R v Paul Henderson - [2009] ACTCA 20

R v PAUL HENDERSON [2009] ACTCA 20 (26 NOVEMBER 2009)

CRIMINAL LAW – stalking with intent to harass – contravention of s 35(1)(c) of Crimes Act 1900 (ACT) – appeal against order setting aside conviction and sentence by magistrate – issue of intent not adequately addressed by magistrate – appeal dismissed.

Crimes Act 1900 (ACT), s 35

Weissensteiner v R (1993) 178 CLR 217
May v O’Sullivan (1955) 92 CLR 654
Acuthan v Coates (1986) 6 NSWLR 472
R v Hillier (2007) 228 CLR 618

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 10-2009
No. SCA of 53 of 2008

Judges: Gray P, Refshauge and Ryan JJ
Court of Appeal of the Australian Capital Territory
Date: 26 November 2009

IN THE SUPREME COURT OF THE       )          No. ACTCA 10-2009
  )          No. SCA 53 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN
Appellant

AND: PAUL HENDERSON
Respondent

ORDER

Judges:  Gray P, Refshauge and Ryan JJ
Date:  26 November 2009
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

The appellant pay the respondent’s costs of the appeal, to be taxed in default of agreement.

IN THE SUPREME COURT OF THE       )          No. ACTCA 10-2009
  )          No. SCA 53 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN
Appellant

AND: PAUL HENDERSON
Respondent

ORDER

Judges:  Gray P, Refshauge and Ryan JJ
Date:  26 November 2009
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from orders of the Chief Justice upholding an appeal against a conviction of the respondent in the Magistrates Court for the offence of stalking in contravention of s 35 of the Crimes Act 1900 (ACT) (the Crimes Act). That section provides:

35Stalking
(1)A person must not stalk someone with intent—
(a)to cause apprehension, or fear of harm, in the person stalked or someone else; or
(b)to cause harm to the person stalked or someone else; or
(c)to harass the person stalked.

Maximum penalty:
(a)imprisonment for 5 years if—
(i)the offence involved a contravention of an injunction or other order made by a court; or
(ii)the offender was in possession of an offensive weapon; or

(b)imprisonment for 2 years in any other case.

(2)For this section, a person stalks someone else (the stalked person) if, on at least 2 occasions, the person does 1 or more of the following:
(a)follows or approaches the stalked person;
(b)loiters near, watches, approaches or enters a place where the stalked person resides, works or visits;
(c)keeps the stalked person under surveillance;
(d)interferes with property in the possession of the stalked person;
(e)gives or sends offensive material to the stalked person or leaves offensive material where it is likely to be found by, given to or brought to 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 Paul Henderson

Details

AGLC: R v Paul Henderson [2009] ACTCA 20
Case: [2009] ACTCA 20
Decision Date: 26/11/2009

CaseChat Overview and Summary

This matter concerned an appeal against an order that set aside a conviction and sentence imposed by a magistrate. The conviction was for stalking with intent to harass, a contravention of section 35(1)(c) of the *Crimes Act 1900* (ACT). The central dispute revolved around whether the magistrate had adequately addressed the element of intent in reaching the original conviction.

The court was required to determine whether the Chief Justice, in setting aside the conviction, had overlooked the magistrate's references to the issue of intent. Specifically, the court had to consider whether the magistrate's examination of intent met the required legal standard.

The court reasoned that the Chief Justice's observation that the magistrate had not adequately addressed intent did not mean the magistrate had failed to mention or identify the issue. Instead, the Chief Justice was indicating that the issue of intent had not been examined with the necessary depth and scrutiny as required by law. The court found support for this interpretation in the Chief Justice's statement that there had been "no consideration by his Honour, however, of the issue of intent." Consequently, the appeal was dismissed.

The appeal was dismissed with costs.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In our view, the learned Chief Justice, when he observed at [52] and [53] of his reasons that the magistrate did not address the issue of intent, did not overlook the magistrate’s mentions or identifications of that issue to which we have just referred. His Honour was rather indicating that the issue of intent had not been examined in the way it should have been as described at [27]-[28] of these reasons. That is borne out by his Honour’s statement at [46] of his reasons that “There was no consideration by his Honour, however, of the issue of intent” (emphasis added). For the reasons which we have endeavoured to explain the appeal must be dismissed with costs.I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.Associate:Date: 26 November 2009