Evidence
Evidence Before The Court
The appellant filed a notice of appeal against his conviction and sentence, the grounds of which were that the verdict was unreasonable or could not be supported having regard to the evidence and that the sentence was manifestly excessive. At the hearing of the appeal the appellant was given leave to file an amended notice of appeal. The appellant abandoned his application for leave to appeal against sentence. The appellant also abandoned the original ground of his appeal against conviction. He now relies only upon grounds of appeal which concern the admissibility of and directions about the harassment evidence.Ground 1: It was an error for evidence of certain post-offence conduct by the appellant, namely the conduct constituting his stalking of the complainant, to be admitted as evidence in the trial In an earlier trial, a jury convicted the appellant of one count of stalking between 1 October 2012 and 14 January 2004. The stalking conviction was based upon evidence of what I have called the harassment. The jury acquitted the appellant of a different offence, one count of indecent treatment described as “the hot-tub incident”. The jury was unable to reach verdicts on the remaining counts, which were the subject of the re-trial. Before the earlier trial, the appellant applied for an order quashing the indictment because of the allegedly improper joinder of the count of unlawful stalking, or that there be a separate trial of that count. The application was refused by the judge who subsequently presided over the re-trial.[1] The trial judge refused the application for the reason that the evidence in relation to all of the charged offences was cross-admissible, the charges were properly joined under s 567(2) of the Criminal Code, at least on the basis of being founded on the same facts, and there was no relevant prejudice or embarrassment to the defence such as to warrant severance pursuant to s 597A of the Criminal Code. As the trial judge observed, the admissibility of the evidence of the sexual offences in proof of the stalking charge was evident. Accordingly the trial judge’s reasons focused upon the question whether the evidence admissible in proof of the stalking charge (the harassment evidence) was also admissible in proof of the sexual offences. The trial judge held that it was.[1]R v PBB, DC No 243 of 2015, pre-trial application pursuant to s 590AA, District Court at Maroochydore, 11 December 2015 (Long SC DCJ). The trial judge summarised the harassment evidence in reasons given for the interlocutory ruling before the first trial:-“[1] Around 26 or 27 October 2012 and in connection with the complainant attending a friend’s birthday party in Burnside, the defendant pulled over when he was driving past with his son (the complainant’s brother) and when the complainant was walking on a street with others, including a male friend. The defendant questioned her about who the others in the group were and whether they were trying to “hook” her up with “that guy”, before speeding off. Subsequently that night, the defendant repeatedly drove past the house at which the party took place, with the headlights of his car turned off and yelling out “you’re sluts”. The complainant’s mother was contacted and she went to the defendant’s house and found their son alone there and she confronted the defendant when he arrived home.[2]In March 2013 and a few days after he had been seen walking in the yard and past the bedroom window of the father of a friend of the complainant and at whose house she was at, the defendant sent Facebook messages to the complainant’s friend which included assertions “that [the complainant] did not love him anymore, that she did not have time for her father, thanking [her friend] for helping [the complainant] get him out of her life and accusing them of being lesbians. He also wrote “P.S. I bet your father had a good perve on [the complainant] over the weekend as I no [know] she likes to flash herself around and get people to look at her and show as much as possible”.[3]On 26 April 2013, the complainant’s mother was repeatedly telephoned by the defendant seeking information about the complainant. Her mother received a series of text messages from the defendant, in which he accused the complainant of having a boy with her, of not being at home and asking “where did the slut go?” He came to the house and banged on the doors yelling “where is the fucken’ slut? Bring the fucken slut out here, prove to me she’s at home. She’s got a fucken boy in there doesn’t she and you’re letting her have sex with him”. Later the complainant’s mother received a further text stating: “I didn’t want things to turn nasty but now there is no other way”.[4]On 6 May 2013, the defendant called out to the complainant as he went past in a friend’s car and she was walking with two male friends. Subsequently and after she had parted with her friends and was continuing alone, the defendant approached her, in his own car and “asked her invasive questions about what she had been doing with her two male friends”. After the defendant stopped his car and approached her on foot, the complainant ran home and together with her younger sister, locked the doors and hid in the house. She attempted to contact her mother and her mother was later “bombarded with calls from the defendant swearing and screaming that the complainant was a slut”.[5]On Saturday 5 October 2013, sometime after 2.00 am, the complainant found the defendant at the window to her bedroom, at her house in Nambour. He told her that “he wanted to talk to her about whether she would admit to having boys over”. When the complainant’s mother was alerted and she found the defendant stumbling around the back of the house and asked him what he was doing he responded that he wanted to talk to the complainant in private, “as he does not get the chance”. The defendant left but later called the complainant’s mother “saying that the complainant’s screen was ‘already half off the window’ and that she must be ‘waiting for a boy to come over and have sex’.”[6]On 7 October 2013 and after the defendant had collected his son at the complainant’s house, he stopped his car outside a neighbour’s house and began screaming out the window, using profane language and suggesting that he would bash “a paedophile” who was “perving on 15 year old girls”. Later that night the defendant telephoned and sent texts to the complainant’s mother accusing her neighbour of standing on his veranda and watching the complainant through her window and saying “she must dance around naked in front of her window for him and she probably likes it”. When the complainant’s mother reacted angrily, the defendant began to question why she was defending this person and said things including: “I bet he is paying you to let him have sex with her too and I bet she loves it, fucking whore”. Then and when the complainant’s mother told the defendant that the complainant closed her curtains when getting dressed, the defendant responded: “no she doesn’t, I saw her through the window the other night a few weeks ago”. When the complainant’s mother asked whether he watched the complainant getting dressed, he responded “well I couldn’t help it, she came in and stripped off her towel”. He added that he had turned his head but that the neighbour could have watched her. Over subsequent days the defendant continued to contact the complainant’s mother and made further accusations of her allowing the neighbour to watch the complainant naked and getting paid to allow him to have sex with the complainant. On 10 October 2013 he sent a text message to the complainant’s mother which included a threat to “sort him out with a baseball bat” before coming over to her house to “sort things out once and for all”.[7]In November 2013, the complainant’s mother became aware that the defendant was seeking information from others about a male friend of the complainant and with whom she had been texting. On 11 November 2013 the defendant sent a text message to the complainant’s mother about this boy and when she called the defendant to ask him to stop, he said “she ruined my life when she decided to not have anything to do with me, I’m going to make sure I ruin her life”.[8]On 15 November 2013, the defendant called the complainant’s mother and their conversation disintegrated, again, into assertions that the defendant made about the complainant. “The defendant threatened to kill himself but that first he was going to buy a gun and ‘hunt Mitch down’ as he ‘wasn’t going alone’.” In another argument by telephone with the complainant’s mother on 16 November 2014 the defendant said that when the complainant moved away he would “track her down and get his revenge”.[9]In a further conversation with the complainant’s mother on 22 November 2013, the defendant made further threats, including that if the complainant’s mother wouldn’t let him be in the complainant’s life, he would make sure she could not have the complainant either.[10]On 19 December 2013, the complainant slept over at a friend’s house and she and her friend went for a walk. When the defendant drove past, he turned the car around, drove back towards them and yelled obscenities, including “you’re all fucking sluts”.[11]On 5 January 2014, the defendant telephoned the complainant’s mother and yelled obscenities about the complainant’s boyfriend, “saying he was having sex with [the complainant]”. He made threats to “hunt” and “bash him”. Later that day and when the defendant came to the complainant’s house to drop off his son, he yelled out “[the complainant] is a fucking slut” and “[the complainant] is a fucking slut whore” before driving off. He later called the complainant’s mother, asking if he had caused enough of a scene for the neighbours to hear.[2][2]Numbering added.