R v Tarasiuk - [2019] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tarasiuk [2019] QCA 165

PARTIES:

R
v
TARASIUK, Steven John
(appellant/applicant)

FILE NO/S:

CA No 296 of 2018
DC No 2553 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 8 November 2018; Date of Sentence: 9 November 2018 (Dearden DCJ)

DELIVERED ON:

30 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2019

JUDGES:

Gotterson and Morrison JJA and Bowskill J

ORDERS:

1. The appeal against conviction is dismissed.

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

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – STALKING – where the appellant was found guilty of one count of unlawful stalking – where the appellant was sentenced to 15 months’ imprisonment, suspended after five months, with an operational period of four years – where the appellant was also the subject of a restraining order – where the offending conduct arose out of the appellant’s behaviour towards his neighbours during the construction of his house on a vacant block of land between the two sets of neighbours – where various complaints were made by both complainants to various bodies, including the Brisbane City Council, the Queensland Building and Construction Commission (QBCC) and the Police – whether the conduct of the appellant amounted to unlawful stalking

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant challenges his conviction on the ground that the verdict was unreasonable and not supported by the evidence – where it is submitted that the conduct of the appellant could not have, in a legal sense, risen to the level contemplated by the legislation with respect to an offence of stalking – where it was contended that if it was found that the conduct of the appellant was capable of being found to be a count of stalking, then the appellant’s conduct could not have been found to be stalking in this case, as the conduct could only have risen to the level of nuisance and nothing more – where it was contended that the particulars and the evidence did not satisfy the elements of stalking under s 359B of the Criminal Code – whether the conduct of the appellant satisfied the elements of stalking under s 359B of the Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where the appellant contends that the prosecution’s indication that it no longer relied on Particular 13 denied the opportunity of a fair trial, thereby causing a miscarriage of justice – where Particular 13 concerned a CCTV camera which appeared mounted to the wall of the appellant’s house, and apparently pointing into the complainant’s bedroom – where independent evidence at the trial from the person who installed the camera established that even…

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 Tarasiuk

Details

AGLC: R v Tarasiuk [2019] QCA 165
Case: [2019] QCA 165
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the case of R v Tarasiuk, the appellant was found guilty of unlawful stalking by the court. The dispute arose from the appellant's conduct towards his neighbours during the construction of his house on a vacant block of land. Various complaints were made by the complainants to multiple bodies, including the Brisbane City Council, the Queensland Building and Construction Commission (QBCC), and the police. The court was required to decide whether the appellant's conduct amounted to unlawful stalking and whether the trial judge made any errors that resulted in a miscarriage of justice. The court also considered whether the sentence imposed was manifestly excessive.

The court found that the appellant's conduct satisfied the elements of stalking under section 359B of the Criminal Code. The evidence presented by the witnesses, particularly Mrs Duetz, showed that the appellant's behaviour was intimidating and caused fear and discomfort to the complainants. The court was not persuaded that the verdict was unreasonable or not supported by the evidence. Regarding the potential miscarriage of justice, the court found that the trial judge did not err in handling the abandonment of Particular 13, nor in discharging one juror and replacing them with a reserve juror. Lastly, the court concluded that the sentence imposed was not manifestly excessive, taking into account the nature and circumstances of the offence, and the need for deterrence and denunciation.

In conclusion, the appeal against conviction was dismissed, and the application for leave to appeal against the sentence was refused. The orders made by the court are as follows: (1) the appeal against conviction is dismissed, and (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

For the purposes of the current appeal it is only necessary to examine the evidence of some of the witnesses who were called during the trial. The evidence given by members of the Coates family related mainly to other counts which were either discontinued or upon which the appellant was acquitted. In what follows I intend to refer only to those witnesses whose evidence touches upon Count 4, upon which the appellant was found guilty.Evidence of Mrs Duetz Mrs Duetz lived with her husband and three children in the property next to that owned by the appellant, and upon which he was constructing a house. She gave evidence that she had been a solicitor[2] and town planner, but as at the time of the trial had not worked for a number of years. She gave some general evidence about the subdivision of the block upon which they lived, and meeting the appellant for the first time when he sought a copy of their engineering plans prior to commencing his construction. She also gave some general evidence about the fact that she spoke to a private certifier from the Council about some concerns she had as to whether the construction complied with various codes and with the Council approval.[3][2]Qualified but never practised.[3]AB 970-971. In her evidence in chief Mrs Duetz gave fairly precise evidence in respect of each of the particulars in the schedule above. The precision of her recollection extended to the particular dates and the identification of various matters by photograph. As well she described her reaction to the various particularised pieces of conduct. I will summarise them as briefly as maybe done. Particular 1: she described the writing on the wall and identified Exhibit 72 as the photograph of the graffiti. She said it made her feel “very unsettled as to who our neighbour is going to be if someone would do that”.[4][4]AB 972 line 38. Particular 2: she described that the appellant had an excavator which was digging a deep cut beside the Duetz’s retaining wall. She was watching in case something happened to that wall. The next morning she was sitting at her kitchen bench having breakfast when she suddenly realised that the appellant was standing on the mound of earth, above the wall, leaning on it and “watching me have my breakfast, which made me feel very, very unnerved”. She finished eating her breakfast and at that point the appellant was “still there just staring at me”.[5] He was staring at her for about five minutes which made her feel “very intimidated” because he was only a metre or so away from her house.[6][5]AB 973 lines 37-44.[6]AB 974. Particular 3: that afternoon she said she was getting out of her car in the driveway when the appellant walked up behind the car and stood there while she got out. He then followed her along the footpath right to her gate. She said that “really scared me”.[7][7]AB 974 line 11. Particular 4: Later that afternoon Mrs Duetz said her husband called the appellant over to have a conversation with him. The appellant was “very confrontational and he was sort of talking up to [Mr Duetz]”. She said that the whole day had been “very frightening”, and that the confrontation made her concerned about what would happen with herself, and she was “also frightened of anything physical happening to my husband”.[8][8]AB 975 lines 40-47.

Decision

Reasons for decision

The application for leave to appeal against sentence should be refused.Conclusion and orders For the reasons which I have expressed above, the appeal against conviction should be dismissed. On a review of the whole of the evidence it was open to the jury to find the appellant guilty. I am not persuaded that an innocent person has been convicted. Further, leave to appeal against the sentence should be refused. I propose the following orders:1.The appeal against conviction is dismissed.2.The application for leave to appeal against sentence is refused. BOWSKILL J: I agree with the reasons of Morrison JA, and with the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Tarasiuk [2019] QCA 165
PARTIES:	R v TARASIUK, Steven John (appellant/applicant)
FILE NO/S:	CA No 296 of 2018 DC No 2553 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 8 November 2018; Date of Sentence: 9 November 2018 (Dearden DCJ)
DELIVERED ON:	30 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11 April 2019
JUDGES:	Gotterson and Morrison JJA and Bowskill J
ORDERS:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MISCELLANEOUS OFFENCES – STALKING – where the appellant was found guilty of one count of unlawful stalking – where the appellant was sentenced to 15 months’ imprisonment, suspended after five months, with an operational period of four years – where the appellant was also the subject of a restraining order – where the offending conduct arose out of the appellant’s behaviour towards his neighbours during the construction of his house on a vacant block of land between the two sets of neighbours – where various complaints were made by both complainants to various bodies, including the Brisbane City Council, the Queensland Building and Construction Commission (QBCC) and the Police – whether the conduct of the appellant amounted to unlawful stalking CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant challenges his conviction on the ground that the verdict was unreasonable and not supported by the evidence – where it is submitted that the conduct of the appellant could not have, in a legal sense, risen to the level contemplated by the legislation with respect to an offence of stalking – where it was contended that if it was found that the conduct of the appellant was capable of being found to be a count of stalking, then the appellant’s conduct could not have been found to be stalking in this case, as the conduct could only have risen to the level of nuisance and nothing more – where it was contended that the particulars and the evidence did not satisfy the elements of stalking under s 359B of the Criminal Code – whether the conduct of the appellant satisfied the elements of stalking under s 359B of the Criminal Code CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where the appellant contends that the prosecution’s indication that it no longer relied on Particular 13 denied the opportunity of a fair trial, thereby causing a miscarriage of justice – where Particular 13 concerned a CCTV camera which appeared mounted to the wall of the appellant’s house, and apparently pointing into the complainant’s bedroom – where independent evidence at the trial from the person who installed the camera established that even…