R v Tupper - [1998] QCA 362

COURT OF APPEAL

[1998] QCA 362

McPHERSON JA
THOMAS JA

CULLINANE J

CA No 208 of 1998
THE QUEEN
v.

ANTHONY NOEL TUPPER (Applicant)

and

CA No 221 of 1998
THE QUEEN
v.
ANTHONY NOEL TUPPER

(Respondent)

and
ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

BRISBANE
..DATE 22/09/98
220998 T09/LZG14 M/T COA238/98
McPHERSON JA: I'll ask Mr Justice Cullinane to give the first
judgment in this matter.

CULLINANE J: In this matter the appellant appeals against his conviction on a count of stalking and seeks leave to appeal against a sentence of three years imprisonment with a recommendation that he be eligible to be released on parole after nine months imposed in respect of that count. In addition, the Attorney-General has appealed against the alleged inadequacy of the sentence imposed.

The offence arose out of a history of ill-feeling between the appellant and a man Bleisner which had, as its background, some earlier sexual relationship between Bleisner and the appellant's wife. It appears that the appellant formed the belief that his wife had been raped by Bleisner whereas Bleisner contended that the relationship was consensual.

The appellant was placed on probation in relation to a count of stalking involving Bleisner, the probation order being made on 28 November 1996. It was subject to two requirements; one of which was that the applicant have no contact, direct or indirect, with Bleisner, Bleisner's wife or his mother. It appears that there had been a history of telephone calls which constituted the basis of that offence.

The offence the subject of this appeal is alleged to have been committed by a series of actions claimed to constitute concerning acts for the purposes of section 359A of the Criminal Code, said to have been committed between August 1996 220998 T09/LZG14 M/T COA238/98

and March 1997. Two circumstances of aggravation were alleged in relation to the offence. The first was that one of the concerning acts involved a threat of violence to the man Bleisner. A second circumstance of aggravation alleged is that some of the concerning acts contravene an order imposed by a Court under the law of the State of Queensland - this is a reference to the probation order.

Not all of the concerning acts opened to the jury were ultimately persisted in by the prosecution. Primarily they were said to concern the man Bleisner, whilst in two instances it was the case for the prosecution that they concerned Bleisner's wife.

The offence of unlawful stalking requires proof: (a) that a person engages in a course of conduct which involves doing a concerning act on at least two separate occasions to another person or other persons; (b) that the person whose conduct constitutes a concerning act intends that a second person be aware that the course of conduct is directed at that person, even though the concerning acts may be done to or to the property of a person other than that person; (c) the second person is aware that the course of conduct is…

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 Tupper

Details

AGLC: R v Tupper [1998] QCA 362
Case: [1998] QCA 362
Decision Date: 22/09/1998

CaseChat Overview and Summary

In the case of R v Tupper, the applicant, Anthony Noel Tupper, was convicted of stalking and sentenced to three years imprisonment with a recommendation for eligibility for release on parole after nine months. The Attorney-General appealed against the conviction and sentence, arguing that the sentence was inadequate. The offence arose from a history of ill-feeling between the appellant and Bleisner, which stemmed from a previous sexual relationship between Bleisner and the appellant's wife. The appellant had formed the belief that his wife had been raped by Bleisner, whereas Bleisner claimed the relationship was consensual. The stalking offence involved a series of concerning acts committed between August 1996 and March 1997, which were alleged to have contravened a probation order requiring the appellant to have no contact with Bleisner or his family.

The legal issues before the court were whether the conviction was unsafe and unsatisfactory and whether the sentence was appropriate. The court considered the evidence and found that it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty of the stalking offence. The court also found that the sentence, while at the top of the range, was appropriate considering the appellant's intellectual difficulties and the impact of his conduct on the victim. The court dismissed both the appeal against conviction and the application for leave to appeal against sentence.

The final orders of the court were that the appeal against conviction and the application for leave to appeal against sentence were dismissed, and the original sentence of three years imprisonment with a recommendation for eligibility for release on parole after nine months was upheld.

Orders