION:

R v Glover [2022] QCA 50

PARTIES:

R
v
GLOVER, Vivienne Mary
(appellant/applicant)

FILE NO/S:

CA No 325 of 2021
DC No 170 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction and Sentence: 18 November 2021 (Rosengren DCJ)

DELIVERED ON:

Date of Orders: 8 April 2022
Date of Publication of Reasons: 12 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2022

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDERS:

Orders delivered: 8 April 2022

1.       The appeal against conviction be allowed.

2.       The verdicts below are quashed.

3.       There be a retrial in respect of each count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant was charged with two counts of stalking – where the counts were broadly particularised as constituting 96 specific acts in respect of the first count and 15 specific acts in respect of the second count – where the particularised acts spread over a period of 11 years – where at trial, the two complainants gave evidence of specific instances of varying types and frequencies, including periods where no acts of stalking were being perpetrated by the appellant – where the appellant claimed that the particularisation of specific acts, rather than generalised conduct, resulted in each count being latently duplicitous – whether the counts were duplicitous

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge directed that the jury could convict if they all agreed that the defendant committed at least two of the acts identified in the particulars for each count, and were satisfied that the course of conduct consisting of the identified acts caused detriment to the complainant – where the trial judge gave the jury written documents identifying matters relevant to particular acts, but did not specifically direct the jury as to evidence relevant to the particularised acts – where the appellant claimed that several of the particularised acts were in order to give or obtain information in respect of which there was a legitimate interest pursuant to s 359D(e) of the Criminal Code – where the trial judge made directions as to the reasonableness of the appellant’s conduct by reference to a test of the objective truth of the information – where the appellant submits that it was open for the jury to be satisfied of the appellant’s genuine belief in the allegations – whether the trial judge misdirected the jury

Criminal Code (Qld), s 359(B), s 359(D), s 567(3)

Daly v Medwell (1986) 40 SASR 281; [1986] SASC 8847, cited
R v Chen [1997] QCA 355, considered
R v Conde [2016] 1 Qd R 562; [2015] QCA 63, cited
R v Giretti (1988) 24 A Crim R 112; [1986] VicSC 484, cited
R v Locchi (1991) 22 NSWLR 309, cited
Walsh v…

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 Glover

Details

AGLC: R v Glover [2022] QCA 50
Case: [2022] QCA 50
Decision Date: 12 April 2022

CaseChat Overview and Summary

The appeal in R v Glover was heard by the Court of Appeal, which addressed two key issues concerning the trial judge's handling of the case. The first issue was whether the counts of stalking were latently duplicitous due to the particularisation of specific acts, rather than generalised conduct, over an 11-year period. The second issue was whether the trial judge misdirected the jury by not adequately addressing evidence relevant to the particularised acts, particularly concerning the appellant's genuine belief in the legitimacy of her actions.

The Court of Appeal found that the counts of stalking were not duplicitous, as the particularisation of specific acts was necessary to provide the appellant with sufficient notice of the charges. However, the court held that the trial judge's directions to the jury were inadequate. The judge directed that the jury could convict if they agreed that the defendant committed at least two of the acts identified in the particulars for each count and were satisfied that the course of conduct caused detriment to the complainant. However, the judge did not specifically direct the jury as to evidence relevant to the particularised acts. This omission was significant because the appellant claimed that several of the particularised acts were in order to give or obtain information in respect of which there was a legitimate interest. The court held that it was open for the jury to be satisfied of the appellant’s genuine belief in the allegations, and the trial judge's failure to address this issue constituted a misdirection.

The Court of Appeal quashed the convictions and ordered a retrial on each count. This conclusion rendered it unnecessary to consider the appellant’s application for leave to appeal against sentence. The court's decision emphasised the importance of clear and adequate directions to the jury, particularly in cases involving specific acts over an extended period.

Orders

Orders of the court

Orders delivered: 8 April 2022

1. The appeal against conviction be allowed.

2. The verdicts below are quashed.

3. There be a retrial in respect of each count.

Background

Background to the litigation

Were leave granted to appeal sentence, the appellant relied on two grounds. First, that the trial Judge erred in failing to take account of, or give sufficient weight to, a significant mitigating factor. Second, that the sentences are manifestly excessive, having regard to the circumstances of offending and the matters in mitigation.Background The appellant was born on 24 June 1950. She was aged 58 at the commencement of the unlawful stalking counts and aged 69 at the end of those stalking counts. The appellant had no prior criminal history. The respective complainants in the unlawful stalking counts were a husband and wife who lived at the property adjacent to the appellant’s property. Each count alleged unlawful stalking between 30 November 2008 and 31 July 2019. At the commencement of the trial, each count was broadly particularised, identifying types of conduct regularly undertaken by the appellant throughout the extended stalking period. As a result of rulings by the trial Judge, more specific particulars were provided at the end of the Crown case. Those particulars identified 94 specific acts for the first count, and 15 specific acts for the second count. An application by the appellant for a mistrial was refused by the trial Judge. During the prosecutor’s address, a revised particulars document was provided to the jury in respect of the first count. It alleged 96 specific acts. The revision occurred because that count had charged a circumstance of aggravation, namely “with possession of a weapon”, which was discontinued by the prosecution. The acts in support of it were relied on as further particulars of the first count.Trial The first witness called by the Crown was the complainant in the first count. He gave evidence of specific, multiple occasions on which the appellant had engaged in conduct of the nature broadly particularised at that time. That conduct included simply watching the complainants; verbal abuse; making false complaints (including to police); taking photographs; throwing various items over the adjoining fence; yelling abuse and threats; video recording of the complainant; and driving her motor vehicle at or near the vehicles of visitors to their house. Whilst the evidence of the complainant in the first count was of stalking conduct over the entire almost 11 year period specified in count one, his evidence identified specific instances of varying types and frequencies with periods when no such conduct was being perpetrated by the appellant. For example, the first two particularised acts were in late 2008 and early 2009, with the next particularised acts occurring in late 2009 and early 2010. Similarly, acts were particularised as having taken place between November 2010 and December 2012 with the next particularised acts occurring between June 2013 and December 2015. Further particularised acts were perpetrated between June 2016 and September 2016 and March 2017 and February 2019. The complainant in the second count also gave evidence of acts of stalking perpetrated by the appellant over the period charged in the second count. Again, the particularised acts occurred at specified times but with even longer periods during which no acts of stalking were identified as having been perpetrated by the appellant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The inadequacy of these directions also deprived the appellant of the prospect of an acquittal on each charge.Conclusion As there was a miscarriage of justice, the convictions were quashed. A retrial was ordered on each count. That conclusion rendered it unnecessary to consider the appellant’s application for leave to appeal against sentence.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Glover [2022] QCA 50
PARTIES:	R v GLOVER, Vivienne Mary (appellant/applicant)
FILE NO/S:	CA No 325 of 2021 DC No 170 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction and Sentence: 18 November 2021 (Rosengren DCJ)
DELIVERED ON:	Date of Orders: 8 April 2022 Date of Publication of Reasons: 12 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2022
JUDGES:	Morrison and McMurdo JJA and Boddice J
ORDERS:	Orders delivered: 8 April 2022 1. The appeal against conviction be allowed. 2. The verdicts below are quashed. 3. There be a retrial in respect of each count.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant was charged with two counts of stalking – where the counts were broadly particularised as constituting 96 specific acts in respect of the first count and 15 specific acts in respect of the second count – where the particularised acts spread over a period of 11 years – where at trial, the two complainants gave evidence of specific instances of varying types and frequencies, including periods where no acts of stalking were being perpetrated by the appellant – where the appellant claimed that the particularisation of specific acts, rather than generalised conduct, resulted in each count being latently duplicitous – whether the counts were duplicitous CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge directed that the jury could convict if they all agreed that the defendant committed at least two of the acts identified in the particulars for each count, and were satisfied that the course of conduct consisting of the identified acts caused detriment to the complainant – where the trial judge gave the jury written documents identifying matters relevant to particular acts, but did not specifically direct the jury as to evidence relevant to the particularised acts – where the appellant claimed that several of the particularised acts were in order to give or obtain information in respect of which there was a legitimate interest pursuant to s 359D(e) of the Criminal Code – where the trial judge made directions as to the reasonableness of the appellant’s conduct by reference to a test of the objective truth of the information – where the appellant submits that it was open for the jury to be satisfied of the appellant’s genuine belief in the allegations – whether the trial judge misdirected the jury Criminal Code (Qld), s 359(B), s 359(D), s 567(3) Daly v Medwell (1986) 40 SASR 281; [1986] SASC 8847, cited R v Chen [1997] QCA 355, considered R v Conde [2016] 1 Qd R 562; [2015] QCA 63, cited R v Giretti (1988) 24 A Crim R 112; [1986] VicSC 484, cited R v Locchi (1991) 22 NSWLR 309, cited Walsh v…