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:

1. The appeal be dismissed.

1. 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:

1. 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 attention of, the stalked person;

(f)telephones, sends electronic messages to or otherwise contacts the stalked person;

(g)sends electronic messages about the stalked person to anybody else;

(h)makes electronic messages about the stalked person available to anybody else;

(i)acts covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person;

(j)engages in conduct amounting to intimidation, harassment or molestation of the stalked person.

(3)However, this section does not apply to reasonable conduct engaged in by a person as part of the person’s employment if it is a function of the person’s employment to engage in the conduct and the conduct is not otherwise unlawful.

(4)Without limiting subsection (1), a person is also taken to have the intent mentioned in the subsection if the person knows that, or is reckless about whether, stalking the other person would be likely—

(a)to cause apprehension or fear of harm in the person stalked or someone else; or

(b)to harass the person stalked.

(5)In a prosecution for an offence against subsection (1), it is not necessary to prove that the person stalked or someone else apprehended or feared harm or that the person stalked was harassed.

(6)For this section:

harm means physical harm, harm to mental health, or disease, whether permanent or temporary.

harm to mental health includes psychological harm.

physical harm includes unconsciousness, pain, disfigurement and physical contact that might reasonably be objected to in the circumstances, whether or not there was an awareness of the contact at the time.

1. From about July 2002, the complainant, a female, attended a fitness centre of which the respondent was also a member.  From time to time they exchanged greetings but did not otherwise communicate with each other.  In May 2004, the complainant moved to another fitness centre and until 2005 there were occasional fleeting meetings, apparently by chance, between her and the respondent.

1. From June 2005 the respondent began to send text messages to the complainant by means of her mobile telephone.  How the respondent obtained the complainant’s mobile telephone number is unclear although he suggested in one text message that she had given it to him.  The text messages increased in frequency between June 2005 and December 2005 by which time they had totalled 35. 

1. On 23 December 2005, the complainant found a card under the windscreen wiper of her car.  It was inscribed on the outer cover, “I wanted to get you something expensive and sexy for Christmas” and on the inside “ME” and “Love Paul”.

1. Also on 23 December 2005, the complainant complained to the police about being harassed by the text messages and was advised to send the respondent a request that he desist from texting her.  She did so and the respondent replied:

Sorry, I wont contact u again I promise.  Im not stalking u I just saw your car by accident. I won’t go to the gym anymore.  Sorry I should have stopped before but I couldn’t.

1. There was no further contact between the respondent and the complainant from 23 December 2005 until 8 March 2006.  The events of that date have been described in these terms by the learned Chief Justice:

18There was no contact after that until 8 March 2006.  The appellant and complainant were then both, coincidentally it seems, at a musical event at “The Green Room”, a venue in Phillip, ACT.  The appellant approached the complainant after staring in her direction for some time.  He touched her arm but she moved away.  Later, the appellant followed the complainant and her male companion down the stairs, the complainant heard the appellant say, “Are you going to leave with him?  Fine leave with him, I don’t care what you do”.  She was concerned that the appellant might push her, though he did not, in fact, do so.

1. The next incident occurred on 6 February 2007 when an order for flowers to the value of $1,000.00 was placed with a florist for delivery to the complainant “from Paul Henderson”.  The complainant declined to accept delivery and suggested that the flowers be delivered to Calvary Hospital.

1. On 11 February 2007, the complainant received a text message, “Is that you Kimi, Paul”.  That was sent by the respondent apparently in the mistaken belief that a “no number” call on his telephone had come from the complainant.

1. There was no further direct contact between the respondent and the complainant but it appears that the respondent sent hundreds of text messages to the public text message line of the radio station, Canberra FM.  That apparently occurred because the respondent was under the delusion that the complainant was speaking to him through songs which Canberra FM selected for broadcasting.  The complainant had no connection with Canberra FM and the text messages to that radio station only came to her attention because they were referred to her by the police.  After she learned of the contents and volume of the text messages she felt “overwhelmed, terrified, anxious”. 

1. In June 2007 the complainant had obtained a protection order against the respondent and he was ordered to pay her costs.  When paying those costs by cheque to the complainant’s solicitors he left with them an engagement ring.  In February 2008 the respondent, in breach of the protection order, attended the complainant’s new fitness centre and left a message addressed “to Kim” with a request that it be sent to her.  He was arrested and later sentenced to four months imprisonment for that breach of the protection order.  At about the same time he caused a florist to deliver to Canberra FM flowers accompanied by a card inscribed “Kim, every second, every hour, every day, forever.  Love, Paul”.

1. Whilst in custody the respondent, on 4 March 2008, applied for bail on the ground that he wished to spend the day with his “girlfriend”, it being the anniversary of the incident at the “Green Room” described at [6] above.

1. Two other actions of the respondent were related to the complainant but were never communicated to her.  In the first place he had tattooed on his arm a stylised heart emblem intertwined with the legend “Kimi for Ever”.  The second such action was the respondent’s having procured personalised Queensland registration plates “KIM-575” for his motor vehicle which corresponded with the same plates which the complainant had obtained for her New South Wales-registered vehicle.

1. The respondent was charged under each of s 35(1)(a) and s 35(1)(c) of the Crimes Act. The first charge alleged that between 2 May 2005 and 18 February 2008 he stalked with intent to cause apprehension or fear of harm to Kim Herbert. The second charge alleged in the alternative that between 2 May 2005 and 18 February 2008 he stalked with intent to harass Kim Herbert. He was also charged with having, in February 2008 and May 2008, contravened a protection order. The charges were heard together in the Magistrates Court of the Australian Capital Territory on 3 and 11 June 2008 where the respondent pleaded guilty to the latter two charges and not guilty to the two charges of stalking. On 16 June 2008, the learned magistrate found proved the charge under s 35(1)(c) of stalking with intent to harass and dismissed the charge under s 35(1)(a) of stalking with intent to cause apprehension or fear of harm.

1. The magistrate imposed on the respondent a total head sentence of 24 months imprisonment on the two charges of contravening a protection order to which he had pleaded guilty and the one charge of stalking with intent to harass which had been found proved.

1. The respondent appealed against the conviction and the sentence imposed as set out at [13] and[14] of these reasons.  The appeal was heard by Higgins CJ in November 2008 and on 7 April 2009 his Honour dismissed the appeal against the sentence for contravention of the protection orders but upheld the appeal against the conviction for stalking with intent to harass, set aside the conviction and sentence on that charge and remitted the matter to the Magistrates Court “if the Director of Public Prosecutions deems that course appropriate”.  It is from the latter order that the Director now appeals.

1. In his reasons of 16 June 2008 explaining the conviction of the respondent on the charge of stalking with intent to harass, the magistrate observed:

My task is to find on the evidence adduced by both parties before the Court beyond reasonable doubt that these allegations are made out.  In making those observations, defence counsel very fairly and frankly disclosed to the Court so as to narrow and focus the real issues to be addressed in the proceedings that the issue was simply whether the defendant intended to harm, harass or cause apprehension or fear in the mind of the complainant.

It was a question of intent.

1. After summarising the effect of s 35 of the Crimes Act, the magistrate recounted the evidence of the matters outlined at [2]-[12] of these reasons which he described as “fairly straight-forward”.  In the course of that recital, his Honour noted some of the many text messages which had been sent by the respondent to the complainant, one of which, on 26 August 2005, was in these terms:

Hi Kimmie, it’s just your friendly unwanted friend here.  I wish you could take a chance and get to know me.  Quality white trash like me doesn’t come along every day.  I never do you bad, you’ve reborn me, so you’re like a maternal figure in my life now.  Weird I know.  I hope you still got short hair, it shows off your pretty face, I love it.  Oh dear, I feel like Forrest Gump.  P.S. If you want, I can go to another gym, it’s not a problem.  I don’t want to be a hassle.

1. The magistrate referred to a record of interview of the respondent conducted on 31 March 2008 by two police officers, Constables McKenzie and Saunders, but merely noted that “throughout that interview there are a number of admissions as to what he was doing”.  His Honour then continued:

In my view, on the totality of the evidence, the defendant was engaging in relentless, constant, repetitive obsessive conduct in relation to his attitude to this girl.  He had no respect for her privacy or dignity, or even permitting the complainant to the quiet enjoyment of her private life.  It was unnecessary, inappropriate, unwanted, unsolicited attention of a persistent, disturbing nature.

There has been really no contest in the hearing that the text messages, the flowers, the notes and the tattoo were made by the defendant. The sole question is whether the defendant intended the conduct in the terms of section 35(1)(a) and (c) of the Crimes Act.  I am satisfied the defendant was the author, the originator and initiator of the conduct complained of by the defendant [sic].

1. The magistrate then embarked on a lengthy excursus in which he cited the High Court authorities of Weissensteiner v R (1993) 178 CLR 217 and May v O’Sullivan (1955) 92 CLR 654 and quoted extensively from the judgment of Mason CJ and Deane and Dawson JJ in the former case. That citation of authority by his Honour was apparently by way of reminding himself that an election by an accused not to give evidence himself or herself (as occurred in this case) cannot be relied on by a trier of fact to support a conclusion of guilt. It may, however, be used in appropriate, but limited, cases to permit the drawing with more confidence of an inference, otherwise available on the evidence, which supports a conclusion of guilt.

1. The reasons at first instance then concluded with this passage:

I am satisfied in this case that the prosecution has made out a case beyond reasonable doubt of harassment. Despite what the complainant said about being overwhelmed, terrified and anxious and that the statutory provision of section 35(5) of the Crimes Act, I consider that the prosecution should adduce more cogent and persuasive evidence on this issue of fear or apprehension before effectively relying on the evidence adduced by the complainant.  It is effectively, in my view, a deeming provision;  it needs to be further supported by the evidence.

The charge made pursuant to section 35(1)(c), which is the harassment charge, in my view, is made out to the requisite degree of proof beyond reasonable doubt and that offence is found proved.

I further considered the evidence in relation to the section 35(1)(a) charge. The elements of the charge in my view have been pleaded or alleged in duplicitous form. The charge should either read that the defendant caused apprehension in the person stalked or caused fear of harm in the person stalked. The charge presently reads that between 2 May 2005 and 18 February 2008, the defendant stalked Kim Herbert with intent to cause apprehension or fear or harm. It is open to the prosecution, in my view, to make one charge in the terms of intent to cause apprehension and a wholly separate independent charge of intent to cause fear of harm.

The charge under section 35(1)(c) is formally sustained and I find that offence proved, that charge being 6372, and charge 6371 will be dismissed.

1. On the appeal by the respondent, the learned Chief Justice regarded as “entirely apt” the magistrate’s conclusion noted at [18] above that the respondent had engaged in “relentless, constant, repetitive obsessive conduct” and in “unnecessary, inappropriate, unwanted, unsolicited attention” which the complainant had found “disturbing”. It was then observed in the Chief Justice’s reasons that:

42.Nevertheless, on the issue raised by s 35(2)(j) Crimes Act, namely, whether the appellant had engaged in conduct, on at least two occasions, “amounting to … harassment of the stalked person”, his Honour found that proved and relevantly, that the element prescribed under s 35(1)(c), “intent … to harass the person stalked” was satisfied. An alternative charge alleging intent to cause apprehension or fear of harm was dismissed.

1. After noting the magistrate’s recital of the contact between the respondent and the complainant from June 2005 to February 2008, the Chief Justice observed at [45]-[47] of his reasons that:

45.… [the Magistrate had] concluded, quite rightly, that the appellant’s conduct over that time, amounted to harassment of the complainant.  It clearly caused her considerable distress though that is not a necessary element of the offence.

46.There was no consideration by his Honour, however, of the issue of intent.  It seems to me that his Honour must have assumed that, if the appellant intentionally performed the acts constituting harassment, then intent was made out.

47.If that is the correct test, that conclusion followed ineluctably.  However, that is the issue.

1. Under the sub-heading “Intent” the reasons of the learned Chief Justice then continued:

50.The offence of stalking differs from that of breaching a protection order, though the conduct may be identical (see, for example, Firestone v ANU (2004) 184 FLR 53 cf Longfield v Glover (2005) 191 FLR 332). In the case of breach of a protection order the offender need only knowingly engage in an act that breaches the order being aware of the terms of it. Whilst the offender must be proved to know of relevant circumstances making his or her conduct a breach of the order (eg, presence of the aggrieved person at a location being approached), it is not necessary to prove an intent to harass, intimidate or alarm the aggrieved person. It is necessary to prove such an intent in the case of stalking.

51.An intent to harass a person, being the intent here alleged, must, it seems to me, embrace an intent to cause annoyance, at the least, to the person subjected to the acts constituting the stalking in question. Subsection 35(4) Crimes Act includes, within the embrace of intent, recklessness as to whether the conduct engaged in would be “likely” to “harass the person stalked”.  Thus proof of either state of mind would support the relevant element of stalking.

52.In this case, the learned Magistrate did not address that issue.  That it was a live issue is illustrated by the appellant’s response to the complainant’s objection to his continued text messages.  He promised to cease and did so.  His conduct in sending the messages to Canberra FM was explained by his bizarre delusion that he was receiving coded messages to contact her through that medium.  That was, unless it be dismissed as a false statement, inconsistent with an intent to harass.  His conduct in sending the flowers, the engagement ring and the card are, of course, whether they constituted harassment or not, consistent with an intent to persist in unwanted contact.  The police interview is, similarly, capable of such a conclusion.

53.Given the issue was not addressed and that there was some evidence upon which a reasonable doubt might have been entertained, the conviction and sentence must be set aside and a new trial ordered.

1. After referring to certain psychiatric evidence which had been adduced during the sentencing proceedings his Honour the Chief Justice concluded at [57]-[58] of his reasons:

57.It is open to conclude that this condition affected the conduct of the appellant both in terms of his perception of the effect of his conduct and, in particular, whether it was unwelcome or not.  The mere fact that he felt a compulsion to act as he did, if it constituted stalking, would not, of course, preclude a finding that the offence was proved.  Nevertheless, that adds to the desirability of a new trial with a focus on the issue of intent.

58.It follows that the conviction and sentence for stalking must be set aside as I have already determined.

1. In support of the present appeal, the Director of Public Prosecutions contended that contrary to the conclusion of the learned Chief Justice reproduced at [23] above, the magistrate had addressed the issue of intent. It was further said that there was “copious evidence” to support a finding of the requisite intent and “a clearer case of stalking it would be difficult to imagine”. The latter proposition may readily be conceded but that does not entail that the acts which objectively constituted stalking were done with knowledge or recklessness on the part of the actor that the stalking would be likely to harass the person stalked so as to satisfy the requisite intent.

1. In support of the contention that the magistrate had addressed the issue of intent, the Director of Public Prosecutions urged that a benevolent interpretation should be given to reasons delivered ex tempore in the Magistrates Court.  He referred to Acuthan v Coates (1986) 6 NSWLR 472 where Kirby P, with whom Glass and Mahoney JJA agreed, observed, at 478:

Fourthly, whilst it would have been preferable, at the conclusion of the passage just cited, for the magistrate to have severed the primary question and to have announced his decision to award costs, I am far from convinced that his failure to do so and his reference, before that announcement, to the inconvenience of the venue and the burden on the legal representatives, demonstrates either a confusion in his mind as to the two stage process he was engaged in or indicates that he took into account, on the primary question, matters which had been urged upon him on the issue of the quantum of costs. This conclusion is reached in part because of his thrice repeated recognition of the two questions that were before him and in part because he had correctly enumerated the principles in Barton v Berman which he had plainly read over the adjournment. In these circumstances, the preferable interpretation of the transcript is that the magistrate recognised the two stages of the discretion reposed in him by the section, recognised the principle governing the exercise of the discretion whether to award costs or not and proceeded to mention and incorporate other considerations which had been urged upon him as relevant to the second question, concerning the quantification of the costs. To suggest otherwise is to ignore the repeated references both by counsel and the magistrate to the two steps to be taken and the impeccable collection of the principles relevant to the first step which the magistrate had set out, in terms, in his reasons. It is also to fall into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates. When that substance is examined, it is sufficiently clear that the magistrate held the correct tests in mind and properly approached the exercise of the discretion reposed in him by the section.

1. We agree with that approach to the expression of a magistrate’s reasons in circumstances like those of the present case.  However, we are not persuaded that the approach can be called in aid of this appeal.  In Acuthan v Coates, Kirby P was able to discern from the magistrate’s reasons that he had applied the two-stage process required for the proper exercise of his discretion as to costs.  In the present case, by contrast, even after making due allowance for looseness of expression or structure, it is impossible to find in the magistrate’s reasons any identification of facts said to give rise to an inference that the respondent, in engaging in one or more of the conceded acts of stalking, intended to harass the complainant.  It follows, from the absence of any identification of that kind, that there was no explanation of why that inference should be drawn to the exclusion of any available contrary inference so as to require the requisite intent to be imputed to the respondent beyond reasonable doubt.

1. The omission to which we have just referred can be attributed to the magistrate with more confidence because of the complete absence from his Honour’s reasons of any reference to evidence which was argued, or might have been thought, to negative an inference of the requisite intent. Without purporting to be exhaustive, that evidence included statements by the respondent like that noted at [17] above that, “I don’t want to be a hassle” and some recorded in the record of interview of 30 May 2008 like his explanation of the gift of the engagement ring that, “I just wanted her to have it”, his statement that, “I’m just trying to say that the relationship is really important to me and that I really like her”, his characterisation of some of his text messages as “romantic” and his assertion that, “I don’t have any animosity towards Ms Herbert or anything like that”. It might also have been thought that the respondent’s uncommunicated expressions of devotion like the tattoo and the car registration plates were inconsistent with an intent to harass the complainant.

1. It was to evidence of that kind to which the learned Chief Justice referred when he said at [53] of his reasons that, “there was some evidence upon which a reasonable doubt might have been entertained”.  In our view, that observation does not attract the criticism expressed by Gummow, Hayne and Crennan JJ in R v Hillier (2007) 228 CLR 618, at 639 [52], to which we were referred by the Director of Public Prosecutions. In that passage their Honours said:

Assuming, as one must, that these “other aspects of the evidence” were those identified earlier in their Honours’ reasons, it by no means followed that it was not open to the jury to conclude that guilt had been proved beyond reasonable doubt.  The asserted conclusion would follow only if the significance to be given to the “other aspects of the evidence” was assessed separately from the rest of the evidence.  The reasoning of the majority was, therefore, erroneous.

(Original emphasis.)

1. In the present case, the learned Chief Justice did not find that it had not been open to the magistrate to conclude that guilt had been proved beyond reasonable doubt.  Indeed, his Honour’s order that the matter be remitted for rehearing is inconsistent with such a finding.  His Honour only identified a failure by the magistrate to consider properly, or at all, whether an element of the offence essential to a conclusion of guilt had been proved.  Consistently with that identification, with which we agree, his Honour remitted the matter to the Magistrates Court for rehearing “with a focus on the issue of intent”.

1. We accept that the magistrate identified or mentioned the issue of intent when his Honour said, first, in the passage quoted at [16] above, “the issue was simply whether the defendant intended to harm, harass or cause apprehension or fear in the mind of the complainant. It was a question of intent.” There was a second identification or mention of the issue of intent in the statement quoted at [18] above that, “the sole question is whether the defendant intended the conduct in the terms of s 35(1)(a) and (c) of the Crimes Act”.

1. However, that question was not answered by the finding which immediately follows it that, “the defendant was the author, the originator and initiator of the conduct complained of …”.  That finding was no more than that the respondent had conceived and carried out the various acts of stalking.  It said nothing about intent to harass.

1. 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).

1. 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

Counsel for the Appellant:  Mr J White
Solicitor for the Appellant:  ACT Director of Public Prosecutions
Counsel for the Respondent:  Ms T Warwick
Solicitor for the Respondent:  Mr S Stubbs
Date of Hearing:  11 November 2009
Date of Judgment:  26 November 2009